Supreme Court grants Khato stay order against Malawi Law Society on water project

Justice Lovemore Chikopa of the Malawi Supreme Court of  Appeal on Thursday granted a stay order to Khato Civils (Pty) Limited pending an appeal against Malawi Law Society (MLS) order of the injunction by High Court registry in Zomba stopping all groundwork activities for government’s $500 million (K400 billion) Salima-Lilongwe water project.

MLS obtained an injunction last Friday but Justice Chikopa sitting as a single judge of Malawi Supreme Court of Appeal granted Khatho, which was contracted by the Lilongwe Water Board (LWB) for the multi-billion kwacha project, a stay order.

Chikopa in his determination declared that the interlocutory injunction the High Court granted to the Law Society has been put aside.

“Looking at the facts even at this stage it cannot be denied that all parties including the Applicant and the Interested Party/Appellant agree that the contract cannot proceed without an EIA first being carried out. The facts also more than suggest that an EIA will in fact be carried out before the contract is implemented. On its part the Interested Party/ Appellant has had an affidavit sworn on its behalf to the effect that the contract was in fact suspended by the Attorney General of the Republic of Malawi until an EIA is carried out.

“The question that arises is whether in those circumstances there is an issue between the parties the status quo around which must be preserved by the grant of an interlocutory injunction the same to subsist until such issue is determined to finality. It is a question we think can best be answered after hearing all the parties. For the time being we will grant the Interested Party/Appellant’s prayer for leave to appeal and a stay of the interlocutory injunction pending such hearing and further order of this court,” Chikopa said.

The Judge said MLS and Khato should attend the Supreme Court sitting on October 4 2017 “for a hearing on whether or not to sustain the stay hereby granted.”

The ruling means Khato can be back to its activities it was already undertaking until a determination of the matter.

Lawyer representing MLS, Michael Goba Chipeta, argues that the water project contravenes the Environmental Management Act as some procedures were not followed.

Khato Civils through its lawyer Frank Mbeta had argued earlier that MLS still had administrative remedies to address its concerns, adding the facts relied upon when the lawyers’ body filed its application for the judicial review were incorrect and misleading.

The Khato lawyers argued the MLS based its case on a wrong assumption that Khato Civils were oblivious of the contents of the Environmental Management Act and had intended not to comply with the legal requirements or unmindful of compliance of the same.