Top court stops Monavale wetland development

Fidelis Munyoro Chief Court Reporter

THE construction of 121 cluster houses on the Monavale wetland has suffered a still birth after the Supreme Court confirmed the decision stopping the development on the country’s biggest wetland.

The wetland is protected by the Ramsar Convention on Wetlands of 1971, which Zimbabwe is a signatory and has domesticated provisions for the protection of wetlands under the Environmental Management Act (Cap 20;27), Statutory Instrument 7 of 2007 on Environmental Management (Environmental Impact Assessment and Ecosystems Protection) Regulations and Government Gazette 380 of 2013. 

The piece of land measuring 16,3 hectares borders Fennella Drive and Monavale Road in Monavale. It was transferred in the Cosmo Trust’s name in June 1987. 

The land has remained largely undeveloped over the years although the records showed that Harare businessman Mr Sharadkhumah Patel owned a property on a portion of the land.

The ruling follows an appeal by Mr Patel and his company Meadows (Private) Limited against an Administrative Court decision on March 8, 2019 upholding two consolidated appeals by the Cosmo Trust, Babra Vitoria, Margaret Soper, Linda Bromley challenging the issuance of an environmental impact assessment certificate by the Environmental Management Agency plus a development permit issued by Harare City.

Harare city had also filed a cross-appeal against the same judgment of the Administrative Court. 

The contention in the lower court was the issuance of the environmental impact assessment certificate and development permit violated various procedural requisites as well as environmental law.

But on appeal, a three-judge panel unanimously agreed that both the environmental impact assessment certificate and development permit were not properly issued.

Writing the judgment for the court, Justice Paddington Garwe agreed with the High Court decision that the piece of land, being a wetland, could be irretrievably damaged and hence in such a situation, reliance should be placed on precautionary measures to safeguard against contamination of underground water.

Though the High Court accepted that Mr Patel possessed the rights of ownership to property, it ruled that such right could be attenuated in light of the provisions of the constitution which provides that fundamental rights may be limited in terms of a law of general application for the general good.

To this end, Justice Garwe ruled that the lower court should not have proceeded to deal with the merits of the dispute between the parties after finding that procedurally the environmental impact assessment certificate and development permit had not been properly issued.

“Having found that the two documents to have been irregularly issued, the court a quo should have allowed that appeal on that basis alone,” he said. 

“Such an approach would have permitted the appellants to take steps to correct these documents. It was irregular, having found that the application before the city council was invalid for want of correct procedure, for the court a quo to delve into the merits of the main dispute between the parties and proceed to dismiss the matter.”

However, the court exercising its review powers under the provisions of the Supreme Court Act, set aside the lower court’s decision on the merits.

“In the results . . . the determination of the court a quo on the merits, being irregular, is set aside. Both appeals before this court are otherwise dismissed with costs.”

Monavale wetland plays an important role in the fragile ecosystem of the Manyame catchment basin, the main supplier of water for the city of Harare and its suburbs.

It forms the headwaters of the Marimba River and its tributary the Avondale stream and is part of a network of wetlands within the city, supporting a variety of birds, mammals, rodents, amphibians and reptiles including the near-threatened Cape clawless otter Aonyx capensis and many other wetland-dependent animals which maintain the biological diversity of the Site. 

The other hydrological functions of Monavale include water storage, groundwater recharge and water purification. There is an active local community-based organisation, which spearheads the management of the wetland and offers training in wetland rehabilitation and restoration. Other human activities include agriculture and crop farming.

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