The High Court in Mzuzu has by default granted the Mzuzu Muslim Minority Association permission to operate a private cemetery at Area four in the City, saying failure of the Mzuzu Town and Country Planning Committee to give reasons for denying permission was made in bad faith.
“It was also unreasonable within the Wednesbury sense,” Judge Dingiswayo Madise said in his 23 pages ruling, a copy Nyasa Times obtained.
Madise also ordered the Association to create a vehicle parking space within the cemetery in order not to block traffic on the M1 road to Lilongwe.
Previously, the Association ferried their dead for burial in Lilongwe.
The Mzuzu City Council had earlier given the Asians a plot at Zolozolo cemetery but the Asians rejected land, saying :“In our religion a burial site is sacred and we are obliged to visit the graves of our loved ones twice per month. The place at Zolozolo is not secured and who will provide security so that the graves are not desecrated”.
In July 2012, the Association buried one of their members at the Area four despite the fact that the Council had twice rejected the Association’s application to partition part of its plot into a cemetery describing the Association’s proposal as not ‘compatible’.
The Council told the media then that the Association had broken the law by opening a grave yard without permission.
In the same month the Council then obtained a court injunction against members of the Association barring them from further burying each other on an institutional plot at Area 4 and that they should exhume the dead body.
The Council also prayed to the Court for several declarations among others that the Council has the sole mandate to designate areas for cemeteries.
“A declaration that the area in question is solely designated for institutional sue and that the burial of the dead at the plot was illegal because it breach the Public health Act and the local government act,” the Council said in documents filed at the High Court in Mzuzu.
However, the Association represented by Mrs. Asema Jabi as first defendant argued that the rejection letter from the Council was discriminatory saying an adjacent plot is also being used as a graveyard.
“That the plot is not close to residential houses, it is quite and opposite our Islamic Institution. In future we intend to build a Mosque within the premises,” Mrs. Jabi said.
In his ruling, Judge Madise noted that the statement by the Chairperson of the Town and Country Planning was void of any reason what the proposed cemetery site at Area four was not compatible with.
“To simply say not compatible with adjacent plots is a mockery to reason with the Wednesbury principle. What reasons can be advanced when our departed Bishops and Fathers of the Catholic Church rest in internal peace just a few meters away?,” the Judge queried.
Madise then said the letter from the Council was not worthy coming from a public institution which he said is mandated by law to follow the constitution strictly.
“What was the use of the adjacent plots? Were there schools or residential plots adjacent to the defendants’ plot? How incompatible the proposed/rejected cemetery was is not clear” Madise said.
The Judge agreed with the Council that the defendant needed permission to open a private cemetery saying it is a requirement under the Public Health Act.
“But what prompted the Association to bury their dead without permission? Were treated fairly during the application process. What harm would have occasioned under the Public health act if this grave yard was allowed to open.
“Should the defendant and other Asians continue to ferry their dead to Lilongwe or Blantyre just because the plot is not compatible with other adjacent plots. I am of the view that … the decision to bar the Association was made in bad faith as there is no merit whatsoever to stop such an establishment when the Catholic Church is being allowed to bury their departed men of God just a few meters away,” Madise said.
The Judge then ordered the Mzuzu City Council to write the Association a letter granting them the right to use the Area four plot as a private cemetery with 14 days and gazette it within 90 days.
“If not written on the 15th or gazzeted on the 91st day the same will be deemed to have been written and gazetted,” Madise said.Follow and Subscribe Nyasa TV :