Mzuzu City Council v Friends of Mzuzu Community and Others Unknown (Civil Cause 117 of 2016) [2018] MWHC 1275 (19 February 2018)

Mzuzu City Council v Friends of Mzuzu Community and Others Unknown Miscelicneous Civil Cause No Li7 of 2616 MzHC REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY: CIVIL DIVISION CIVIL CAUSE NO. 117/2016 Between AZUL City Gout. ecrsanesnner-nsanapytnisereeonrapanpuasieessoeccosse.., Applicant -and- Friends of Mzuzu Community and Others UN KNOWD. eee cecccsscucceceeces Respondents CORAN: HOUNORABLE JUSTICE D. A. DEGABRIELE Mr. Mbotwa Counsel for the Applicant Mr. Siadi Counsel for the Respondents A. Kanyinji Court Clerk E. Msimuko Court Reporter DeGabriele, J RULING introduction The Applicant herein was granted an ex parte order of interlocutory injunction pursuant to Order 29 of the RSC. The order was granted on 28" November 2016 and Was vald for 14 days. The Applicant was further ordered to file infer partes application to extend the validly of the order and file the substantive action and was also ordered to specify the vs jm names of the so called “Friends of Mzuzu Community”, The Respondents filed an ex parte summons under O29 rule 4 of the RSC, and under the Courts inherent jurisdiction for an oraer to vacate the order of injunction granted on 28 November, 2016. The Court directed that the matter should be filed inter-partes. The Applicant also filed an inter partes application to have the injunction continued. This Court c heard both parties. The Respondents had argued that the order of injunction be vacated as the Applicant had failed to fulfil the conditions under which the injunction was granted took Mzuzu City Council v Friends of Mzuzu Community and Others Unknown Miscellaneous Civil Cause No 447 of 2016 MzHC and that the Applicant had suppressed material facts. The Respondents further arqued that the Applicant had communicated to Friends of Mzuzu Community that the Mchengautuba dumpsite would be vacated by 31° March 2017, but the Applicant was still using the dumpsite as of April 2017. The Applicant had further not indicated when construction of the new dumpsite would be finalised. The Respondent further claim that while the Applicant had complied with filing the substantive action by 1% December 2016 he had failed to specify the names of the so called “friends of Mzuzu” and that this failure was fatal to their case. The Respondents claim that the Applicant suppressed the fact hat the activity of dumping waste is causing health problems to the people of the area. ot The Applicant sought to have the injunction continued so that the Applicant can continue to provide waste collection and disposal services while wai iting for the new dumpsite at Dunduzu to be finalised by 318 March 2017. After hearing both parties, this Court made finding that failure by the Applicant to s specify the names of the “Friends of Mzuzu Community was not fatal to the Applicant's case. The so called “Friends of Mzuzu Communih y’ was a grouping of people which was represented by their leader, Precious Mtambo. Unless 4 contrary intention is disclosed, the grouping was well and ably re presented by its leader. On suppression of material facts, this Court stated that the Re spondents needed to provide evidence that there was either a public outbreak of disease or bring a report of the Public Health Services condemning the dumpsite. Further the Respondents had to prove that the Applicant was in possession or had kno wiedge of the outbreak or report of the alleged outbreak at the time he applied for an order of injunction. This Court then ordered that the order of injunction should remain in force while the originating summons should be heard as a matter of urgency. This the ruling following the heari ing of the originating summons. The application Through an originatin summons, the applicant sought the followin declarations and 3S Mt Y reliefs: 4 Muzu City Council v Friends of Mzuzu Community and Others Unknown Miscelianeous Civil Cause No 117 of 2016 MzHC a) A declaration that the Applicant is entitled to continue to use the piece of land at Mchengautuba in the city of lizuzu which is in dispute herein as a dumpsite for solid waste collected from Mzuzu City Local Government. b) An order of permanent injunction restraining the respondents from blocking the access road to the Mchengautuba dumpsite in the city of Mzuzu or from in any away restraining officers of the Applicant from accessing the said dump Site. c) An order for costs of this action The originating summons was supported by the affidavits sworn by Counsel Victor Gondwe and Mr Yona Simwaka. The affidavit evidence is to the extent that the Applicant is a