Nine Malawi Supreme Court of Appeal judges are set to hear a motion of appeal by two civil society organisations (CSOs) on October 25 2018 to replace the Malawi Law Society (MLS) in the Salima-Lilongwe Water Project case.
If the two CSOs—Youth and Society (YAS) and Centre for Human Rights and Rehabilitation (CHRR)—succeed in the case, the matter will revert to the High Court of Malawi to determine the legality of the project in respect of awarding of the contract to Khato Civils Limited as well as commencement of work without an environmental impact assessment (EIA) report.
YAS and CHRR, through private practice lawyer Bright Theu, appealed the matter to the full bench after a single Supreme Court of Appeal judge, Lovemore Chikopa, dismissed their application on December 22 2017.
In his judgement, Chikopa said the wishes of CHRR and YAS could not be granted because at the time of making the application, proceedings that had existed between MLS and the respondents, Khato Holdings, had ceased to exist after leave had expired and there was no renewal.
The judge added that the two CSOs had no sufficient interest to bring the application and were yet to become parties to the proceedings in respect of whom the order was sought.
But the two institutions appealed against the dismissal; hence, the full bench of nine Supreme Court of Appeal judges is set to hear the matter in Blantyre.
In an interview yesterday on the expected outcomes, Theu said: “It wouldn’t matter that they have already conducted an EIA if they commenced implementation before. As a matter of law, we would want a declaration, for example, as to whether that was legal because this is going to guide future projects as well.
“Secondly, the other issue was at the time it [the matter] went to the Supreme Court, an application was pending in the High Court about whether the procurement process was compliant with the law on procurement at a time that they did the procurement.”
He said the second matter has implications on the pricing of the project itself.
Said Theu: “One of the consequences of not following procurement law is that we will be asking the court to annul the contract regardless of the fact that it has been performed to this stage. If all that has been done all through was illegal, we will ask the court to make appropriate orders.
“The court may condone the illegality which will be very unfortunate. Mind you, I am just speculating on possibilities. The point is, once we go back to the High Court, we will focus on issues that are outstanding. All this is dependent on whether we succeed at the Supreme Court.”
In a separate interview, YAS executive director Charles Kajoloweka said the main points coming for argument and determination are whether Chikopa had requisite active jurisdiction to entertain the applications by the defendants which led to the throwing out of the case.
MLS wanted the High Court to review a decision by Lilongwe Water Board (LWB) to award Khato Holdings a contract for the project before an EIA was done.
But Chikopa dismissed the case, stating that all parties in the matter before the High Court ceased to exist upon the expiry or elapsing of time MLS should have filed substantive summons for leave for judicial review.
In an application to the Supreme Court, YAS argued that since the judge’s decision, MLS had not taken any steps to further prosecute the matter.
In Miscellaneous Civil Appeal No. 59 Of 2017, YAS also prayed for the court to extend time within which to lodge the matter before the full court for the reversal, variation or setting aside of the decision of the single appeal judge.
The case started in the High Court, Zomba Registry, which granted permission to the MLS to apply for judicial review.
MLS also applied for an interlocutory injunction to restrain LWB and Khato Civils from proceeding with any work on the project pending determination of the judicial review.
The two applications were determined together by a decision of Justice Redson Kapindu on September 15 2017, in which he sustained permission to apply for judicial review and granting the interlocutory injunction.
In the course of awaiting the ruling, MLS sought to amend the grounds for judicial review to include the issue that LWB and the Office of the Director of Public Procurement (ODPP) had contravened the Public Procurement Act (2003) in awarding the contract to Khato Civils.
Khato Civils is a construction and engineering company headquartered in South Africa and owned by billionaire Simbi Phiri, a Malawian by parentage.