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.
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This was an appeal against the decision of the High Court to recognise the respondent as the rightful heir to real property. The matter had commenced in the local court, the contention between the parties being, who the rightful heir to the property was.
The issue for the court’s determination was whether it could entertain the appeal. It relied on s 17 of the Court of Appeal Act 1978 and the decision in Mahabanka Mohale v ’Makholu Leuta Mahao C of A (CIV) No. 22 of 2004. The court observed that the appellant filed a notice of motion for leave to appeal almost fourteen months after the High Court judgement had been passed and found that the appeal was out of time.
The Court stated further that although it had discretion to allow a breach of rules in a fitting case, the appellant had failed to file an application for condonation with supporting affidavits to enable the court to make a determination on whether to exercise its discretion.
Accordingly, the court dismissed the appellant’s application for leave to appeal and struck the appeal off the roll.
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.