Judge sued by counsel over behaviour that supreme court rules is ‘unacceptable’

23 July 2021 · Carmel Rickard

One of the legally most distressing cases ever to be argued in the courts of Zambia has reached a crucial point: the scandalous matter of a senior advocate suing a high court judge with allegations that his constitutional rights had been infringed by the judge, has now been considered by the country’s highest court. The supreme court has ordered that the matter be properly heard in the high court, but with the judge no longer named as respondent. This part of the decision followed a reaffirmation by the court of the principle that judges cannot be sued in their personal capacity. But the three supreme court judges also used the opportunity to chastise the judge concerned for his behaviour, saying that to call his behaviour ‘unacceptable’ would be an ‘understatement’. And they then went on to change the court rules to prevent such behaviour in the future. The dispute originally started when the judge did not announce a time for handing down his original decision and left counsel waiting, as the client’s costs escalated, until an 11pm delivery.

Read judgment

The supreme court of Zambia was only too well aware of the drama of the situation at the heart of this case: a well-known and highly-respected legal practitioner sued a judge before whom he had appeared in a matter, and claimed that the judge had infringed the constitutional rights of the lawyer concerned.

The court began its judgment in a style and tone that showed its concern about what it would later describe as ‘the sad and unpleasant situation that has led to this appeal’.

Here are the court’s opening sentences, ‘When news breaks that a judge has been sued, it is considered prime time news worldwide. The interest of … the public in which such news breaks, and indeed beyond the borders, is aroused …. The curiosity and concern is not restricted to ordinary members of the public. It is heightened in … legal circles ….

Prestige

‘This reaction by the public lies in the fact that suing a judge is a rare occurrence due to the standing of a judge in society …. The office of a judge is regarded by most members of the public as an office of honour, veneration, learning, wisdom, probity, prestige and power. This is the aura in which a judge is held and the expectation of the public from such judges are equally high.’

Having grabbed the attention of all readers, the court then explained the facts behind the dispute, saying that they made ‘very sad reading’.

The appellant, legal practitioner and constitutional law expert John Sangwa, represented a company involved in a particularly acrimonious high court action before Justice Sunday Bwalya Nkonde. After trial, the judge said his decision would be ready for delivery on 28 February 2018, a date he later rescheduled to 2 May 2018. On that day, judgment was not ready. It was put off to the afternoon of 17 May.

Expenses

When Sangwa’s two associates arrived at the judge’s chambers at the appointed time, they were asked to wait until the judgment was finalised. At 5pm they were told to go home because it was still not ready and return the following day, though the time was not specified. They arrived at chambers at 4pm next day but once again were told to wait.

Eventually the judge concluded his decision at about 11pm and instructed that copies were to be distributed to counsel. In the meantime, lawyers for both sides had been sitting, waiting, for hours while their clients’ expenses mounted.

And that was just the start. When Sangwa’s clients, who lost under Judge Nkonde, decided on an urgent application for a stay of execution, the judge behaved in a way that, in anyone else, one would describe as giving the parties the run around. Eventually, counsel included a paragraph in support of an application for an injunction that expressed his frustration. Sangwa referred to the judge’s absence from chambers on a day when he had originally indicated he would be available, and said that in his view this absence was ‘deliberate’ and intended to frustrate the application being brought by Sangwa to stay the judge’s decision, and to undermine the appeal against it.

Contempt

This comment led to the judge summoning Sangwa to answer charges for contempt of court and to appear before the judge on 11 June 2018 at 10.30am ‘and every other day thereafter, until the disposal of the matter’. Faced with this threat, Sangwa brought a petition against the judge, saying his rights under the constitution had been infringed by him.

From the high court, where three of the five preliminary matters raised by the judge were successful, the matter went to the appeal court, and from there Sangwa appealed to the supreme court.

Having heard argument, that court said it agreed that judges were immune from prosecution in civil matters and that no action ‘can be brought against a judge for anything done or omitted to be done in the exercise of his or her judicial functions.’

Unfortunate

But after the court finalised its response to all the legal questions raised, the judges said they wanted to ‘digress a little’ to consider the ‘unfortunate events’ that led to the appeal.

They then recapped the history of the matter and concluded that the behaviour of the judge had the effect of making access to justice unduly expensive, because counsel spent hours waiting around to receive the decision – hours that were eventually charged to the client. Further, the judge’s conduct infringed the constitutional directive that judges should dispense justice without delay.

‘Here, we have asked ourselves the question, what motivated the judge to instruct counsel to wait as he concluded the judgment [only] to deliver it days later at 23.00 hours? We have had serious difficulty answering the question and are somewhat embarrassed at the conduct of one of our number.’

Volatile

At the least, the judge should have called counsel to his chambers and explained the delay to them instead of keeping them in suspense and fueling an already volatile and acrimonious matter, said the court.

In this case the actions of the judge ‘fell far short of the tenets of wisdom’.

‘To say that [his] conduct is unacceptable is an understatement.’ While a judge was independent, it was not ‘independence to do as the judge pleases, nor is it absolute’. The court had asked counsel for Sangwa what lessons could be learned from the events that led to the appeal.

Courtesy

The court was told that if the judge had delivered his decision at the time he had appointed, all subsequent events would have been avoided. Also, that there should be courtesy between the bench and the bar: if the judge had called counsel into chambers to sort out the issue that would have been preferrable to issuing a summons against him for contempt.

Further, the event showed how the cost of justice was made unnecessarily expensive. And finally, said counsel, the matter showed there was a need for the apex court to give directions that would prevent such an ‘episode’ occurring in future.

The judges agreed and immediately issued a set of guidelines as to how the question of a projected date for judgments should be handled.

The court found that the matter could continue if it was amended by removing the judge’s name ‘as he cannot be sued in his personal capacity’. It did not, however, indicate against whom the case should be brought instead.

‘A matter of justice’, Legalbrief, 20 July 2021

Carmel Rickard

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