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Dogfight over Victoria Falls

TINASHE KAIRIZA
VICTORIA Falls, Zimbabwe’s top tourism drawcard and world spectacle, is at the centre of a legal dispute pitting environmentalists and two firms planning to build on restricted zones marked by Unesco as world heritage sites.

The UN body bestowed the World Heritage Site status on the Victoria Falls in 1989. It is considered as the largest waterfall in the world running down 108 metres.

After a fact-finding mission in February 2022, Unesco warned that the Victoria Falls was facing threats from individual and cumulative infrastructure developments. It warned that Victoria Falls could lose world heritage status.

Environmentalists and Victoria Falls residents filed an application at the High Court to block the two firms from building within the precincts of the falls.

According to court documents filed on May 13, Lawrence Benjamin Norton and nine other applicants are suing Adage Success Private Limited and Scanner Investments Private Limited, cited as first and second respondents, respectively.

Zimbabwe Parks and Wildlife Management Authority (Zimparks), the Environmental Management Agency (Ema) and the Procurement Regulatory Authority of Zimbabwe (Praz) are also cited as respondents.

“The purpose of this application is to prevent the development of commercial interest at the cataract and rainforest sites, which development would only suit the commercial operators and would negatively impact on the global aesthetic perspective of the Falls,” reads part of the application.

“It is clear and simple to note how the aesthetics of this historic and pristine site would be detrimentally affected. The risk is too great to the applicants and the

Zimbabwean public as regards a crucial environmental area of our country, and accordingly, this application is filed in the public interest…

“I further submit that the allocation of cataract to the first respondent and rainforest to the second respondent has significant and material effects as regards the future and rights of the public of Zimbabwe and notably constitute a genuine threat to the preservation of the Victoria Falls as a World Heritage Site.

“In essence, therefore, the process of the law, and the privileges granted to Zimbabweans have been flouted by the third respondent (Parks and Wildlife Authority) and other authorities involved in the granting of the concessions.

“The alleged permits cannot be taken on review as no such permits have been evidenced or tendered. The entire process is being sought to be carried out in a clandestine manner,” excerpts of the application read.

Historically, the applicants submitted, no commercial enterprises on the cataract and the rainforest have been allowed.

“The applicants bring the present application for the respondents to confirm whether or not any lawful permit as regards two commercial sites in Victoria Falls have been issued and to provide written reasons as regards same and to confirm whether all due processes were complied with as contemplated with the Administration of Justice Act,” reads the High Court case number HC 3576/22.

“It has come to the applicants’ attention that as at April 14 that the first and second respondents have somehow purportedly gained permits from third respondent without public enquiry or comment to operate two sites in the designated ‘highly sensitive zones’…surrounding the waterfall itself…and the immediate vicinity of the rainforest created by the spray of the Falls.”

Norton (first applicant) demanded answers from Zimparks.

He said Zimparks promised to respond to his questions in November.

“I confirm having addressed two open letters to Zimbabwe Parks and Wildlife Authority which have gone unanswered,” Norton said.

“I do confirm that the third respondent called for a stakeholder meeting on 9 May 2022 in which I confirm I raised the concerns over the issues of the two sites as otherwise detailed in this application, in which questions were not answered directly and I was advised we would be informed in November.”

Norton wrote in his application that he sought legal advice from lawyers who cautioned him against waiting for the “day of reckoning” (November).

He then approached the courts for redress.

“I am advised by my legal practitioners of record that in such circumstances one cannot await the day of reckoning but must act. I confirm that the need to act due to potential harm is already upon us,” Norton said.

“It is clear that the developers intend to proceed come ‘hell or high water’ without consideration of past objections, successful petitions and my own open letter.”

The applicants also submitted documents to the High Court which they claimed showed evidence of “land clearing” underway at the rainforest and “advertisements for trips to the cataract site”.

Only a legal solution, the applicants wrote, could push back manoeuvres by the two investment firms.

“I am further advised by my legal counsel that there is no alternative remedy than the relief being sought,” Norton said.

The applicants are being represented by Advocate Fadzayi Mahere.

Advocate Fadzayi Mahere.

Responding to Norton’s application, Zimparks Director General Fulton Mangwanya argued that the applicant’s concerns were driven by financial reasons.

In his opposing affidavit submitted on June 14, 2022, Zimparks boss said Norton’s application should be dismissed.

“The applicant’s interest in this matter is purely financial and this is reflected in the papers before the courts,” Mangwanya’s affidavit reads.

“I am advised by my legal practitioners that an applicant with an application like this one is required to prove that they have a direct and substantial interest in the matter.

“Based on the foregoing, the applicant’s interest is a financial interest in this matter. Again, I embrace the advice of my legal practitioners of record that this court has made it very clear in a plethora of decisions that financial interest does not confer to a litigant locus standi.”

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