The Malawi Supreme Court of Appeal ruling that dismissed a Malawi Law Society (MLS) case and gave Khato Civils a go-ahead to proceed with the K400 billion Salima-Lilongwe water project has left the lawyers’ body divided.
Some MLS members have raised concerns with both the manner in which the litigation was conducted by lawyer Bright Theu and the society’s decision to go to court in the first place.
MLS president Khumbo Soko has since written a memo to the society’s membership, expressing the body’s concern on members that are criticising its leadership and justifying why they had to go to court.
Through the memo, which The Nation has seen, the Law Society expresses disappointment with the outcome of the litigation, but hinted that they were consulting further on how it can take the litigation forward, in view of this technical setback.
In an interview yesterday, Soko owned the memo, but declined to comment, arguing it was an internal communication that was “unfortunately leaked”.
Appeal judge Lovemore Chikopa, sitting as a single Supreme Court of Appeal judge in Blantyre, dismissed the Law Society’s case, effectively giving Khato Civils a leeway to proceed with the $500 million (K400 billion) water project
The judge ruled that all parties in the matter before the High Court ceased to exist upon the expiry or lapsing of time the Law Society should have filed substantive summons for leave for judicial review.
MLS, which went to court on the basis that an Environmental Impact Assessment (EIA) was not conducted before the project took off, was supposed to file the substantive summons by May 5 2017, 14 days after the High Court granted leave for judicial review. But it only did this after nine days, making the High Court to lose jurisdiction over the matter.
Soko in his memo to the society members said it was indeed true that the Notice of Originating Motion was not filed within the 14-day period required by the rules.
He said anyone who made a cursory look at the Environment Management Act would know that EIAs are not required as a matter of perfunctory compliance with the law.
While he admitted that the society was disappointed with the outcome of the litigation, he said he must place on record his unreserved gratitude to Theu for his service to the society and the nation.
The MLS president expressed disappointment at the “rather gratuitous attacks that have been launched against counsel Theu” subsequent to the ruling.
Some lawyers, who opted not to be mentioned, said the problem with the Law Society was that it makes limited consultations when taking matters on behalf of the public.
Another lawyer said the judge rightly put it that litigation is not only an option to some issues, arguing concerned people must learn to gop for litigation only where there is no any other option.
Khato Civils is construction and engineering company headquartered in South Africa and owned by billionaire Simbi Phiri—a Malawian by parentage.
In its application for the judicial review, MLS had put Lilongwe Water Board (LWB), Ministry of Agriculture, Irrigation and Water Development, the director of Environmental Affairs and Ministry of Natural Resources, Energy and Mining as respondents in that order.
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. n