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
The matter dealt with an appeal against the decision of the High Court to issue an interdict restraining the appellant, from utilising a coal boiler at its factory and the removal of the boiler within 30 days. The respondent had claimed in the lower court that the appellant had erected a coal fired boiler on the property in contravention of regulation 3 of its Smoke Control regulations under s 18 of the Atmospheric Pollution Prevention Act 45 of 1965.
The court considered whether the decision of the High Court to restrain the appellant from using the boiler and the subsequent order for its removal was lawful. The court found that the appellant had installed the boiler without submitting plans or specifications to the respondent as required by the regulations. However, the court established that upon giving the appellant the opportunity to submit its plans, the respondent rejected the appellant’s application on account of the type of boiler that the appellant sought to erect and not smoke emissions as envisaged by s 15(1) of the act. The Court applied the rule in Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) and stated that the facts of this case did not fall within the scope of that decision.
The court held that the respondent did not stay within the boundaries of the act and constraints of the Constitution and this was unlawful. Accordingly, the court upheld the appeal with costs.
The matter concerned an allegation that the accused’s filling stations presented an environmental risk. Having been granted leave, the prosecutor, an environmental advocacy organisation instituted a private prosecution in the Gauteng Division of the High Court against the accused, a fuel supplies company.
The prosecutor claimed that it had complied with all the legislative requirements set out in s33 of the National Environmental Management Act 107 of 1998 to enable it to initiate such a prosecution. Counts 1 to 21 of the indictment alleged that the accused had contravened ss 21(1), 22(1) and 29(4) of the Environmental Conservation Act 73 of 1986 (“ECA”) as read together with other supporting environmental legislation. The said s 22(2) provided that authorisation of activities like construction of a service station would only be issued after consideration of reports concerning their impact on the environment. The accused formally pleaded to the charges divided into two sections. The first was a plea under s 106(1)(h) denying the prosecutor’s entitlement to prosecute and the other was a plea of not guilty under s 106(1)(b).
The court held that the claim under s 106(1)(h) on defence of want of title to prosecute failed. The court concluded that the prosecutor's case was straightforward and that the accused breached a duty relating to the protection of the environment. It held that in terms of s22(1) of the ECA the undertaking of certain identified activities was prohibited without written authorisation. The accused was convicted on 17 counts and acquitted on four.
The applicant brought this matter to the Constitutional court as a court of first instance having cited the respondents for their failure to implement legislation aimed at containing pollution and to prosecute state a company alleged to have caused pollution.
The court first had to decide whether it was necessary for the Constitutional Court to be the court of first instance in this matter.
The court stressed that direct access should be granted only in exceptional circumstances. The court stated that justification for direct access was set out in rule 18(2) of the Uniform Rules of the court on the following grounds: if it is in the interests of justice to do so; where the nature of relief sought and the grounds relied upon justify it; whether the matter can be dealt with by the Court without the hearing of oral evidence; and, if it cannot, how evidence should be adduced and conflicts of fact resolved. The court held that these grounds were not satisfied. Therefore the court could not adjudicate further on the allegations against the respondents and dismissed the application. However, in the alternative the court ordered that the Registrar bring the judgment to the attention of the Law Society of the Northern Provinces, with a request that it consider whether one of its members may provide assistance to the applicant as the issues were not set out clearly but were of importance and deserved the attention of the court.
This case considered an application for an exception to the plaintiffs’ particulars of claim. The plaintiff’s claim was based on the alleged degradation of the environment caused by mining activities conducted over a number of years.
The court considered whether the provisions of s28 of the National Environmental Management Principles (NEMA) were retrospective.
The court applied the common law rebuttable presumption against retrospectivity. In the circumstances, the court considered the nature of the duty; enforcement of the duty; what the legislature intended; when the transactions were completed and other alleged indications of retrospectivity. The court found that the presumption against retrospectivity was not disturbed, and was not applicable in this instance because the legislature could not have intended such.
The court considered whether there was proper or substantial compliance with s 28(12) of NEMA. As with the first claim, the court applied the principle of retrospectivity. Accordingly, the court held that the exception to the first alternative claim that it lacks averments necessary to sustain a cause of action must also be upheld because it avers retrospectivity.
In terms of the second alternative claim, the court held that the exception should be dismissed.
