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.
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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 court considered an appeal, based on a judgment from the court below, the issue of importance being political patronage by the Disaster Management Authority (DMA). This issue stemmed from a decision made by the Interim Political Authority (IPA), which sought to eliminate political patronage on the basis that the IPA (respondent) had the power to declare certain conduct political patronage.
Political patronage has been defined as a situation in which one person is rewarded for supporting a particular politician. The respondents argued that the involvement of members of parliament in the work of the DMA had nothing to do with political patronage, and rather to do with the efficient discharge of obligations, thus to feed people during times of famine and natural disasters. Further, that the distribution was done by constituencies, and thus due to members of parliament being elected by the public, they had an intimate knowledge of their communities needs and the constituencies needs in terms of resources.
The court found that this argument was eminently sensible and does not contain an element of political patronage. Further, that political patronage had to be established objectively. The fact that the IPA dictated that conduct was political patronage doesn’t make it so, and to hold this position would amount to an untenable position. Accordingly, the appeal succeeded
The court considered an urgent application regarding quarrying activities, wherein the applicants sought, amongst several other grounds, to interdict the 1st and 2nd respondent from carrying out blasting and quarrying activities, pending the finalisation of the damage caused to the applicants’ houses.
The 3rd respondent operated a quarry for materials needed for the construction of mountain roads and in order to perform their job, blasting was required in order to loosen up the materials. Prior to the commencement of the work photographs of the houses within 500-meter radius of the quarry would be taken, in order to monitor and evaluate the effect of such blasting.
The respondents argued that the applicant had refused to have the liaison committee survey their buildings to detect the damage incurred due to the blasting.
The court considered whether the matter was urgent. It found that even with the applicants’ refusal, the buildings had been photographed and numbered to facilitate the assessment of damage following the blast.
On determining whether the matter was inherently urgent, the court found that the applicants were at all times aware that the blasting had occurred, yet they did nothing. On this basis, the court found that the applicants rights were not being impaired and as such their interdict was not granted. Accordingly, the application was dismissed.
In this case the applicants sought an urgent interdict preventing the respondents from demolishing homes in the Mangwaneni, Manzana and Makholokholo, through which the new construction of the New Mbabane Bypass road was carried out.
First, the court had to consider whether the matter was urgent and held that applicants needed to prove the matter’s urgency. The court found that the applicants had shown the urgency of the matter in their founding affidavit.
Second, the respondents argued that the application did not adequately describe the ninth applicant and that it could therefore not be admitted. Considering existing jurisprudence, the court held that a relaxed approach should be taken on the issue to not inhibit public interest litigation. Consequently, the court condoned the citation of the parties.
Finally, the respondents argued that the applicants did not fulfill the conditions for an urgent interdict because they could seek compensation from the committee responsible for compensating resettled people. The applicants claimed that the committee no longer existed. Thus, the court had to consider whether the committee responsible for compensating the people who had been resettled by the project was still active. Given this situation, the court decided to postpone the matter, ordering the applicants to submit their claims to the secretary of the committee within seven days and ordering the committee to address these claims within 21 days. The secretary of the committee was also ordered to submit a report to the court. The court postponed all outstanding matters until then.
This was an appeal against the validity of an order to the Land Valuation Board to assess the compensation payable in respect of buildings and farms belonging to inhabitants of an old village.
The facts of this case were that the appellant, a mining company, requested the respondents and other inhabitants of a village, which adjoined its mining area, to vacate the village and paid them compensation for their buildings, which were later demolished. Section 71 of the Minerals and Mining Act, 1986, provided for compensation for disturbances to owners and occupiers of lands affected by mineral operations. The appellant argued that this compensation was limited to areas within the mineral operations and that these areas were not land designated within its mining lease.
The Supreme Court considered the lawfulness of the board’s decision to award further compensation under s71 of the act. It found that since the mining operations of the appellant affected the owners or occupiers of land they were entitled to statutory compensation. The court stated that whereas compensation for the buildings of the respondents was settled by agreement with the appellants, as permitted under s71(3) of the act, compensation for the disturbance of their farming activities at the old village was mandatory under the act.
