PRISCILLA CHIPULU, Lusaka
THE Lusaka High Court has dismissed an application by former Post Newspapers proprietor Fred M’membe and his wife Mutinta seeking judicial review for what they termed illegal occupation and control of the printing press located at their premises by police.
In a judgment delivered on Wednesday, High Court judge Susan Wanjelani said there was no illegality in the action by the police as the decision was based on a lawfully issued search warrant.
Judge Wanjelani said the continued occupation and dismantling of the printing press was fairly incidental to the powers conferred on the police under section 118 of the criminal procedure code in the execution of the search warrant as conferred by Parliament.
“I opine [pronounce] that this case does not assist the applicants as they have not been brought before this court to offer an explanation as it is the subordinate court which issued the warrant that is vested with the jurisdiction to determine ownership.
“The sum result is that this application for judicial review fails in its entirety and is dismissed with costs to the respondents. Leave to appeal is granted,” she said.
The judge further said the applicants did not question the legality of the search warrant or the fact that the police went to conduct a search at the premises.
She said the constitution allows for the derogation of the right property in the execution of a lawfully issued court order.
“I am of the firm view that the continued occupation and dismantling of the printing press intrinsically tied to the search warrant and thus incidental to the execution of the search warrant and requirement for the search for the items to be seized and taken to the magistrate as per section 118 of the Criminal Procedure Code,” Judge Wanjelani said.
In their application in the Lusaka High Court, Mr and Mrs M’membe argued against the decision by the police to occupy their residence, stating that it was irrational and illegal.
They asked the court to quash such action and that the judicial review, once granted, should act as a stay in the matter.