THE Court of Appeal has granted an injunction restraining the continued works at Kingsland City, a housing project which was officially commissioned by President Edgar Lungu last month.
Delivering his ruling, Judge Kondolo said the Kingsland City, regardless of the magnitude of the project, does not enjoy State immunity from injunction.
“The application for an injunction is successful and the first to fifth respondents are restrained from continuing works on the area covered by the decision letter issued to the first respondent (ZAF Projects Limited) on February 7, 2019,” Court of Appeal judge Mubanga Kondolo ruled.
In this matter, Chalimbana Headwaters Conservation Trust and nine traditional leaders of the Soli people 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 Zambia Environmental Management Agency (ZEMA), Water Resources Management Authority and the Attorney General.
Moses Lukwanda, who is senior headman Maoma, senior headman Nkomenshya and eight others are seeking among other reliefs, an injunction restraining the defendants from continuing with the construction of the Kingsland City Project in the area, an order that the defendants should obey the Protection Order of September 2019, and an order declaring that the developments are a threat not only to the Chalimbana River Catchment but the greater Lusaka Aquifer system.
On January 24, this year, President Lungu commissioned the 150 houses at the Kingsland Zambia Airforce project.
Last year, High Court judge Ruth Chibabuka granted the plaintiffs an ex-parte order of 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.
But 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 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.
The applicants then renewed their application for an interim injunction before the Court of Appeal.
But in a judgement delivered, February 17, Court of Appeal judge Kondolo noted that it had been argued that the effect of an injunction in the case would amount to ordering an injunction against the State, an argument that he said held no water.
He added that if that were true, then all Statutory bodies, parastals and private contractors that provide goods and services for and on behalf of government would be protected by State immunity, an interpretation that was absurd.
Justice Kondolo stated that it mattered not how many shares government had in ZAF Projects Limited and it also mattered not that Kingsland City Investment Limited and the three construction companies were concessionaires or contractors carrying out work on behalf of the State through ZAF Projects Limited.
He added that nothing in the State Proceedings Act contemplates providing immunity to such entities.
“This therefore means that an injunction can be ordered against the first to fifth respondents and the principles governing the grant of injunctions will apply as they do in any other application for an injunction,” said Justice Kondolo.
He disagreed with the respondents submission that the subject project was of such magnitude that should an injunction be granted and the case was ultimately decided in their favour, the applicants may find it difficult or even impossible to adequately compensate losses that could be incurred as a direct result of the injunction.
Justice Kondolo however, added that that had to be carefully weighed against the potential irreversible injury that might be suffered by an entire city and its surrounding areas if the injunction was not granted.
“Taking into account my opinion that where there is a danger of serious harm to the environment, irreparable injury need not be proved and the fact that damage to the environment presents potential and on going harm to both present and future generations, I find that the balance of convenience tilts in favour of the applicants,” he stated.
Justice Kondolo granted costs to the appellants.