The court, however, stated that the lower courts came to the right conclusion but their reasons were not sound in law. Accordingly, the appeal was dismissed but the reasons were substituted for the Supreme Court’s decision.
In this Court of Appeal case, the court determined who breached the contract of oil supply between the appellant and the respondent. The contract ran into a deadlock after three deliveries of the product when the appellants refused to accept one of the respondents’ deliveries upon presentation. The reason given for the resultant stalemate was that the product was not of the specification ordered.
The court below had penalised the appellant for unnecessarily breaching a contract. The appellant felt aggrieved and appealed to seek an overturn of the trial court’s judgment entered in favour of the respondents.
The Court of Appeal thus determined if there was a variation in the contract, when did that occur and also what did the variation entail.
In response, the Court of Appeal held that there was nothing on record to persuade the court that the respondent product was not of the specification ordered. The court thus maintained the decision of the court below. However, the Court of Appeal noted that the cost granted in the court below was exorbitant. In the end, the court dismissed the appellant case, but the costs awarded in the court below was accordingly varied.
The court considered an action, where it was called upon to determine the seaward boundary of the Littoral States within the Federal Republic of Nigeria. The purpose was to calculate the revenue accruing to the Federation account from the natural resources derived.
The Federal State contended that the southern seaward boundary of each of the defendants’ states would be the low-water mark of the land surface akin to such State, alternatively, the seaward limit of inland waters within the State. The contrary argument was that the territory of each State was beyond the low-water mark and extended into the territorial water.
The court found that the southern boundaries of the littoral States are the sea. Thus, as a result, it makes them riparian owners. In terms of common law, as riparian owners the extent of their territory would be the low-water mark, alternatively the seaward limit of their internal waters.
The court found that none of the Territorial Waters Act, Sea Fisheries Act and Exclusive Economic Zone Act had extended the territory beyond southern boundary limit. Therefore, and due to the sea shore and foreshore belonging to the crown, the court held that the low-water mark forms the boundary of the land territory between the littoral States.
Plaintiff’s claim was successful.
The court considered an appeal against the decision of the lower court, seeking among other things, a declaratory order, that a concession agreement signed, and registered in the Register of Deeds, Lands Registry entered by the second respondent on behalf of the native lands was irregular, and liable to be set aside.
At the core of the challenge was a lease agreement entered by the Ife District Native Authority over a forest, which was communal property. The lease was granted to a timber trading company for a 25-year term. The court had to decide several issues, including: (1) whether the appellants had locus standi (2) whether the Oni if Ife had the capacity to act as both grantor and grantee (3) and whether the deed of concession was made in pursuance of the power vested in the first defendant.
In considering the appellants locus standi in the matter, the court considered the use of the land which included farming, fishing and hunting. The court concluded that the appellants thus had substantial interest in the matter. The court found in favour of the appellants on the question of whether the Oni of Ife executed the deed in a dual capacity as he was both a grantor and a major shareholder of the grantee company. Through being the grantor and the beneficiary of the rights, the Oni of Ife acted in a dual capacity and his interests in the agreement conflicted with his fiduciary duty. The court held that the Oni of Ife and the council, ought to have exercised their rights in a manner consistent and not detrimental to the rights of the appellants.
This Supreme Court case concerned an appeal against the ruling of the High Court that found the appellant guilty primarily on counts of: (1) theft of unpolished diamonds in contravention of section 74 of Act 13 of 1999; alternatively, possession of unpolished diamonds in contravention of section 30(11) of Act 13 of 1999; (2) robbery; (3) malicious damage to property; and 4) escaping before being locked up in contravention of section 51(1) of Act 51 of 1977.
The appellant was primarily charged in the High Court for stealing unpolished diamonds and fleeing arrest. He was convicted on all the counts and sentenced to both a jail term and payment of fine
The appellant felt aggrieved and appealed to the Supreme Court mainly on the ground that the prosecution side failed to establish that the mining company was the lawful owner of the alleged stolen diamond.
