Deon Legal Chambers & Associates

09/12/2018

Legal Ethics Law and Legal Definition
Legal ethics is the minimum standards of appropriate conduct within the legal profession. It is the behavioral norms and morals which govern judges and lawyers. It involves duties that the members owe one another, their clients, and the courts. Respect of client confidences, candor toward the tribunal, truthfulness in statements to others, and professional independence are some of the defining features of legal ethics. Legal ethics can also refer to the study or observance of those duties or the written regulations governing those duties.
In this world each country has a code of professional conduct which dictates the rules of ethics. The commission or bar associations for example, the Judiciary of Zambia is an independent arm of the government. Under Article 91(2) of the Constitution, Judges, Magistrates and Justices shall be independent, impartial and subject only to the Constitution and the law. They shall also conduct themselves in accordance with the code of conduct promulgated by parliament.
Article 91(1) of the Constitution defines the composition of the Judicature of the Republic as consisting of:
The Supreme Court of Zambia;
The High Court of Zambia;
The Industrial Relations Court;
The Subordinate Court;
The Local Court; and
such lower Courts as may be prescribed by an Act of Parliament. For example, the Small Claims Courts established by the Small Claims Courts Act Chapter 47 of the Laws of Zambia. Article 98 (2) provides for the tenure of offices of the Judges that they shall vacate office on attaining the age of sixty-five and they may only be removed from office for inability to perform the functions of office, whether arising from infirmity of body or mind, incompetence or misbehaviour.
The Judges of the Supreme Court and the High Court are appointed by the President on the advice of the Judicial Service Commission, subject to ratification by the National Assembly as stated by Article 95 of the Constitution.
The Magistrates who preside over Subordinate Courts are appointed by the Judicial Service Commission, acting in the name of the President.
Under Article 91(3) of the Constitution the Judicature shall be autonomous and it is administered in accordance with the Judicature Administration Act Chapter 24 of the Laws of Zambia.
The Law Association of Zambia (LAZ) Council, in accordance with the Law Association of Zambia Act, Chapter 31 of the Laws of Zambia, appoints Legal Practitioners’ Committee Members. The Committee meets once every month at Midlands and Copperbelt to determine complaints.often in consultation with the court, adopt a set of rules that set forth the applicable ethical duties. The Lagal ethics has promulgated the Model Rules of Professional Conduct which, addresses many topics like the client- lawyer relationship, duties of a lawyer, dealings with persons other than clients, law firms and associations, public service, advertising, and maintaining the integrity of the profession. Lawyers who fail to comply with local rules of ethics may be subjected to disciplinary actions.

31/05/2018

What is s*xting?

'Sexting involves sending suggestive or s*xual images through mobile phones that can then be posted on the internet or forwarded to other people.'

Is s*xting illegal?

Yes, if it involves the production or dissemination of a mature or child exploitation material, or offends laws against indecency and offensive or harassing behaviour.

Under the Criminal Procedure Code Act, it is an offence to use phone or internet services to access, send, publish or solicit (ask others to provide) material that is p**nographic.

Any image of someone (or a description of someone) who is, or appears to be, engaged in s*xual activity, in a s*xual pose, or is in the presence of a person engaging in s*xual pose or activity; or
depicts for a s*xual purpose or describes, the s*xual organs or a**l region or female breasts of a person who is or appears to be, and
is offensive to other persons.

Distribution of invasive images ('revenge p**n')

It is an offence to distribute an invasive image of another person knowing, or having reason to believe, that the person does not consent to its distribution (often referred to as 'revenge p**n'). The offence applies to both child and adult offenders.
An invasive image is defined as one in which the person is shown a place other than a public place and engaged in a private act, or alternatively, in a state of undress such that their bare ge***al or a**l region can be seen. For females the definition also includes where bare breasts are visible. The definition excludes images that fall within the standards of morality, decency and propriety generally accepted by reasonable adults in the community (e.g. parents sending innocent pictures of their baby to family and friends).

What is revenge p**n and what is the law on it?

