Zambia's finest hunting block to be run by ZAWA

The Nyampala hunting block, lying within the country of the Bisa chief, Nawalya, is now to have its hunting managed by the Zambia Wildlife Authority. Having got rid of its concessionaire, Leopard Ridge Safaris, despite the High Court having still to decide on whether the expulsion was legal, ZAWA first put it out to tender, then - doubtless on the order of the ZAWA Board, decided that they would run it themselves, an advert for two professional hunters being placed in the local papers. Those who payed some $1100 to tender will be asking for their money back.

Given the very strong rumours circulating about the imminent removal of other hunting concessions from operators holding legal Hunting Concession Agreements, it seems that ZAWA and its Board have decided that nationalization is the way forward for them out of their financial difficulties. They will be shaking their heads in Tanzania.

Zambian Supreme Court ruling on hunting safari industry...

In the Supreme Court of Zambia on 14 August 2007, in the case, Zambia Wildlife Authority (ZAWA) versus Blackwell Banda (for Nawalya/Munyamadzi Community Resource Board (CRB)), the judges ruled that the Hunting Concession Agreement (HCA) between ZAWA, the community in the hunting block (represented by the CRB), and the safari hunting operator, constituted a license, which like any other license issued by ZAWA, could be terminated by them at will.

This ruling will have far reaching consequences for the hunting industry should ZAWA, for whatever reason, wish to remove a concession from an operator, or remove a particular operator from a community where they are in a productive partnership. The rights of both the community (the customary landowners) and the safari hunting investor are therefore affected.

A Zambian safari hunting operator defends his concessionary rights in the High Court...

On 23 October, Leopard Ridge Safaris requested that the High Court in Lusaka recognize their rights to their safari hunting concession. such rights not being recognized by the Zambia Wildlife Authority who had removed Leopard Ridge from their concession without due process, and who have recently put their area out to public tender. The judge's decision is expected shortly. The industry awaits; investors await.

Zambia High Court Action to stave off 'deportation' of hunting safari operator...

THE CURRENT STATE OF LITIGATION – PENDING AND OTHERWISE, IN THE ZAMBIAN HUNTING SAFARI INDUSTRY IN 2007

Case One:

1. Termination of Leopard Ridge safaris (LR) hunting concession by the Zambia Wildlife Authority (ZAWA).
2. LR ceased hunting
3. LR, represented by Wynter Kabimba & Associates (WMK) applied to the High Court for a judicial review and a stay of execution.
4. Judge refused stay
5. Judge directed the matter go to arbitration

Case Two:

1. WMK advised Leopard Ridge that the community partners in the tripartite Hunting Concession Agreement (HCA), the Nawalya Community Resource Board (CRB), could take action against ZAWA, for a number of reasons: 1) as signators to the HCA they had not been consulted on the matter, 2) they were happy with LR, and 3) they stood to lose income from hunting.
2. The CRB applied in the High Court for an injunction prohibiting the cessation of hunting safaris.
3. The CRB were granted the injunction, and LR resumed hunting
4. ZAWA appealed to the Supreme Court
5. The Supreme Court ordered that LR cease hunting.
6. At 4.00 am in the third week of August, a force comprising ZAWA Wildlife Police Officers and paramilitary, moved in to the LR field camp in the Luangwa, served LR with the order, and advised them to pack up immediately and leave. Clients were at the time hunting with Greg Michelson – shareholder in LR.


Case Three:

1. The National Movement Against Corruption (NAMAC) and the Zambia Wildlife Authority (ZAWA) were defeated in the High Court over charges that the outfitters had overshot their quotas, four of which had contested the action. NAMAC/ZAWA had appealed to the Supreme Court, and had lost, on 19th July 2007.
2. Following the dismissal of the appeal the Appellants (NAMAC)
agreed that the consent judgment which was signed between ZAWA and
NAMAC be set aside by consent of the parties. WMK on behalf of the safari four, agreed to this proposal as it did not in any way prejudice the safari four case.
However, NAMAC have now raised a counterclaim against the companies
involved, and ZAWA as Defendants, with the intention of obtaining
judgment in similar terms as those contained in the consent judgment
previously signed with ZAWA.
3. However NAMAC clearly wishes to obtain a decision to terminate the HCA of the four outfitters..
4. ZAWA, through its Director-General, is in agreement with this decision of NAMAC’s

Case Four:

1. In October, LR go to the Supreme Court in an attempt to win back their Nyampala concession – being represented by WMK in the matter.