legitimate City Council constituted under the Local Government Act and has a statutory duty to collect and dispose of waste thereby improving hygiene in the City. The Respondents are some of the residents of the township of Mchengauituba in the City of Mzuzu and members of the grouping known as Friend of Mzuzu Community (FOMCO). The Applicant states that the said dumpsite is on public land and has been operational for a number of years. In recent years, some of the Respondenis have encroached on the public land bordering the dumpsite despite being advised through notices to cease encroaching on the land. At the time of applying for the order of injunction and filing the originating summons, the Respondents had been preventing officers of the Applicant from visiting the dumpsite in order to dispose of solid waste anc incinerate accumulated refuse. The Respondents have further dug a trench to prevent waste disposal trucks from offloading waste at Mchengautuba dumpsite. The resultant piling of solid waste both at the dumpsite and in the City has produced a bad smell and has resulted in an un-hygienic environment and a health hazard to residents of the City of Mzuzu. The Applicant fears that water-borne diseases can easily be transmitted by microorganisms that are developing in and around the dumpsite and the markets within Mzuzu City as this is the rainy season. The Responcents filed an affidavit in opposition of the originating summons, sworn by Precious Mtambo. The affidavit evidence was that the dumpsite at Mchengautuba was identified in the 1980s’ mainly to fill a hole developed during land excavation for gravel by a road construction company. However, the Respondents submit that according io the 0 o Mzuzu City Structure and Land Use Plan of 2010 (P47) the whole of Mchengautuba area aie Mzuzu City Council v Friends of Mzuzu Cornmunity a? nd Others Unknown Miscellanecus Civil Cause No 117 of 2016 MzHC is designated as a high-density residential area and this included the area being used as a dumpsite. The Respondents claim that they are not encroaching at all as they do pay city rates to the Applicant t The Respondents claim that the activity of dumping the garbage and wasie at Mchengautuba is posing health and environmental hazard to the residents and this might lead to diseases like diarrhea, cholera and eye diseases which may arise due to environmental pollution. The dumping of garbage and other harmful substances is putting peopte’s health at risk especially children, as there is no perimeter fence nor quards 3 posted at the dumpsite. The Respondents claim that the order of injunction obtained by <a the Applicant was erroneous as it was against the right to clean envi ironment and against the interest of justice. The Respondents claim that the construction of Msiro Waste Management site at Dunduzu is not of self sufficient to warrant or require the Appiica at ¢2) to proceed violating the righ ht of the community at Mchen autuba. The Respondents g P submit that the Msiro Waste Management Site at Dunduzu was officially opened on Te" May 2047, yet the Appl icant was dumping waste at Mcl engautuba on 19% May 2017. The c> < at $b $b os wh Respondents conceded that ine Appic tity cleen by f llecting garbage and other we aste issues to determine This Court is called upon to determine the following; a) Whether the Applicant is entitled to continue to use the piece of land at Mchengautuba which was designated as a dumpsite for solid waste collected from Mzuzu City Local Government Area. b) Whether the activity of dumping solid waste at Mchengautuba is putting people’s lives at risk? f c) Whether the Applicant is entitled to the costs of this action. The Law and evidence The Constitution of the Republic of Mat _ 1994 lays down national principles under section 13 that promote the welfare and development of the people of Malawi by 4 Mzuzu City Council v Friends of Mzuzu Community arid Others Unknown Miscellaneous Civil Cause No 117 of 2016 MzHC progressively adopting and implementing policies and legislation aimed at achieving a number of goals. One such goal is the responsible management of the environment with the aim of, among other things, promoting and providing a healthy living and working environment for the people of Malawi. A number of laws have been passed with the aim of putting into effect Constitutional provisions. Section 3 of the Environment Vanagement Act, 1996 outlines national policies that have a bearing on the protection and management of environment and places a duty on any person who is required by law to protect and manage the environment to so act in a manner, among other things, that promote a clean environment. saction 