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Alba Iulia
Saturday, September 18, 2021

Lower Zambezi Large Scale Mine Project to go ahead after Appeal is dismissed

Headlines Lower Zambezi Large Scale Mine Project to go ahead after Appeal is...

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.

56 COMMENTS

  1. IN A NATIONAL PARK OMG …….. BYE BYE NATIONAL PARK BYE BYE TOURISTS
    BYE BYE YOU POOR ANIMALS …… AND BY BYE BYE GOD WILLING TO THE PEOPLE WHO SANCTIONED THIS

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  2. If the law has decided, who are we to go against that ruling? Let us learn not to be emotional. Some of you here especially upnd cadres you have never contributed to our tourism and yet you want to act like you care about nature . Fuseke

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  3. ALL THOSE VOTING PF PLEASE DOWN VOTE THIS COMMENT AND THOSE VOTING TRIBAL UPND PLEASE UPVOTE THIS COMMENT

    Phase 1 election data polls

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  4. This mining proposal needs dismissed and rejected in every form possible. We one one natural land and it natural habitation to our name and it needs protected to our future. We have seen the colossal damage of how mining industries can be. The damages are terrible and leave a life long problem

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  5. KAIZER FOR THE SAKE OF YOUR CHILDREN AND GENERATIONS TO COME HOW COULD THE GOVERNMENT ALLOW THIS
    NO ONE IS DISPUTING THE COURTS DECISION OR ARGUING ITS OUTCOME
    THE QUESTION IS HOW WAS IT ENTERTAINED IN THE FIRST PLACE
    AND NOT FORGETTING THE FOREST

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  6. Can the president please intervene. History has shown more damage is done to our environment from Mining than revenues derived from them. You don’t need to be a prophet to see how the water will be polluted just like KCM did.

    • @ Ndoleshyafye, As the water gets polluted and silt finds its way into the river from the dumps the Cahora Bassa lake will be silted and next Zambia will be receiving complaints from Mozambique!

  7. Tikki what is chauvinistic about the word fuseke? Do you understand what chauvinistic means? I need to panel beat some sense into your head

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  8. Now the citizens must stand up and stop this non-sense. NGOs show your muscle and protest this attack on our land. If it means govt paying off the mining company, let them do it. Afterall the caused the problem by granting a permit to mine in a game park, even when Zema had advised against doing so. And lock up the minister responsible.

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  9. Tikki – I dont know why you waste your time debating with a fictitious being who has nothing to lose as its an impostor!!

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  10. If at all campaigners are organised this is the right time to bring awareness to distraction of a pristine national park with elections around the corner!!

  11. We can try now supreme court justices.do a thorough job on this one.zambian people must win and no other.we have all the right to save natural resources.
    #Leave low alone
    #Zambia must win

  12. Tarino it hurts you that people like to engage me rather than you. It is not my fault I am popular. Maybe if you stopped using fake names and photos of bottles, people would think you were genuine. Fuseke

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  13. Background
    The Lower Zambezi National Park lies on the north bank of the Zambezi River in south eastern Zambia. On the opposite bank is Zimbabwe’s Mana Pools national Park, thus creates a natural trans-frontier wildlife sanctuary. The park sits on the Zambezi flood plain ringed by mountains, the area is a world heritage site. The park host a diversity of mammals and large numbers of species of birds.
    Why it is important
    The park has a unique and world renowned ecosystem with great financial value through tourism and ecological value to Zambia. The Park is rich in wading birds, both resident and migrants. It host over 350 species of birds, and other biodiversity including mammals such as Elephants, Buffalos, Lions, Leopards, and Antelopes .The Park is also a major supply of water for…

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  14. for the people downstream.

    Threats

    In March 2010 the government of Zambia issued a large scale copper mining license for Lower Zambezi National Park to Mwembeshi Resources Ltd (MRL), a subsidiary of an Austrian listed company, Zambezi Resources Ltd (ZRL). The proposed mine was most likely to be located in the middle of the National Park thereby bisecting the IBA.
    Concerns
    The approval came in spite of protest by Zambian environmental organizations that are concerned that such a massive project could have serious impacts on biodiversity, water and people downstream.

  15. Campaign strategies

    Various stakeholders made petitions
    Civil society organizations made appeals
    Press releases
    Litigation at the High Court
    Campaign outcomes

    Zambia Environmental Management Authority (ZEMA) rejected the project Environmental Impact Assessment (EIA) in February 2012 following an appeal lodged by civil society led by the Bird Watch Zambia (BWZ – BirdLife in Zambia). In spite of this, the investor went ahead and appealed with the Minister who granted a license in January 2014. However, the Zambian Community Based Natural Resource Management Forum appealed the decision at the high court and an injunction slapped by the High Court of Zambia in February 2014.

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  16. “On 17 January this year (2014), a subsequent appeal lodged by Zambezi Resources was confirmed as successful by the Minister of Lands, National Resources and Environmental Protection, the Hon Harry Kalaba. He advised that there are adequate cost effective measures and technologies available to address all potential impacts and that wildlife management in the area would be enhanced and conserved as a result of the mine.” -minesandcommunities.org
    I wonder how much money that short man Kalaba and Lungu were paid for them to give the go ahead.

