ZCCM Investment Holdings has argued that the High Court will be assuming jurisdiction it does not have by determining Vedanta Resources Holdings Limited’s application for directions regarding the extent of Milingo Lungu’s powers as KCM provisional liquidator following the staying of winding-up proceedings against the mining company and the dispute referred to arbitration.
ZCCM-IH has submitted that as the winding-up proceedings were frozen by the Court of Appeal, Vedanta’s application would have the effect of changing the status quo.
It adds that Vedanta has made its application with full knowledge that the proceedings have not been unfrozen.
This is according to ZCCM’s skeleton arguments in reply to Vedanta’s skeleton arguments in opposition to motion to raise preliminary issues.
It argued that the court should not allow Vedanta to enter through the window when the door had been shut.
ZCCM-IH also argued that Vedanta did not request for the winding-up proceedings to be stayed without reservation nor did the Court of Appeal in its judgement make an order to that effect.
It submitted that as such, Vedanta cannot be splitting hairs as to the effect of the stay of proceedings ordered by the Court of Appeal.
ZCCM-IH further submitted that the stay of proceedings ordered by the Court of Appeal did not terminate the proceedings before the High Court but simply applied breaks, which have not been lifted, as the arbitration had not been concluded nor has there being a further order of an appellate court discharging the stay.
It added that as there had been no change in circumstances with respect to the arbitration itself, there was nothing to warrant the revival and continuation of these proceedings.
“We submit that Vedanta has made its application with full knowledge that the proceedings have not been unfrozen or the brakes being uplifted. We confirm our views that Vedanta has abused court process,” ZCCM-IH stated.
“We reiterate our prayer for the motion to succeed with costs payable forthwith.”
In this matter, ZCCM-IH petitioned the Lusaka High Court on May 21, 2019, seeking an order that KCM should be wound up for engaging in tax evasion and being managed in a manner detrimental to its interest, among other allegations.
On November 20, last year, the Court of Appeal ordered a stay of the winding-up proceedings that ZCCM-IH has instituted against KCM in the High Court and referred the matter to arbitration as requested by Vedanta Resources Holdings Limited.
However, Vedanta Resources Holdings Limited recently asked the Lusaka High Court to give directions regarding the extent of Milingo’s powers in light of the Court of Appeal’s decision to stay the winding-up proceedings and refer the dispute to arbitration.
Vedanta also wants the High Court to give directions on whether the provisional liquidator has the power to restructure or reorganize KCM by splitting its operations between two separate entities, and whether the transfer of the mining company’s property without the approval of the court is void pursuant to section 62 of the Corporate Insolvency Act.
It further wants directions on whether the powers granted to Milingo by the High Court extend to the provisional liquidator incorporating subsidiaries of KCM and whether the said provisional liquidator is able to exercise the powers granted by the court over subsidiaries of KCM, among others.
But KCM and ZCCM Investment Holdings asked the court not to entertain Vedanta’s summons for directions and also raised some preliminary issues.
ZCCM-IH wants the court to give directions on whether the High Court has jurisdiction to hear and determine summons for directions when winding-up proceedings have been stayed and dispute referred to arbitration by the Court of Appeal.
It also wants the Court’s direction on whether after the winding up proceedings were stayed and dispute referred to arbitration, it is open to Vedanta Resources Holdings Limited to take further steps in the action.
ZCCM-IH argued that as the Court of Appeal stayed the winding up proceedings and referred the matter to arbitration without any reservation, the High Court could not proceed to hear and determine Vedanta’s summons for directions, for want of jurisdiction.
It further submitted that as an appellate court, the decisions of the Court of Appeal were binding on the High Court and that if the High Court were to proceed to hear and determine Vedanta’s summons for directions, such act would not only be in defiance of the Court of Appeal judgement but would also call into question the judicial hierarchy system as established by the Constitution.
And Milingo argued that the stay of proceedings before the High Court was still in place, adding that no further steps may be taken by any party or person in the proceedings to progress the matter any further until the stay was lifted or ceased to exist.
However, Vedanta argued that Milingo having been appointed by the Lusaka High Court as Konkola Copper Mines provisional liquidator, was subject of supervision by the court.
It added that although the Court of Appeal halted the winding-up proceedings against KCM, it did not stay the supervisory powers of the High Court over the provisional liquidator.
Vedanta therefore submitted that its application for directions regarding the extent of Milingo’s powers following the halting of KCM’s winding-up proceedings and the dispute referred to arbitration, was properly before the High Court.