Case Five:

1. On 4 September, the case of Mbeza Safaris three resident director/shareholders is heard in the High Court as a result of a stay of execution and judicial review granted against the Minister of Home Affairs, the Chief Immigration Officer and the Attorney-General in the matter of the Minister’s refusal to renew their self-employed work permits as is required for investors holding investment certificates under the Investment Act of Zambia. WMK acts for the resident Mbeza executive shareholder/directors.
2. These events coincided with the start of the hunting season, and followed an attack by unknown persons on the Mbeza client base recruited by hunting agents based in Johannesburg, Munich and Paris; and by a known professional hunter impersonating a Zambia Wildlife Police Officer who suggested to an Mbeza client that the company might have been guilty of an offence while hunting that person the previous season. Police are currently investigating, although the matter was reported to the Professional Hunters Association of Zambia and the Zambia Wildlife Authority. As part of the affidavit to the learned High Court judge, WMK stated that the unproven accusations by the Principal Private Secretary to the President accusing the owners of LR and Mbeza Safaris as having attended a secret lunch at which the overthrow of the Government and the destruction of Zambia’s maize stocks, had contributed to moves by the state against them.

Supreme Court of Zambia Appeal No.16/2007 between NAMAC and four Hunting Safari Companies...

NATIONAL MOVEMENT AGAINST CORRUPTION (NAMAC).......APPELLANT

AND

SOFARAM SAFARIS LTD...........................................1st RESPONDENT
MBEZA SAFARIS LTD................................................2ND
SWANEPOEL & SCANDROL LIMITED
LEOPARD RIDGE SAFARIS LIMITED

28 MARCH 2007 AND 12 JULY 2007

FOR THE APPELLANT: S.L CHISULO
FOR THE 1st & 2nd Respondent: W.M. Kabimba

JUDGEMENT


The appellant and the Zambia Wildlife Authority obtained a consent judgment between themselves under Cause No. )6/ HP /0596.

The respondents were not parties to those proceedings and were not informed about them. The respondents brought a fresh action to challenge the said consent judgment whose terms, they claimed, adversely affected their entitlements and standing vis-a their prior agreements on hunting concessions with the Zambia Wildlife Authority.

The appellant raised a preliminary issue in the court below

That the respondents were wrong in law by starting a fresh action to challenge the consent judgment, that they should have applied to be joined as parties to the action in which the consent judgement was obtained.

The learned trial Judge in the court below dismissed the preliminary issue stating that as respondents were not parties to the consent judgment but were affected by its terms, they were entitled to bring fresh proceedings to challenge the said consent judgment.

The appellant f1led four grounds of appeal as follows:

1. "The trial Judge erred and misdirected himself when he concluded in paragraph 5 of page R6 of the Ruling that "the consent judgment clearly affected the rights and interests of the Respondents herein (plaintiffs in the Court below) in particular as regard paragraph 1 {a} and {d} {i} and {ii};" without explaining to what extent and whether adversely or positively the said consent judgment had affected the rights and interests of the respondents.
2. In view of ground (1) above, there is a strong inference that the tria1 Judge had erroneously accepted the arguments by the respondents herein that:

i) the consent judgment had abrogated the respondents' rights with Zambia Wildlife Authority.
(ii) The consent judgment was a final judgment against the respondents and therefore the only way they could attack the consent judgment was through the action commenced by the respondents before the trial judge. The learned trial Judge misapprehended the purpose and effect of paragraph 1 (a) of the consent judgment and thereby failed to recognize and consider the following facts and points of law in his Ruling:
(i) That the respondents were cited for a specific public injury, i.e. poaching which they had each committed and apparently admitted.
(ii) That the compromise penalties meted out by Zambia Wildlife Authority against each of the Respondents for the said public injury were contrary to the Zambia Wildlife, Act No. 12 of 1998 and that the said compromise penalties were therefore against public policy and illegal.
(iii) That overall, the consent judgement, arising out of judicial review proceedings, was intended only to enjoin the Zambia Wildlife Authority to comply with the law and any terms contained in the Hunting Concession Agreements entered into with each of the respondents. The trial Judge erred in principle and misdirected himself on a point of law and when he attempted to explain locus standi to challenge a consent judgement in terms of one being an interested party in the contents of the consent judgment; as opposed to one being a party to the agreement contained in the consent judgement."

Mr. Chisulo, learned state counsel for the appellant cited authorities in support of his submission that the respondents were wrong in law to start a fresh action to challenge the consent judgment.

The gist of the appellant's submission is that the respondents cannot bring a fresh action to challenge a consent
judgement, they should instead apply to join as parties to the action and plead their case in that same action. The respondents stand, on the other hand, is that they are entitled to bring a fresh action to challenge the said consent
judgement.

Mr. Kabimba, learned counsel for the respondents cited authorities in support of his submissions one of them being the case of Zambia Seed Company Limited vs. Chartered International (1). The legal issue for determination in his appeal is whether the respondents, on the facts on record, can challenge the consent judgement by initiating a fresh action.

On account of the view we take of this appeal, it is not necessary to discuss the submissions of the parties in detail, suffice it to say that we have duly considered them together with the authorities cited.

This is an appeal which raises a point of law which is already settled. The learned trial Judge in dismissing the
preliminary issue relied on the pleadings on record which show that indeed, the consent judgment being challenged, adversely affects the interests of the respondents. We agree with the observations of the learned trial Judge in his ruling that in the peculiar circumstances of this case, the respondents' interests regarding prior hunting concessions entered into with a party to the consent judqement were adversely affected. The record shows the terms of the consent judgment complained of, in part, directed implementation of sanctions against the respondents. The record also shows that the appellant, a party to the consent judgement, stated in its defence to the action brought by the respondents in the court below that the appellant had no obligation to inform the respondents of the proceedings under which the consent judgment was obtained. It is not in dispute that the terms of the consent judgment, in part, affect the entitlements of the respondents. We wish to reiterate what we said in the case of Zambia Seed Company Limited vs. Chartered International (1) that a consent judgment is final and that, "...by law the only way to challenge a judgment by consent would be to start an action specifically to challenge that consent judgment..."

A consent judgment, once sealed is final determination of issues therein, it is not possible to join the proceedings after judgement has been pronounced. The respondents were in order to institute fresh proceedings as they did. We dismiss the appeal with costs, to be taxed in default of agreement.

SAFARI MACED: THE SAFARI ENCYCLOPAEDIA

Gordon Ernest Mace in action

Safari Maced

“Safari Maced”, after Zimbabwean safari agent Gordon Ernest Mace, is a term used to describe safari agents who book named clients with a safari operator, then fail to deliver them without reason or compensation – and with insufficient time to find replacements. This was a practice unheard of prior to the 1970’s where the utterance, ‘you have my word ’ - followed by a handshake, was binding.

This term for deception and dishonourable business conduct is redolent of the term, Quisling, describing a traitor who serves as the puppet of the enemy occupying his or her country, named for Vidkun Quisling (1887-1945), a Norwegian who collaborated with the Nazis.

In contemporary use, “Safari Maced” is synonymous with “a dishonourable and dishonest act” and is particularly applied to safari agents, safari outfitters and safari clients who mislead and deceive each other. Unlike the chemical “Mace”, the effects of being safari maced are long lasting – for the perpetrator.

See http://docs.google.com/Doc?id=ddv4n6pk_116fk4t39