Authored By: Natasha Chitundu
The University of Zambia
Court: High Court of Zambia
Judge: Musonda, J
Date: 10th November, 2011
Case Number: 2007/HP/1286
Parties
Plaintiffs: James Nyasulu and Others
Defendants: Konkola Copper Mines PLC
Environmental Council of Zambia
Chingola Municipal Council
FACTS OF THE CASE
The dispute arose in November 2006, after a rupture in the Minima tailings pipeline operated by KCM released acidic effluent into the Mushishima stream, which flows into the Kafue River. This water source was the principal supply for Chingola residents. Witnesses described the water as foul smelling, discolored, with floating bubbles that persisted even after boiling. Stones and vegetation changed color, fish were dying and water for drinking became unsafe.
2,000 plaintiffs and residents of Chingola were directly affected by in different ways. The plaintiffs alleged serious health issues including diarrhea, stomach pains, skin diseases, and loss of livelihoods such as death of life and due to contaminated boreholes death of humans. Led by a community representative James Nyasulu, sued Konkola Copper Mines Plc (KCM), the Environmental Council of Zambia (ECZ) and Chingola Municipal Council.
The plaintiffs alleged that KCM’s operations caused this environmental disaster and that both ECZ and Chingola Municipal Council were alleged to have failed in there statutory duties to monitor, regulate and provide clean water as well as a safe environment.
LEGAL ISSUES RAISED
- Whether KCM could be held liable for negligence in tort for allowing effluent to pollute Chingola the water supply.
- Whether KCM owed a duty of care to surrounding communities, and whether it had breached that duty.
- Whether ECZ and Chingola Municipal Council failed in their statutory duties.
- Whether the plaintiffs were entitled to damages for the harm suffered.
ARGUMENTS OF THE PARTIES
Plaintiff’s Arguments
The plaintiffs alleged that KCM had unlawfully discharged effluents into river in violation of basic standards of environmental safety. Their claims were primarily grounded in tort law:
- Arguing that pollution interfered with their right to enjoy property and clean environment, that KCM was negligent under the neighbor principle as illustrated in the case of Donoghue V Stevenson[1] and failed to act as a reasonable man and negligence as defined in Blyth V Birmingham Waterworks[2], was established since KCM failsed to take reasonable precautions such as lime treatment.
- The doctrine of strict liability in Rylands V Fletcher[3], given the inherently hazardous nature of mining operations and that KCM should be held strictly liable for the escape of harmful substances.
- By failing to prosecute KCM or enforce license conditions, ECZ was negligent in its statutory duties.
- Reliance was placed on the Environmental Protection and Pollution Control Act[4]and the Mines Minerals Developments Act[5] , both of which prohibited harmful discharge and impose liability for environmental harm.
- The plaintiffs through Counsel also argued that the pollution deprived residents of their constitutional right to life, rendering KCM’s actions not only negligent but also reckless and unconstitutional[6].
Defendant’s Arguments
- KCM denied the liability of negligence, arguing that the effluent was neutralized with lime and that plaintiffs had not shown sufficient proof of injury, relying on the case of Sata v Zambian Bottlers Ltd[7], which required evidence of actual consumption of contaminated water leading to injury.
- The defendants augured that environmental regulation is a statutory matter and courts should not extend common law principles where comprehensive regulation exists, citing the case of Cambridge Water Co v Eastern Counties Leather PLC[8].
- ECZ argued that it had discharged its duties by investigating, warning, and sanctioning KCM, including shortening its license.
- Municipal Council denied liability, and was disjoined from the proceedings.
FINAL DECISION
Musonda J held KCM liable in negligence and breach of statutory duty. This was a fist instance High Court decision and no appellate history was recorded in the judgment itself.
Directions of the Court
The court ordered KCM to pay ZK4 million in general damages and ZK1 million in punitive damages per plaintiff, for each 2,000 Plaintiffs, totaling ZK 10 billion. Interest was awarded to the Bank of Zambia deposit rates from the date of the writ to full payment. Costs were also awarded to the plaintiffs. The courts stressed that punitive damages were necessary to deter similar corporate misconduct in the future.
