Chanty Mupoyi Kalanga v The Attorney General (2025/HP/1625) (22 January 2026) – ZambiaLII

l Rl -€ V' 1e.uc or.: ~ u""f2,, . IN THE HIGH COURT OF Z \Ill,~ 2025/HP/1625 AT THE PRINCIPAL REGIST PRINCIPAL . HOLDEN AT LUSAKA (Civil Jurisdiction) IN THE MATTER OF: AND IN THE MATTER OF: SECTIONS 35, 36 AND 39 OF THE IMMIGRATION AND DEPORTATION ACT NO 18 OF 2010 (THE ACT) AND IN THE MATTER OF: ORDER 53 OF THE RULES OF THE SUPREME COURT OF ENGLAND, 1965, 1999 EDITION BETWEEN: CHANTY MUPOYI KALANGA APPLICANT AND THE ATTORNEY GENERAL RESPONDENT BEFORE HON MRS JUSTICES. KAUNDA NEWA IN CHAMBERS THIS 22nd DAY OF JANUARY, 2026 For the Applicant Mr J. Phiri, Messrs Joseph Chirwa Advocates For the Respondent Mr Joseph Lange, State Advocate, Attorney Generals Chambers RU LI NG CASES RFERRED TO: 1. R v Inland Revenue Commissioners Ex-parte National Federation of Self Employed and Small Business Limited 1982 AC 617 2. R v Epping and Harlow Gen-eral Commissioners, Ex-parte Goldstraw 1983 3 ALL ER 257, 262 3. Abraham Mohammad Sheriff Noor v The Attorney General 1979 ZR R2 ... 4. R v Independent Television Communication, ex-parte P TV NI Ltd (1991) the Times December 30 CA 5. Derrick Chitala (Secretary of the Zambia Democratic Congress) v Attorney General SCZ Judgment No. 14 of 1995 6. New Plast Industries v The Commissioner of Lands & The Attorney General 2001 ZR 51 7. Communications Authority v Vodacom 2009 ZR 8. Kansanshi Mining PLC v Zambia Revenue Authority SCZ Judgment No 143 of 2014 9. Maambo Mercy Pole Pole v The Attorney General 2015/HP/0162 LEGISLATION REFERRED TO: 1. The Rules of the Supreme Court of England, 1965, 1999 Edition 2. The Immigration and Deportation Act No 18 of 2010 1. INTRODUCTION 1.1 Chanty Mupoyi Kalanga, the Applicant herein, on 11th November, 2025 applied for leave to commence judicial review proceedings. 1.2 The application was supported by a Notice, an affidavit and Skeleton Arguments and a List of Authorities. 1.3 In opposition, the Attorney General filed an affidavit and a List of Authorities and Skeleton Arguments in opposition. 2. SUBMISSIONS AT THE HEARING SUBMISSIONS BY COUNSEL FOR CHANTY MUPOYI KALANGA 2.1 Counsel for Chanti Mupoyi Kalanga in making submission, relied on the Notice containing the statement, the affidavit in support and the List of Authorities and Skeleton Arguments in support. He stated that leave was sought to commence judicial review proceedings against the decision by the Minister of Home Affairs and Internal Security to deport Chanty Mupoyi Kalanga from Zambia. R3 2.2 It was further submitted that should leave be granted to commence judicial review proceedings, Chanty Mupoyi Kalanga would rely on the grounds of illegality as the Minister of Home Affairs and Internal Security lacked jurisdiction and exceeded his authority by deporting Chanty Mupoyi Kalanga. 2.3 In that regard, Counsel stated that the warrant of deportation which was exhibited as 'CKM4' to the affidavit which was filed in support of the application, showed that the Minister relied on Section 39 of the Immigration and Deportation Act No 18 of 2010 to deport her. 2.4 Whilst admitting that the said Section confers powers on the Minister to deport an individual, the contention was that those powers are limited in scope, as deportation can only be done pursuant to that Section, when a person has been convicted and they have served a term of imprisonment. 2.5 Therefore, to apply the Section to other circumstances was blatantly illegal, as in this matter, Chanty Mupoyi Kalanga was not ordered to serve a term of imprisonment, but to pay a fine, which was duly paid. 2.6 Reliance was placed on the cases of Maambo Mercy Pole Pole v The Attorney General f9J and Abraham Mohammad Sheriff Noor v The Attorney General f3J, stating that they were on all fours with this case. 2.7 In still submitting, Counsel stated that they would rely on procedural impropriety as a second ground, which is R4 espoused in the Latin maxim, audi alteream partem. It was submitted that the said maxim is to the affect that no man should be condemned without being heard. 2.8 Submission was made that the said principle is well outlined in Section 36 (1) of the Immigration and Deportation Act which grants individuals the right to be heard and to make representations prior to being deported. 2.9 Further in regard to the Section, it was stated that Section 36 (4) provides for the period within which representations may be made, being 48 hours. Therefore, the Section creates a legitimate expectation on the part of an applicant in respect of whom a warrant of deportation is issued, to make representations. 2 .10 The case of Communications Authority v Vodacom f7J was cited as having given guidance on legitimate expectation and that it is rooted on the principle of law, certainty and predictability of Government in dealing with the public. 2 .11 Counsel stated that the facts of the case showed that the Notice of Deportation was issued on 26 th August, 2025 and Chanty Mupoyi Kalanga was deported on 27th August, 2025. Thus, she was not accorded an opportunity to be heard. 