Constitutional test over Lesotho dam project case

The Katse Dam, the largest in the Lesotho Highlands Water Project (LHWP) and a key water source for the Vaal Dam, which provides all drinking water for Johannesburg in South Africa, is at the centre of a constitutional case to be heard by the Lesotho High Court. While hailed as a major African infrastructure success, the dam project has come at a high cost to communities, according to the applicants, reports GroundUp. More than 3 000 individuals and 889 registered businesses have now brought a case against the Lesotho Highlands Development Authority (LHDA) – tasked with implementing the LHWP – and its contractors. In court papers, the applicants allege a series of injustices – including unpaid compensation, human rights violations, broken promises, and the failure to establish a promised community development fund. The LHWP arose from a 1986 treaty to transfer water from Lesotho to South Africa, while providing hydroelectric power and broader development opportunities, such as irrigation and tourism for Lesotho. Under Article 7 of the treaty, the LHDA was mandated not only to construct the project but also to safeguard the welfare of communities directly impacted by it. But the applicants claim that the implementation of Katse Dam, Mohale Dam, and the ongoing Polihali Dam has violated the Constitution of Lesotho. At the core of their case is the allegation that the LHDA failed to promptly and fully compensate affected communities and infringed on their land and property rights.

In a founding affidavit, Limpho Natsoane, chairperson of the Mokhotlong Business Forum Development Trust (the lead applicant), says the LHDA failed to meet its constitutional duty to promptly and fully compensate communities after acquiring their land. The applicants also allege that the LHDA never established the long-promised community development fund, and that the compensation provided does not account for the irreplaceable loss of communal resources. They are asking the court to declare all phases of the LHWP unconstitutional, to the extent that they violated constitutional and statutory rights. The legal challenge cites breaches of the Lesotho Constitution, the Human Rights Act of 1983, the Land Act, the LHDA Order of 1986, and other laws, according to GroundUp. Legal filings describe procedural irregularities and significant delays. Some properties were allegedly expropriated as early as the 1980s for the construction of Katse and Mohale dams. Yet, ‘compensation rates were only approved from 1997,’ Natsoane said. Formal compensation regulations only came into effect much later, with the LHDA Compensation Policy 2016 and LHDA Compensation Regulations 2017. On Friday, attorney Monaheng Rasekoai for the LHDA said he filed the LHDA opposing papers on Thursday.

Full GroundUp report