5 of the Environment Management Act, 1996 stipulates that every person shall have the right to a clean and healthy environment. Under subsection 3, the law gives power to any person to bring an action in the Hi h Court for purposes of enforcing and protecting the right to a clean environment. The law further gives such a person or person ali Option to file a written complaint to the Minister outlining the nature of his or her Nplaint and particulars and the Minister is obliged to respond in 30 days and institute W paragraph 2 (1)(a) of the Second Schedule to the Local Government Act of 1998, Applicant who is a city Assembly, is given the power to establish, maintain and ige services for the collection, removal and treatment of solid and liquid waste, and ‘posal thereof whether within or without its area and may compel the use of its by anybody or person to whom the services are available. iN 102 (a) of the Local Government Act provides inter alia, that any person who ily obstructs any oificer of the Council in the execution of his duty shall be guilty of fence and shall be liable on summary conviction and to a fine of K1, 000,00 or nment for a term of three months or to both such a fine and imprisonment. Section (he Town and Country Planning Act also provides that any person who, without Or reasonable excuse, obstructs or impedes any authorized officer or any mernber I"lanning Committee, lawtully exercising a power of entry into land or building, from f Hg any land or building shall be guilty of an offence punishable by a4 fine of K5, ge Bd: Mzuzu City Council v Friends of Mzuzu Community and Others Unxnewn Miscellaneous Civil Cause No I 47 of 2016 MzHC From the facts outlined by the parties, this is an issue that is based on a Constitutional right of a specific community, as against the general populace of the City of Mzuzu and as against the statutory mandate of the City Council to collect and dispose of solid waste in designated places. | now proceed to examine the facts and apply the law as outlined above. The Mchengautuba dumpsite was commissioned in 1979, to replace the old one at Masasa as shown by the document marked as YS4. The map of the boundary of the dumpsite area is exhibited and marked as YS5. It is not clear from the evidence tendered by the parties whether at the time of designating the dumpsite in 1979 Mchengautuba was a residential area. However, at the time of hearing this matter, Mchengautuba dumpsite remained tha only operational dumpsite in Mzuzu City. The Respondents have exhibited the 2010 Structural Plan map of the City of Mzuzu (PM4) which shows that the dumpsite is but a very #!nall portion of-land within the Mchengautuba residential area. The only indirect evidaltce of Mchengautuba being a rapidly growing residential area who siated that ne moved into ihe area in comes from the eviden& the year 2000. He told (i Court that at first the ‘place’ was small but now it is getting big and the dumpsite is povlig health threats to people. He further stated that the concerns on the dumpsite begun {a be raised in the year 2013. The block leader of the area who adopted the sworn affidavil of Precious Mtambo, was appointed in the year 2016. The Court would have benefitted from a clear history of how the dumpsite was established and whether or not the Nes @ resicential area. The brief facts of Precious Mtambo as naffaled above may lead to the conclusion that Mchengautuba was a ‘small’ residential area. but as it is becoming ome populated, the presence of the dumpsite within the ares [6 £ health risks. Regardless of the incompleteness of the historical background, clear that the Mchengautuba durnpsite was duly and legally i for purposes of dumping solid waste as well as filling up PUFp g gu designated in 1979. It wi truction company. It is the ai the time of hearing this matter, i RL A os z Pe maiycies ey t. ito tha the Applicant was legally G)erating the dumpsite as there was no other dumpsite that was the At t CG Tha rat po eco ee weal et nerationsl in the City of Meuzu. Therefore Apbiucant is entitled under the law to operat Ona in the aa ity ' i Mzuzu City Council v Friends of Mzuzu Community and Others Unknown Miscelianeous Civil Cause No 117 of 2016 MzHC continue using the Mchengautuba dumpsit 143) while the new Msiro Waste Management Centre is under construction. The Respondents have claimed that solid waste should not be dumped at Mchengautuba and have relied on two documents to support their claim. The first document is the Mzuzu City Structural Draft Plan for the 2015 - 2030, produced on 30! July 2014. The Respondents submit that at page 50 of this Plan, the use of the Mchengautuba dumpsite was declared