2.12 It was submitted that Counsel was conscious that at this stage, the Court merely had to decide whether Chanty Mupoyi Kalanga, has an arguable a case, which is fit for further investigation at a full hearing, which on the facts as stated, had been revealed. RS 2.13 The prayer was that leave be granted to commence judicial review proceedings. RESPONSE BY COUNSEL FOR THE ATTORNEY GENERAL 2.14 Counsel for the Attorney General in response, relied on the affidavit in opposition together with the List of Authorities and Skeleton Arguments in opposition, which were filed on th 18 December, 2025. REPLY BY COUNSEL FOR CHANTY MUPOYI KALANGA 2.15 The submission in reply was that reliance was placed on the affidavit in reply and the List of Authorities and Skeleton Arguments in reply which were filed on 29th December, 2025. Counsel stated that it had been suggested that the application was out of time, having been made after more than three months. 2.16 However, Counsel stated that Chanty Mupoyi Kalanga was informed of the decision on 26 th August, 2025, and therefore th the last day for making the application was 26 November, 2025. It was stated that the application was made on 11th November, 2025. 2.17 Further in reply, Counsel stated that on the argument that there was an alternative remedy of appeal, which Chanty Mupoyi Kalanga had not pursued, Chanty Mupoyi Kalanga was robbed of the opportunity as she was deported immediately, and she was unable to appeal. J R6 3. DECISION OF THIS COURT 3.1 I have considered the application. Order 53 Rule 3 fl) of the Rules of the Supreme Court of England, 1965, 1999 Edition provides that: "fl) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule." 3.2 Chanty Mupoyi Kalanga deposed in the affidavit which was filed in support of the application, that she is a Congolese national who is a professional in events and hospitality. She stated that she first came to Zambia in search of employment in January, 2025. Her averment was that she did short attachments at Foxdale Lodge from January to July, and that she was not formally employed, but was merely being tested on her suitability for the job. 3.3 She deposed that she was arrested by the Department of Immigration on 30th July, 2025, and she was taken to Lusaka Central Police where she was detained pending her appearance before the Subordinate Court. 3.4 Chanty Mupoyi Kalanga further averred that she appeared before the Subordinate Court, charged with three offences, being Concealing True Identity, contrary to Sections 52 f2) and f6) of the Immigration and Deportation Act, Engaging in Paid Employment without a Permit contrary to Section 54 as read with Section 56 fl) of the said Immigration and Deportation Act, and unlawful R7 possession of a national registration card contrary to Section 13 ( l} of the National Registration Act. 3.5 The charge sheet was exhibited as 'CMKl '. 3.6 It was stated that Charity Mupoyi Kalanga pleaded guilty to all three charges, and as shown by the certificate of sentence which was exhibited as 'CMK2', she was sentenced to pay a fine on all three counts. 3.7 Her averment was that she paid the fines in the amount of K3, 500.00 as evidenced by the Government receipt number 23932290 on 19th August, 2025, which was exhibited as 'CMK3'. 3.8 In still deposing, Chanty Mupoyi Kalanga stated that thereafter on 26th August, 2025, she was served the warrant of deportation, and she was taken to the airport less than forty-eight hours later. 3.9 It was averred that the warrant of deportation stated that Chanty Mupoyi Kalanga was deported pursuant to Section 39 (1) of the Immigration and Deportation Act, and it did not state the class of the schedule while applied with regard to the deportation. 3.10 Chanty Mupoyi Kalanga stated that she was not afforded an opportunity to make representations to the Minister regarding her deportation. 3.11 In the List of Authorities and Skeleton Arguments which were filed in support of the application, it was argued that leave to commence judicial review proceedings should be granted, as Chanty Mupoyi Kalanga seeks to challenge the R8 decision by the Minister of Home Affairs and Internal Security to deport her, on the grounds of illegality and procedural impropriety. 3.12 The authorities as stated by Counsel at the hearing were cited. 3.13 It was argued that Section 39 of the Immigration and Deportation Act, entitles a person who is served with a Deportation Order to make representations on the Order. Therefore, as Chanty Mupoyi Kalanga was not given such opportunity, leave to commence judicial review proceedings should be granted. 3.14 In the affidavit in opposition, Shadrick Mwamba, a Senior Risk Management and Compliance Officer at the Department of Immigration, deposed that Chanty Mupoyi Kalanga on arrival in Zambia, informed the Immigration Officers that she had come to visit Zambia, and not that she was in search of employment. Exhibited as 'SM 1' was the visiting permit application. 