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Publication Date

11-2019

Abstract

The dispute related to how to commence judicial review proceedings in Zambia. The applicant in this matter commenced judicial review proceedings in the High Court of Zambia by way of applying for leave. In between the period after the High Court granted leave to hear the merits of the judicial review and the hearing date, the Patents and Companies Registration Agency (PACRA), the Respondent filed an application to discharge the leave granted. It was at this point that the Applicants filed summons, to have the matter referred to the Constitutional Court to determine whether or not the requirement for leave is consistent with Article 118(2)(e) of the Constitution, which came into force in 2016, which provides that justice in all courts of law shall be administered without undue regard to procedural technicalities.

On the one hand, the applicant in this matter contended that whereas Order 53 of the Rules of the Supreme Court of England, which regulate judicial review proceedings, provided for the need for leave before commencing judicial review, this requirement is no longer consistent with the aforesaid constitutional provision. It was contended that the requirement for leave is a procedural technicality that hinders access to justice and hence should no longer be required. The Applicants also argued that the requirement for leave should only survive under the new constitutional dispensation if the requirement was backed up by a specific statute, like it is in England or Kenya. In the absence of a specific statute requiring leave in Zambia, the Applicants opined that this further underscored the view that there is no need for leave of court. The Applicants further argued that even if leave is still necessary, the other party cannot apply to discharge the leave because this too would be contrary to Article 118(2)(e) of the Constitution.

The respondent, on the other hand, argued that the requirement to institute judicial review by way of obtaining leave of court is a substantive legal requirement. Therefore, even though Article 118(2)(e) provided that procedures should not impede a matter being heard on its merits, the requirement for leave cannot be dispensed with because this requirement relates to substantive law, not procedure.

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