illegal by Government in 2013. This document, while showi ng that indeed 1 the Mchengautuba dumpsite was declared illegal, also discloses that the Applicant and the Gevernment of Malawi did not sitidle. The Respondents’ assertion that by moving the dumpsile from Mchengautuba to Msiro, the Applicant had acknowledged that dumping waste al Mchengautuba was illegal, was wrong in law and in principle. There was a clear action a which is being implemented; first an environmental impact assessment was done Iti 2013, then secondly a sear ren for a new site was accomplished in 2014, and thirdly; {@ new site is under constructi ion was being envisaged to be completed in March \a stated above, it is the finding of this Court that the Mchengautuba dumpsite was legal alii remained so, but its usefulness and operations have been overtaken by the growth Gf the City of Mzuzu. The Applicant and the Government of Malawi are actively ig the situation. ind document is a letter exhibited as PA4¥1 which the Applicant had written to nts, communicating that the Mchengautuba dumpsite would be vacated by 31" 7. The letter is dated 18'" November 2016, addressed to the chairperson of FOMGQ, &lating that the Applicant is committed to stop using the Mchengautuba dumpsil@ 48 soon as construction of Msilo Waste Management Site is complete. The letter furlhier stated that “following the discussion we had with Plan Mal! awi, the contractor and Public Works directorate, construction of Msiro is projected to be completed by March 2017. Therefore, Mzuzu City is promising to start dumping waste at Msiro by 31% March 2017, We liope this will clarify the issue and enable the Council to resume disposal of waste al Mchengautuba” e An examination of the letter shows that the construction of Msiro Waste Management Centre was ‘projected’ to be completed by March 2017. it became evident at the time of Mzuzu City Council v Friends of Mzuzu Community end Others Unknown Misceilaneous Civil Cause No 117 of 2016 MzHC hearing and the time of the scene visits that the Applicant was largely a beneficiary and the construction and launching of the Msiro Waste Management Centre was being done by third parties. To this end, the Applicant should not have used the words ‘promising to start dumping waste at Msiro’ bearing in mind that there were contractual, budgetary and political considerations that were not in the control of the Applicant. It is the finding of the Court that the Applicant was not in full control of the completion and launching of the Msiro Waste Management Centre, and should not have promised the 31% day of March as the final day to use Mchengautuba. Further, a reading of the letter dated 18"* November 2016, and a closer look at all the surrounding facts and circumstances of the case leads to the conclusion that the failure to honour that promise as of 348t March 2017 did not mean that the Applicant was acting illegally in dumping waste at Mchengautuba. having established that the Applicant had legal right to use the menenees pursuant to statutory obligations for the benefit residents of Mchengautuba, the question that arises is whether the Rsebondents acted in accordance with the law in obstructing the Applicant from accessi ng the dumpsite. It is not disputed in this case that the Respondents dug trenches on the road le eading to the cesignated Mchengautuba dumpsite thereby physically impeding the Applicant from rryit its statutory duti f cisposing of solid waste. carrying out its statutory duties of disposing of solid waste The action of blocking the road to the dumpsite had two consequences; that (a) solid waste at the dumpsite piled up and the Applicant and its agents were unable to burn the waste, and (b) solid waste accumulated in the City especially at the market and publi areas as the Applicant and its agents were unable to collect the solid waste and dump the same at Mc autuba dumps Therefore, the action by the Respondents of digging trenches and stopping the Applicant fr doing his job was and is criminal in nature and must be condemned as such. As seen from the laws outlined above, the Respondents committed criminal offences under Sections 102 (a) of the Local Government Act and section 72 of the Town and Country Planning Act. The question that arises next was whether there were any legal options available for th Respondents to seek redress when they perceived that the Applicant was dumpi ing solid Ww i had declared that the ; ael ie! sftar th Pl EAE RéAlo vaste in a residential area, after the Government of Mala a Mzuzu City Council v Friends of Mzuzu Community and Others Unknown Miscellaneous Civil Cause NO 117 of 2016 MzHC Vichengautuba dumpsite was illegal. The