And Mwitwa says much as ex-parte court orders are legal, it is important to ensure that the provision is never abused.
Speaking in an interview, Mwitwa said Milingo was not precluded from conducting business, but there was not for him to state his official position in the ruling party.
“I know that there have been concerns that one of our council members has been a liquidator, Mr Milingo Lungu [in the KCM] matter and there are also allegations that he is a PF member [but] I don’t know whether that is true or not, it is something that we have asked him to clarify if it is true,” Mwitwa said.
“But whether it’s him or anybody else that is appointed liquidator, if there is any violation of the rule of law, we will definitely have to take a position on that. You see when you a member of the LAZ council, it doesn’t mean that you stop practicing law. Even for me as LAZ president I still practice law, I go to court and represent people and I am not precluded from representing any matter. But if there is any matter where I think that because of my position in LAZ then there will be a conflict of interest, I am duty bound to tell the client that ‘I can’t take up this matter because of potential conflict or even an actual conflict.”
The LAZ president also explained the difference between ex-parte and consent order, noting the need for inter-parte hearing to settle dispute.
“Ex-parte orders are part and parcel of the court process in matters where somebody believes that they have an urgent issue that the courts need to determine urgently without the need for the other person involved or be heard. The court in its discretion can grant an ex-parte order. So an ex-parte order is a temporal order and it can only be confirmed by the court after the other party has been heard. So that is part and parcel of the rules of the court. And that is different with the consent order. A consent order is where two people decide that this is how they want to proceed with the matter,” Mwitwa said.
“But on the ex-parte order, there is need for the applicant to convince the judge that this particular application merits an order without the other party being heard. And if the judge is convinced that this is a matter in which an ex-parte order can be issued, he issues. It’s part and parcel of our adversarial court system, and it is not to be abused. Otherwise, as far as we are concerned, there is nothing wrong with such orders, because as lawyers we all go through the same processes. So if somebody gets a judgment against me today, I can go to court and get the same ex-parte order and ask that the court should stay execution of that judgment. So it is not an illegal order,” he explained.
Meanwhile, Mwitwa said those accusing LAZ of being silent “when companies were being liquidated through ex-parte orders”, were not being sincere.
“In our view, people making such allegations should cite specific instances of companies that have been wound up through ex parte orders. If specific instances are provided it would be easier for LAZ to assist the public to understand the legalities behind such closures. In any event, all our courts have rules that regulate their procedures and ex parte orders are part and parcel of our rules of court. The rules specify the matters and applications where courts can grant ex parte orders,” said Mwitwa.