Graduare Property Development Limited, the owner and operator of East Park Mall, has sought leave of the Lusaka High Court to apply for judicial review against the refusal or omission by ZEMA to enforce the compliance order it purportedly issued to the Ministry of Local Government in relation to the Lusaka Roads Decongestion Project.

It is further challenging the refusal or omission by the Minister of Water Development, Sanitation and Environmental Protection to determine it’s review application as required by sections 108 (4) and (5) and 115 of Environmental Management Act, following ZEMA ‘s refusal to enforce the conditions it imposed on the Ministry of Local Government in relation to the Project.

Graduare Property Development Limited, the applicant in this matter, has cited Zambia Environmental Management Agency and the Attorney General as first and second respondents respectively.

In its notice of ex-parte application for leave to apply for judicial review filed on January 3, 2020, the applicant stated that it owns and operates East Park Mall and that it constructed the said mall at a cost of $110,000,000 over the last six years and was still continuing to expand the facility.

The applicant stated that on January 28, 2018, the Ministry of Local Government, through its consulting engineers, submitted an Environmental and Social Impact Statement to ZEMA in relation to the Lusaka Roads Decongestion Project.

It further stated that the project covers an approximate network of 120 kilometres of roads in Lusaka but its interest in this case only relates to the road works and construction to be undertaken in the vicinity of East Park Mall, particularly at Great East Road.

Graduare Property Development Limited legal officer Andrew Mushibwe stated that the Environmental and Social statement submitted to ZEMA by the ministry did not contain any specifications in relation to what the project would entail at the Arcades Roundabout on Great East Road but only made reference to widening of the Great East Road to six lanes from four lanes.

He stated that on April 4, 2018, the ministry was granted conditional approval for the project as it relates to widening of the Great East road to six lanes from four.

Mushibwe further stated that ZEMA, in its letter granting approval, directed that the ministry consults and agrees with stakeholders such as the applicant which owns and operates business assets near the project area and as well as residents who live around it.

He stated that the Ministry of Local Government was implementing the project along the Great East Road and at the Arcades Roundabout but it had not consulted and agreed with the applicant on how the road widening at the entrance to the mall off Great East Road should be conducted.

Mushibwe stated that the ministry has to date not obtained approval from the applicant for the construction of a fly over bridge at the Arcades Roundabout and was in effect proceeding illegally.

He stated that the applicant fears that by the time the Attorney General renders the decision on the applicant’s review application, the construction would have reached an advanced stage and the applicant’s grievance would be academic.

Mushibwe stated that Graduare Property Development Limited was currently working on an additional phase of construction works for more shops and investment at the mall and it stands to suffer damages in the estimated amount of U$20 million if the rule of law was not followed in the manner that the project was being implemented.

The applicant is now seeking an order of mandamus to compel ZEMA to enforce the compliance order issued to the ministry on August 13, 2019 by resorting to any of the three measures provided in section 106 (3) of the Environmental Management Act.

Graduare Property Development Limited is also seeking an order of mandamus directed to the Minister of Environmental Protection to hear and determine its review application within seven days of the Court’s decision.

The applicant is further seeking damages for breach of statutory duty by ZEMA and the Attorney General.

It further wants, if leave to apply for judicial review is granted, a direction pursuant to Rule 3 (10) (b) of Order 53 of the Rules of the Supreme Court that such grant should operate as a stay of the conditional approval for the Project granted by ZEMA to the Ministry of Local Government, among other reliefs.