Constitution of the Republic of Malawi and the Environment Management Act both Give powers to any person to commence proceedings in the High Court in a bid to protect the environment or enforce the right to a clean environment. Indeed, section 15 of the Constitution of the Republic of Malawi recognizes that any person or any group of persons with ‘sufficient interest in the protection and enforcement of rights’ shall be entitled to the assistance of the courts, the Ombudsman, the human Rights Commission and other organs of Government to ensure the promotion, protection and redress of griavance in respect of those rights. In cases of protection and management of natural resoufeas, itis essential to allow any person or groups of persons to endeavour to protect the afvironment and natural resources, as these belong to all peoples of Malawi and from getieration to generation. From the evidence before tly aurt, there was no action or proceedings commenced by the Respondents, nor did th larnatively lodge their complaint with the Minister as is provided for under section & of the Environment Management Act. What is clear is that there was some discu i between the Respondents and the Applicant which cuiminated in a letter dated 4 November 2016 exhibited as PM1. The letter is to the effect that the Applicant wa ling that the construction of Msiro Waste Management Centre would be concluded: i rch 2017 and that the Applicant would stop using rch 2017. | find that the Respondents, who had the ill advised, and they failed to protect or enforce the -Mchengautuba dumpsite by representation of legal cour protection of their rights thrat y available legal processes. Their attempt to resolve the matter in a criminal manne at be condoned, and itis condemned in the strongest terms. The Applicant was withi ight, had he wished to do so, to criminally prosecute the Respondents. Sa. The Respondents herein have that they were not encroaching as Vichengautuba was primarily a residential are not a dumpsite. At the focus in guo visit the Court had stated that it was essential t! inap of the cumpsite and the immediate surrounding area be exhibited, showing the ate houses and the position of the ilegal houses within the dumpsite. The Court fu “Orcered that those with houses within the dumpsit who claim that they had been |é lately allocated the plots by the Applicant must present such evidence to the Coull. The Court observed that 2 Mzuzu City Council v Friends of Mzuzu Community and Others Unknown Miscellaneous Civil Couse No 117 of 20616 MzHC a. There was no perimeter fence or guards patrolling the dumpsite. b. The trenches dug across the road were deep and made it impossible for refuse trucks to pass. c. There is heavy encroachment on the dumpsite itself that the area operating as 2 dumpsite has been reduced to less than a third of its original size. d. The dumpsite is surrounded by crops and houses, some of the maize and bananas are within 3 to 5 metres of the small area now being used as a dumpsite and the houses are as close as 10 metres from the dumpsite. The fruit trees and th houses are very recent é. On the other hand, it seems the Applicant has not acted strongly enough to ensure that there are no encroachers. Some of the houses have water and electricity, eaning that the Waterboard and ESCOM see these encroachers as legHimate users f. Itwas noted and agreed by both sides that attem ts to build @ guard house or a g perimeter fence did not materialise as the residents were very hostile and broke the fences. In their supplementary affidavits, the Respondents stated that they lived in Mchengautuba y fa) and were tenants of the Applicant. The € Responcents then exhibited demand notice and r sot receipts for paid city rates and evidence of plot allocation for Brave Kanyinji (BK1 and BK2), Asher Qoma (AQ3 and AQ4), Songe Mwale (SM5, SM6 and SHI7) and Dickson Mughegho (DM8 and DMS) as exhibits. The Respondents submit that these exhibits are proof that Mchengautuba is a residential area. In their supplementary affidavits the Applicant exnibited the original map of the dum mpsite and eviction notices that had been issued and were marked as YS1 fora Mr G Kalagho issued on 4 March 2011, YS2 Mr J Msopole issued on 4 March, 2071 and YS3 Mr L. Banda issued 25" May, 2012. The Applicant did not actually mark the map to show where these houses were situated in relation to the dumpsite. the houses built on the dumpsite ‘ i ‘ gift z wr & otf li was the observation of this Court that almost all o Mzuzu City Council v Friends of Mzuzu Community and Others Unknown Miscellaneous Civil Cause No 417 of 2016 MzHC rea and the dumpsite land be possessed by the Residents. Health