The court held that the evidence obtained from the surveillance cameras clearly showed that the unpolished diamond that the appellant was trying to steal was discovered and recovered from him. The court held that he was caught right at the exit of the mining site. So generally, the mining company was the one licensed to exploit and trade the diamond in that area the court a quo was justified to take a judicial notice that the diamonds belonged to the complainant.
The court therefore refrained from disturbing both the conviction and the sentence of the High Court, so the appeal was dismissed.
In this Supreme Court case, the first respondent applied for the permit to drill boreholes in the Khan River for uranium mining activities. Subsequently, the second respondent granted the rights to use the boreholes and the water to the first respondent allegedly in the exercise of its powers provided under the Water Act of 1954. The appellant’s case against the respondents was that the wildlife on its farm depended on the naturally occurring underground water to support natural habitats. Overusing the water from the rare sources in the area would, therefore, disturb the ecosystem.
At the High Court level, the issue was to determine whether under the act the second respondent had the powers to grant such rights. The High Court held that the powers to grant such rights were limited to subterranean waters. Moreover, the court held that since under the act sections 27, 28 and 30, the president proclaims the underground waters. The president had never declared the areas allocated to the first respondent as such the permits were a nullity. As a result, there was nothing to be determined by the court in favour of the appellant.
On appeal, the Supreme Court agreed that the permit issued was a nullity. However, it held that the High Court ought to have decided the case in favour of the appellant since, in law, illegal acts can create reviewable actions. Finally, the Supreme Court upheld the appellant’s claim.
This was a Supreme Court case that revolved around an agreement between the parties which was suddenly terminated. The agreement demanded that the respondent to import oil resources on behalf of the Government of Namibia. The arrangement proved to be failure as the cost of importing petroleum was high against the market price. Consequently, the first appellant, acting in ministerial capacity decided to end the agreement. The first respondent felt aggrieved and filed a suit in the High Court, asking it to review the decision of the cabinet that terminated the said contract.
As such, the main issue, in this case, was whether the cabinet of the government of the Republic of Namibia acted lawfully when it revoked the mandate of the respondents to import petroleum products. The High Court in determining this issue held that the cabinet had no legally tenable reason(s) to end the contract in question.
However, on appeal, the Supreme Court held that under the Namibian Constitution in article 27(2), the executive power of the Republic of Namibia vests in the president and the cabinet. It further held that under the article, the cabinet has the role of supervising the activities of the government departments. Since the third, fourth, fifth, and sixth respondents are government parastatals the cabinet justifiably exercised its regulatory powers in the best interest of the Namibian people.
The Supreme Court thus overturned the decision of the High Court and accordingly upheld the appeal.
This was an appeal from the High Court to the Supreme Court. The case concerned a ministerial notice stating that nuclear energy prospecting licenses regarding certain areas will not be provided. The appellant was allegedly an aspiring applicant. He thus felt aggrieved with the notice.
In the High Court, it was held that the appellant lacked legal capacity to challenge the notice as the notice did not create any triable issue. Aggrieved, the appellant appealed to the Supreme Court.
Thus, the main issue for determination was whether the respondent's notice exempting certain areas from being prospected for nuclear resources was unconstitutional. The appellant’s argument was that the denial of the prospecting license violated his constitutional right to work.
In response, the Supreme Court upheld the High Court decision, but it disagreed with the High Court that the respondent lacked the legal capacity. According to the Supreme Court, the appellant would have been successful if the minister had no statutory powers to issue the notice or if the process was procedural. However, the minister had such powers under section 122(1) of the Mineral (Prospecting and Mining) Act of 1992. Consequently, the Court held that it cannot order the minister to issue the license if the notice is still in existence. Also, the Supreme Court held that the constitutional provision on the right to work does not mean that people can conduct mining activities without being regulated given the environmental challenges.
