IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) P/1243

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1 IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) P/1243 IN THE MATTER OF AN APPLICA TO ORDER 53 OF THE RULES OF T.n..c,...~~:n.1:1 (WHITE BOOK) AND IN THE MATTER FOR AN ORDER FOR MANDAMUS AGAINST THE MINISTER OF FINANCE AND NATIONAL PLANNING FOR THE APPOINTMENT OF THE MEMBERS AND THE REGISTRAR OF THE CAPITAL MARKETS TRIBUNAL PURSUANT TO INTER ALIA SECTIONS 185 AND 188 OF PART XVII THE SECURJTIES ACT NO. 41 OF 2016 OF THE LAWS OF ZAMBIA AND IN THE MATTER OF A DECISION OF THE SECURITIES AND EXCHANGE COMMISSION DECISION OF 5 JUNE 2017 BEING A DECISION SOUGHT TO BE CHALLENGED BY THE APPLICANTS BUT WHICH THE APPLICANTS HAVE NO FORUM TO BE HEARD DUE TO THE NON APPOINTMENT OF THE MEMBERS AND REGISTRAR OF THE CAPITAL MARKETS TRIBUNAL BETWEEN: ANHEUSER-BUSCH INBEV ZAMBIAN BREWERIES PLC NATIONAL BREWERIES PLC 1 ST APPLICANT 2 ND APPLICANT 3RD APPLICANT AND THE ATTORNEY GENERAL THE MINISTER OF FINANCE AND NATIONAL PLANNING THE SECURITIES AND EXCHANGE COMMISSION 1 ST RESPONDENT 2 ND RESPONDENT 3 RD RESPONDENT BEFORE THE HON. MRS JUSTICES. M WANJELANI IN CHAMBERS ON THE 12TH DAY OF JUNE, 2018 Rl

2 For the Applicants: Mr. R. Peterson, Messrs Chibesakunda & Co, with Mrs. D. A. Bwalya, Legal Counsel, Zambian Breweries PLC For the ]st & 2 nd Respondents: Ms. B. Kafunya, State Advocate, Attorney General's Chambers For the 3 rd Respondent: Not Applicable JUDGMENT Case referred to: 1. Mungomba and Others V Machungwa and Others, SCZ Judgment No.3Of Fredrick Titus Chiluba V The Attorney General(2003) ZR R. varchbishop of Canterbury and Bishop of London (1812)15 East Newplast Industries V the Commissioner of Lands (200l}ZR Nyampala Safaris Limited and Others V Zambia Wildlife Authority and Others (2004) ZR 49 Legislation and materials referred to: 1. The Securities Act No. 14 of The Rules of the Supreme Court, 1999 Edition (White Book). 3. Paul Craig "Administrative Law", 7th Edition, Sweet and Maxwell(2012) This Matter was commenced by way of Judicial Review following the Leave that was granted pursuant to Order 53, Rules of the Supreme Court. The Application is supported by an Affidavit sworn by Deborah Anne Bwalya, the Legal Counsel for Zambian Breweries. The Affidavit outlines the events of th e 1 st Applicant's merger.f 2

3 transactions with SAB Miller PLC which had the effect of triggering a mandatory offer for purposes of protecting the minority shareholders in the 2nd and 3rd Applicants. She averred that the 1st Applicant applied for a waiver to the Security and Exchange Commission( the "Commission") from making the mandatory offer in line with the Third Schedule of the Securities (Take over and Mergers) Rules, and this was granted, attracting payment of a fee under Statutory Instrument No. 82 of The Deponent contended that the 3rd Respondent then demanded a purported ''Authorization Fee" in respect of the Takeover transaction involving the 2 d and 3rd Applicants amounting to ZMW4,571, and ZMW 888, respectively and upon advice of the 3rd Respondent, they applied for a 100 /o waiver, but only 60 /o was granted, with the 40o/o to be paid within 14 days. It was against this decision that the Applicants sought and still seek to appeal to the Capital Markets Tribunal (the "Tribunal") but the Notice of Appeal could not be filed as the Registrar of Tribunal has not been appointed. It is contended that this non-appointment of the Tribunal has led to the Applicants being denied due process of the law. Thus the Applicants seek the following reliefs: i. pursuant to the Securities Act. No. 41 of 2016, an Order of Mandamus compelling the 2 nd Respondent to appoint the Chairperson, Vice Chairperson and the three Members of the Tribunal; J3

