Forbes and Thompson (Bulawayo)(Pvt) Ltd v S. Musasiwa and Environmental Management Agency

The applicant owned Vumbachikwe Mine. On 28 February 2014, officers of the 2nd respondent (Environmental Management Agency) visited the mine in company of the 1st respondent and conducted an inspection in terms of the Environmental Management Act (Chapter 20:27). The inspection team made findings documented in a report identifying various issues at the mine. On 6 March 2014, the 1st respondent issued an order purportedly under section 37(4) of the EMA Act ordering the applicant to cease all operations within 7 days and to comply with various recommendations including installing dust abatement measures, completing paving of the CIL floor, decommissioning certain infrastructure, implementing preventive measures for spillages, and paying outstanding statutory fees by 30 March 2014. The applicant noted an appeal to the Director General on 11 March 2014 in terms of section 129(1)(2) of the Act and subsequently filed an urgent application on 18 March 2014 seeking to have the closure order declared invalid or suspended.

• Whether the application was urgent and properly brought before the court
• Whether the 1st respondent properly exercised powers under section 37(4) of the Environmental Management Act
• Whether section 37(4)(a) of the EMA Act permits closure of premises for preventive measures or only when a specific activity polluting the environment is being carried out
• Whether the appeal lodged with the Director General suspended the closure order
• Whether the closure order was lawful and intra vires

The provisional order was granted allowing the applicant's Vumbachikwe Mine to resume operations pending final determination, with the direction that the applicant observe provisions of the Environmental Management Act. The 1st respondent's closure order dated 6 March 2014 was declared both unlawful and ultra vires.

Section 37(4)(a) of the Environmental Management Act (Chapter 20:27) permits an inspector to close premises for a period not exceeding 3 weeks only where a specific activity which pollutes the environment is being carried out. The power to close premises is distinct from the power under section 37(4)(b) to order preventive measures. An inspector cannot exercise closure powers for general environmental protection or preventive purposes but must identify a specific ongoing polluting activity. An administrative authority acting under statutory powers must exercise those powers strictly in accordance with the circumstances and conditions specified in the enabling statute. Where an inspector issues a closure order without identifying a specific polluting activity being carried out, and instead relies on preventive recommendations and general environmental protection objectives, such an order is both unlawful and ultra vires.

The court made observations regarding the question of whether an appeal to the Director General suspends a closure order, noting the applicant's argument that section 130's specific provision that appeals against authority decisions do not suspend those decisions (by express mention) implies that appeals against inspector decisions do suspend them (by omission). However, the court stated it would not dwell on this issue extensively as it was not pivotal to the decision, except to explain the timing of the application. The court also noted in passing that it did not matter where or how a certificate of urgency was typed, but what was essential was that a legal practitioner gave reasons for urgency and properly signed and stamped the certificate. The court further observed that the 1st respondent's reference to six previous similar orders having been granted created context but did not justify departure from the statutory requirements.

This case is significant in Zimbabwean environmental and administrative law as it clarifies the scope and limitations of inspectors' powers under section 37(4) of the Environmental Management Act. The judgment establishes important principles regarding statutory interpretation of environmental protection powers, confirming that closure powers must be exercised strictly within the parameters set by statute. It limits the exercise of emergency closure powers to situations where a specific polluting activity is being carried out, as opposed to granting broad preventive or general environmental protection powers. The case reinforces the principle that administrative authorities cannot exercise powers beyond those expressly conferred by statute (ultra vires doctrine) and that statutory powers must be exercised in accordance with the specific circumstances contemplated by the enabling legislation.