The Environmental Case Law Index is a collection of judgments from 10 African countries on topics relating to environmental law, both substantive and procedural. The collection focuses on cases where an environmental interest interacts with governmental or private interests.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-area expert postgraduate students from the University of Cape Town.
Read also JIFA's Environmental Country Reports for SADC
This was an appeal before the High Court where the appellant a chief, had been charged before the subordinate court for 35 counts of theft by false pretences. The appellant falsely claimed that he was a representative of the Principal Chief and had been authorised by him to impose and receive fines of cash and small stock from persons who had failed to remove their animals from certain reserved grazing area.
The question was whether the appellant contravened Legal Notice Number 39 of 1980 namely, Range Management and Grazing Control Regulations published in Gazette Number 36 of 10 October 1980 (Supplement Number 4). The Principal Chief of the area gave evidence and denied that he ever authorised the appellant to act, as he did, and the court concluded that the appellant lied. The judge confirmed the conviction on 18 counts but set aside the sentences imposed by the learned magistrate as they were considered lenient. Accordingly, on 18 counts the appellant was sentenced to one-year imprisonment, each to run concurrently, the whole of which was suspended for a period of two years on condition that during the period of the said suspension he is not convicted of an offence involving dishonesty. The appellant was sentenced on two counts to a period of two years imprisonment on each count. Half the sentence was suspended for a period of two years on condition that during the period of the said suspension he was not convicted of an offence involving dishonesty.
This case concerned an appeal to the High Court by the appellant who subsequently made no further effort to prosecute his appeal. However, the judge was not prepared to leave the matter in that unsatisfactory state and decided to have the appellant and the second accused before the lower court, appear before the court and show cause as to why their sentences should not be increased. The two had been charged with selling uncut diamonds in contravention of s 6 (1)(b) of the Precious Stones Order 1970 and subsequently convicted.
The law applied was s 6(4) of the Precious Stones Order which specified the maximum limit of fine and imprisonment for offenders in this case, for the practice of dealing in uncut diamonds without authority. The judge decided that in his case that justice sternly demanded that illegal schemes to get rich quickly could not be tolerated by the courts. The appellant’s fine was increased in addition to a sentence of 6 months' imprisonment in default of payment.
The court exercised its entitlement to revisional powers to correct the inadequate sentence imposed upon the other offender in the lower court. The judge ordered that in addition to the fine that he had paid, and month spent in prison, the original sentence to imprisonment for twelve months be wholly suspended for three years on the condition that he was not convicted of any offence under the same law.
The plaintiff instituted an action in the High Court for the eviction of the defendants from a piece of land. The plaintiff alleged that the defendants were carrying on mining operations at the site without holding a mining lease or a mining licence issued in terms of the Mining Rights Act 43 of 1967, hence acting illegally.
It was common cause that the defendants had not been granted a mining lease or a mining licence by the Mining Board. The defendants argued that the plaintiff did not have locus standi to bring an action of eviction because it did not own the land and that there was a likelihood that granite stone was not a base mineral that fell within the definition in the act.
The judge’s view was that granite stone fell within the definition of a base mineral and the defendants were therefore undertaking a mining operation requiring a lease or licence under the act. The court further held that the defendants held a bogus land grant from the chief. It also found that under s 2 of the Mineral Rights Act the right to minerals in any land were vested in the "Basotho Nation". The judge concluded that the case was not one between landlord and tenant but between landlord (or landowner) and squatter in a situation governed by a unique and unusual land law. Accordingly, a summary judgment was entered for the plaintiff as prayed.
This Supreme Court case revolved around a compromise agreement between the fourth respondent and the appellant. The fourth respondent, a registered mining company, was going bankrupt and its management was entrusted to the liquidator. The liquidator then granted the appellant the right to treat stockpiles of ore at the mine to raise money to pay the creditors. The appellant then attempted to have all mining activities registered under its name. In doing so, the appellant misrepresented the facts to the third respondents without involving the fourth respondent stating that it paid the creditors their dues and as such, it was entitled to have mining activities registered under its name. However, the fourth respondent succeeded in establishing that the appellant was lying. This led the third respondent to cancel the appellant’s falsely obtained mineral rights. The High Court agreed with the respondents that the appellant's mineral rights over the plot in dispute were justifiably cancelled. The appellant felt aggrieved by the court’s judgement and appealed to the Supreme Court.
The issue for determination was whether the appellant was allowed to register mining rights under its name and whether the third respondent erred in cancelling its rights.