LEGAL REASONING
- Court’s Reasoning
The court found KCM grossly negligent and reckless in polluting the Kafue River, which contaminated the water supply of 2,000 Chingola residents represented by Nyasulu James. Further, witness and expert evidence, supported by the Environmental Council of Zambia testimony confirmed pollution levels exceeded statutory limits. KCM’s failure to add lime to neutralize acidic discharges, despite its availability, was deemed a serious breach of duty.
The judge emphasized that they deprived the community in Chingola the right to life, which is a fundamental right in the Zambian constitution under Article 12. He stressed that the international environmental protection norms, including United Nations Environmental Program (UNEP) efforts, reinforced the duty of corporations to safeguard life.
Additionally the court condemned KCM’s conduct as appalling and reflective of corporate irresponsibility, emphasizing the duty of courts to protect poor communities from powerful politically connected corporations[9]. KCM was held liable for depriving the community of their constitutional right to life and ordered to pay substantial damages. In contrast the ECZ was not found liable as it acted within its statutory power by sanctioning KCM and restricting licenses, while the Municipal Council was absolved of liability as it was not a water supplier.
The court absolved ECZ, in that it had attempted to regulate KCM under difficult circumstances, including political inference. It was therefore not negligent.
- Principles Applied
- Negligence, the neighbor principle from Donoghue v Stevenson and the objective standard from Blyth v Birmingham Waterworks Co.
- The principle of strict liability from Rylands v Fletcher, holding that if a person keeps hazardous substance on their land is strictly liable if that substance escapes and cause damage, even without proof of negligence. Liability arises because of the inherently dangerous nature of the activity, not just the conduct.
- Recognized statutory duty which imposed obligations to prevent harmful discharge and compensate victims.
- Recognized the right to life as a fundamental right directly threatened by corporate environmental misconduct.
Precedents Cited
- Donoghue v Stevenson [1932] AC 562
- Blyth v Birmingham Waterworks Co (1856) 11 Ex Ch 781
- Rylands v Fletcher (1868) LR 3 HL 330
- Sata v Zambia Bottlers Ltd (2003) ZR 1
- Continental Restaurant and Casino Ltd v Chulu (2000) ZR 128
- Cambridge Water Co Lt v Eastern Counties Leather Plc. [1994] 2 AC 264
- Alphacell Ltd v Woodward [1972] AC 824
Conclusion
This case is a significant milestone in Zambia law, particularly in tort and environmental protection. The court’s ruling that industrial pollution can violate the constitutional right to life, clearly shows and emphasize the importance of environmental protection as a fundamental right. The decision aligns Zambia with international obligations that recognize environmental harm as a threat to health and dignity. The case also demonstrates the role of the court in balancing economic development with human rights and environmental justice. It sets a strong demonstration that corporations, regardless of their economic importance, must be accountable for their actions.
Although the remedies were limited, the case provided a foundation for subsequent reform. Under today’s legal framework, the plaintiffs would have enjoyed stronger statutory rights broader remedies and greater prospects of meaningful environmental justice.
REFERENCE(S):
Case Law
Alphacell Ltd v Woodward [1972] AC 824 (HL).
Blyth v Birmingham Waterworks Co (1856) 11 Ex Ch 78.
Cambridge Water Co Lt v Eastern Counties Leather Plc. [1994] 2 AC 264 (HL).
Continental Restaurant and Casino Ltd v Chulu (2000) ZR 128 (SC).
Donoghue v Stevenson [1932] AC 562 (HL).
Rylands v Fletcher (1868) LR 3 HL 330.
Nyasulu v Konkola Copper Mines Plc and others (2007/HP/1286) [2011] ZMHC 114 (HC Zambia, Musonda J, 9 November 2011).
Sata v Zambia Bottlers Ltd (2003) ZR 1(SC).
Legislation
Constitution of Zambia (Amendment) Act 1991.
Environmental Protection and Pollution Control Act (Cap 204, Laws of Zambia).
Mines and Mineral Development Act No. 7 of 2008.
[1] [1932] AC 562 (HL)
[2] (1856) 11 Ex ch 781
[3](1868) LR 3HL 330
[4] Act (Cap 204, Laws of Zambia)
[5] Act No. 7 of 2008
[6] (2007/HP1286) [2011] ZMHC 114
[7] (2003) ZR 1 (SC)
[8] [1994] 2 AC 264 (HL)
[9] (2007/HP1286) [2011] ZMHC 114