concerns were secondary to the demand and desire to have the Applicant vacate the land so that the block leaders can parcel out the land, as has alt ready been done. From sentiments aired at the scene visit, it seems that the senior block leader believes that the land has always been theirs and that the Applicant was the one encroaching. It is in evidence that in the year 2014, the Respondents also claimed the same land from Malawi Housing Corporation in a case registered as Miscellaneous Civil Cause No 76 of 2074, in which the Court found that the Respondent encroaching. While all land in Mzuzu was once in the ownership of the people living around Mzuzu City, the land was zoned and apportion to different statutory corporation when the city of Mzuzu was established. It wrong for the population to believe that they can just take any land around the city and claim itas theirs, without proper procedures as provided for by the law. In my considered opinion, this malady would have been cured if there was a perimeter fence around the dumpsite. While the Applicant conceded that the failure to erect a perimeter fence was a mistake, the onlookers and the Respondents were vehemently against the idea of the perimeter fence as they saw it as a mark that the Applicant intended to use the dumpsite indefinitely. The people were very emotionally charged that they were not willing to have any interim measure to protect themselves and their children while the construction of Msiro Waste Management Centre is ongoing. The Respondents have blamed the Applicant for the truancy and delinquency of their at ' rk children because the children prefer the dumpsite and not the school. it is the opinion of this Court that the raising of children is the duty of the parents and the community. If anything, the Applicant had attempted to post a guard to ensure that children would not come into contact with harmful waste but the Respondents had chased the guards away. Therefore, | find that Respondents did come to equity with clean hands, and they have continuously acted in bad faith and in disregard of the statutory obligations of the Applicants and their right to a clean envi ronment and their own safety. Having stated thus, the Applicants do not come out smelling of roses either. The Court observed that the process of building houses and connecting them to the vee gric y J Q. ae OD Q D 3 rok a Bo < = oO er a “ (A cS vv + a ys w. o ca ie) Oo ~ a ch 3 D oy a) or. o £2 c "5 OD tA Ch © 3 re) Cs Oo £2 : a ay pare % OQ hy Muzu City Council v Friends of Mzuzu Community and Others Unknawn Miscellaneous Civil Cause No 117 of 2016 MzHC ownership of the houses. The Applicants and its agents were on a daily basis dumping solid waste at the dumpsite and seeing these houses going up. There is no evidence of any action taken by the Applicant save sending the notices of eviction to a few people. | further find it is deplorable that service providers within the same city can be so blind to the violations of statutory regulations, and to the need to have a properly planned city. f For a house to be certified as a fit abode, the Applicants and his agents have to certify it, the utility services will have to provide their services on proof that the house is in the right area and it is a fit abode. The houses seen within the cumpsite are not fit for human dwelling, they are water logged, built in the marshy waterway, infested with non-bio- an plastic papers etc. There is very serious lack of action to enforce the city by S$, and the reluctance by the Applicant and his agents has become costly even to the health of the people of Mzuzu City. Following on the submissions made at the focus jn quo visit and the supplementary affidavits, the Court comes to a number of conclusions. Firstly, it became evident that there are two claims by the residents. There are those who have been legitimately apportioned plots or residential homes outside the boundaries of the dumpsite. These are the ones with the legitimate receipts for payment of city rates. Their major complaint for them is that the dumpsite, which is not secured with a perimeter fence or patrolled by guards is becoming full and a potential health hazard, bearing in mind that children are playing there incessantly. The other group of people are the encroachers, who have built their houses within the boundary of the dumpsite. While the encroachers are entitled fo a clean and healthy environment like everybody else, they have legally bulit houses in the wrong place and they have themselves to blame. The Applicant has asked for a permanent injunction restraining the Respondents from disturbing the operation of the dumpsite by themselves