Environmental Case Law Index

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 matter dealt with an appeal for a decision taken by the Magistrate’s Court to set aside the Local Court’s decision to absolve from the matter about the ownership of a certain piece of arable land. 

It was the appellant’s case that while he was out of the country the chieftainship had deprived him of the land and reallocated it to the respondent who since used it. The respondent argued that the chief had rightly allocated the land to him and that the appellant had never been an occupant of said land. The appellant contended that a former directive issued by the court to make a determination of the ownership of the land when a dispute about the ownership arose before, had not been fulfilled and therefore the land would belong to him by default, as he had inherited it.

The High Court found that the issue was never resolved because the chieftainess could not confront the appellant with either of the two tenants whom he had given permission to stay on the land or the witness to the inheritance. Therefore, the appropriateness of the reallocation would have to be determined by senior chiefs before it could be brought to a competent court of law which was the Central Court and not the Local Court. The courts of law had, therefore, no jurisdiction on the matter before it had first been exhausted by the chieftainship in accordance with the Land Act of 1973 and the appeal was thus dismissed.

In this case, chieftainship rights over a particular area were contested. The applicant sought an order calling upon the first respondent to show cause why he should not be restrained from holding himself out as chief of the area known as Ha Mochekoane. The applicant argued that he was a gazetted chief, but the respondent denied this and argued that he had been confirmed chief following the death of his father  and that it was not necessary to be gazetted as chief. He further argued that the onus of proof was on the applicant to show that the disputed area was under his jurisdiction. The applicant’s failure to clearly describe his boundaries in the proceedings, the respondent argued, was fatal.

The court considered whether respondent held the office of chief and whether he was legally authorized to exercise the powers and perform the duties of a chief. After reviewing all the evidence, the court found no indication that the contested area was that of the respondent. The court also found that the respondent did not exercise any chiefly functions and lacked locus standi. Finally, the court held that the Chieftainship Act No. 22 of 1968 stated that one could not hold the office of chief without having been gazetted.

Regarding the question of boundaries, the court reviewed historical evidence and held that it was impossible for the respondent to be chief of that area. Accordingly, the application was allowed with costs.

This was an appeal against the order of the High Court that required the appellant to pay M52 900.00 to the respondent. This money was received by the appellant from the Lesotho Highlands Development Authority as compensation for the expropriation of land allotted to the respondent by his widowed mother.
The appellant and respondent, a nephew and uncle, occupied two adjacent properties. These properties were inherited by the appellant’s father and the respondent from their widowed mother in 1964. The court considered firstly, whether the respondent’s mother had a right at law to allocate the land to the appellant’s father and the respondent. Secondly, the court considered whether payment of the compensation ought to have been allocated to the parties in accordance with the portions of land that they occupied.
The court found that there was nothing in law, whether customary law or common law, prohibiting the widow (the respondent’s mother) from making the allotment that she did as it was designed to ensure that, during her lifetime, her sons exercised her rights in and over the fields. The court also found that although there was evidence to show that both properties were registered under the appellant’s father’s name, it was clear that the respondent was occupier and user of the disputed field since 1964, and was therefore entitled to receive compensation.
Accordingly, the appeal was dismissed with costs.

This was an appeal against the decision of the Court of Appeal that declared that the respondents were the rightful owners of the land in dispute, issued damages for trespass by the appellant and an injunction preventing the appellant from entering the land and harvesting therefrom.

The facts revealed that the appellant's forefather granted the respondent's forefather a portion of land for farming purposes and reserved the right to reap the fruits of trees in the farm. In exchange, the respondent’s forefather was also required to pay Ishakole( land rent) as and when due. 

The court determined the rights of the appellant as a customary tenant. The court noted that the appellant’s rights were subject to the respondent’s (landlord) right to reversion in case of any breach of the grant. However, it noted that a landlord is still required to approach the court to forfeit the interest of the tenant.

The court also determined the rights of the parties in a customary tenancy after the Land Use Act 1978 came into operation. The court found that act took away the freehold title vested in individuals or communities but not the customary right of use and control of the land. It was thus held that a customary tenant remained a tenant subject to the conditions attached to the customary tenancy. Further, the court held that the appellant was entitled to harvest fruits and trees and could not be liable for trespassing.

Accordingly, the appeal was allowed. 

At the heart of this dispute was a farmers’ association, the applicant in this case, and its use of land in the Nkambeni Area. The association was formed, with the chief’s consent after he was assured that the community unanimously supported the project to turn their land into commercial property. The dispute initially arose because the second respondent was denied membership of the association because his younger brother was already representing their family. This offended the second respondent who considered himself to be the legitimate representative. The dispute mutated and the respondents alleged that the chief deprived them of their fields without consent. The court considered whether there had been unlawful deprivation.

Previously, the dispute was taken to traditional structures for resolution and ultimately was referred to the Swazi National Council where the King rendered a judgement. The applicant and respondents disagreed about the contents and effect of this judgement. The applicants stated that the association was given permission to pursue its activities and the respondents invited to apply for alternative land. On the other hand, the respondents claimed that traditional structures and the regional administrator ruled in their favour before the Swazi National Council was approached and that the latter declined to give a ruling on the matter.

After considering evidence and witness testimony, the court found that the applicant’s evidence was cogent and consistent while the respondents’ evidence was unsatisfactory and contradictory. Consequently, the application was granted.

This was a dispute over land ownership and related claims to reversionary interest compensation. Both parties sought orders declaring that they were allodial owners of the land in dispute according to tradition and customs, and that they were entitled to receive the reversionary interest compensation. 