4 .. ' ii. ni. pursuant to the Securities Act. No. 41 of 2016, an Order of Mandamus compelling the 2 nd Respondent to appoint the Registrar of the Tribunal; and pursuant to Order 53 Rule 3(10)(a) and (b) of the Supreme Court Rules, an immediate interim Stay of the proceedings to which the Applicants relate, being the decision of the 3rd Respondent date 5 th June, 2017, which Stay of the proceedings shall prevent the 3rd Respondent from levying any form of execution against the Applicants pending the appointment of the Members and Registrar of the Capital Markets Tribunal to allow for the Applicants to process the statutory appeal and have the matter heard by the Tribunal. According to the Applicants, the grounds on which relief is sought are to the effect th at the failure by the 2 nd Respondent to appoint the Members of the Tribunal is a violation of the provisions of the Securities Act, thereby denying the Applicants the due process and natural justice to have their appeal against the 3rd Respondent's decision heard. It was further contended that the neglect in appointing the Tribunal has the effect of making the 3rd Respondent's decision final, not amenable to the statutory appeal as provided in the Securities Act, contrary to the principles of natural justice and making the 3rd respondent a Judge in its own cause. It was further argued that as the merits and demerits of the 3rd Respondent's decision cannot b e heard by way of statutory appeal prior to the appointment of the Tribunal, those proceedings J4

5 should be stayed pending the appointment of the requisite Officers of the Tribunal. The 2nd Respondent opposed the application in an Affidavit sworn by the Permanent Secretary in the Ministry of Finance, Mukuli Chikuba, though substantively admitting the averments in the Applicants' Affidavit in Support as regards the non-appointment of the Members of the Tribunal and that the Applicants had written to the Minister of Finance querying whether the Minister had appointed the Tribunal. In essence, it was averred that the 2nd Respondent was in the process of appointing the Tribunal as required by the law. The claim against the 3rd Respondent in these proceedings was dismissed on 27th February, 2018, when this Court upheld a Preliminary Issue raised by the 3rd Respondent that the claim against the 3 rd Respondent was improperly before Court as it should have been commenced by way of Appeal as provided in the Securities Act. During the hearing, Counsel relied on their respective Affidavits and Counsel for the Applicants prayed that the decision of the 3 rd Respondent be stayed pending appointment of the Tribunal. I have carefully considered the Affidavits, the skeleton arguments on record and the submissions by respective Counsel. It is trite that judicial review is concerned with the decision making process of a public body to which an individual has been subjected 15

6 and not the merits of th e decision. Thus this Court has to consider whether the public body had the power to act in the matter in the manner it did, whether it followed procedure, whether it exceeded its jurisdiction as provided in Order 53 of the Rules of the Supreme Court and as elaborated by the Supreme Court in the cases of Mungomba and Others V Machungwa and Others111, and Fredrick Titus Chiluba V The Attorney Genera1t 2 1. The history under Order 53, states th at the public law remedy of judicial review was introduced to create: "a uniform, flexible and comprehensive code of procedure for the exercise by the High Court of its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals or other persons or bodies which perform public duties or functions... the "application for judicial review" would enabl.e a person seeking to challenge an administrative act or omission to apply to the High Court either for one of the prerogative orders of mandamus, certiorari, or prohibition, or, in appropriate circumstances, a declaration, an injunction, or damages. "(underline for emphasis only). Further under Order 53/1-14/21 the Order of Mandamus has been described as "an order requiring an inferior court or tribunal or a person or body of persons charged with a public duty to carry out its judicial or other public duty. An order of mandamus cannot be made against the Crown..., but it 16

7 .. will lie against an officer of the Crown who is obliged by statute to do som.e ministerial or administrative act which affects the rights or interests of the applicant". In addition, according to Halsbury's Laws of England Volume 1, 4 th Edition. "the Order of Mandamus is a command directed to any person, corporation or inferior tribunal requiring him or them to do some specific thing which appertains to his or their office and is in the nature of public duty... its purpose is to remedy the defects of justice and accordingly, it will issue to the end that justice may be done and in all cases where there is a specific legal. ht /I n.g... And further Lord Ellenborough is cited in the case of R. v Archbishop of Canterbury and Bishop of Londont 3 l, at 136, as having stated inter alia that: "By Magna Charta, the Crown is bound neither to deny justice to anybody nor delay anybody in obtaining justice. If therefore, there is no other means of obtaining justice, the Writ of Mandamus is issued to enable justice to be done". It is evident from the above cited authorities that judicial review is not only concerned with the decision making process but also the failure by a public official to make a decision or perform a public duty imposed by statute. 17

