Hichilema’s mining project in the Lower Zambezi national park to go ahead

Opposition UPND leader Hakainde Hichilema’s mining project in the Lower Zambezi national park to go ahead

The Court of Appeals of Zambia has dismissed an Appeal to stop the proposed Large Scale Open-pit Mine in Lower Zambezi National Park, upholding the High Court’s decision to dismiss the case for Want of Prosecution.

The Decision by the Court of Appeals sitting in Ndola effectively ends any challenges to Mwembeshi Resources’ proposal to open a Large Scale Open-pit Copper mine at the heart of the Lower Zambezi National Park.

In a Judgement delivered by Justice Ngulube on behalf of the three panel Appeals Court bench, the Court ruled that the Appellant had 5 years and had been given numerous opportunities to rectify errors in the Appeal before the High Court but was lax and failed to do so until a change of legal representation in 2019.

The Court was adamant that the Appellant (David Ngwenyama) had been adequately represented by a senior lawyer (State Counsel H.H. Ndhlovu) from 2014 to 2019 before he decided to change Legal Counsel in 2019 and subsequently tried to rectify the errors in the Appeal.

In dismissing the Appeal, the Court of Appeals completely ignored the misconduct and failure to provide adequate representation by the original Appellants Lawyer which the Appellant tried to rectify in 2019 and a four (4) year delay by the High Court to rule on the case, from April 2015 to October, 2019 that was the result of the error in the Appeal Process (failure to file a Record of Appeals) and delay in prosecuting the matter.

The Court of Appeals has therefore, followed the High Court in dismissing the Appeal on failure to follow procedure without considering the Appeal on its merits and has faulted the Appellant for failure to prosecute and delays in the Appeal.

Facts of the Appeal, Failure to file Record of Appeal and associated delays

1.0. In 2014 a coalition of 5 local NGOs with David Ngwenyama (as 6th Appellant in a personal capacity) Appealed to the High Court of Zambia against the Minister of Lands, Natural Resources and Environmental Management’s decision to allow a large scale open pit mine in Lower Zambezi National Park despite the objection of the Zambia Environmental Management Agency (ZEMA) and the Zambia Wildlife Authority (ZAWA).

The 6 Appellants retained State Counsel H.H. Ndhlovu as the lawyer for Appellants.

1.1. The Appellants prosecuted the matter from 2014 to April, 2015 regularly appearing in Court, represented by Legal Counsel (in Chambers) and believing (and assured by State Counsel H.H. Ndhlovu) the Appeal was in good standing. In 2015, the High Court, siting in Chambers, adjourned the Appeal for Ruling by the late Justice Chali.

1.2. During the period 2014-2015 there was no communication from State Counsel H.H. Ndhlovu as to the need to file a Record of Appeal as required by High Court procedure nor that there had been multiple reminders to the Appellants to file the required documents by the Court. The Appellants including the 6th Appellant, believing the Lawyer’s good standing (akin to a Patient following a doctor’s instructions and assurances) did not believe that there was anything amiss with the Appeal.

1.3. In 2019, following the death of Justice Chali before he could deliver the judgment on the matter, the Appeal was reassigned to a new Judge with a mandate to clear the case which had since fallen into backlog. The developer filed a supplementary affidavit urging the Court to Dismiss the Appeal.

1.4. Following the resumption of the matter and after repeated failed attempts by the 6th Appellant (David Ngwenyama) to get an update on the status and next steps on the case particularly with the resumption of the case, the 6th Appellant retained new Counsel Messers Malambo and Co. for the duration of the High Court Appeal.

1.5. Upon perusal of the case file by the new Advocates, the 6th Appellant was informed that the Appeal had a fatal error, lack of Record of Appeal, which needed to be rectified immediately. The 6th Appellant immediately applied to the High Court for adjournment to be able to file an application to compel the State to avail the required documents to enable them file a Record of Appeal. The High Court dismissed the request for adjournment and subsequently dismissed the entire action.

1.6. In this case, the Appellant (David Ngwenyama) is made to shoulder the blame for his Lawyer’s inefficiency and the Court has no provision for rectifying a Lawyer’s inefficiencies.

2.0. The delays in the Appeal hearing from 2014 to 2021 has been outside of the 6th Appellant’s control and for the most part has been due in large part to Court scheduling.

2.1. The delay in prosecuting the case from 2014 to 2019- the case was dormant from April 2015 to October, 2019 pending Judgment on the matter before a High Court Justice, which Judgment was not delivered before the case was reassigned.

2.2. Court of Appeals process- November, 2019 to February, 2021- The time taken to hear the Appeal before the Court of Appeals was due to Court scheduling and outside of the Appellant’s control.

And commenting on the development, one of the Appellants David Ngwenyama said given the Court of Appeals’ decision to dismiss the Appeal for failure to follow procedure and not considering the case on its merit, it becomes fundamentally difficult to pursue the matter any further before the Zambian Courts.

“This has been a particularly challenging and personally draining process whose turn out is far less than I hoped for nor expected. Thank you for your support, prayers and encouragement, it made the journey worthwhile,” Mr Ngwenyama said.

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