3.15 He stated that every foreign national, who is desirous of carrying out any form of work or attachment in Zambia must be in possession of a requisite permit. 3.16 Also deposed, was that Shadrick Mwamba had been advised by his advocates, that there is no statutory provision that provides a time frame within which a deportation warrant which is signed by the Minister of Home Affairs and Internal Security must be effected. con,i ted 1d ,e - - . 500.00 or the offen e f · a Zam ·an national re-gi tion carcl. ~,~.n· n rionali _· . citizenship and ,OY:I!e \TI OU pen:m . ~a 1ed tha criminal and di hone t upo~i ~al~aa while in Zambia mad .::c.::- ~ -~:.eesc-a, :e perso who had o be remoH!d from the :a:ec -' - 'adri - hramba had been ad\ised i ----~- the lnrmigration and Deportation Act does not ~ a S....ciilrLffiY requirement that a deportation ·warrant --.:sr ~sctose .,,__e Cass o which the person deported ?_2'] :-:.L ~fS' m-e1 ·•en-was made. that Chancy Mupoyi Kalanga o~ her deponarion and her representatives he an · CK.et Lo the Democratic Republic of 0_..=go_ A?~~c~1 ~ exmbired as 'SM2·. -;, - =::e rle;x>sed Thar Chancy t.lupoyi Kalanga could have made =-e:rresen:ari<ms ro rhe ~linister of Home Affairs and - :e:-'__ariona! Security. 2_22 2!50 aY~ Shadrick Mwamba stated that a person who ::s rns-sarisEed with the decision of the Minister of Home Afairs and Internal Security ought to appeal to the High CmrL _23 Toe arguments as presented in the List of Authorities and -? Skeleton Arguments in opposition were that, an application RlO for leave to commence judicial review must be made within time. 3.24 In that regard, the provisions of Order 53 Rule (4) and (5) of the Rules of the Supreme Court of England, 1965, 1999 Edition were referred to. It was stated that the Warrant of Deportation was signed on 22°d August, 2025, but the application was only filed on 11th November, 2025. 3.25 Also relied on, was Practice Note 53/24/55 of the Rules of the Supreme Court of England, stating that it emphasises that applications for judicial review must be made promptly. 3. 26 The case of R v Independent Television Communication, ex-parte P TV NI Ltd f4Jwas also cited as authority. 3.27 On the purpose of the requirement to obtain leave to commence judicial review proceedings, the argument was that Practice Note 53/15/55 of the Rules of the Supreme Court of England states that: "The purpose of the requirement of leave is: (a) to eliminate at an early stage any applications which are either frivolous, vexatious or hopeless, and (b) to ensure that an applicant is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case fit for further consideration." 3 .28 The case of R v Inland Revenue Commissioners Ex-parte National Federation of Self Employed and Small Business Limited fJJ was relied on, stating that the decision in that case was adopted in the case of Chitala (Secretary Rll of the Zambia Democratic Congress) v Attorney General (ZJ. 3.29 It was argued that there is no case that is fit for further investigations, as the relief sought does not exist. The submission was that the law allows an Immigration Officer if they have reasonable grounds to believe that a person's presence in Zambia, is likely to be a danger to peace or good order to deport that person under a warrant that is signed by the Minister. 3.30 Accordingly, as Chanty Mupoyi Kalanga's presence 1n Zambia was no longer desirable, she could be deported pursuant to Section 17 (1) of the Immigration and Deportation Act. 3.31 It was stated that Section 28 of the Immigration and Deportation Act provides for obtaining of employment permits while Section 54 of the said Act criminalises foreigners who engage in employment in Zambia without permits. 3.32 Also argued, was that Section 13 (1) (h) of the National I Registration Act Chapter 126 of the Laws of Zambia l I prohibits the unlawful possession of national registration I cards. I 3.33 Arguments were also made, on where alternative remedies are available for applicants for judicial review. Practice Note 53/14/27 of the Rules of the Supreme Court of England was referred to, as well as the case of R v Epping and Harlow General Commissioners, Ex-parte Goldstraw fZJ Rl2 stating that they state that the grant of judicial review must not be exercised where other remedies are available. 3.34 The provisions of Section 10 of the Immigration and Deportation Act were cited, stating that under that provision, a person who is dissatisfied with the decision of the Minister has a right to appeal to the High Court. 3.35 Based on that, the application was that leave should not be granted as Chanty Mupoyi Kalanga had not exhausted the available remedies. 3.36 Chanty Mupoyi Kalanga, in the affidavit in reply, agreed that she entered Zambia on a visiting permit, but stated that she intended to search for employment and settle down in the country. 