Environmental Case Law Index

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.

The plaintiff’s claim was for judgment against the defendants for rental money received from the 3rd to 8th defendant from leasing part of plaintiff's land. The plaintiff also claimed compensation for loss of land as per art. 16(2) of the Namibian Constitution.

The applicant argued that she acquired a customary land right in respect of riparian land that was designated as communal land by a representative of the Mafwe Traditional Authority, after her father’s death in 2001.

The land became state land after it was declared a township in 1995 and was thus transferred to the Katima Mulilo Town Council.

The defendants argued that the local authority owned the land and the plaintiff had no right thereof. The court held that ownership of the land vested in the local authority as per the Local Authorities Act of 1992. The court applied s. 15(2) of the Communal Land Reform Act of 2002 as read with Section 3 of the Local Authorities Act of 1992 and held that the land ceased to be customary land when the town council became the owner in 1995.

The court noted as an obiter (by the way), that the claim for compensation should have been made against the state for taking possession of the community land not the Local Authority.

Accordingly, the claim was dismissed with costs. 

This was an appeal against a decision of the High Court to dismiss the appellant’s claim for loss of occupation of communal land. Her second claim was that the land was unlawfully expropriated without compensation by the respondents.

The court determined whether or not the appellant had acquired a valid customary law tenure right in the land in dispute and whether this right was unlawfully interfered with. Further, whether any liability attached to the council arising from its interference with that right.

The first respondent (“the council”), contended that the land belonged to it and had ceased to be communal land thus extinguishing communal land tenure. The court found that the appellant acquired and held a customary land tenure right and the state’s succession to the communal land did not extinguish communal land tenure but the state simply held the land in trust for the affected communities.

The court established that the Constitution guaranteed the enforcement of customary land rights. The court therefore, concluded that the appellant had an exclusive right to the use and occupation of the land in dispute; and that the right attached to the land even after its proclamation as town land.

Accordingly, they court upheld the appeal with costs in favour of the appellant. The matter was remitted to the High Court for the adjudication of the appellant’s claim of unjust enrichment and compensation.

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.

The applicants in this matter approached the high court seeking, inter alia, an interdict preventing the respondents from evicting 140 school children and from demolishing their homesteads.

The residents occupied the land in question through the traditional system of Khonta. After paying the prescribed livestock and fees to the area’s chief, they were allowed to settle on the land. However, it  was later discovered that the land belonged to the Swaziland National Provident Fund and was therefore not under the control of the chief.

The applicants argued that the evictions were arbitrary and contravened s 18 and 29 of the Swaziland Constitution and that such evictions were a threat to education of their children. 

The court first dealt with the issue of urgency and concluded that the court was prepared to hear the matter on an urgent basis. The court in deciding the matter weighed the rights of the children against those  of property owners as contained in the Constitution. It concluded that the rights of children did not supersede the rights of the property owners. Therefore, the court held that the applicants failed to establish the requirements of an interdict and the rest of the orders they were seeking.

The matter was dismissed with costs.

Civil Procedure   ̶ Application by Appellant for an order ejecting the Respondents from the land situate at Mhlaleni, directing the Respondents to demolish all structures they have constructed on the land and interdicting Respondent’s from carrying out any activities on the land – Dispute over the territorial jurisdiction over the area where land is situate – Plea of lis pendens raised by the Respondents -  whether matter pending determination by the          High Court or the traditional authorities – High Court upholds plea of lis pendens  and orders status quo prevailing to be maintained pending determination by appropriate authority – Whether High Court erred in so holding – Whether High Court has jurisdiction to entertain matters relating to land pending before traditional authorities having regard to Section 151 (3) (b) of the Constitution - Held  that High Court has no original jurisdiction to entertain matters in which a Swazi Court has jurisdiction, but High Court has only revisional and appellate juridiction as provided by Section 151 (3) of the Constitution -  where a matter is pending or has been determined by the traditional authorities, the High Court must refer the matter back to those authorities for determination or enforcement – Decision of High Court upheld,  and – Appeal dismissed with costs.

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 fifth respondent was created by statute for the purpose of implementing a project design to dam water. The dam was built and flooded the area that the appellant had obtained a mining lease for, making mining impossible. The government then unilaterally cancelled the appellants’ lease. The appellants filed an application to set aside this cancellation. Their application was granted. 

The fifth respondent filed a counter-application to set aside as null and void the mining lease on the grounds that the mining lease was a nullity because it had allegedly been concluded without a recommendation by the Mining Board and without prior consultation with and approval of the Principal Chiefs within whose areas of jurisdiction the mining lease area fell. The fifth respondent further submitted that such recommendation and prior consultation and approval were peremptorily enjoined by s 6 of the Mining Rights Act No. 43 of 1967, so that non-compliance with both, or with either, of these requirements invalidated the granting of the mining lease by the government to the applicants and rendered it a nullity.

The court considered whether the mining lease complied with requirements of the Mining Rights Act. It found on the facts that the fifth respondent had successfully discharged the onus of proving that neither of the abovementioned requirements had been complied with before the lease was concluded. Accordingly, the lease was set aside. Costs were awarded in favour of the respondent herein.

The appellants in this case appealed against the decision of the High Court to uphold a counter-application by the respondents. The High Court upheld the respondent’s counter application on the basis that certain peremptory conditions had not been fulfilled and by its judgment set aside the appellants’ mining lease and awarded costs in favour of the respondent.

The applicants argued that the requirements that they failed to fulfill were not peremptory and that these requirements were only peremptory prior to the 1970 and 1986 coups. They contended further that the lease agreement having been concluded thereafter, it should not have been declared null and void. The argued further that the court below erred in awarding costs on the attorney and own client scale.

The Court of Appeal held that, while the coups suspended the 1966 Constitution, they did not set at nought all other legislative provisions. It held that the provisions of the Mining Rights Act, relating to the conclusion of mining leases, were still in place. The court further held that the conditions that the appellants failed to fulfill were grounded in long tradition and custom. 

Consequently, the appeal was dismissed save on the issue of costs. The court held that the High Court was justified in making a special order as to costs on the issue of conspiracy but that the punitive costs were more appropriate in the circumstances and accordingly adjusted the costs order against the appellants whose conduct was deemed vexatious.

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.

The court considered an appeal against a decision in the Environment and Land court, declaring that the respondent had trespassed on the applicant’s premises and that the respondent be ordered to vacate the area and demolish and structures it had erected.
The respondent alleged that it had settled in the area 45 years prior and had inherited the land from his father.

The appellant alleged it had purchased the property in 1994 but had not occupied or used the land. The lower court held that by the time  the action was  brought in 2008 there was evidence that the respondent had been in occupation for a period of time that would entitle him to raise the defense of limitation, and after the expiration of over 12 years,  the appellant was precluded from bringing an action to recover the premises. 

The question was whether the respondent had been in possession of the premises for over 12 years as at the time the suit to evict him was instituted in 2008, and whether his possession was averse to that of the appellant?

The court held that the relevant period would be between 1994, the date of registration of the appellant as the proprietor, and 2008, when the suit was filed. It held that the period translated to 14 years which meant the respondent could legitimately base his claim and dealt with the premises as if it was exclusively his. Thus dispossessing the appellant of its right to the land.

Appeal dismissed