The court determined whether the allodial title to the land in dispute vested in individual families or in the appellant as the Tindana for and on behalf of the whole community. 

The court held that the best way of resolving conflicts arising from traditional evidence concerning ownership of land is to test it against recent acts to see which traditional version is supported. The court found that it is widely accepted, among legal writers, scholars and practitioners, that the Tindana is the landlord or landowner. Additionally, the report of the committee to investigate a land dispute between the Tindonsobligo and the Kalbeo people explicitly stated that the Tindana was the allodial owner of land, while the people were usufucts (settler/farmers).

The court noted that the defendants Tindana status was not in dispute, and concluded that the appellant was the the allodial owner of Kalbeo land and held it in in trust for community.

The court considered an appeal against the judgment of the court below declaring the defendant a tenant, alternatively a licensee of the plaintiff, as well as determining the 2nd defendant’s misgivings concerning the costs awarded against him.  

The defendant argued that the land devolved on the chief but was subject to use by both parties’ families. The second defendant was joined as a co-defendant, alleging that the land was founded by his ancestor and that he and his predecessors had been in undisputed possession. 

The defendants argued that the judgment was granted erroneously as the trial judge failed to correctly define the boundaries between the parties’ land.  

The court found that the trial court had adequately defined the boundaries between the parties’ land and that the first defendant’s ancestor and his people had lived on the land for over 300 years. Thus, although the plaintiffs are the land owners, the defendants are in possession and their possessionary rights should not be disturbed by an injunction. 

The court found that in a case that has been on the list for 25 years, costs of ¢1,200,000.00 against 1st Defendant and ¢950,000.00 against 2nd Defendant awarded by the Court in my view is stretching judicial generosity to it limit. I am unable to review the costs mulcted against the Defendants. The appeal by the 2nd Defendant/appellant fails as well as that of the Plaintiff/appellant. In the circumstances the judgment of the lower Court is affirmed.  

The court considered an urgent application for spoliation orders (common law remedy) against the first to eleventh respondents or alternatively, an eviction order against them.

The thirteenth respondent purchased three farms which were adjacent to land which was incorporated in a communal area falling under the jurisdiction of the first applicant, a traditional authority. These farms were intended to be incorporated into the communal land falling under the applicant’s jurisdiction. The Government of Namibia initiated the process of incorporating these farms into the communal area under the first applicant through a notice published in the Government Gazette pursuant to the provisions of the Communal Land Reform Act 5 of 2002. 

The issue facing the court was whether the first to eleventh respondents had the prerogative to occupy the farms with their cattle grazing on them, without authority to do so. The respondents argued that the applicant lacked locus standi (capacity) to bring the application since the land had not yet been incorporated into the communal area by way of notice in the Government Gazette, as required by the act, thus the applicant did not have jurisdiction over the land. 

The application for spoliation was refused because the applicant could not show deprivation of possession by reason of the respondents’ occupation which predates its possession and control. Thus, the court found that the respondents could not establish any right to be on the farms. 

The eviction order was granted with costs.

This was an appeal to the High Court against the decision of a magistrate to dismiss the appellant’s claim which concerned a dispute over a customary piece of land. While the appellant stated that the part of the land in dispute was his, the respondent maintained otherwise. 

The issue for determination was whether the land belonged to the respondent or the appellant. The court held that in civil cases, the evidence was on a balance of probability. As such, the respondent’s evidence that he was the one given the land by the chief carried more weight and was therefore convincing. The court further held that customary lands were owned communally, which meant that the chief did not own the land as his belonging. Therefore, the court stated that the chief did not have the power to deprive one person of land and give it to another. In conclusion, the court upheld the decision of the court below and accordingly dismissed the appeal.

This was a mediation report regarding an action commenced by the plaintiffs against the installation of a water pump and other construction works on what was believed to be customary land. The plaintiffs sought to restrain the defendant from interfering with their customary rights on the land. They contended that the water pump installation plan violated their right to the use and enjoyment of their customary land. The matter was set for mediation.

The issue for resolution was whether the project interfered with the customary land held by the plaintiffs.

An agreement was reached by the parties to the effect that  the project was located in an intersection of the road reserve which was public land pursuant to the Waterworks Act and that the defendants had obtained the requisite authority to install the water pump and related works. The proposed construction of the water pump was therefore not in violation of any customary rights for as long as it was restricted within the road reserve. Accordingly, the matter was resolved.

This was an appeal against a decision of a magistrate to dismiss the appellant’s claim over a piece of customary land which he claimed was unlawfully in the possession of the second respondent, his son. The appellant had left the village for a long time and upon returning found that the first respondent had constructed a home on his land. The appellant instructed the first respondent to vacate land but he refused and proceeded to sell the land to the second respondent. The appellant told the court below that he inherited the piece of land from his father. The lower court found that the appellant had failed to adduce enough evidence to show that the land belonged to him.

The court had to determine the following: which party had the right of occupation of the land; whether the land was lawfully transferred to the second respondent and whether a permanent injunction could be granted restraining the appellant or the respondents from interfering with the land in question.

The court held that although the land had been given to the first respondent customarily, chiefs must be guided by the law specifically, the Constitution and it was against the law to deprive any person the right to use and occupy customary land without any justification at law. It held that indefinite individual usage and occupation of customary land was therefore permissible under the laws of Malawi and the subsequent transfer was legal. Accordingly, the court upheld the lower court ruling.