Vic Falls rainforest court case rages

High Court Zimbabwe

THE High Court has turned down a bid by the Zimbabwe Parks and Wildlife Management Authority (ZimParks) and two firms constructing an exclusive restaurant in a delicate zone of Victoria Falls’ rainforest to delay a ruling on whether the  the matter must be heard urgently.

Victoria Falls, a certified Unesco world heritage site, slipped into a legal tussle in June last year, after environmentalists red- flagged the development by Adage Success  (Pvt) Ltd and Scanner Investments.

Campaigners fighting the deal were led by Lawrence Norton, together with Trymore Ndolo and eight others.

ZimParks, the Environmental Management Agency (Ema) and the Procurement Regulatory Authority of Zimbabwe were cited as respondents in the case, which was exclusively reported by the Zimbabwe Independent last year.

 Adage Success and Scanner were cited as first and second respondents respectively.

The campaigners argued that any developments within the rainforest would only benefit commercial operators at the expense of the waterfall and its delicate ecosystem.

But the tug of war also exploded a few months after Unesco, on a fact-finding mission in February 2022, had warned that Victoria Falls was under threat from individual and cumulative infrastructure developments, which have increased as investors respond to opportunities emerging out of an exponential growth of the city.

Unesco warned authorities that Victoria Falls could lose world heritage status.

This would have negative implications on tourist arrivals in Zimbabwe, given that the waterfall, which is under the stewardship of ZimParks, receives not less than 200 000 international holidaymakers annually.

Shocked by Unesco’s threats, the environmentalists demanded that the case be heard as an urgent matter, but Adage Success Private Limited and Scanner Investments and other respondents, including ZimParks, dug in, saying there was nothing urgent in the case.

In the meantime, developments were continuing on the disputed area.

In a new ruling obtained by the Independent this week, High Court Judge Justice Webster Chinamora ordered that the case be heard urgently.

 In the March 23 2023 ruling, Justice Chinamora had directed that the case be heard on March 31 2023, but the defendants did not turn up, forcing the judge to defer the matter to May 17.

“With respect to the points in limine, my proposed starting point is to examine whether or not the matter is urgent,” Chinamora said.

“It was argued by the first (Adage), second respondent (Scanner) and third (Wildlife Authority) that the matter is not urgent.

“The (10) applicants are acting to protect a Zimbabwean heritage and world heritage site, which is the Victoria Falls. The applicants (who are arguing that the matter is not urgent) must also treat the matter as urgent by promptly seeking redress.

“The above issues were well articulated in the certificate of urgency. It was also noted that the first (Adage) and second respondents (Scanner) were proceeding with their developments and commercial activities and the third respondent (Wildlife Authority) appears not to have taken heed of the applicants’ concerns communicated through a letter. In the result, I am satisfied that the matter is urgent,” he noted in the ruling.

Scanner and Adage, together with ZimParks, had argued that Norton, who is an artiste (painter) in the resort city, was being driven by the need to protect his financial interests when he raised issues over the developments.

However, Chinamora insisted that the applicant’s application had merit to be heard urgently, regardless of Norton’s business interests in Victoria Falls.

“The second respondent (Scanner) argued that the applicants have brought this application on two hats namely seeking to protect their own interest and that they are also acting in the public interest,” he said.

“What is clear from a reading of the papers before the court, is that the present application is being made to protect the national heritage.

“It is an inescapable fact that the applicants have substantial interest in the preservation of the national heritage. In my view, I consider such proactiveness as sufficient to establish legal interest to clothe applicants with standing to apply for an interdict,” the ruling added.

Relating to whether the applicants’ application was defective as averred by Scanner and the ZimParks, Justice Chinamora dismissed the respondents’ claims while highlighting that: “It is not in dispute that the applicants instituted an application for review under HC 3576,22.”

Commenting on whether the relief sought by the applicants including suspending the permits granted to Adage and Scanner to set up commercial sites on the Cataract Island and Rainforest and removing any structures from the same zones, Chinamora said: “The second respondent argued that the relief sought by the applicants is incompetent for two reasons.

“Firstly, it contended that the relief sought by the applicants…does not refer to suspension of the rights granted to the second respondent, but specifically the first respondent.

“Secondly, the second respondent argues that the restoration of already cleared land is relief incapable of being complied or enforced.

“Consequently, I dismiss the preliminary point,” the High Court Judge further stated.

Subsequently, Chinamora dismissed all the preliminary points raised by the respondents. Chinamora emphasised: “In the result I make the following order: The preliminary points raised by the first to third respondents be and are hereby dismissed.

“The parties are directed to appear before this Court on 31 March 2023 and address the Court on the merits of the matter,” Justice Chinamora noted.

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