The Supreme Court of Appeal on Friday October 20 threw out an injunction obtained by Malawi Law Society stopping Khato Civils Ltd from proceeding with the Lake Malawi Water Supply project on the basis that there was no Environmental Impact Assessment.
The determination delivered by Justice Lovemore Chikopa faulted both the process through which MLS sought leave for judicial review at the High Court and their arguments on the EIA.
The Supreme Court faulted MLS for failing to understand the nitty-gritties of the contract. The contract that Khato Civils signed with Lilongwe Water Board is what is known as “Engineering, Procurement and Construction contract”
The judge said MLS erred by demanding an Environmental Impact Assessment at a time the project is only in ‘Engineering and Procurement’ stages. He said MLS should have waited up until Construction stage had commenced.
He also quashed MLS’s argument that Khato Civils is already moving equipment to Malawi saying the company is right to flaunt their capabilities by making sure that all required machinery is on site before Construction stage starts.
Judge Chikopa dwelt a good part of his determination on the technicalities of court proceedings and how MLS flouted them.
The technicalities of the case are that MLS was granted leave for judicial review on April 21, 2017. On September 15, 2017 it was granted an interlocutory injunction restraining Khato Civils Ltd from implementing the project until the judicial review proceedings were determined to finality.
However, when Khato Civils appealed at the Supreme Court MLS sought to amend the process by adding a new respondent Director of Public Procurement.
Justice Chikopa also ruled that the High Court had lost jurisdiction of the case after May 5, 2017.
MLS sought and was granted leave for judicial review on April 21, 2017 and according to Order 53 of the Rules of the Supreme Court[RSC] the Society was supposed to file a substantive motion for judicial review within 14 days from April 21, 2017. Instead of filing the motion by May 5, 2017 MLS did so on September 29, 2017.
Going by this deadline miss, Justice Chikopa said any proceedings that took place after May 5 are null and void and should not be part of the Supreme Court ruling.
One of the laywers representing Khato Civils Chancy Gondwe said the court has found that there was no substantive action before the High Court beyond 5 May 2017 and as such there was nothing for the court to adjudicate on.
“This means Khato Civils is at liberty to proceed with its project implementation. Leave that was granted to the Law Society expired and as such there was no action before the High Court as it has lost jurisdiction immediately leave that was granted to the Law Society lapsed,” said Gondwe.
The Malawi Law Society took the matter to court through lawyer Bright Theu.
Khato joined the case as an interested party after the High Court in Zomba stopped the Lilongwe Water Board from going ahead with the project pending a judicial review.
Khato Civils, owned by South African based Malawian billionnaire Simbi Phiri, won the $500 million to pump water from Lake Malawi in Salima to Lilongwe passing through Salima and Dowa districts in december last year.
The construction firm and its sister company South Zambezi, beat Mota Engil, Sino hydrotech and other Chinese and European companies to win the tender.
Following the landmark Supreme Court ruling what remains now, according to LWB officials, is for commencent of the environmental and social impact assesment studies. Thereafter, the initial implementation of the project will take off.
Todate Khato has already pumped nearly $20 million dollars into the project through mobilisation of equioment and the carrying out of geo-technical surveys.Follow and Subscribe Nyasa TV :