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More hearing on Poly injunction this morning
By
Gedion Munthali - 06-02-2003 |
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The High Court in Blantyre yesterday adjourned to this morning hearing of an application to discharge an injunction not to close the Polytechnic after one lawyer said he had failed to locate his wife during a five-minute respite he had earlier sought for that purpose.
Before the final adjournment Michael Mtambo, lawyer representing Polytechnic principal, asked for a five-minute adjournment to enable him to phone his wife to go and pick their kid from school. But when the court reconvened Mtambo said he had failed to locate his wife and would thus have to go to pick the kid himself.
“On this score I have agreed with my learned colleagues representing the applicants (poly students) that the matter be adjourned and we proceed tomorrow (today),” said Mtambo.
Judge Jane Ansah adjourned the matter to 8:30 this morning when lawyers for Polytechnic students Noel Chalamanda and George Makiyi will continue responding to submissions made by Mtambo that the injunction the same judge granted the students on Saturday be discharged.
Mtambo told the court that circumstances had changed since the injunction was granted and that students’ lawyer concealed some facts which would have assisted the court better weigh options of whether or not to grant the order, arguing that not disclosing facts is ground for vacating an injunction.
“The burning of the UDF office in Chitawira has exposed the students to great danger as UDF young democrats have threatened they will retaliate,” said Mtambo. “I do not think if this was disclosed to you, you would have agreed to put lives of the students in danger by having them remain at the college.”
Mtambo wondered why lawyers for the students had not included the award of damages as a remedy for the courts to consider when granting the order.
“The rule is that injunctions must be granted where damages would not be sufficient,” argued Mtambo. “The question that must be considered is whether the damages can be awarded not whether or not they are difficult to award.”
He argued that the order was also “meaningless” as it was granted on Saturday that the college should not be closed when it had already been closed a day earlier.
“The applicants obtained a wrong order. They should have obtained a mandatory injunction requiring the Polytechnic to reopen not that it should not be closed because by then the college had already been closed,” said Mtambo.
He also pointed that an injunction being an equitable remedy should only be granted to people with clean hands which the students did not have.
But Chalamanda asked the court to dismiss Mtambo’s application saying his clients are the ones whose hands had been “soiled with noncompliance of the court’s order which the court would soon adjudge as contemptuous”.
“The court record will show we have complained by way of notice for contempt of court proceedings against the learned counsel’s clients, and leave was granted to file an application for committal proceedings. This clearance would not have been made if the court was not satisfied that we had adequate grounds,” said Chalamanda.
“The question that the court must be asking itself is: should the respondents come to court to seek assistance to vacate an order which they have not complied with,” said Chalamanda, arguing the court would be undermining its own authority and integrity if it ruled in favour of “those who disobey its orders”.
Chalamanda argued that by defying the injunction the respondents had given the impression “that they choose which orders to obey” and raised doubts of whether they would comply with future court orders.
“But they must be told that they have no choice as to which orders to obey. Court orders, whether in your favour or not, must be obeyed,” said Chalamanda. He will continue his submissions when the court reconvenes this morning.
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