Following this, the appellant's case was dismissed with costs.
The court considered an application for a mandamus by the applicant, as a result of the respondents having applied for the consolidation and rezoning of 2 plots of land. The respondents had their application conditionally approved upon submitting an engineer’s drawing for the erection of retaining walls as part of flood protection and to create 54 client accessible parking bays.
The court considered if there was a contravention of s 44(5) of the applicant’s town planning scheme in accordance with the Town Planning Ordinance No 18 of 1954 as amended. Without drawing plans being submitted to the applicant for approval, the respondents admitted that a temporary corrugated iron wall was erected on the riverbank which was next to the two properties. On their own admission, the respondents did not create the 54 accessible parking bays.
The court found that the respondents failed to adhere to the condition of their approved application, so they were ordered to remove the illegally constructed corrugated iron wall, to submit an engineer’s drawing for the erection of the retaining walls to be constructed on the properties, within three months of the order. They were also ordered to construct the retaining wall within six months from the date of the approval by the applicant of the engineering drawing, as well as to remove all building materials and rubble from one plot in order to create 54 accessible parking bays on one of the properties. Respondents were ordered to pay applicant’s costs.
The plaintiff in this case claimed restitution for a breach of contract. The court determined whether the defendant was in breach of contract for failing to install a working borehole in a geohydrological environment where the plaintiff's farm was located.
The defendant raised a counterclaim that the plaintiff had accepted that work was completed but failed to pay the balance of the agreed amount. The court applied the rule in Du Plessis v Ndjavera that the plaintiff is under no obligation to perform before defendant has completed his performance.
The court held that the defendant was at fault for failing to assess the soil formation in the area and ended up using the incorrect drilling method. The court observed that the defendant admitted to using the riskier direct flush air percussion instead of the mud rotary method to save on expenses and thus failed to complete performance.
Accordingly, the court held that the defendant was in breach of contract and the plaintiff was entitled to cancel the
agreement and claim restitution. The counterclaim was also dismissed with costs.
In this case, the applicants sought to enforce the decision of the Royal House of Chief Kambazembi (a traditional authority), that allocated communal land to them.
Following the continued occupation of the three square kilometres of the land by the first and second respondents, the applicants decided to enforce the decision by the traditional authority in the court.
The court analysing s. 24-26 of the Communal Land Reform Act, Act 5 of 2002 held that the traditional authority had the power to allocate customary land rights. However, upon the allocation of a customary land right, the applicant was required to notify the land board for registration of the land. The court observed that the applicant failed to do so and thus failed to establish a right that was capable of enforcement by the court.
Accordingly, the application was dismissed, and the applicants were directed to pay costs of the first and second respondents jointly and severally.
This was an appeal against the High Court’s decision that declared the land tax imposed under ss 76 to 80 of the Agricultural (Commercial) Land Reform Act as constitutional.
The court determined whether s 76 contravened the constitutional principal of separation of powers which gives the National Assembly power to provide for revenue and taxation.
The appellant contended that the law in question went against separation of powers by devolving legislative power to a minister.
The court held that s 76 did not conflict with the constitutional principles of separation powers as the power of the National Assembly had been exercised by the stipulation of a tax as authorised by the Constitution. The court found that the only role of the minister was to set a rate according to a procedure set out in the regulations. The court stated further that in any event, this rate was subject to the approval of the National Assembly and as such, no independent power was vested in the minister.
The court noted that the regulations that were challenged set out how the land was to be administered. The court held that the appellant’s claim lacked sufficient particularity required for pleadings in constitutional litigation.
Accordingly, the court held that the appellant had failed to establish how these regulations contravened constitutional provisions and dismissed the appeal. The court also dismissed the appellant’s prayer with no order as to costs.
Customary Law – Communal Land – Communal land rights – Power to evict a leaseholder from a communal land – Whether the Communal Land Reform Act, 2002 empowers a leaseholder to cancel a sub-lease and evict a sub lessee from a communal land area.
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.
