Mzuzu-based Youth and Society (YAS) has moved the Supreme Court of Appeal to join or substitute Malawi Law Society (MLS) in a matter in which the latter took Khato Holdings Limited to court over the Salima-Lilongwe Water project.
MLS wanted the High Court to review a decision by Lilongwe Water Board (LWB) to award Khato a contract for the project before an environmental impact assessment was done.
However, in October, Supreme Court judge Lovemore Chikopa dismissed the case, stating, all parties in the matter before the High Court ceased to exist upon the expiry or lapsing of time MLS should have filed substantive summons for leave for judicial review.
But in an application to the Supreme Court, YAS executive director Charles Kajoloweka, through lawyer Bright Theu, argues that since Chikopa’s decision, MLS has not taken any steps to have the matter prosecuted.
In Miscellaneous Civil Appeal No. 59 of 2017, the civil society organisation also prays for the court to extend time within which to lodge the matter before a full court for the reversal, variation or setting aside of the decision of the single member, Chikopa.
“I am further informed by counsel retained [Theu] that the MLS was supposed to have lodged an application to the full court within a prescribed time and such time has most likely since expired without the MLS taking the necessary steps.
“I am not aware of any explanation by the MLS for its failure or neglect to take the necessary steps to pursue the crucial public interest issues raised in the case before the High Court,” argues Kajoloweka in his affidavit.
He further argues that the public generally, had the legitimate expectation that the MLS would pursue substantive issues by seeking further redress from the full court on the ruling of Chikopa which annulled the case on technical points.
“However, from its failure or neglect to take the necessary steps to further pursue the matter in the public interest, I verily believe that the MLS has either abandoned pursuit of the public interest or has suffered a chilling effect and no longer has the determination to pursue the case by itself or indeed at all.
“I verily believe that the issues raised by the judicial review before the Zomba High Court are serious matters of rule of law concerning the environment and public procurement and warrant a final substantive determination by the courts in aid of the rule of law and to address impunity,” he further argues.
Besides, Kajoloweka adds that Chikopa’s ruling raises multiple points of law that would benefit from consideration and clarification by the full court.
“Wherefore, I humbly pray to the Honourable Court to permit The Registered Trustees of Youth and Society (YAS) to join or substitute the Malawi Law Society in this case,” he concludes.
In an interview, MLS president Khumbo Soko said the Law Society was not aware of the development but there was no problem with YAS taking it up.
“We are not aware of that development, but you know you don’t own litigation of that nature. Any citizen who feels like taking it up is free to do so. One doesn’t need to get consent from MLS to do that,” he said.
The case was commenced in the High Court, Zomba Registry, which granted permission to the MLS to apply for judicial review.
After the High Court granted permission to apply for judicial review, the respondents applied to set aside the permission.
At the same time, MLS 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.
Kapindu also scheduled the hearing of the judicial review for October 3 2017 and directed the parties to exchange necessary documents by September 29 2017.
In the course of awaiting the ruling, MLS sought to amend the grounds for judicial review, to include the issue that LWB and the ODPP had contravened the Public Procurement Act (2003) in awarding the contract to Khato Civils.
Before the application for amendment and ultimate judicial review could be heard in the High Court, Khato Civils obtained from the High Court permission to appeal and a stay of the proceedings in the High Court and the order both sustaining permission to apply for judicial review and granting the interlocutory injunction.
Khato Civils is a construction and engineering company headquartered in South Africa and owned by billionaire Simbi Phiri, a Malawian by parentage.
In May, Khato Holdings Limited unveiled to the media multi-million kwacha machinery for the construction of the pipeline from Lake Malawi in Salima to Lilongwe to ease water problems in Lilongwe, disclosing that $13 million (K9.8 billion) had already been invested.