Judge Bobo halts KCM liquidation proceedings to hear Vedanta’s arbitration application

Lusaka High Court judge Annessie Banda-Bobo has stayed proceedings in a matter in which ZCCM Investments Holdings PLC is seeking an order to have Konkola Copper Mines (KCM) liquidated.

The proceedings have been halted to allow an inter-parte hearing on the application by Vedanta Resources Holdings Limited to stay proceedings and refer the matter to arbitration.

Vedanta Resources Holdings Limited has applied for an urgent court order in the South African Courts, directing ZCCM to withdraw the winding-up proceedings against Konkola Copper Mines (KCM) in the country.

Vedanta further wants a declaration that ZCCM has breached the KCM Shareholders’ Agreement by pursuing winding-up proceedings against the mining company.

According to a statement issued by Vedanta, Thursday, the company obtained an ex-parte order in the South African High Court on Wednesday, granting it leave to institute an urgent application against ZCCM and KCM provisional liquidator Milingo Lungu.

“Vedanta Resources Holdings Limited yesterday obtained an ex-parte order in the High Court of South Africa granting it leave to institute an urgent interim interdict application (the Urgent Application) out of the South African High Court in Johannesburg against ZCCM Investments Holdings PLC (ZCCM), a Zambian company, and
Mr Milingo Lungu in his capacity as provisional liquidator of KCM,” read the statement.

“In terms of the Urgent Application (served on both ZCCM and the Provisional Liquidator in Zambia yesterday), Vedanta will seek an interim court order declaring that ZCCM has breached the KCM Shareholders’ Agreement by pursuing winding-up proceedings against KCM in Zambia, and directing ZCCM to withdraw those proceedings (thus removing the Provisional Liquidator),” read the statement further.

Vedanta stated that if the interim order was granted, the said order would remain in place until the arbitration had been resolved.

“In other words, if the Urgent Application, to be heard on July 16, 2019, succeeds and an interim order is granted, the order will remain in place until the arbitration – to be instituted in due course – has been finally resolved. Vedanta approached the South African High Court based both on the agreement to arbitrate
contained in the KCM Shareholders’ Agreement, and the selection of Johannesburg as the seat of arbitration,” read Vedanta’s statement.

“The application is brought in terms of the South African International Arbitration Act, 2017, which facilitates the conduct of disputes of this nature in South Africa. This Act gives effect to internationally recognised principles aimed at facilitating the resolution of commercial disputes where cross-border parties have agreed to do so by way of arbitration.”

Meanwhile, in Lusaka yesterday, justice Banda-Bobo signed summons for an order to stay proceedings and refer parties to arbitration pursuant to section 10 of the Arbitration Act of no. 19 of 2000 of the Laws of Zambia.

“Let all parties concerned attend before justice Banda-Bobo in chambers on July 29, 2019, at 10:00 hours. Thereafter as counsel can be heard on the hearing of an application on behalf of the above named contributor (Vedanta) for an order to stay proceedings and refer the matter that is subject of these proceedings to arbitration for reasons as are stated in the affidavit in support herewith and the costs of and incidental to these proceedings be in the cause,” read the order.

Justice Banda-Bobo said during hearing of the matter that she had been made aware of the case in South Africa in which Vedanta had obtained leave to institute an urgent interdict application against ZCCM-IH and KCM provisional liquidator Milingo Lungu, although she didn’t know the nature.

“As regards the case in South Africa, I have been made aware of although I don’t know the nature but I will obtain instructions with a view to ensure that they do not have an impact on the matters in Zambia,” she said.

Justice Banda-Bobo advised lawyers to be careful in the manner they commenced the matter as they risked to be in contempt of court.

She said she would proceed to hear the other applications in the event that the inter-parte hearing to take the matter to arbitration was concluded.

“My direction is that I will hear the application to stay the hearing of this matter inter party and only then will I proceed to hear the other applications including the one which ought to have been heard today,” justice Banda-Bobo said.

Meanwhile, KCM has submitted that it was desirous to represent it’s interest in the winding-up petition.

Maxwell Mainsa, a Zambian of Chingola and employed by ZCCM-IH as legal counsel and also acting company secretary, stated that it was for this reason that the mining company was applying for leave to file an answer and affidavit in reply out of time.




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