THE Supreme Court has ruled that legal professional privilege cannot be used as a defence by the Bank of Zambia (BoZ) in concealing evidence of mismanagement in the liquidation process of Access Financial Services (AFS) and Access Leasing Limited (ALL).
The Supreme Court has also ruled that it would not be in the public interest to allow the Bank of Zambia, a public institution, to purposely refrain from disciplining its officer Marshall Mwansopelo because the bank feared that his evidence might assist Access Financial Services Limited and Access Leasing Limited in proving allegations of mismanagement of the liquidation process.
The Bank of Zambia was represented by suspended Director Public Prosection Mutembo Nchito who was at the time lead prosecutor of the Task Force on Corruption and his brother Nchima Nchito.
AFS and ALL were being represented by John Sangwa and K. Chenda of Simeza Sangwa and Associates.
The Bank of Zambia appealed to the Supreme Court against the ruling of the High Court on the mismanagement of the liquidation of the two companies on grounds of legal professional privilege and that its officer was not guilty in the alleged mismanagement of the liquidation process.
This is in a case in which the Bank of Zambia had appealed against the High Court which ruled that Mr Mwansopelo, the former liquidation manager of AFS and ALL had misconducted himself in liquidating the two companies.
This was despite AFS and ALL placing on record evidence that the Bank of Zambia’s Deputy Governor for administration and the Acting Director –Human Resources had advised against proceeding with disciplinary hearing against AFS and ALL liquidation manager Marshall
Mwansopelo on ground of mismanagement.
The Bank of Zambia had also feared that proceeding with Mr Mwansopelo disciplinary hearing was going to result in unfavorable judgement against the Central Bank which ran in colossal sums of money. But the Supreme Court ruled that confidential communication between a client and his legal adviser are not privileged if made for the purpose of committing a fraud or crime or when both are engaged in the commission of some wrongful act.
Supreme Court Judge Irene Mambilima who is Chief Justice siting with Evans Hamaundu and Royda Kaoma upheld the High Court Judgment after dismissing the Bank of Zambia appeal with costs.
The Supreme Court ruled that the policy consideration for the grant of legal professional privilege had been outweighed in the case by the gravity of the wrongful act of the Bank of Zambia in advising management that it should conceal evidence of mismanagement of the liquidation of AFS and ALL.
In the High Court ruling on the matter, it was judged that a prima facie case had been established against the Bank of Zambia lawyers for advising management to take disciplinary action against Mr Mwansompelo who was found to be an errant officer.