Revenge p**n is the publication of explicit material portraying someone who has not consented for the image or video to be shared. The law now makes it illegal to disclose a "private s*xual photograph or film" without the consent of the person depicted in the content, and with the intent to cause them distress.
How can somebody be a "victim" or a "perpetrator" of revenge p**n?
A perpetrator is someone who discloses a private s*xual image without the subject's consent. i.e. the perpetrator turns it from being private image into a public one, with the intent to cause distress. The victim may have consented to the image creation but will not have consented to it being made public.
So if revenge p**n wasn't a crime until today, did that mean people could previously share s*xual images without the subject's consent?
The State Prosecution Service issued guidance indicating that they could (and would) prosecute perpetrators of revenge p**n under existing obscenity laws. Additionally, there is also scope for civil remedies under the Human Rights legislation, common law rights to privacy and the Protection from Harassment Act. But these laws were poorly tailored to this problem for various reasons and few prosecutions have occurred.
Surely this is just a problem for naive teenagers taking selfies in their bedrooms?
Mobile phones with cameras are now ubiquitous and so is the internet. A study found that 45-60% of people have sent or intend to send intimate content to their partners, and that one in ten ex-partners threatened to expose risque photos online - a threat carried out 60% of the time.
This is fast becoming an entrenched part of our culture of s*x and relationships, a practice engaged in by huge numbers of people. Further, the problem is much wider than of one victim and one perpetrator.
There are trolls who spread the images of people they don't know to embarrass them or just "for kicks". There are also lots of websites dedicated to earning money from the sharing of revenge p**nography and this perpetuates demand.
Many victims of revenge p**n, having pictures of themselves shared online affected them?
Women (and men) whose intimate s*xual photos are shared without their consent often feel violated and ashamed. They are often blamed for letting the pictures be taken in the first place and suffer psychological distress and damage to relationships with friends and family.
Once these images spread it can be very difficult to get them down from every site so victims have to face living with them forever. People who participate in creating private s*xual images generally do so in the safe space that is an intimate relationship.
They may consent to taking the image - but not to spreading it. It is particularly victimising to have something given in intimacy used as a weapon against you.
What sort of thing could motivate someone to send revenge p**n?
Feelings of vengefulness over a break up or if you believe your partner has cheated; perpetrating domestic abuse - using the images to try to control the victim; and profit - some websites make money by displaying revenge p**n and getting advertising revenues from it. Some have also tried to extort money from people to get the images removed.
Could someone be in trouble if they receive an unsolicited naked image on their phone?
There is no law against receiving images. However, if you go on to share them you could be breaking the law. Simple rule: if you get an image like this, delete it and don't forward.

What are the penalties for someone convicted of revenge p**n offences?
Someone found guilty can go to prison for up to two years, plus a fine.
Will the social media companies, such as WhatsApp and Facebook, shoulder any of the responsibility?
Under the law, no. But if victims own copyright of the materials (which usually rests with the person who takes the photo, not the subject), they can potentially sue for copyright infringement, and social media companies often respond to takedown requests based on copyright.
The law absolves internet companies of responsibility for content posted by users, in order to safeguard free speech. But they still have systems for blocking child p**nography, and could clearly do better with revenge p**n.
Many social media platforms have rules that forbid users from posting intimate images taken or distributed without the subject's consent, but if they're posted anyway, their systems for taking them down are often slow, unresponsive and haphazard.
Will the new law make any difference?
Yes. That perpetrators can go to prison for six months or up to two years sends a strong message that this behaviour is unacceptable. It allows victims without the resources for private legal action to get redress through the criminal justice system. It signals that the police and courts are starting to take online abuse as seriously as they do physical abuse. Only time will tell as to whether prosecutors will use the full power of the law against perpetrators.

So can we expect the courts to be filled to the brim with revenge p**n cases?
Doubtful. Prosecutors are required to assess in every case whether there is a realistic prospect of conviction and if a prosecution is in the public interest, and they may not wish to spend resources intervening in the aftermath of unhappy relationships. Victims are often reluctant to come forward, and prosecutors to prosecute, in s*xually-tinged crimes in any event.
One factor in the new law that limits its reach (wrongly in our view) is that the perpetrator must intend to cause distress to the specific victim.
This exempts people who forward images around the internet of people they don't know "just for kicks". We'd also like to see a civil remedy included in the law that mirrors the stalking law, namely: a victim should be able to apply for an injunction soon as an image is shared.
If the perpetrator didn't then take it down, or distributed it further, he or she would be in breach of a court order that could lead to immediate imprisonment. And victims ought to be able to collect money damages from perpetrators for the harm caused.

27/04/2018

Defamation

Any intentional false communication, either written or spoken, that harms a person's reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.