Regarding the third and fourth alternative claims, which were based on regulations that no longer had the force of law, the court found them to lack averments necessary to sustain a cause of action. Accordingly, the court upheld the third and fourth exceptions which related to these claims.
The applicants sought two interdicts restraining the first to fourth respondents from noise pollution through their timber business operations on weekdays between 6.00 pm and 8.00 am on weekdays, any time over weekends and on public holidays; and another interdict in requiring the respondents to limit "any noise generated by their operations”.
The court found that the applicants had a clear right to go about their business without the interference of noise unreasonably caused by the respondents. It noted that the respondents’ figures proved that traffic past the applicant’s premises had increased. Expert evidence also revealed that the noise levels were too high at night.
The respondents claimed that the applicants voluntarily assumed the risk by going to the noise. The court noted that the applicants had decided to expand their cottages 20 metres from a public road without adequate noise insulation and found the defence to be partly convincing.
The court held that the co-existence of the timber and the tourism industry in the area required both parties to give and take. The first interdict was granted partly. The court gave an order prohibiting first to fourth respondents from engaging in the noise generating operations from 8.00 pm to 8.00 am on Mondays to Fridays and after 2.00 pm on Saturdays until 8.00 am on Mondays. The restraint on public holidays was held to be unreasonable.
The second interdict was not granted for being too general and failing to specifically state what the respondents would be refrained from.
This was an appeal against the decision of the trial court to award damages to the respondent in absence of expert evidence.
The appeal originated from an action for damages by the respondent. The respondent contended that the appellant’s seismic operations involving setting off explosive charges underground, caused cracks on the cement walls and concrete floors of his building.
The court determined whether the trial court erred in its holding. The court noted that the plaintiff led no expert evidence, while an expert for the defence testified that the explosive charges could not have damaged the respondent’s building. It was further noted that both parties disagreed on the extent of the damage on the respondent’s building.
The court held that expert evidence was necessary to connect the damage with seismic operations. The court also held that the trial court erred in its holding since the plaintiff failed to discharge the onus on him to establish such connection.
The court noted that there was a serious conflict in the description of the building; and relied on the holding in Seismograph Service (Nigeria) Limited v Esiso Akporuovo (1974) 6 SC to hold that a proper evaluation of the evidence required a judicial inspection of the building.
Accordingly, the appeal was allowed.
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.
The court had to review an earlier decision by the same court. The accused was charged with contravening the Precious Stones Order of 1970 for wrongful and unlawful dealing in rough and uncut diamonds as a buyer or seller and for possession of uncut diamonds without a licence. The accused had pleaded guilty to all charges and convicted.
The court at hand had to decide on whether the first count of wrongful and unlawful dealing was appropriate in the circumstances and whether the charge and conviction should be amended.
The prosecutor relied on the testimony of the member in charge of the digging area who stated that when he searched the accused, he found three rough and uncut diamonds in her possession and upon requesting a valid dealing license, she failed to do so. There was no indication that the accused was going to sell those diamonds.
The court held that at the time the accused was apprehended she was not dealing in diamonds, but she was merely in possession of them. For there to be a crime there must be an act or on omission, a mere subjective contemplation of future criminal conduct which does not find outward expression indeed or omission is not criminally punishable.
The court held that the correct charge ought to have been one of possession and nothing more and ordered that the charge be amended accordingly. It however maintained that the previous sentence was adequate.
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 court considered a criminal appeal against the sentence imposed on the accused, who was sentenced to a mandatory 2-year imprisonment for contravening s 368 (1), which dealt with the illegal mining of gold, under the Mines and Minerals Act
Before imposing a mandatory sentence, the court asked the accused if there were any special circumstances relating to the commission of the offence which would result in the requisite sentence not being imposed.
The accused held that his special circumstances were that he did not have enough money for a bus fare. The court found that this did not constitute a special circumstance as poverty desperation could not be excused for the commission of a crime.
The court found that a special circumstance is within the court’s discretion and thus it should be taken to be any extenuating circumstance. Further, that the court should enquire into all circumstances put forward by an accused to validate the aspect of a special circumstance.
The court held that a trial court had to ensure that economic situations leading to commission of crimes under economic circumstances at the time did not operate differently for the rich and for the poor. The court found that the court below should have performed a proper enquiry and that the accused should be given the benefit of the doubt. Accordingly, the appeal succeeded.
