Lusaka High Court Judge Mwila Chitabo has vacated the interim injunction which was granted to nine Chongwe traditional leaders restraining Zambia Air Force Projects Limited and others from carrying out any further constructions works on a forest reserve.
Justice Chitabo ruled that the matter was not a fit and proper case to confirm the interim injunction earlier granted.
This is the matter in which Chalimbana River Headwaters Conservation Trust and nine traditional leaders of the Soli people have sued Zambia Airforce Projects 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.
Moses Lukwanda, who is senior headman Maoma, senior headman Nkomenshya and eight others are seeking an injunction restraining the defendants from continuing with the construction of the Kingsland City Project in the area, and an order declaring that the developments are a threat not only to the Chalimbana River Catchment but the greater Lusaka Aquifer system.
Early, this year, High Court judge Ruth Chibabuka granted the plaintiffs an injunction restraining the defendants from carrying out any further building and constructions works on the forest reserve.
She, however, recused herself from handling the matter and the case was later reallocated to justice Mwila Chitabo.
During submissions, the complainants’ lawyer Mutembo Nchito had argued that the the public had the right to clear and uncontaminated water, adding that if the project was carried out, it threatened that right.
He also submitted that an injunction could properly lie against State owned or controlled institutions, as companies registered under PACRA were liable to injunctions and so was ZAF projects limited.
But colonel Nambote, a lawyer representing the defendants, argued that there was no reason to confirm the exparte injunction which was earlier granted to the complainants.
He said the defendants were agents of the State, adding that an injunction could not lie against the State because Kingsland City project was being undertaken by the State through ZAF Projects Limited, which was 99 percent owned by ZAF.
Nambote also argued that the project developments were in public interest and would serve not only the military personnel, but also the local community as there was no proof that the project would harm the aquifer system or environment.
And in his ruling dated July 29, 2019, Justice Chitabo noted that although the major interest of the complainants was to protect the aquifer from degradation, they had not produced evidence to show that the project would contaminate or adversely affect the environment.
He added that it was not sufficient for the complainants to proclaim that they had a cause of action or that their rights had been threatened.
Justice Mwila observed that the complainants had only sought court intervention this year when the Kingsland City project had commenced few years ago.
He further said it was in public interest that adequate facilities were provided to the men and women serving in the defence force, as it was a strategic institution.
“The peculiar feature of this case is that the project commenced about three years ago and the plaintiffs only sought court intervention in March 2019. ZAF is an arm of the defense forces which is a strategic institution in the security of the sovereign state of government. It is therefore in public interest that adequate facilities are provided to the men and women serving in that strategic institution,” justice Chitabo said.
He ruled that the case wasn’t fit and proper to confirm the interim injunction earlier granted and accordingly vacated it.
Justice Chitabo, however, granted the complainants leave to appeal to the superior Court of appeal.
“Having considered the guidelines on whether to confirm or vacate the interim order earlier granted by this court, as there is only one High Court, I have no hesitation in forming a firm opinion that this is not a fit and proper case to confirm the interim injunction order granted May 16, 2019. It is accordingly vacated. The interlocutory application raised important environmental issues which are matters of constitutional and tremendous public interest. The justice of this case is that I make no order as to costs. Put differently each party is to bear own costs,” ruled judge Chitabo.