THE Kitwe High Court has dismissed an application for an injunction to restrain China Copper Mines Limited from continuing with its mining operations in Kafisali area in Chingola.
This is in a case in which Enias Chulu and 200 others filed an injunction to restrain mining activities at the mine located 300 metres away from Fitula Stream, the only source of water for the residents.
The residents claimed that during the mining activities, acid and other chemical waste were discharged into Mitimpa and Fitula streams, thereby polluting the water.
According to the affidavit, a report from the Zambia Environmental Management Agency (ZEMA) had been issued and unconditionally lifted the ban on the mining activities.
The affidavit further stated that the defendant had admitted carelessness and negligence which led to pollution.
The affidavit in opposition filed on October 16, which was sworn by Derrick Mwenesongole, reads that the acting director of ZEMA visited the defendant from September 21 to 23, 2015 and conducted a full investigation and audit regarding the allegations of pollution of the stream.
“It is impossible for the defendant to pollute Mitimpa Stream because its leaching ponds are not in any manner connected to that stream,” the affidavit reads.
ZEMA further said that the water quality in Fitula and Mitimpa streams from the time of investigations to the time of auditing was within the permissible limits for gardens and watering of cattle.
The lawyer for the plaintiff made written submissions, which were filed in October 2015, stating that the case be granted an interlocutory injunction as the remedy.
But Ms Justice Catherine Makungu said an injunction would only be granted to a plaintiff who established that he had a good and arguable claim to the rights which he sought to protect.
She said that an interlocutory injunction was appropriate for the preservation or restoration of a particular situation pending trial.
Ms Justice Makungu said she had in mind the case of Zimco Properties versus Lapco Limited where the Supreme Court held that the balance of convenience between the parties on whether to grant an injunction would arise if the harm done was irreparable and the damages would not suffice to recompense the plaintiff for any harm which may be suffered.
“Since I have found that the plaintiffs have not shown that they are likely to suffer irreparable injuries, I will follow the authority of Zimco Properties versus Lapco Limited and not consider the balance of convenience.
“My understanding of the Zimco Properties case is that a court dealing with an interlocutory application for an injunction which finds that the plaintiff may not suffer irreparable damages needs not consider the balance of convenience between the parties,” she said.
Ms Justice Makungu said for the foregoing reason, the ex-parte interim injunction had been discharged and the application for an interlocutory injunction dismissed with costs.