The Supreme Court held that agreements cannot be valid if consent was obtained through misrepresentation. Consequently, it found that the appellant was unjustified and supported the third respondent’s decision to cancel the falsely obtained rights.
The first and second respondents, were parties to a contract in respect of a gold plant for three years with the option to renew. At the end of this period, the second respondent did not renew the contract but recommended the applicant to take over its operations. However, the second respondent continued to mine at the plant and refused to hand the plant over to the first respondent thereby prompting it to seek an interdict to stop the continued mining by the second respondent and applicant. This was granted by the High Court.
The appellant immediately, filed an urgent application to the High Court seeking a provisional order to stop the first and second respondents from disturbing its operations at the gold plant. The two matters went before the High Court for confirmation of the provisional orders. The first order, to stop the first respondent and associates mining, was confirmed. However, the second order, to stop the respondents’ disturbance in the mine, was discharged. This appeal was against the judgment.
The court found that the first order included all business associates of the second respondent and the applicant was a business associate of the second respondent, as evidenced by the joint venture agreement concluded between the two.
In conclusion, the court held that the appellant was mining in contravention of the contract when it approached the court for the second provisional order and as a result, the provisional order granted in that case was discharged. The appeal was accordingly dismissed.
This High Court case involved an accused that was charged with contravening section 6(1) (a) (i) and section 33 (2)(i) read with (ii) of the Precious Stones Order of 1970 (“order”). The charges were that the accused was in possession of three rough and uncut diamonds without being duly licenced to deal in rough and uncut diamonds. The accused pleaded guilty and was sentenced to three months’ imprisonment. However, the High Court was tasked to review the sentence on the ground that the accused was wrongfully charged. The record showed that the accused was merely found possessing the diamond unlawfully and not selling the diamond.
Thus, the issue for review was whether the accused was correctly charged under section 6(1)(a)(i) and section 33(2)(i) read with (ii) of the order.
The High Court accepted that the accused was wrongfully charged under section 6(1)(a)(i) and section 33 (2)(i) read with (ii) of the order, after reviewing the submissions. The court held that the offence he committed was limited to possession of the diamond unlawfully. To the alternative, the court stated that the accused ought to have been charged under section 6(1)(c) of the order which deals with unlawful possession of the diamond. Finally, the court allowed the amendment of the charge and confirmed the three months’ sentence stating that the punishment was proportionate to either of the offences.
This was an appeal to the High Court involving an appellant who was co-charged for contravening Section 6(1)(a)(i) read with (4) of Precious Stones Order of 1970 (“order”) as well as theft. In the case, the appellant allegedly bought diamonds with money that he had stolen from the bank account of his employer. The Magistrate Court acquitted the appellant and the co-accused of the charge of contravening the order. However, the appellant was convicted and sentenced for theft. The appellant’s defence was that he withdrew the money for office use, but that it was then stolen from his wardrobe by an unknown person.
On appeal, the first issue on trial was whether the magistrate erred in finding that the explanation given by the appellant was far from being reasonably accurate. The second was whether there was enough evidence to establish the appellant’s guilt.
The High Court held that the prosecution showed that the appellant withdrew the amount of money alleged to have been stolen from the bank. It found that the conviction by the lower court was well based on (1) the remainder of the money that was unearthed from the appellant’s house; (2) the uncut diamond that was recovered from the appellant; (3) further evidence. The Magistrate Court’s decision was therefore upheld and the appeal dismissed.
This was an application for absolution from the instance by the defendant at the close of the plaintiffÕs case on grounds that there was no need to rebut the plaintiffÕs claims since there was a lack of sufficient evidence.
The plaintiff had instituted a claim for damages following the defendantÕs failure to avail water for irrigation purposes as was previously agreed.
The court determined whether the plaintiff had placed before the court sufficient evidence to warrant the defendant to be placed on its defence.
The court applied test of whether the plaintiff has established a prima facie case against the defendant and whether there is evidence that has been placed before the court upon which a reasonable court might give judgment against the defendant.
The court found that the plaintiff failed to establish a case against the defendant. Firstly, because the plaintiff was prevented by third parties from abstracting water from the dam because of low water levels. Secondly, in terms of the agreement between the parties the defendant did not guarantee the availability of water and was not liable for responsible for damages arising out of any failure to supply the water. Thirdly, the plaintiffÕs claim was wrongly premised since only 50 hectares of the land were under irrigation and not 90 hectares as contended.
Accordingly, the application for absolution from the instance at the close of the plaintiffÕs case was granted in favor of the defendant with costs.
