Online Reporter
Arron Nyamayaro
KOALA Park Abbatoir has rejected claims that its business unit, which is situated along Seke Road, is polluting the environment in the area.
The company has been dragged to court by twins, Tendai Mayor and Farai Lawyer Katonha, who are prominent leaders of the twins’ associations in Southern Africa.
The twins have also dragged the Environmental Management Agency to court.
EMA officials did not appear at the hearing yesterday.
The Katonha twins argue that Koala Park Abattoir has a licence for an abattoir and butchery only and should not keep hundreds of cattle at the premises.
The twins argue that the company is polluting the environment at its business premises and residents in the surrounding areas, and the residents of Chitungwiza, have been forced to deal with a heavy stench, which comes from the premises.
The Chitugwiza residents would be travelling to Harare or from the capital.
The company appeared before a Harare Civil Court magistrate facing allegations of polluting the environment.
In its response, Koala Park Abattoir, represented by Kanter and Immerman Legal Practitioner Hebert Muromba, said the business has been operating from its current premises since the early 2000, a period exceeding twenty-five years.
He said throughout this period, the company has strived to ensure that it complies with the relevant applicable laws and permits.
“First Respondent is one of the largest cattle ranching, butchery and abattoir businesses in the country, employing in excess of one thousand employees.
“Its operations sustain a number of the critical sectors of Government and has continuously ensured that its operations are within the ambit of the law.
“The main reason for the acquisition of this property by the First Respondent was to construct a stock feed production unit and storage unit as well as a feedlot for its cattle.
“Prior to commencing the construction, First Respondent sought and obtained an Environmental and Social Impact Assessment in accordance with the Environmental Management Act. [Chapter 20:27], accordingly a certificate was issued authorising First Respondent to proceed with its project.
“In addition to the EMA certificate, First Respondent sought and obtained permits/licences inter-alia from the following:
Obtained a permit in terms of the Urban Councils Act [Chapter 29:15] and applicable by-laws for the discharge of sewage, water and quality standards and controls.
Obtained a permit in terms of the Regional, Town and Country Planning Act [Chapter 29:12], in particular Section 26 which deals with change of use.”
Muromba added: “I am advised, which advice I accept to be correct, that this Honourable Court does not have the jurisdiction to grant the relief that the applicant is seeking.
“Applicant, before this Honourable Court, is seeking the following relief:
The respondent be and is hereby barred and interdicted from keeping cattle near Seke Road, which will result in serious air pollution, which will lead to serious health consequences.
“It is crystal clear what Applicant is in essence seeking for this Honourable Court to suspend or cancel the operating licence issued to the First Respondent by the applicable authorities.
“Respondent avers that with respect, this Honourable Court does not have the power nor jurisdiction to suspend or cancel licences issued in respect of respective legislative instruments.
“For the avoidance of doubt, in the event that Applicant is keen on challenging the operating licence issued by the City of Harare, he should make the necessary application in the appropriate court challenging the licence.
“In light of the above, Respondent submits that this Honourable Court ought to strike this matter off the roll as the court does not have the jurisdiction nor the powers to grant the relief that Applicant seeks.
“I am advised that even assuming that this court has the jurisdiction to entertain this matter (which is denied), a court cannot interdict a lawful process.”
He said everything related to the operations of the company was above board.
“In the present circumstances, as has been demonstrated herein above, First Respondent’s operations are clothed with all the relevant statutory approvals and authorisations.
“Even in the Applicant’s own application, no allegation has been made that First Respondent’s operations are unlawful nor illegal.
“In this regard, it can be taken that Applicant concedes that the operations of the First Respondent are above the law.
“The remedy of an interdict can only be granted if it can be demonstrated that an illegality has been committed or is about to be committed. In the absence of the allegations of an illegality, it follows that an application for an interdict ought to fail.
“In this regard, it is submitted that the present matter ought to fail as Applicant has not alleged an illegality arising from the First Respondent’s operations.
“Accordingly, this Honourable Court ought to exercise discretion and dismiss the Application with an appropriate order of costs.”
He added: “I humbly submit that the Applicant has not met the requirements entitling it to the relief sought in the present application.
“With respect, the Applicant has not established any clear right to the relief it seeks.
“No right can arise from a lawful process that is now complete.
“As is clear from the papers, the Applicant alleges that he has a right to use Seke Road and that he has a prima facie right to protection from air pollution.
“With respect, it is not clear as to what species of right is applicant trying to protect.
“If the right relates to the use of the road, First Respondent’s operations do not interfere with the use of the road. Applicant is free to continue using the road.
“First respondent does not operate or keep its business along Seke Road as alleged, the operations of the First Respondent are confined to its property and it has it has established safeguards to ensure that its operations do not interfere with the use or enjoyment of any public access roads.
“The right to use of access public roads is confined to the said road and does not extend to adjoining properties or businesses, in this regard any purported right to use the road should not extend to infringe on the unencumbered property rights of the lawful land owners.”
The magistrate ordered the Katonha twins to submit their arguments by April 28, before handing her judgment on May 6.
Mathew Masinge