COURT of Appeal judge Mubanga Kondolo has vacated the injunction which restrained Zambia Airforce Projects Limited, Kingsland City Investment Limited, among others, from continuing works at Kingsland City.
On February 17, this year, judge Kondolo granted Chalimbana Headwaters Conservation Trust Limited and nine traditional leaders of the Soli people an injunction restraining the continued works at Kingsland City.
The said injunction restrained ZAF Projects Limited, Kingsland City Investment Limited, Drimtown Investment Limited, Shangrila Investment Limited and Datong Construction Limited from continuing works on the area covered by the decision letter issued to ZAF Projects Limited by the Zambia Environmental Management Agency (ZEMA) on February 7, 2019 in respect of the project entitled, “Proposed Mixed Use Infrastructure Developmental Lots 2 and 3 ZAF Twin Palm Base, Lusaka by Zambia Airforce Projects Company Limited”.
However, ZAF Projects Limited asked the court to discharge the said injunction.
And ruling on the same application by ZAF Projects Limited, on September 18, this year, judge Kondolo said Zambia Airforce Projects Limited had shown that it had satisfied the conditions set by the court in its judgment of February 17, for vacating the said interlocutory injunction.
“The affidavit in support of the first respondents (ZAF Projects Limited) application to discharge the injunction has shown through exhibit “EL 4″ that the first respondent has satisfied the conditions set by this Court in its judgement dated February 17, 2020 for vacating the interlocutory injunction granted to the appellants,” he said.
Judge Kondolo said a pre-condition was a condition that must be fulfilled before other things can happen or be done.
He added that it was on that basis that the Court stated that the injunction could be vacated upon ZAF Projects Limited complying with the pre-conditions which required them to submit under paragraph 3.1.1 proof to ZEMA that they have complied with the requirements of the Water Resources Management Act No. 21 of 2011 and under 3.1.5 that it shall prepare and submit for approval comprehensive hydrological study of the Chalimbana Sub-catchment.
“The issue before the Court is not whether the first respondent is complying with the decision letter of February 7, 2019 but whether they have met the conditions prescribed in my judgement of February 17, 2020. The issues of compliance are already before the trial Court and if there are on-going infractions so grave as to warrant suspension of the entire project by an injunction, nothing prevents the applicants from seeking that specific acts or the entire project be injuncted,” judge Kondolo said.
He accordingly vacated the injunction.
“The said injunction is accordingly vacated. Costs are in the cause,” ruled judge Kondolo.
ZAF Projects Limited director Colonel Edgar Lungu had submitted in an affidavit in support of ex-parte summons for an order to discharge the interim injunction, that the ruling of the court of February 17, this year, specified that the injunction could be vacated by ZAF Projects Limited complying with the pre-conditions set out in the decision letter issued by ZEMA dated February 7, 2019.
He stated that in compliance with the conditions set out in the decision letter, ZAF Projects Limited on March 3, 2020 submitted a copy of the report of the Hydrological study for the Chalimbana Catchment Area and Ecological Management Plan for the Proposed Mixed-Use Development at ZAF Twin Palm to ZEMA for review and possible approval.
Col Lungu stated that by letter dated March 10, 2020, ZEMA approved the said report which was in fulfilment of the conditions of the decision letter.
He added that by letter dated July 29, 2020, ZEMA further approved the Hydrological Report and Water Management Plan for ZAF Twin Palm Mixed-Use Infrastructural Development in fulfillment of the conditions of the decision letter.
“ZAF Projects Limited having fulfilled the pre-conditions set by ZEMA and as guided by this honourable court through its judgment of February 17, 2020, this is a proper case for the honourable Court to exercise its discretion in discharging the injunction as conditions 3.1.3 and 3.1.5 of the decision letter dated February 7, 2019 have been complied with,” Col Lungu stated.
But Chalimbana Headwaters Conservation Trust Limited and the nine traditional leaders of the Soli people opposed to the said application arguing that this was not a proper case to allow the discharge of the injunction as the respondents were still in breach of the conditions of the decision letter.
Robert Chimambo, the secretary of Chalimbana Headwaters Conservation Trust, stated in an affidavit in opposition that even with the Court’s injunction and clear direction not to carry out any works, there was still non-compliance as the respondents continued building and allowed tenants to move into some of the properties.
He added that the said tenants were drawing water from boreholes and not using approved sewerage systems in contravention of the decision letter.
“They (respondents) have come to this court seeking the lifting of the injunction so that they can continue construction when they are in continuing breach of this Court’s injunction and the Environmental Licences that they require to carry on with the project. This is not a proper case to allow the discharge of the injunction because the respondents are still in breach of the conditions of the decision letter,” Chimambo stated.
And at the hearing of the said application, last week Thursday, ZAF Projects Limited through its counsel Calisto Nambote insisted that the court should discharge the injunction.
He said the court had in its ruling set pre-conditions for ZAF Projects Limited to meet in order for the injunction to be discharged or vacated, adding that the said conditions had been fully complied with.
“It is our prayer that this Honourable Court will discharge the injunction issued because the first respondent (ZAF Projects Limited) has clearly demonstrated that it has fully complied with the Court’s instructions,” Nambote said.
But in response, Chalimbana Headwaters Conservation Trust Limited and the nine traditional leaders of the Soli people argued through their lawyer Mutembo Nchito, that the respondents had failed to demonstrate that they were in compliance with environmental laws.
He added that if they were to continue operations at Kingsland City in disregard of the environmental laws, that would render the whole exercise at the High Court academic and that the interest of the appellants would be prejudiced.
However, the court of appeal has now vacated the said injunction.
In the matter before the Lusaka High Court, Chalimbana Headwaters Conservation Trust and nine traditional leaders of the Soli people, who include among others, senior headman Maoma and senior headman Nkomenshya have sued Zambia Airforce Projects Limited and Kingsland City Investment for carrying out construction works on a forest reserve.
Other companies sued include; Drimtown Investments Limited, Shangrila Investments Limited and Datong Construction Limited.
The plaintiffs have also sued ZEMA, Water Resources Management Authority and the Attorney General.