The matter at hand arose following a decision in the High Court which the applicant wanted to appeal. In compliance with rule 15 of the Rules of the Supreme Court, the registrar of the High Court prepared the record of appeal and, thereafter, invited the parties to inspect the record before forwarding it to the Supreme Court.
The applicant’s legal practitioner inspected the record and opined that the record was incomplete. An exchange of letters then followed between the registrar and the practitioner about the relevance of the alleged missing information. In the process, the prescribed ten days for inspection lapsed, prompting the registrar to inform the applicant that he had, therefore, abandoned the appeal.
The court had to determine the meaning of ‘inspection’ in terms of the rules and whether the applicant complied with the rules for inspection or not.
The court held that the word ‘inspect’ meant ‘to look at or examine carefully’ and where such examination has occurred, the examiner should certify this. To merely examine without such a seal would be of no relevancy to the process.
The court held that the applicant’s practitioner had done this as evidenced by opining after the fact for the inclusion of information, but failed to comply with the signing off requirement which he refused to do and, therefore, could not have been said to comply with the rules of the court in that aspect and as a result the time lapsed.
Accordingly, the appeal failed.
In this case, the respondent claimed two houses, one yard, three fields, and three forests as his property; and alleged that the appellant was using the property unlawfully. A first judgement was rendered in favour of the respondent. The appellant then appealed the judgement. After the appeal was dismissed, the appellant continued to be adamant against the court's decision and the respondent, therefore, applied for interdict orders seeking to restrain the appellant from entering the disputed property. The interdict was granted and was then appealed by the appellant. This case concerned the appeal against the judgment of the resident magistrate confirming the interdict granted against the appellant.
The issues for determination were (1) whether the application for an interdict was the proper remedy in the circumstance and (2) whether the summons was properly served to the defendant.
The High Court held that for it to issue an interdict it must be satisfied that (1) a clear right existed; (2) an injury was actually committed or reasonably apprehended; (3) no other satisfactory remedy was available to the applicant. The High Court held that damages to the property involved would be irreversible and that the matter satisfied the requirements for an interdict.
The High Court found that the appellant chose to ignore the summons. Moreover, even if he was not duly served with the summons, he was supposed to apply the default judgement to be set aside and not to ignore it.
The appeal was dismissed with cost.
This was a bail appeal against the decision of the magistrate that denied the appellants bail on grounds that they were likely to abscond trial.
The appellants were charged with unlawful prospecting for minerals, oil and natural gas without a valid license contrary to s 368 (1)(a) as read with s 4 of the Mines and Minerals Act 1 of 2006.
The court noted that the magistrate condemned the applicants to imprisonment where the state was not opposing bail, without evidence that the appellants were likely to abscond trial and without any defence from the appellants on the bail issue.
The court found that the state could not oppose the appeal since they had already conceded that the appellants were good candidates for bail.
It was held that the magistrate misdirected himself. Accordingly, bail was granted subject to conditions. The appellants were required to deposit US$20 with the clerk of Court Bindura Magistrate Court, to continue residing at their places of residence until finalization of the matter and to report to respective police stations as directed by the court.
This case concerned a preliminary point raised that the first and second respondents’ legal practitioner should be prohibited from appearing on their behalf. The applicant contended that the legal practitioner who was present at a meeting where the Mining Development Board discussed the shareholding of the respondents, was intimately interested in the subject matter of the proceedings. The applicant further contended that the same legal practitioner should not be allowed to appear for the fifth respondent, the minister of mines and mining development, who ought to be represented only by the Attorney-General as the principal legal advisor to the Government.
In response, the practitioner contended that there was no evidence to determine the depth of his alleged involvement in the matters referred to and that the allegations were based on speculation. He further submitted that he had authority to represent the Attorney-General.
The court had to determine whether it was proper for the legal practitioner to appear for the first, second and fifth respondents.
The court observed that it was important that a legal practitioner should at all times retain his independence in relation to his client and the litigation. On account of the practitioner’s previous involvements with the first and second respondents, the court determined that he could not be allowed to serve as their legal practitioner.
With regard to the representation of the fifth respondent, the court did not make any pronouncement on the basis that it lacked sufficient information. Accordingly, the court upheld the preliminary objection.
This was an appeal against the decision of the Magistrates Court, dismissing the appellant’s application for bail. The appellant was arrested for possessing gold without a licence.