The court considered an application for a declaratory order and an interdict, declaring the defendants’ waste discharges unlawful and constituting pollution, and prohibiting the defendants from discharging their waste material.
The first and third defendants were mining companies and in conducting their business, they discharged their untreated waste material and effluence into a river. The plaintiffs were inhabitants on the banks of the river and relied on it for their subsistence. The plaintiffs contended that the discharge had polluted the water, aquatic life and disturbed the ecosystem.
The defendants opposed the application by bringing a special plea alleging that the court lacked jurisdiction to hear the matter and it ought to be heard by the Environmental Management Agency. Further, that an interdict should not be granted as there was an alternative remedy available under the Environmental Management Act.
The court found that the argument that the court lacked jurisdiction was without merit. The court observed that there was a glaring need for a declaration as to the existence of a legal right claimed by the plaintiffs but this was not argued nor the fact that the EMA could not issue the declaratory orders sought by the plaintiffs although the plaintiffs were interested persons in the subject matter of the suit. The court found the plaintiffs had a direct and substantial interest in the matter and that there was a need for a declaration to the right claimed by the plaintiffs. Accordingly, the application for special plea was dismissed.
This was a review in the High Court concerning two accused persons who had been charged with and convicted for contravening s 368(2) as read with s 368 (4) of the Mines and Minerals Act [Chapter 21:05] for prospecting for minerals when they were not holders of licences or permits.
The issue facing the court was to determine whether the accused persons, being widows with minor children, were acting under special circumstances, as the trial magistrate had found. The court held that the learned trial magistrate completely misdirected himself in holding that the circumstances of the accused persons amounted to special circumstances, as there was nothing out of the ordinary about being a widow with minor children to look after. The court also held that the learned magistrate’s line of reasoning was faulty in calling that widows and widowers with minor children should be excused when they break the law so as to fend for the minor children, since it was a recipe for anarchy as there were so many widows and widowers in the country.
Consequently, the sentence imposed by the trial magistrate was not allowed to stand and, therefore, set aside. The matter was sent back to the trial court to recall the two accused persons and impose the sentence of two years imprisonment as mandated by law. Since both accused persons had already served four months imprisonment in the form of community service, they were to serve an effective term of 20 months imprisonment.
The court considered an application to review a sentence imposed on the accused. The accused was charged with contravening s 3(1) of the Gold Trade Act by virtue of being found in possession of 0.62g of gold valued at $20.62. The accused pleaded guilty and was convicted. The lower court imposed a short sentence whereas as the act stipulated of not less than 5 years for persons found guilty of the offence, unless special circumstances existed showing cause why the mandatory sentence should not be imposed. The magistrate relied on special circumstances pleaded in mitigation.
The special circumstances referred to by the accused were that his wife was in hospital and was going to undergo surgery and that he committed the offence to raise hospital fees and money for the surgery
The court found that these were not special circumstances as envisaged by the act but that what the accused relied on was a common occurrence and did not entail that persons in such situations ought to resort to crime. The court held further, that his illegal action was not a solution to this problem nor would $20 be enough to pay the hospital bills.
The court held that there was no reason why the mandatory sentence should not be imposed. Accordingly, the court set aside the sentence imposed by the trial court and remitted it back to impose the mandatory sentence.
This was a case in the High Court where two accused persons were convicted on their own pleas of guilty to contravening s 368 of the Mines and Minerals Act by the Provincial Magistrate.
Having found special circumstances as would entitle the trial court to impose a sentence other than the mandatory one provided in the act; the magistrate sentenced each of the accused persons to 24 months imprisonment of which 12 months imprisonment were suspended for 5 years on condition of good future behaviour. The remaining 12 months were suspended on condition they each complete 420 hours of community service.
The issue before the court was to determine the special circumstances as found by the trial court. The judge applied the rule of Judge J Ebrahim in S v Mbewe and others 1988 (1) ZLR 7(H) to make the determination. The judge’s view was that the trial court erred because the issues put up by the accused were mitigating factors of general application which clearly did not amount to special circumstances at all.