or by their agents. They have also asked for an order allowing them to continue using the said dumpsite. Looking at the facts, this Court would not grant a permanent i njunction because the Mchengautuba Dumpsite was already declared illegal, and the Court finds if to be an environmental and x health hazard after the scene visit. This Court agrees with the Respondents’ submission 12 Mzuzu City Council v Friends of Mzuzu Community and Others Unknown Miscelluneous Civil Cause No 117 of 2016 MzHC y that to grant such a permanent injunction would be against the interests of justice and will defeat the right to health and a clean environment of the members of the community at Mchengautuba. After visiting the Msiro Waste Management Centre, this Court concludes that the construction is nearly finished and the centre should be opened for business soon. In other jurisdiction that have dealt with similar issues, the courts have been aware of the need to preserve the status quo, but to provide time limits within which parties are to rectify the problem. In the case of New Jersey v City of New York, 283 US 473 (1831), the issue concerned the dumping of waste by the City of New York into the Atlantic Ocean, and consequently garbage would float into New Jersey waters and pollute the same. The State of New Jersey sought an order to stop the said disposal of waste. In its decision, the US Supreme Court issued the injunction but allowed for reasonable time to the City of New York to put into effect a proper waste disposal plan. The court stated as follows: - "A decree will be entered declaring that the plaintiff. the State of New Jersey, is entitled to an injunction as prayed in the complaint, but that before injunction shall issue a reasonable time will be accorded to the defendant, the City of New York, within which lo carry into effect its proposed plan for the erection and operation of incinerators (0 destroy the materials such as are now being dumped by it at sea or fo provide other. means to be approved by the decree for the disposal of such materials”. In the case of African Centre for Rights and Governance (ACRAG) and 3 others v Municipal Council of Naivasha [2017] eXLR the case con erning the operation of a dumpsite in Naivasha; petitioners arguing that the continued operation of the dumpsite Violates their right to a clean and healthy environment. There was evidence showing that the dumpsite was poorly managed and a clear hazard. There was a question whether to immediately stop its operations. There was no alternative dumpsite. It was the finding of the court that stopping operations immediately would not be solving the problem and the court proceeded to make necessary orders to ensure that licensing for the dumping site was obtained anc immediate mitigation measures be putin place. & Mzuzu City Council v Friends of Mzuzu Community end Others Unknown Miscellaneous Civii Cause No 117 of 2016 MzHC What is common in the above cited cases, which are similar to the case at hand, is that councils were not granted the remedy of permanent injunctions due to illegal or poor waste management. However, the cou iis, in order to make sure that the councils continued to Catry out their statutory y duties, allowed for a planned and timed relocation of the dumpsites. Sim milarly, in this c case, this Court will outline below the time limits within which the Applicant must comp pistety vacate t 6 Mchengautuba cumpsite. This Court therefore makes the ¢ following orders that allows the A Applicant to phase out the dumping of solid waste at Hctenteen a. The Applicant must desist to dur Mp Solid waste at the Mchengautuba dumpsite within a period of 6 months from 1st Ma ay 2017. b. The Applicant must incinerate all refuse and level the area within a period of 12 months from the 1% of May 2017. c. The Applicant will vacate fully the Mchengautuba area within 18 months from 7s May 2017, after making sure that afi refuse has been j incinerated and the y vhole area has been levelled, the land ONCE Occupied by the dumpsite has been zoned Or Categorized or otherwise Properly designated in eccordance to the blans of the City of Mzuzu. a. During the outlined periods and time frame, the Respondents by themselves or their agents are restrained from bloc} KING access to Mchengautuba dumpsite or in any Way interfere in the PrOPer process of clos sing down the dumpsite, or the Process of dealing with encroachers in the exe ercise of zoni ing or otherwise re- classifying the land ang area occupied by the dumpsite. Costs Normally cost follow the event. However, in this case each party will bear its own costs. Made in Chambers at Mzuzu Registry this igth aay of Febru ary 2018