8 Having established the circumstances in which the Order of Mandamus can be issued, a perusal of the facts of this case shows that the salient facts are common cause, that is that the Applicants are aggrieved by a decision of the 3rd Respondent and they seek to appeal that decision to the Tribu nal. It is not in dispute from the 2nd Respondent's Affidavit that the Applicants wrote to inquire on whether the Tribunal had been set up and that the 2nd Respondent has averred that it's in the process of setting up the said Tribunal as per Paragraph 7 of the said Affidavit. However, the 2nd Respondent contends in Paragraphs 8 and 9 of its Affidavit in Opposition that: "... the Applicants have a forum in which their statutory appeal can be processed and heard in accordance with the provisions of the Securities Act although not fully operational... that the decision of the 3rd Respondent is not.final as the Applicants can still appeal to the Tribunal when it is in place and are not prejudiced in any way. " A perusal of the relevant provisions of the Securities Act shows that Section 184( 1) establishes the Capital Markets Tribunal while subsection (2) states: "The Tribunal shall be a superior court of record and shall have an official seal which shall be judicially noticed. " In addition, subsection (3) states: "The Tribunal shall have jurisdiction to hear and determine - (a) appeals from decisions of the Commission, or a person J8

9 ... exercising the functions or powers of the Commission; {b) proceedings relating to misconduct in the securities market; and {c) such other matters as may be specified in, or prescribed in terms of this Act or any other written law." The above provisions make it clear that any person aggrieved by a decision of the Commission has to appeal that decision to the Tribunal, contrary to the assertion by the 2 d Respondent that the Applicants have a "forum in which their statutory appeal can be processed and heard in accordance with the provisions of the Securities Act". I am fortified in holding this view, based on the trite position of the law as alluded to in a plethora of authorities including in the case of Newplast Industries V the Commissioner of Lands( 41 it was held that: "it is not entirely correct that the mode of commencement of any action largely depends on the reliefs sought. The correct position is that the mode of commencement of any action is generally provided by statute." The n ext issue is who is responsible for appointing the Members of the Tribunal and the Registrar of the said Tribunal? The Securities Act is explicit as it provides for the appointment of the Members of the Tribunal in section 185( 1) and states: ''The Tribunal shall consist of the following part-time members who shall be appointed by the Minister... " 19

10 ... Whereas section 188( 1) provides that: "There shall be a Registrar of the Tribunal who shall be appointed by the Minister in consultation with the Judicial Service Commission. " The Applicants seek an Order of Mandmus to compel the 2nd Respondent to appoint the Tribunal together with the Registrar in order for them to lodge a challenge against the 3rd Respondent's decision. According to the Learned author Paul Craig in his book "Administrative Law", 7th Edition, at page 812, for the mandamus to lie, there must be a public duty owed to the applicant which could flow from a statute, common law or contract and this duty must be owed to the individual. Taking into account the facts and submissions in this matter, the cited authorities and the provisions of the Securities Act, I find that: I. the 3rd Respondent made a decision, pursuant to its functions as stated in Section 9 of the Securities Act; II. the Applicants are aggrieved by the said decision, which can only be addressed by way of an appeal to the Tribunal; III. the 2nd Respondent, is a public official who is mandated by the Securities Act to appoint Members of the Tribunal and the Registrar of the Tribunal; IV. the 2nd Respondent has not exercised those powers despite the Act being assented to on 19th December, 2016; JlO

11 ... ', V. the lack of the 2 d Respondent's appointment of the Tribunal VI. has left the Applicants with no forum to challenge the 3rd Respondent's d ecision; and the 2nd Respondent owes a public duty to the Applicants and others in the Securities market to establish the Tribunal and this duty flows from statute, that is the Securities Act. In further making a determination of this matter, I am guided by the Supreme Court in the case of Nyampala Safaris Limited and Others V Zambia Wildlife Authority and Others l 5 l, where it was held, inter alia, that : "the purpose of judicial revi.ew is to ensure that the indivi.dual is given fair treatment by the authority, to which he has been subject". Consequently and guided by the authorities cited herein, I find that 2 nd Respondent has a public duty to appoint the Tribunal which duty has not been carried out to the detriment of the Applicants. I thus, find this is an appropriate case in which I can exercise my discretion and direct that the Order of Mandamu s ought to issue in the interest of justice. I accordingly grant the Order of Mandamus, directing the Minister of Finance to perform the statutory duty to appoint the Members of the Capital Markets Tribunal and the Registrar of the Tribunal as directed by the Legislature under sections 184 and 188 of the Securities Act. It is my further considered view that the process of appealing once the Tribunal is set up, will be rendered nugatory if the 3rd J 11

12 ,. Respondent proceeds to execute its decision before the hearing. I therefore also grant the Order staying execution of the 3 rct Respondent's decision, as it is inextricably tied to the intended Appeal. Considering the nature of the matter, each Party shall bear its own costs. Leave to appeal is granted. Delivered at Lusaka this 12th day of June, S. M. jelani HIGH COURT JUDGE 112

CONSUMER CLAIMS TRIBUNALS ACT 1987 No. 206

CONSUMER CLAIMS TRIBUNALS ACT 1987 No. 206 NEW SOUTH WALES TABLE OF PROVISIONS 1. Short title 2. Commencement 3. Definitions PART 1 PRELIMINARY PART 2 CONSUMER CLAIMS TRIBUNALS 4. Appointment of referees