Consequently, the judge ordered that the conviction of the two accused persons stood, and set aside the finding of the trial magistrate that there were special circumstances; and the sentence. The judge also ordered the matter to be sent back to the trial court for it to recall the accused persons and impose the appropriate sentence according to law by deducting from it 53 days equivalent to 420 hours community service already served.
In the High Court, an appellant was applying for bail pending his appeal against both conviction and sentence by the trial court, having been convicted of contravening s368(2) as read with s368(4) of the Mines and Minerals Act [Chapter 21:01] that is, prospecting for gold without a licence. He had been sentenced to two years, being the mandatory minimum penalty for that offence after the magistrate failed to find any special circumstances.
The issue before the court was to exercise its discretion on whether to grant bail to the appellant. The court held that in exercising the discretion on whether or not to grant bail pending appeal, the court must be guided by the prospects of success on appeal and whether there is risk that the applicant would abscond. The judge held that from the court record there was a problem with the rebuttal of the applicant’s defence in the trial court. The applicant had argued that he was carrying a pot and a lid when the police pounced, but state witnesses alleged that he carried a shovel.
The judge was satisfied that the applicant had discharged the responsibility upon him and that the court should indeed exercise its discretion in the applicant’s favour. Accordingly, the judge granted the application on condition that he deposited a sum of $100.00 with the Clerk of Court, he resided at a particular village and to report at a police station twice a week on Mondays and Fridays between 6.00 am and 6.00 pm.
The court considered a criminal appeal against the sentence imposed on the accused.
The accused was convicted, on his own guilty plea, for contravening s 3(1)(a) of the Gold Trade Act by being in possession of 0.15 grams of gold without authorisation.
The evidence revealed that the accused was asked whether there were any special circumstances, which the court below established did not exist and sentenced him to the mandatory minimum sentence.
The accused argued that the trial judge did not explain in full what special circumstances meant and the inadequate explanation prejudiced him. The respondent agreed and stated that the explanation was “special or extraordinary mitigating factors” where it should have referred to special circumstances.
The court found that the Act did not define special circumstances, and it was on a case by case basis. However, the court below took all necessary steps to explain the meaning and import of special circumstances, which was given in clear unambiguous terms.
The court found that the accused was not an illiterate person and appreciated what was taking place and there was nothing preventing him from asking the magistrate for clarity. Further, that the accused’s conduct once arrested, in running away illustrated a guilty state of mind.
The court found that the accused’s special circumstance of “being the only breadwinner” was clear that he was aware of the offence being committed. As such, the court found no merit in the appeal.
Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – right to protection of the law – prosecution of former farm employees for unlawfully remaining on farm after acquisition – legislation creating an offence to do so constitutional – no constitutional issue arising
Land – acquisition – former employees remaining on farm – no right to do so – employment ceased on acquisition of farm – liable to prosecution for occupying gazetted land without lawful authority
This was an application for the discharge of the accused persons for lack of evidence pursuant to s 198 (3) of the Criminal Procedure and Evidence Act. The state had alleged that the accused persons were acting in common purpose through a series of fraudulent misrepresentations to the Government of Zimbabwe, the Ministry of Mines and Mining Development and Zimbabwe Mining Development Corporation (ZMDC) and induced ZMDC to enter into a joint venture agreement of diamond mining with Core Mining (Pvt) Ltd. They fronted Benny Steinmeitz Group Resources (BSGR) as its guarantor and on that representation, the government approved a contract, it never would have otherwise approved.
Relying on the parole evidence rule that posits that parties are strictly bound by the four corners of the contractual document and nothing outside it, the court held that both government and ZMDC cannot be heard to complain that they were duped into signing the contractual document under the mistaken belief that BSGR was standing as guarantor for Core Mining when the contractual document makes no mention of BSGR at all.
Court further held that the state closed its case without leading any evidence pertaining to the misrepresentations allegedly made by the accused concerning the due diligence exercise on Core Mining. That misrepresentation is a vital component of the crime of fraud without which the crime cannot be committed. The state having failed to establish a prima facie case against the accused, it was accordingly ordered that both accused be acquitted and discharged.
This was a criminal trial in which the accused was charged with two counts for contravening the Mines and Minerals Act and the Money Laundering and Proceeds of Crime Act.