In this case, the High Court considered a murder charge and whether the defence of private defence and/or the defence of property was sufficient to warrant an acquittal.
The accused was employed as a security guard by a private security company. While on duty he shot and killed an illegal diamond panner. Against the murder charge, the accused raised the defence of private defence and the defence of property. The facts were not disputed that the accused and his colleague were attacked by a mob of illegal panners who threatened to kill them. The accused fired a warning shot but the mob persisted until he fired the deadly shot which dispersed the mob.
The court held that the accused was lawfully employed to protect the employer’s assets from theft and entitled by law to protect himself. The court found that in this case a warning shot had been given and the life of the accused was in danger. The court held further that the action in self-defence was not disproportionate or unreasonable. Accordingly, the court found the accused not guilty and he was acquitted.
Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to water (s 77) – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly
Human rights – right to water – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly
Environment – environmental impact assessment – requirement for – such requirement additional to considerations for issue of mining permit
This was an appeal against the decision of the High Court to dismiss an application for review of an application for the setting aside of a decision made by the second respondent, the Member of the Executive Committee of the Department of Agriculture, Conservation and Environment, Mpumalanga (the MEC), and upheld on appeal by the first respondent, the Director General, Environmental Management, Mpumalanga, (the DG). The decision in question was to permit the construction of a filling station in White River. The appellant contended that the permission was given contrary to the provisions of the law.
The court observed that all environmental precautions had been taken into account by the scoping report. It found that the land had been rezoned by the local authority from special area to a business area, based on need and desirability. The court held that that the key factors’ in deciding to grant the application in the circumstance were: firstly, that the property had been rezoned from “special” to “business”; secondly, that no potential threatened plant and animal species were recorded during the site investigation; and, that all identified and perceived impacts were satisfactorily dealt with in the scoping report and the recommendations proposed were sufficient to minimize any negative impacts. Since all this were observed. The appellant case was dismissed with cost.
This was an appeal against a decision of the High Court to hold the appellants in contempt of an order of the Minister of Water Affairs and Forestry, issued to the mining companies concerned under s 19(3) of the National Water Act 36 of 1998.
The appellants contended the directives were incapable of implementation because they were so vague. Consequently, the respondent obtained orders from court a quo, compelling the appellant to provide an amount of money as contribution to execute the ministerial order. Following the order, the appellant failed to pay the money. As a result, the appellants applied to have the appellants for contempt.
The main issue for the court’s consideration was whether an order of the court ordering money to be paid could raise a question of contempt. In overruling the decision of court below, the supreme court stated that it was only where performance of an act was ordered – ad factum praestandum – that conviction for contempt of court was permitted as a means of enforcing performance. It held that contempt proceedings were therefore inappropriate in the circumstances. In conclusion, the court stated that an order that a person was in contempt of court, which carries with it criminal sanctions, should be made only where the court order allegedly flouted was clear and capable of enforcement. Accordingly, the appeal was upheld.
The court considered an appeal against a judgment dismissing the appellant’s exception.
The appellant was a property development company and sought to develop property in low-lying areas adjacent to the Disa river. In order to develop these properties the appellant began to lift these properties to four meters above sea level by dumping waste matter and filling in on the properties. This resulted in the 2nd respondent issuing directives to the appellant in terms of section 31A of the Environmental Conservation Act 73 of 1989 (“ECA”), which required the appellant, at its own expense, to engage a freshwater ecologist and other environmental impacts of their actions.
The appellant complied with the directive but alleged that the directive had prevented it from undertaking any further development on the properties that were below the 1:100-year flood line, as well as the properties that were within the wetland boundary as surveyed by the ecologist.
The court below held that section 34(1) of the ECA provided a right to claim for compensation where loss suffered by a claimant arose from limitations placed on the purposes for which land may be used.
This court found that when the directives were issued, the constitutional and statutory obligations to prevent harm to the environment were met. Thus, section 34 of the ECA could not have been directed at providing compensation for actions taken under section 31A as those provisions regulate harmful activities against the environment.