Environmental Case Law Index

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 appeal against an injunction to restrain the appellants from going onto the disputed land to demarcate, dig, construct etc. any tree on the land until the action had been finally determined. The court considered, 1) the weight of evidence and 2) the capacity of the respondent. 

The respondent obtained a customary grant of land 22 years before the action. Later, he obtained a formal lease and was reallocated additional acres of land, which was used to cultivate cash and food crops. Due to development in the area, the respondent’s land was whittled away. The respondent alleged that the appellants trespassed on his land and undertook various activities such as alienation of portions of his land, in the premise.

On the ground of capacity, it was found that once a party’s capacity had been challenged, it should be determined as a preliminary point and the suit can only be heard after this is determined. The court held that the appellants did not raise capacity as a preliminary issue and as such, the manner in which it was raised was a ploy to confuse the trial judge. 

On ground of the weight of evidence, the court found that if the injunction had not been granted, the respondents land would have been pillaged and its nature entirely changed. Thus, an injunction was necessary to ensure that irreparable damage was not caused. 

The court found that the trial judge exercised his discretion properly and thus the appeal was dismissed and remitted to the trial court for continuation.   

This was an appeal to the Supreme Court on a judgment of the High Court which had dismissed an application for the review and setting aside of a decision by the respondent to refuse the importation of Mountain Reedbuck from South Africa into Namibia.

The appellant cited the respondent, pursuant to his duties, powers and functions as set out in the Nature Conservation Ordinance No. 4 of 1975. The appellant placed particular emphasis on his duty to consider and decide on the importation of live game from South Africa in accordance with Section 49(1) of the ordinance as amended by Section 12 of Act 5 of 1996. The evidence revealed that the decision to refuse the import of Mountain Reedbuck was made by a subordinate official who was not authorised to do so and based on a new policy which had not been communicated to the appellant.

The court found out that this issue hinged on the confusion surrounding the parties involved, the reasons for the refusal and the failure of the respondent to abide by Rule 53 of the Rules of the High Court and Article 18 of the Namibian Constitution linked to administrative justice and the doctrine of “reasonable expectation”. The court held that the subordinate official acting on behalf of the respondent did not have the authority to make the decision which was set aside. Accordingly, the appeal succeeded, and the court directed the respondent to issue the permits applied for and pay the appellant’s costs.

This case interpreted the requirements to qualify for exemptions in s. 47(1) of the Nature Conservation Ordinance of 1975 that allow for the sale of game or game meat or the skins of game which is obviously under the age of one year.

The applicants sought to review a decision by the minister of environment and tourism that revoked and altered the terms of the gaming certificate issued for Erindi farm. The permit was altered to include that it did not apply to game kept in enclosures smaller than 1000 ha. The court found that in doing so, the minister equated the phrase ‘piece of land’ in s. 47(1) (ii) with the phrase ‘enclosure’. This consequently subjected ‘a farm’ to the same requirement governing ‘a piece of land’.

The court noted that not every piece of land in Namibia was a farm. It was held that the respondents’ interpretation of s. 47(1) exemptions was far-fetched. The court held that farms were required to be enclosed with a game-proof fence to qualify for the exemption while a piece of land required the land to be 1000 hectares and be enclosed with a game-proof fence. The court observed that Erindi farm was enclosed with a game-proof fence and should not be subjected to other requirements.

It was also held that the first respondent acted unlawfully for failing to give the applicants an opportunity to be heard.

Accordingly, the respondents were interdicted from enforcing the alterations in the certificate.

This matter originated from an application where the respondents were required to show cause why a final interdict should not be issued against them, to prohibit them from damaging the applicant's wattle forest and timber at the old Nkoyoyo quarry site.

In a series of events, the applicant requested for postponement of the hearing and later filed a notice of withdrawal and prayed for costs. The respondents prayed that the matter be dismissed with costs.

The court considered whether the withdrawal was proper in terms of rule 41 (1)(a) of the High Court Rules that required withdrawal by consent of the parties or leave of the court. The court found the withdrawal to be invalid since the applicant was not compliant with the rules.

The court considered whether the withdrawal application had any merit. The court held that the respondent had proved that the applicant had no right in the land, as per s 94 of the constitution, s 3 of the Safe Guarding of Swazi Areas Act of 1910 and s 2 of the Contract by Swazi Chief Act of 1924.

Consequently, the applicant failed to prove the requirements for an interim interdict and court found him to be in abuse of court process by seeking commercial advantage through the court.

Accordingly, the application was dismissed, and the applicant was ordered to pay punitive damages for abusing court process.