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This is in a matter in which Judges Nigel Mutuna and Charles Kajimanga have asked the court to cite Mr Justice Chikopa who is chairperson of the Tribunal constituted to probe Supreme Court judge Philip Musonda for contempt.
Mr Justice Chikopa is jointly sued with Tribunal secretary Chipili Katunase Magayane.
Justices Mutuna and Kajimanga want Mr Justice Chikopa and Ms Magayane to be cited for contempt for allegedly directing them to appear before the Tribunal and continue sittings despite Ndola High Court Judge Mwiinde Siavwapa having stayed the proceedings of the Tribunal.
But Mr Malila raised a preliminary issue, saying the court could not entertain contempt of court proceedings in the absence of a penal notice.
A penal notice is a warning endorsed on a court order, notifying the recipient that he or she was liable to committal to prison or to pay a fine for breach of an order.
Mr Malila asked the court to dismiss the motion, saying the order to stay the Tribunal granted by the court was not enforceable by way of a Committal order because it did not contain a penal notice.
He wanted to know whether contempt proceedings could competently be taken to court in respect of an alleged breach of a court order that was not endorsed with a penal notice.
Justices Mutuna and Kajimanga’s lawyer Joseph Jalasi contended that the authorities cited by Mr Malila represented the provisions of order 45 Rule 7 of the rules of the Supreme Court 1999 edition which represented the general rule with regard to the endorsement of the penal notice.
Mr Jalasi said that the case in point fell within the exception to the general rule under the order 45 rule 7 (6) which gave the court discretion to dispense with failure to incorporate a penal notice.
However, Mr Justice Siavwapa dismissed the State’s application, saying it was a proper case in which he exercised his discretion to dispense with the requirement for a penal notice.
But in his appeal to the Supreme Court, Mr Malila stated that Mr Justice Siavwapa misdirected himself when he dismissed the application and urged the Supreme Court to uphold the appeal.
“The requirement for a penal notice was not just very crucial but mandatory and should be strictly adhered to in all circumstances” he said.
Mr Malila said that the requirement for the penal notice ensured that the alleged contemnor was at all material times aware of not just the precise terms of the court order but also the consequences of disobeying such an order.
He said it was clear from Mr Justice Siavwapa’s findings that he did not acknowledge the cardinal principle of the law that the order should have been endorsed with a requisite penal notice and that in the absence of a penal notice no motion for contempt could be entertained.
Mr Malila said that Mr Justice Siavwapa erred in law and in fact when he decided to exercise his judicial discretion to dispense with the requirement of the endorsement of penal notice on the order retrospectively.
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