Damage to the environment resides in a hallowed place - Zambian judge

Eight senior Zambian headmen and a traditional princess have challenged the behaviour of the government’s private-public partnership company, Zambia Airforce Projects Ltd, in relation to a building project in an environmentally critical area. Now they have been rewarded by a tough court response in their favour. A Court of Appeal judge who heard the application by the traditional leaders has issued an order stopping any further work in the area until key environmental law issues have been satisfied and the court gives the company the go-ahead to continue.

 

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A group of traditional leaders has gone to court against the Zambia Airforce Project Ltd (ZAP), trying to stop it from pursuing a building scheme that could pollute the entire crucial Greater Lusaka aquifer system. And despite strong argument that it was beyond the powers of the court to do anything about this situation, ZAP has now been told by an appeal judge to stop all its activities in the area until the court says it may resume operations.

According to eight senior headmen and a traditional princess of the Busoli people, until ZAP had obtained all the proper authorisations from the country’s environmental officials, the project should come to a halt. They said the proper preliminary studies had not been carried out and that the right of the Busoli people and other members of the public to access clean and uncontaminated water to drink and use was threatened.

Stop

They initially brought an application in the high court, asking for the same relief.  In July 2019 this preliminary litigation was successful, the court granting an order that the project had to stop until approved by all the necessary environmental authorities. Since then the project has continued, however, even though the order has not been complied with.

According to the traditional leaders’ co-litigants, the aim of the application was to stop ZAP from undertaking the building project it had planned for an ecologically and environmentally sensitive forest reserve. The area included the Chalimbana catchment area, a critically sensitive aquifer providing 50 – 60 % of Lusaka’s entire water supply, and the source of the Chalimbana River and its tributaries that are all part of the greater Lusaka underground water aquifer.

'Irreversible consequences'

Secretary of the Chalimbana Headwaters Conversation Trust, Robert Chembo, told the court that the developments were destroying the recharge area and disrupting the replenishment process of the underground aquifer. If not stopped, he said, it would have ‘irreversible consequences such as drying boreholes and wells.’

Already the traditional leaders and other residents of the area had been affected and unless the development project was stopped the people’s right to access clean and safe water would be infringed.

For the last two years, ZAP had ignored previous court orders that work be halted pending proper authorization. It acted as though ‘immune’ to the country’s environmental laws.

'Agent of the state'

One of ZAP’s arguments was that the action was incompetent: ZAP was an ‘agent of the state’, acting on behalf of the government, and so any injunction against ZAP was effectively an injunction against the state – something prohibited under the State Proceedings Act.

As far as the traditional leaders were concerned, however, ZAP was just an ordinary legal person under the Companies Act, subject to the jurisdiction of the court and its powers.

ZAP’s Lt Colonel Chitembwe said that in 2013 the state had built more than 1 000 housing units at the Zambia Air Force Twin Palm Base. Now it needed to put up supporting infrastructure like schools and shopping malls. To do so the state formed a public-private partnership with several developers and, in this development, acted through ZAP.

Immunity

Judge Mubanga Kondolo of the Court of Appeal said a private limited company had a separate legal personality from its shareholders and nothing in the State Proceedings Act offered immunity to such an entity.

There was a serious issue to be tried, but at this stage all that was necessary was to see if the evidence before court established that on the face of it the applicants had a case in their favour.

That the forest area of the project was ecologically sensitive was clear from a protection order issued by the director general of Zambia’s environmental management agency, ZEMA. That body had ordered ZAP to ‘stop forthwith’ any construction works in the forest reserve and to remedy any adverse effects the project may already have had on the water, forest and surrounding ecosystems.

'Irreparable injury'

Justice Kondolo found that the applicants had established there was a serious issue involved. The second question was whether the affected community would suffer ‘irreparable injury’ if the injunction were not granted?

In answering this question, Justice Kondolo wrote the most quotable sentence of his decision. ‘I would state that disputes to do with damage to the environment reside in a hallowed place,’ he said. The principles that apply to loss of land should apply in such cases too: one ‘does not have to prove irreparable injury,’ he said.

True, the project was so big that if the case were ultimately decided in ZAP’s favour the traditional leaders could find it difficult or impossible to adequately compensate for the losses that would have been incurred. Against this reality, however, was the ‘potential irreversible injury’ that could be suffered ‘by an entire city and its surrounding areas if the injunction is not granted.’

As a result, the court granted an interim interdict restraining ZAP and its partners from continuing works on the area until they had complied with the preconditions set by ZEMA and had obtained an order of court allowing ZAP to continue.

* 'A matter of justice', Legalbrief