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  17. This shouldn’t even be a court case. Proper thinking should be able to inform this regime that this move is a serious threat to the ecosystem, environment and nature. A proper govt. would have created wealth from the parks and other industries without having to sacrifice the natural setting in this manner – and there is no guarantee whatsoever that the country will benefit from this mine, other than the so called investor.

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  18. TARINO YOU BRING HOPE AND UNDERSTANDING TO THIS SITE
    ONE DAY THIS BLACK BELT CHAP WHO THREATENS SLAPS ALL THE TIME WILL
    BE FLATTENED BY A MMA ENTHUSIAST …………….

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  19. Tikki bring all the MMA fighters you can find in this world, I will whip them like little kids and then whip you on top of that for doing such a f00lish thing. Tarino brings hope by copying and pasting his f00lishness on this site? Is that hope to you?

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  20. All international wildlife organisations and NGOs, trusts and all people interested in protecting the environment must start an awareness campaign to stop all international tourists to zambia in protest at this wanton vandalism of our wild parks by lungu and his broke government……

    After looting reserve forests, stealing wildlife from other game parks , lungu is now really desperate for money…..

    Let’s see how he manages with a total tourist boycott ………

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  21. Not a good move.
    We already have carelessly mined mines.
    We should have left some of these ores to posterity.
    Right now we are so messy and do not seem to appreciate the value of our minerals.
    Displacing animals for stone is dumb.

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  22. HARRY KALABA WAS THE ONE WHO INITIALLY ALLOWED THIS MINING PROJECT IN THE ZAMBEZI NATIONAL PARK TO PROCEED AND THAT’S THESE NGOs PRESSURIZED ITS DISCONTINUANCE. NOW THAT HE IS IN THE OPPOSITION WHAT IS HIS VIEW?

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  23. People wanting mining in a National Park have lost their marbles! How can you mix mining and wildlife? This causes irreversible environmental challenges. Mining threatens park wildlife, air, water, rivers etc. Existing mines near and around national parks threaten wildlife, damage water quality and induce air pollution. If the Zambezi River is polluted, this not only affects thousands of species but human’s as well. We should worry about harsh chemicals escaping into our local water affecting, people, communities, farms and animals. Should this affect water quality, many will suffer. We soon forget what happened to the people of Mufulira with Glencore and mining when fracking was used. To date our women in those areas cannot give birth. Babies were born with defects or died. People had cancer. There will be No Mining in Lower Zambezi National Park. Absolutely Not!

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  24. Lower Zambezi Mining Rejected by Parliamentary Committee

    JUL 20, 2013 —

    The Parliamentary Committee on Lands, Environment and Tourism for the Second Session of the Eleventh National Assembly of Zambia (September 2012 – July 2013), after taking submissions from the Zambian CBNRM Forum (who had incorporated information contained in my two petitions), as well as from various government stakeholders, has just declared the following:

    ‘Your Committee recommends that the proposed mining project at Kangaluwi in the Lower Zambezi be rejected for the following reasons:

    (i) the mining licence that Mwembeshi Resources holds was issued without following the requirements of the law and procedure and is invalid and should be revoked;

    (ii) there should be no mining in the Lower Zambezi…

  25. It appears to me that there are a lot of rather silly or maybe even strongly said stupid people. And they all seem to be on the side of mining being a good idea. All of those that have spoken of what happens with open mining are correct. This has happened all over the world and destroyed not only the animal world but also people who are poisoned by the water that has been contaminated in the rivers.
    I believe that it is time for us all to reject tourism there and go to Rwanda or Kenya

  26. Opposition will say nothing because this is the deal that HH supposedly brokered that was revealed in the exposed Panama papers. I implore the president to act. A people are judged by how they treat their animals and prisoners.

  27. We have so many mines in Zambia but nothing has happened I don’t see any thing sensible about continued mining and avoiding other kind of income generating ventures , for instance tourism and many other means of investment .
    It is time to put a stop to mining and try other things that can be more attractive than just going underground and developing nothing

  28. There’s more to this story than meets the eye. It all boils down to who gains financially from this absolutely disastrous decision? For sure, Zambia will regret this in the future.

  29. Please no!. Save this wildreness area. It would be an ecologic disaster for the region. Rather invest in training local population as rangers- wardens to protect the region and its wildlife inhabitants. I know this area well and grew up aroung Ndola – Kitwe region and when it was old southern rhodesia at the time before it became Zimbabwe and the biggest disaster that happened.

  30. Reading through the court documents and failed appeals and matter being dragged on. and all subsequent entries in reply, this would ruin the ecosystem and devastate zimbabwe further and tear up the land and ecosystem and land management would be devastated. Zimbabwe since take over of old southern rhodesia – i lived there as a child in Ndola-Kitwe – Sunningdale. and we were forced from the country when take over hapened. It is a disaster waiting to happen and giving this to a foreign organisation who know nothing about the country and its ecosystem and natural environment. It will be the death of zimbabwe for generations to come.

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