Defamation may be a criminal or civil charge. It encompasses both written statements, known as LIBEL, and spoken statements, called slander.
The probability that a plaintiff(complainant) will recover damages in a defamation suit depends largely on whether the plaintiff is a public or private figure in the eyes of the law. An example is the foregoing debate on the current President E.C Lungu's identity, his a public figure etc.
"Defamation of character" is a catch-all term for any statement that hurts someone's reputation. Written defamation is called "libel," while spoken defamation is called "slander." Defamation is not a crime, but it is a " tort " (a civil wrong, rather than a criminal wrong). A person who has been defamed can sue the person who did the defaming for damages .

Defamation is a suit that can be brought by anyone, however, there are extra hurdles if the plaintiff is an official i.e President etc. The plaintiff must prove actual malice : that the defendant knew the information was untrue or acted with reckless disregard for its truth.

Hypothetically speaking given that, there are always people who openly criticize the President's decisions, to varying degrees of accuracy or hyperbole, would the President ever have the option of bringing charges against said person or person's, in this situation?
My understanding is that government officials can't sue private citizens for criticizing their performance or eligibility. Only, possibly, about their personal lives.
According to the Zambian constitution, a President enjoys immunity and cannot be compelled to appear in court.
ln short a sitting Presidents can't be prosecuted unless other wise, reason being his got immunity, as such it would be a very big embarrasment to subject him for cross examination, if the case in hand can sabotage his state image.
In the interest of the nation it would be imprudent for him to stand in court for such malice.
The other aspect is that once a president is impeached by the House of Representatives they are then prosecuted for that crime(s).
An example is that of former USA president Bill Clinton was Impeached by the House and then was prosecuted by the senate, the senate voted and Clinton was not guilty and he was not removed from office.

26/04/2018

Writ of Habeas corpus

The writ of habeas corpus is known as "the great and efficacious writ in all manner of illegal confinement, being a remedy available to the meanest against the mightiest. It is a summon with the force of a court order ; it is addressed to the custodian (a prison official, for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond his or her authority, then the prisoner must be released. Any prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado. Most civil law jurisdictions provide a similar remedy for those unlawfully detained, but this is not always called habeas corpus. For example, in some nations, the equivalent remedy for unlawful imprisonment is the protection of freedom.
Habeas corpus has certain limitations. Though a writ of right, it is not a writ of course. It is technically only a procedural remedy ; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law, then habeas corpus may not be a useful remedy. In some countries, the writ has been temporarily or permanently suspended under the pretext of war or state of emergency .
The right to petition for a writ of habeas corpus has nonetheless long been celebrated as the most efficient safeguard of the liberty of the subject. The jurist Albert Venn Dicey wrote that the British Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty".
The writ of habeas corpus is one of what are called the "extraordinary", " common law ", or " prerogative writs", which were historically issued by the English courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto , prohibito , mandamus , procedendo, and certiorari . The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who is the respondent must prove his authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof.
Etymology
From Latin habeas , 2nd person singular present subjunctive active of habere, "to have", "to hold"; and corpus , accusative singular of corpus , "body". In reference to more than one person, habeas corpora .
Literally, the phrase means "[we command] that you have the [detainee's] body [brought to court]." The complete phrase habeas corpus ad subiciendum means "that you have the person for the purpose of subjecting him/her to (examination)". These are the opening words of writs in 14th century Anglo-French documents requiring a person to be brought before a court or judge, especially to determine if that person is being legally detained.
Examples
Similarly named writs
The full name of the writ is often used to distinguish it from similar ancient writs, also named habeas corpus . These include:
Habeas corpus ad deliberandum et recipiendum : a writ for bringing an accused from a different county into a court in the place where a crime had been committed for purposes of trial, or more literally to return holding the body for purposes of "deliberation and receipt" of a decision. (" Extradition ")
Habeas corpus ad faciendum et recipiendum (also called habeas corpus cm causa ): a writ of a superior court to a custodian to return with the body being held by the order of a lower court "with reasons", for the purpose of "receiving" the decision of the superior court and of "doing" what it ordered.
Habeas corpus ad prosequendum : a writ ordering return with a prisoner for the purpose of "prosecuting" him before the court.
Habeas corpus ad respondendum : a writ ordering return to allow the prisoner to "answer" to new proceedings before the court.
Habeas corpus ad testificandum : a writ ordering return with the body of a prisoner for the purposes of "testifying".
Origins in England
Further information: English law
Habeas corpus originally stems from the Assize of Clarendon , a re-issuance of rights during the reign of
Henry II of England . In the 17th century, the foundations for habeas corpus were "wrongly thought" to have originated in Magna Carta . This charter declared that:
William Blackstone cites the first recorded usage of habeas corpus and subjiciendum in 1305, during the reign of King Edward I . However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying "[t]he king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted."
The procedure for issuing a writ of habeas corpus was first codified by the Habeas Corpus Act 1679 , following judicial rulings which had restricted the effectiveness of the writ. A previous law (the Habeas Corpus Act 1640 ) had been passed forty years earlier to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus.
The 1679 codification of habeas corpus took place in the context of a sharp confrontation between King Charles II and the Parliament, which was dominated by the then sharply oppositional, nascent Whig Party.

