The President of the Republic Felix Tshisekedi at the re-entry ceremony of the Court of Cassation

0
236

Kinshasa, October 19th, 2021 (CPA).– The President of the Republic, Felix Antoine Tshisekedi Tshilombo, Supreme Magistrate of the Republic, attended the ceremony of the judicial reentry of the Court of Cassation, year 2021-2022, held on Monday in Marcel Lihau room, in Gombe, under the theme: « The problem of the termination of the lease contract for a land concession by unilateral decision of the Registrar of real estate titles ».

In his speech for the occasion, David-Christophe Mukendi Musanga, first president of the Court of Cassation, indicated that the presence, at this ceremony, of the Head of State, constitutional guarantor of the independence of the judiciary, marks his willingness to do everything in its power to make its ideal of the rule of law effective.

Addressing the topic of the day, the first president of the Court of Cassation recalled that everyone aspires to the acquisition of a land concession from the State, owner of the land, to exploit it according to the agreed destination.

For him, this ideal may not be achieved following a unilateral decision by the registrar of real estate titles, notably terminating the rental contract signed beforehand with a view to a perpetual or ordinary concession between the State and the tenant.

He denounced a kind of stubbornness of the land title custodians, representing the state, seen as a « contractual coup » to end the concession contract in order to re-let the concession. This situation, he says, is at the origin of a flow of conflicts on the lands of the private domain of the State, especially those located in the urban districts.

The first president of the Court of Cassation insisted on the one hand on the fact that the general feeling is that of insecurity in the face of decisions taken by the custodians of real estate titles, accused of making arbitrariness prevail despite legal arrangements. existing and, on the other hand, the litigation judge of the rental contract is also accused of culpable indifference with regard to this state of affairs when he must be the strict servant of the law, particularly the land law and the ordinance containing its implementing measures.

The role of the litigation judge for the rental contract

For David-Christophe Mukendi, the rental contract judge has an important role to play as guardian of the rights guaranteed to individuals, in particular that of becoming a land concessionaire.

« The judge of the rental contract must use his discretion to control the use by the registrar of real estate titles of the prerogative conferred on him by article 94 paragraph 3 of the land law, and consequently, sanction its disloyalty in the event of violation of the obligation of formal notice of its co-contracting party, in order to prevent a single will from destroying what the common will has created”, he insisted.

He affirmed that in any case the termination of the rental contract, which is a serious measure, must be checked a priori and a posteriori by the judge, continuing that when the termination is by law but without respecting the legal condition of prior notice, the litigation judge of the rental contract has the power to influence this method of contractual termination but which in reality involves the risk of abuse of power by the registrar of real estate titles and provides him with an illegitimate profit from resorting to practices contra legen of notification of the formal notice in order to surprise the tenant, and subsequently to conclude other contracts in the most total illegality.

The first president of the Court of Cassation concluded by reminding the judges that the Romano-Germanic heritage of our legal system teaches that the pure and simple application of the law is then the sole function of the judge in order to annihilate any margin of maneuver of the latter in the settlement of the conflict submitted to him.

For his part, Victor Mumba Mukoko, Attorney General at the Court of Cassation pronounced his mercurial on « the repression of flagrant violations in Congolese positive law ». He proposed the re-reading of the Congolese Penal Code and the Code of Criminal Procedure to prune the immunities from prosecution and the privileges of the courts to those who commit the offenses of embezzlement of public funds, corruption and embezzlement since they lose a lot of resources to the Congolese state.

Previously, the national president, Me Tharcisse Matadiwamba, had worked in his plea on justice which constitutes the cement of human and even animal societies. Because, he explained, nowhere is anarchy accepted as a rule. The man is satisfied and appeased only when justice is done to him, continued the national president.

Finally, he pleaded for respect for the law and justice, the cement of cohesion and national independence. He maintained that justice is to law, what perfection is to perfectibility since perfection cannot calculate it and reach its exact value.

As a reminder, the judicial reopening of the Constitutional Court took place last Saturday, at the People’s Palace before that of the Council of State scheduled for October 30th, 2021.

ACP /