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High Court dismisses Graduare Property Development Ltd’s application over Arcades flyover

THE Lusaka High Court has dismissed an application by Graduare Property Development Limited for leave to commence judicial review proceedings against ZEMA’s refusal to enforce the compliance order it issued to the Ministry of Local Government for the Lusaka Roads Decongestion Project.

High Court judge Catherine Phiri said there were no sufficient grounds for leave to be granted.

She said the court should not be sent on a fishing expedition to comb through volumes of affidavits and submissions to determine what ground the applicant wished to pursue in its application.

In this case, Graduare Property Development Limited was challenging the refusal or omission by the Minister of Water Development, Sanitation and Environmental Protection to determine its review application as required by sections 108 (4) and (5) and 115 of Environmental Management Act, following ZEMA’s refusal to enforce the conditions it imposed on the Ministry of Local Government in relation to the project.

It sought, among other reliefs, an order of mandamus to compel ZEMA to enforce the compliance order issued to the ministry on August 13, 2019 by resorting to any of the three measures provided in section 106 (3) of the Environmental Management Act.

In its notice of ex-parte application for leave to apply for judicial review, Graduare Property Development stated that it owned and operated East Park Mall and that it constructed the said mall at a cost of US$110,000,000 over the last six years and was still continuing to expand it.

Graduare stated that on January 28, 2018, the Ministry of Local Government, through its consulting engineers, submitted an Environmental and Social Impact Statement to ZEMA in relation to the Lusaka Roads Decongestion Project.

It said that the project covered a network approximately 120 kms of roads in Lusaka but its interest in this case only relates to the road works and construction to be undertaken in the vicinity of East Park Mall, at Great East Road.

Graduare Property Development Limited legal officer, Andrew Mushibwe said that the Environmental and Social statement submitted to ZEMA by the ministry did not contain any specifications in relation to what the project would entail at Arcades Roundabout on Great East Road but only made reference to widening of Great East Road to six lanes from four lanes.

Mushibwe contended that the ministry has to date not obtained approval from East Park mall for the construction of a fly over at Arcades Roundabout and was in effect proceeding illegally.

He stated that Eastpark was of the fear that by the time the Attorney General renders the decision on its application for Judicial review, the construction would have reached advanced stage and the matter would be rendered an academic exercise.

But ZEMA opposed to Estpark’s application on grounds that an application for leave to commence judicial review should state the relief sought and the grounds upon which the relief was sought.

It said Graduare’s notice did not provide the grounds upon which the respective reliefs were being sought and urged the court not to grant the application by the applicant.

However, in her ruling, justice Phiri noted that in showing whether there was an arguable case, it was important that the applicant indicated without doubt, on which of the grounds it relied on in demonstrating that the public body or person had offended it.

She said the grounds on which an applicant could rely were illegality, irrationality or procedural impropriety.

“The Applicant has instead submitted that the Court can deduce from the affidavit what the issue is. In the alternative that the omission is one that is curable by way of a simple application for an amendment after leave has been granted. I find that this is not the sort of defect to the pleadings that can be cured by a simple application for an amendment as the omission goes to the very root of the application,” justice Phiri said.

“The Court cannot make a decision premised on future intentions of a party to amend its pleadings. The Court is being called upon to make a decision based on the documentation that is before it.”

Justice Phiri ruled that making a decision based on the future intentions of the applicant would actually be prejudicial to the interest of the respondents.

Justice Phiri further ruled that the application fails as there were no sufficient grounds for leave to be granted in the case and accordingly dismissed the application.

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