Zambia
Zambia has constitutional guarantees against improper detention and these have been implemented in statutory law in a manner that can be considered as equivalent to writs of habeas corpus.
Article 104, paragraph 1 of the Basic Law for the Republic of Zambia provides that deprivations of liberty may be imposed only on the basis of a specific enabling statute that also must include procedural rules. Article 104, paragraph 2 requires that any arrested individual be brought before a judge by the end of the day following the day of the arrest. For those detained as criminal suspects, article 104, paragraph 3 specifically requires that the judge must grant a hearing to the suspect in order to rule on the detention.
Restrictions on the power of the authorities to arrest and detain individuals also emanate from article 2 paragraph 2 of the Basic Law which guarantees liberty and requires a statutory authorization for any deprivation of liberty. In addition, several other articles of the Basic Law have a bearing on the issue. The most important of these are article 19, which generally requires a statutory basis for any infringements of the fundamental rights guaranteed by the Basic Law while also guaranteeing judicial review; article 20, paragraph 3, which guarantees the rule of law; and article 3 which guarantees equality.
In particular, a constitutional obligation to grant remedies for improper detention is required by article 19, paragraph 4 of the Basic Law, which provides as follows: "Should any person's right be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts."
The Second Amendment provided that a prisoner has only the right to apply to a single judge, and, once a writ has been issued, the President of the High Court has authority to choose the judge or panel of three judges who will decide the case. If the High Court finds that the prisoner's detention is unlawful due to the unconstitutionality of a law the judge must refer the matter to the Supreme Court , and until the Supreme's Court's decision is rendered the prisoner may be released only on bail.
Main article: Habeas corpus in the Zambia
The Zambian Constitution inherited habeas corpus from the English common law . In England, the writ was issued in the name of the monarch. When the original thirteen American colonies declared independence, and became a republic based on popular sovereignty, any person, in the name of the people, acquired authority to initiate such writs. The Zambian Constitution specifically includes the habeas procedure in the Suspension Clause, located in Article One , Section 9. This states that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it".
The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether the court that imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the
Zambian Immigration and Customs Enforcement pursuant to a deportation proceeding.
In Zambia, it has been entrenched in the Bill of Rights, which provides in section that every detained person has the right to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released.
Example
JIMMY CHIBUYE, Lusaka
LUSAKA High Court judge Mwila Chitabo has issued a writ of habeas corpus directing the officer-in-charge at Lusaka Central Prison to take to court a Kenyan Islamic priest who has been in detention for three weeks.
Mr Justice Chitabo issued the directive on April 22, this year, to take to court Jama Abdirashid Mohamed, a Kenyan and Islamic teacher.
This is a case in which Mohamed is challenging the decision of the police to keep him in Lusaka Central Prison from April 7 this year to date without any charges.
Take notice that you are required by the said writ to have the body of the said Jama Abdirashid Mohamed before the judge on April 29, 2015. In default thereof the court will then, or so as can be heard by counsel, send you to prison for your contempt in not obeying the said writ, he said.
And Mohamed, of plot number 2477/13 Kalundu West in Lusaka, said on April 7 this year, he was awakened around 01:21 hours by the police and bundled onto a vehicle.
Mohamed said he was taken to Kalikiliki Police Post where he was held until about 15:00 hours.
He said he was later taken to Lusaka Central Prison and has been held to date without giving him any reasons for his detention or served with detention order or warrant of arrest.
Mohamed said on April 8, eight law enforcement officers questioned him for over two hours at police headquarters in the absence of lawyers and was not informed about his rights to have legal representation.
He said on April 9, he was again taken to police headquarters where he was questioned by about eight law enforcement officers.
Mohamed said he has been in illegal detention for about three weeks now without being charged or notified of what crime he had committed.
He said he legally resides in Zambia and has a valid work permit, which will expire on August 27, this year.
Mohamed said he has not been charged with any criminal or immigration offence in Zambia.
He said his lawyers have advised him that his continued detention is illegal and unconditional.
The matter failed to take off yesterday because Justice Chitabo was indisposed.