At the initial bail hearing, the Magistrate questioned the issue of abscondment and held that the appellant was unlikely to stand trial for various reasons such as him being a “a man of means” who “could use that status to abscond”. The magistrate further held that the stipulated mandatory penalty “could certainly ignite motives of abscondment” and that “the onus was now on the accused to show on a balance of probabilities that his admission to bail would not prejudice the interests of justice”.
The court, therefore, had to decide whether the magistrate’s approach to onus was erroneous in light of the evidence placed before him.
The court held that the magistrate a quo did not misdirect himself as to the approach to follow but had failed to exercise due diligence. He made unfounded allegations which did not indicate whether the appellant was likely to abscond for those reasons. He had also left a lot of issues open ended such as the severity of the penalty, the issue of passports and had ultimately failed to assess the strength of the evidence forwarded by the appellant.
Therefore, the magistrate a quo misdirected himself his evaluation of the likelihood of abscondment by the appellant and the evidence did not indicate that the appellant would abscond. Accordingly, his decision to decline bail was set aside.
This High Court case concerned an appellant that had been convicted for contravening section 87(1) of the Land Act of 1979. The charge was that the accused (now appellant) did unlawfully and intentionally occupy land without proper authority. The appellant held the land and had agricultural license. When the land was declared urban land, the appellant continued to farm it, hence the accusation.
The main issue to be determined on appeal was whether the appellant was occupying the land in contravention of criminal code after the land was declared urban land.
The High Court held that the appellant did not contravene any
criminal code since the commissioner for land did not take steps required in law to nullify the pre-existing licenses. In that view, since the license held by the appellant was still intact even after declaring the land urban, the appellant was lawfully occupying the land.
The appeal was, therefore, upheld.
The court considered an application for the ejectment of the respondent from the applicant’s premises.
The respondent was a sublease on property leased by the applicant. The area was subsequently declared a development in terms of the Land Act of 1979. The respondent had earlier applied for the setting aside of the declaration, which application was unsuccessful.
The court distinguished several cases that supported the view that in ejectment matters, courts should not quickly order the ejectment of a respondent who is carrying out business on the land.
The court found that the declaration of the area into a development, and the subsequent publication in the government gazette all supported the view that development had to continue.
The court further balanced the costs incurred by the applicants, the benefits of the development to the public and the fact that the applicant offered the respondents space in the completed development to support that the respondent had to vacate the premises.
The court ordered the respondent to vacate and to pay the costs of the application.
This was an application seeking an order setting aside the sale of granite blocks to the second respondent. The application also sought to compel the first respondent to offer the blocks to the applicant in terms of a ‘right of first refusal’ agreement between them. The application was filed following reception of information that the first respondent was moving granite after a sale to the second respondent without their knowledge.
The application was brought on an urgent basis by the applicant.
The court had to determine whether the matter was urgent and whether the applicant had a claim against the second respondent for granite sold and whether to interdict further movement of the granite in question.
The court held that at the time of the hearing, the granite had not been removed from Zimbabwe and if the applicant was entitled to protection of its rights, it was the duty of the court to ensure that the matter was determined urgently.
It also held that any claim that the applicant had to the right of first refusal would depend on whether it can show that the second respondent was aware or ought to have been aware of its prior right or claim to the stone. The claim fell away as the conduct of the second respondent did not show any mala fide intention.
The interdict application was thus denied because the applicant had no rights to enforce against the second respondent.
The first plaintiff concluded a tribute agreement with the second and third defendants that was to last for ten years. The Mining Commissioner rejected this agreement since it was not registrable. This agreement was replaced by a three-year tribute agreement. When this agreement expired, the first plaintiff entered into another agreement with the second plaintiff and they sought an order registering this agreement and the eviction of the second and third defendant. The eviction order was opposed on grounds that the first agreement was still valid.
In interpreting s289 and 290 of the Mines and Minerals Act on tribute agreements, the court made a distinction between directory and peremptory provisions. The court noted that it is impossible to lay down any conclusive test to distinguish the two provisions. However, provisions in negative form and containing penal sanctions are to be regarded as peremptory rather than directory. The court also noted that the intention of the legislature is to be considered when distinguishing the two.
The court found that the provisions were couched in negative form and that their contravention was to be visited with penal sanctions, hence peremptory. Additionally, it was found that the approval was meant to protect the interests of the tributor and to avoid premature cessation of mining operations.
Accordingly, the court declared that the first agreement was invalid and unenforceable; and that the second agreement was valid but had expired. Consequently, the second and third defendants were ordered to vacate or be evicted.