THE Lusaka High Court has granted former Finance Bank chairman Rajan Mahtani leave to commence judicial review against his prosecution following his arrest recently.
And the court ruled that the leave will have no effect on the criminal investigations by the State on Dr Mahtani.
In his ruling delivered yesterday, High Court judge Mwiinde Siavwapa however said the leave shall operate as a stay of the criminal prosecution against Dr Mahtani on the charges laid against him.
This is a case in which Dr Mahtani sought judicial review of his arrest over alleged forgery of the share transfer forms of Zambezi Portland Cement.
“The application for leave to apply for judicial review must succeed and I grant it accordingly. In consequence the leave shall also operate as a stay of the criminal prosecution against the applicant on the charge laid against him so far and any that may be preferred against him in relation and incidental to the share forms in Zambezi Portland Cement. Parties shall bear their own costs for this application,” he said.
Mr Justice Siavwapa said Dr Mahtani intends to show the court that his prosecution was illegal and unconstitutional at the hearing of the substantive application for judicial review.
The judge said it was his considered view that the material made available to the court without delving into details of the matter, present an arguable case meriting the granting of the leave.
He said the applicant raised matters which, on face value, present impropriety on the part of the State and the veracity of the same ought to be further investigated.
Mr Justice Siavwapa said when the matter came up for inter parte hearing, Dr Mahtani’s counsel John Sangwa demonstrated that there was a case fit for further investigation at substantive judicial review hearing.
“It is, however, noted that the objection raised by the State to the granting of leave for judicial review, based on the case of C and S Investments and others seems to suggest that there is no judicial review permissible in criminal matters.
“To the contrary that case firmly establishes the law as being that it is unlawful to arrest criminal investigations through civil proceedings. It does not state that judicial review or indeed leave to apply for judicial review cannot be granted in criminal investigations or proceedings,” he said. Mr Justice Siavwapa said the case relied upon by the State was somewhat misplaced and inapplicable to the case at hand.
The judge also said Attorney General Likando Kalaluka argued that leave should not be granted based on the Supreme Court decision in the case of C and S Investments Limited, Ace Car Hire Limited, Sunday Maluba verses the Attorney General (2004).
But Justice Siavwapa ruled that the leave will have no effect on the on-going investigations of Dr Mahtani by the State.
He said if the State wants to continue with the investigations, the order of stay would not stop them from doing so.
“The fact would still remain that the order would not have the effect of arresting a criminal investigation but a criminal trials or proceeding.