Flynote and Headnote
[1] Constitutional law - Fundamental rights - Alleged contravention - Magistrate's court - Duty to refer to High Court - Constitution, section 28 (3) construed. 45
1969 ZR p98
SKINNER CJ
Under section 28 (3) of the Constitution a magistrate is under clear duty to refer any question of a contravention of Chapter 3 to the High Court if one of the parties so requests.
[2] Courts - Magistrate's court - Transfer of proceedings - Duty to transfer - 5 Constitution, section 28 (3) construed.
See [1] above.
[3] Courts - Magistrate's court - Transfer of Proceedings - Constitution, section 28 (3) - Procedure - Magistrate must refer.
A magistrate in such a case should not simply adjourn the 10 proceedings and direct that one of the parties should apply to the High Court pursuant to the Constitution, section 28 (1), but should have issues framed and refer them to the High Court.
[4] Constitutional law - Fundamental rights - Alleged contravention - Application to High Court - Constitution, section 28 (1) - Procedure - 15 Should be by way of petition.
By virtue of rule 2 of the Protection of Fundamental Rights Rules, 1969, an application under section 28 (1) of the Constitution should be made by way of petition.
[5] Constitutional law - Fundamental rights - Alleged contravention - 20 Reference to High Court by Magistrate - Protection of Fundamental Rights Rules, 1969 - Not an application within meaning of rule 2 - Procedure - Magistrate must refer.
A reference by a magistrate to the High Court under the Constitution, section 28 (3), is not an application within the meaning of 25 rule 2 of the Protection of Fundamental Rights Rules, 1969, and the procedure is by way of reference by the magistrate, not petition by one of the parties.
[6] Constitutional law - Legal representation - Right to free choice - meaning of "Legal representative" - Constitution, section 30 construed.
In 30 the definition of "legal representative" contained in section 30 - of the Constitution the words "entitled to practise in Zambia" mean that the legal representative must be:
(a) a lawyer who is entitled to appear before the courts in terms of section 22 (1 ) of the Legal Practitioners 35 Ordinance (Cap. 144); and
(b) a person who is not disabled under any law in Zambia from appearing and exercising his right of audience.
[7] Legal Profession - Representation - Right to free choice - Meaning of "Legal representative" - Constitution, section 30 construed.
See 40 [6] above.
[8] Constitutional law - Legal representation - Right to free choice - Extent of right - Constitution, section 20 (2) (d) construed.
1969 ZR p99
SKINNER CJ
The right conferred by section 20 (2) (d) of the Constitution (which gives an accused person the right to be represented by a legal representative of his own choice) does not extend so far as to give an accused the right to choose a legal representative who is disabled by law from appearing. 5
[9] Legal profession - Representation - Right to free choice - Extent of right - Constitution, section 20 (2) (d) construed.
See [8] above.
[10] Legal Profession - Right of audience - Who has right - Legal Practioners Ordinance (Cap. 144), section 22 construed. 10
A person whose name is on the Roll of Practitioners and who has in force a practising certificate is a person entitled to a right of audience before the courts by virtue of section 22 of the Legal Practitioners Ordinance (Cap. 144).
[11] Aliens - Immigration and Deportation - Employment permit - Not 15 required by counsel - Immigration and Deportation Act, 1965, section 19 construed.
Counsel instructed by a solicitor on behalf of his client is not engaged in "paid employment under an employer" within the meaning of section 19 (1) of the Immigration and Deportation Act, 20 1965 (as amended), and, the profession of legal practitioner not being a prescribed occupation under section 19 (2) of that Act, he does not require an employment permit.
[12] Legal profession - Immigration and Deportation - Employment permit - Not required by counsel - Immigration and Deportation Act, 1965, 25 section 19 construed.
See [11] above.
[13] Constitutional law - Fundamental rights - Alleged contravention - Legal representation - Right to free choice - Chosen legal representative not issued with employment permit - Employment permit not required 30 - No contravention.
The fact that a legal representative chosen by an accused is not issued with an employment permit (which he does not in any case require) is not an infringement of the right guaranteed by the Constitution, section 20 (2) (d)