The court determined whether the accused misrepresented that he had the mandate to sell a special grant which prejudiced the buyers. In finding the accused guilty of fraud, the court pointed out that the accused mispresented that he had the authority to deal with a coal mining concession held under a special grant. Through the misrepresentation, the accused personally benefitted from the proceeds. The court further pointed out that the moment the accused benefitted from the criminal activity, the property became proceeds of crime. The accused further received occupation of the immovable property which he was not entitled.
On the criminal charge against the accused for ceding a mining right to a third person without the consent of the president, the court held that the section does not create a criminal offence. It merely sets out the characteristics of the special right and how it can be assigned.
The accused was found guilty on both counts and sentenced to 10 years imprisonment, with 2 years suspended for 5 years. Further 4 years were suspended on condition that the accused paid restitution to the complainant. Effectively, the accused was sentenced to 4 years imprisonment.
The accused was charged on several counts for the unlawful possession of gold without a licence, smuggling and the use of a vehicle with secret or disguised places for concealing goods. In his defence, the accused stated that he was not aware of the presence of gold on the vehicle having borrowed it from another person who was a gold dealer.
The main issue for the court’s consideration was whether the accused person had knowledge of the existence of the gold. The court noted that the burden of proof in criminal matters rests on the state and that the state is required to prove its case beyond reasonable doubt. The court found that the state failed to adduce sufficient evidence to prove that the accused indeed had knowledge of the existence of the gold and the compartments.
Given these circumstances the court gave the accused person the benefit of the doubt and he was acquitted on all three counts.
The court considered a criminal appeal, where the applicants had been charged for contravening s7(1)(a) or (b) of the Communal Land Act, by occupying or using communal land without lawful authority. The applicants pleaded guilty and were convicted and sentenced to pay a fine of $5000 or 30 days in prison. The appellants appealed the conviction on the ground that the court committed an irregularity by failing to proceed in terms of the correct procedure.
They contended that by entering a guilty plea, the court had a duty to safeguard the fair trial rights of the accused by adopting a procedure which was most likely to suggest a defence where there was one.
The court considered whether the appellant’s conviction was lawful. It observed that with unrepresented accused persons, there was the ever-present likelihood that out of ignorance of the law, a person would admit to charges of a complex nature out of a desire to draw sympathy of the police or the courts and the onus was upon the court to choose a procedure which would have given the appellants a possible defence.
The court found that the conviction was wrong and remitted the matter back to the lower court. In addition, the court below would be required to take cognizance of s 16 of the Act which required that following a conviction, an order for eviction be granted. Accordingly, the appeal succeeded.
In this High Court case, the applicant had an agreement with the respondent aimed at selling a herd of cattle to the applicant. Based on this agreement, the respondent proceeded to take the herd of cattle presented in the contract without paying for them. An attempt to charge the respondent for theft through the police did not work as the police hesitated to prosecute the respondent because they contended that they would have a weak case.
Then, the applicant decided to prosecute the case privately charging the respondent for spoliation. The applicant demanded that the court should declare that the herd of cattle that were taken by the respondent, in fact belonged to him.
Thus, the issue for determination by the court was to show cause why a declaration should not be made against the respondent to the effect that the herd of cattle be restored to the applicant.
On perusal of the given evidence, the High Court held that the respondent failed to show that the applicant allowed him to take the herd of cattle in dispute. Subsequently, the applicant was despoiled of the herd of cattle, that is, possession should be restored to the applicant. The respondent was also ordered to hand over to the applicant the progeny of the cattle forming the subject matter of the proceedings.
Civil Procedure ̶ Action by Appellant claiming damages for negligence – Bus conductor throws bottle under bus from which the Appellant has just alighted – Bus stamples over the stump of crushed bottle – Part of the bottle springs up and hits eye of the Appellant resulting in injury – Respondent raises plea of absolution from the instance on ground that the injury was not foreseeable – court a quo upholds the plea on ground that the bus conductor was not negligent as the damage caused was neither reasonably foreseeable nor preventable – whether court a quo applied proper test for absolution from the first instance – On appeal, held that on the evidence adduced the conduct of the bus conductor was negligent and the damage caused to the Appellant was reasonably foreseeable and preventable – Appeal allowed with costs – Matter remitted back to the court a quo, to hear the Respondent’s case and determine the case on the merits.
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.