3.37 Her averment was that the Immigration and Deportation Act stipulates that a person shall be deported after serving a sentence of imprisonment or fourteen (14) days from the time of a Notice of a Warrant of Deportation is issued. 3.38 She repeated that the Warrant of Deportation was issued on account of the fact that she was convicted of an offence, but she did not serve a term of imprisonment. 3.39 It was deposed that Chanty Mupoyi Kalanga had been l advised by her advocates that the Immigration and Deportation Act makes it mandatory for the Department of I Immigration to show on the Warrant of Deportation the class to which the deportee belongs. 3.40 Further averment was made, that there was no evidence to show that prior to the deportation on 26th August, 2025, R13 Chanty Mupoyi Kalanga was aware of the said deportation, as she was only served the Warrant of Deportation dated 22nd August, 2025, on 26th August, 2025. 3.41 Chanty Mupoyi Kalanga deposed that she was ordered to book a plane ticket which was exhibited as 'CMK2' on 26th August, 2025 for departure on 27th August, 2025, following her release from prison. Then as shown by the indorsement in her passport, which was exhibited as 'CMK3', Chanty Mupoyi Kalanga exited Zambia on 27th August, 2025. 3.42 It was also stated that as advised by her advocates, Notice of Deportation is the date of receipt of the Warrant of Deportation and not the date on which the warrant was issued. Chanty Mupoyi Kalanga stated that upon receipt of the Warrant of Deportation on 26th August, 2025, she was informed that she would be deported on 27th August, 2025. 3.43 The averment was that as advised by her advocates, the Immigration and Deportation Act requires a person who is affected to be given forty-eight (48) hours, within which to make representations. Chanty Mupoyi Kalanga stated that she was not given such opportunity. 3.44 She deposed that as advised by her advocates, a person who is aggrieved by an order of deportation may commence judicial review proceedings, and not proceed by way of appeal. DECISION 3.45 It has been seen that the purpose of obtaining leave to commence judicial review is to eliminate frivolous, vexatious R14 or hopeless appr t· . ica 10ns Wlthout the need for a substantive hearing. ' 8.1 The Practice Notes in Order 53/14/21 of the Rules of the Supreme Court of England in that regard, state the purpose as: {a) to eliminate frivolous, vexatious or hopeless applications for judicial review without the need for a substantive inter partes judicial review hearing; and to ensure that an applicant is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case fit for further investigation at a full inter partes hearing". 3.46 This position of the law was reiterated in the case of Derrick Chitala (Secretary of the Zambia Democratic Congress) v Attorney General f5J. 3.47 As regards when an application for judicial review should be made, Order 53 Rule 4 (1) of the Rules of the Supreme Court of England provides that: "(1) An application for leave to apply for judicial review shall be made promptly and in any event wi.thin three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made." R15 3.48 In this matter, the record shows that the Warrant of Deportation was issued on 22nd August, 2025. Chanty Mupoyi Kalanga averred that she was served the same on 26th August, 2025. Three months from that date, is on or around 26th November, 2025. The application was filed on 11th November, 2025, which period was within the three (3) months. 3.49 Thus, contrary to the arguments that were by the Attorney General, the application was made within time, and there was no need to apply to extend time within which to commence the judicial review proceedings. 3.50 The application having been made within time, the next question that arises is whether a wrong mode of commencing the matter was employed, and therefore, leave should not be granted to commence judicial review? 3. 51 Relying on Section 10 of the Immigration and Deportation Act, the Attorney General argued that under that provision, a person who is aggrieved by the decision of the Minister has a right to appeal to the High Court. 3.52 In reply, Chanty Mupoyi Kalanga argued that in fact under the said provision, a person who is aggrieved by an order of deportation has a right to commence judicial review proceedings. 3. 