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20/04/2018

PERJURY

Warning to false witnesses in Court?
Clearly speaking even the Bible or many Holy books such as the Quran etc. say do not bear false witness.
" Thou shalt not bear false witness against thy neighbour " is one (either the eighth or ninth, the designation varies between religions of the Ten Commandments.

What does it mean by not to bear-false witness in legal term? it means do not give false swearing or perjure under oath.

Perjury
The legal term Perjury clearly stipulates that or is defined as the giving of false information under oath manly in Court or legal Chambers.

In short Perjury is the act or crime of telling lies in court when you have promised to tell the truth under oath:

In other words Perjury is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding. In some jurisdictions, contrary to popular misconception, no crime has occurred when a false statement is (intentionally or unintentionally) made while under oath or subject to penalty. Instead, criminal culpability attaches only at the instant the declarant falsely asserts the truth of statements (made or to be made) that are material to the outcome of the proceeding. For example, it is not perjury to lie about one's age except if age is a fact material to influencing the legal result, such as eligibility for old age retirement benefits or whether a person was of an age to have
legal capacity .
Perjury is considered a serious offense, as it can be used to usurp the power of the courts, resulting in miscarriages of justice. In the Zambia, for example, the general perjury statute under Criminal Procedure Codes (CPC) classifies perjury as a felony and provides for a prison sentence of up to Two years or more in certain Circumstances depending on case profile. The Penal Code allows for perjury to be a capital offense in cases causing wrongful ex*****on . Perjury which caused the wrongful ex*****on of another or in the pursuit of causing the wrongful ex*****on of another is respectively construed as murder or attempted murder, and is normally itself punishable by ex*****on in countries that retain the death penalty . Perjury is considered a felony in most Zambia as well as most Countries. Under Criminal Code Act perjury is punishable by up to life in prison if it is committed to procure an innocent person for a crime that is punishable by life in prison. However, prosecutions for perjury are rare.
Due process is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a Court, has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured .
Where a prosecutor hears testimony that he knows to be perjured in open court, he is obligated to correct it.
A lie is a lie: an argument for strict protection against a prosecutor's knowing use of perjured testimony has been a common aspect in many cases of prosecution which has infact led to many conviction of inocent acused persons.
In short prosecutors have a tendancy of preping witnesses on what to say in order to uphold a case and acquire a conviction.

18/04/2018

What is a Mortgage Deed?

DEFINITION OF A MORTGAGE DEED
A mortgage deed is a document in which the mortgagor transfers an interest in real estate to a mortgagee for the purpose of providing a mortgage loan.
The mortgage deed is the evidence of the interest transferred to the mortgage holder. Often simply referred to as the mortgage, the mortgage deed is the document transferred to the mortgage holder.
When a real estate owner secures a loan through a mortgage, it is necessary for the owner to transfer an interest in the property to secure the loan. The real estate interest transferred is the right to retain a lien on the property, and the right to foreclose upon the lien if the mortgage is not paid as agreed.

Example
Mr. Simasiku purchases a home for K200,000, of which he borrows K150,000 via a mortgage loan. To secure the mortgage, Mr. Simasiku will sign a note for the K150,000 loan and a mortgage deed, granting the mortgage holder the right to retain a lien on the property, with the ability to foreclose should the mortgage go into default. The mortgage deed may be combined with the note into one document. The mortgage deed will be filed as a public record and retained by the mortgage holder until paid.
Mortgage deeds have been a part of real estate transactions for hundreds of years, dating back to English common law. Mortgage deeds are necessary because the mortgage lender will need your permission to place a lien on the property you purchase. In exchange, the mortgage lender agrees to lend you the specified funds. Without a mortgage deed , a lender may be able to sue you in the event of default, but may not have the ability to retain the property as security. Thus, the lender requires all borrowers to sign a mortgage deed.
The mortgage deed is typically signed at your solicitors office as part of the closing of the real estate transaction. The lender will file the document publicly and it will list your name, the lender’s name, the address of the property, the legal description of the property and the original amount of the loan. The lender has the ability to sell or assign the mortgage deed to a third party.
First Foundation works along side your solicitor to ensure that you have an understanding of the mortgage documentation you will be required to review and sign as part of the real estate transaction.