53 Section 10 of the Immigration and Deportation Act provides as follows: "(1) After making a decision, under this Act, which adversely affects a person, other than a decision Rl6 relating to a deportation or removal, an immigration officer shall notify that person of the decision and the reasons for the decision and give the person at least forty-eight hours to make representations. (2) The immigration officer shall, where a person makes any representation under subsection ( 1), within fourteen days of receiving the representation, notify the person of the decision made, with respect to the representation. (3) Any person aggrieved with a decision of the immigration officer under subsection (1) may, within forty-eight hours of receiving the decision, appeal to the Minister. (4) The Minister may, upon receiving an appeal under subsection (3), reverse or modify the decision of the immigration officer within ten days: Provided that the Minister shall not take any decision before consulting the Di.rector-General of Immigration and obtaining the Di.rector's advice. (SJ Any person aggrieved with a decision of the Minister under subsection (4) may, within forty eight hours of the Minister's decision, if appropriate, appeal to a court, which may suspend, reverse or modify the decision. R17 I f6 ) If a decision of the Department is not appealed in terms of subsections (3) and (SJ, the decision shall be final." 3 54 · In the case of New Plast Industries v The Commissioner of Lands and The Attorney-General f6J, the Court stated that: "It is not entirely correct that the mode of commencement of any action largely depends on the reliefs sought. The correct position is that the mode of commencement of any action is generally provided by the relevant statute." 3.55 The Supreme Court in the case of Kansanshi Mines PLC v Zambia Revenue Authority fBJ with reference to the case of New Plast Industries v The Commissioner of Lands and the Attorney General f6J, noted that where a statute provides for a particular procedure to be adopted where a party is unsatisfied with a decision, that party ought to apply the procedure provided for under the applicable statute. 3. 56 In the New Plast Industries v The Commissioner of Lands & The Attorney General f6 J case, the Supreme Court on the consequences of wrong mode of commencement being invoked, had this to say: r, "This was the stand taken by this court in Chikuta v Chipata Rural Council where we said that there is no case in the High Court, where there is a choice between commencing an action by a writ of summons. We held in that case, that where any I Rl8 I matter is brought to the High Court by means of an originating summons when it should have been commenced by a writ, the court has no Jurisdiction to make any declaration. The same comparison is applicable here. Thus, where any matter under the Lands and Deeds Registry Act, is brought to the High Court by means of Judicial Review when it should have been brought by way of an appeal, the court has no Jurisdiction to grant the remedies sought. On this ground alone, this appeal cannot succeed." 3.57 Applying the above rationale to this case, a careful reading of Section 10 ( 1) of the Immigration and Deportation Act reveals that it is only a decision under the Act, which adversely affects a person, other than a decision relating to deportation or removal, that is provided for under the Section. 3.58 Therefore, any Order of deportation or removal that is challenged, is not subject to the provisions of Section 10 of the Act. Consequently, a person who is dissatisfied with a decision relating to deportation or removal does not proceed by way of appeal. 3.59 It therefore follows, that the decision in the case of the case of R v Epping and Harlow General Commissioners, Ex parte Goldstraw f2 J is not applicable, as there is no other alternative remedy that is provided for, with regard to the challenge of an order of deportation. Rl9 3.60 Chanty Mupoyi Kalanga seeks to challenge the decision to deport her from Zambia by way of Judicial Review. There is a plethora of authorities that support that mode of commencement of an action relating to a deportation order, as it challenges administrative decision making. 3.61 What an applicant for leave to commence judicial review proceedings, has to demonstrate, is that there is an arguable case on the merits, and therefore, that there is a case that is fit for further investigation at a full hearing. The Court at this stage, is not concerned with the merits of the case 3.62 A perusal of the affidavit in support and the List of Authorities in support of the application, as well as the affidavit in reply show that Chanty Mupoyi Kalanga wishes to challenge the order of deportation, on the ground that it was illegal and procedurally improper, as it was against the provisions of the Immigration and Deportation Act pursuant to which the Order of deportation was made. 3.63 From the averments as made in the affidavits, Chanty Mupoyi Kalanga has demonstrated an arguable case that is fit for further investigations, as she has raised arguments that warrant further investigation. 4. CONCLUSION 4.1 I accordingly grant Chanty Mupoyi Kalanga leave to commence judicial review proceedings. The Notice of Motion having been filed, the matter shall come up on 24th Febru ary, 2026 at 14:30 hours. The grant ofleave to commence judicial review proceedings shall not operate as a stay of the I R20 decision, as the deportation has already taken place. Leave to appeal is granted. DATED AT LUSAKA THE 22nd DAY OF JANUARY, 2026 S. KAUNDA NEWA HIGH COURT JUDGE 22 JAN 2026