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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The court considered an application for the ejectment of the respondent from the applicant’s premises.
The respondent was a sublease on property leased by the applicant. The area was subsequently declared a development in terms of the Land Act of 1979. The respondent had earlier applied for the setting aside of the declaration, which application was unsuccessful.
The court distinguished several cases that supported the view that in ejectment matters, courts should not quickly order the ejectment of a respondent who is carrying out business on the land.
The court found that the declaration of the area into a development, and the subsequent publication in the government gazette all supported the view that development had to continue.
The court further balanced the costs incurred by the applicants, the benefits of the development to the public and the fact that the applicant offered the respondents space in the completed development to support that the respondent had to vacate the premises.
The court ordered the respondent to vacate and to pay the costs of the application.
The court considered an application declaring the suspension and non-renewal of the licence by the respondent, null and void. The applicant was further seeking an order compelling the respondent to pay damages incurred as a result of the suspension.
The court was faced with the question of how a court must approach cases brought through motion proceedings, which require oral evidence to be heard..
The court pointed out that while the suspension and non-renewal of the licence could be decided on motion proceedings, the application for damages required oral evidence.
The court found that damages require proof and therefore cannot be decided on motion proceedings.
The court came to decision that the matter be referred to trial and all affidavits and depositions which formed part of the application be used as pleadings in the action.
The court postponed the issue of costs, until the trial.
This appeal arose from a rule nisi application that required the appellant to justify why an interdict should not be issued against him for the unlawful use of the respondent’s property.
The respondent instituted interdict proceedings when the appellant continued to use the disputed property after a default judgment that reinstated a previous judgment in his favor.
The court noted that interdict applications require proof of a clear right, an injury and the absence of any other satisfactory remedy.
The appellant submitted that the respondent had alternative remedies in contempt proceedings and a writ of execution. The court noted that the real issue was whether the alternative remedies would afford adequate protection from the continuing mischief. The court held that contempt proceedings are entirely unsatisfactory, where the injury has already started and is continuing. It was also held that a writ of execution was unsatisfactory for immovable property such as land.
The appellant claimed that service by postal service did not constitute proper service of summons as per rule 44 of Central and Local Courts (Practice and Procedure) Rules; and that this affected the validity of the default judgment. However, the court noted that the service was properly effected. It was also held that the validity of a default judgment was not affected by service of summons so, it was valid unless set aside lawfully.
Accordingly, the appeal was dismissed with costs.
The plaintiff in this case was permitted by the Chief of Matebeng to graze 187 goats and 84 sheep at Pekamollo near Mount Tsolo. The defendants took legal custody of about 700 of the plaintiff's animals and some of the plaintiff’s animals died in their custody.
The plaintiff instituted a claim for damages caused by the defendants’ trespass and negligence. He submitted that the death of his animals was caused by the defendants’ failure to exercise reasonable care to safe keep the animals.
The plaintiff proceeded with the case against the second, third, fourth and seventh defendants who did not file their notice to defend the claim. The court was satisfied that the plaintiff had made a conclusive case on the claim for negligence since the defendants decided not to give any defence.
The court held that the plaintiff was not entitled to damages for trespass since the first defendant was the Chief of Tsolo and had the power to decide which area under his jurisdiction was a reserved pasture. It was also held that the other damages were reasonable.
Accordingly, the second, third, fourth and seventh defendants were found to be severally and jointly liable. The court ordered the payment of M18,090.00 for the loss of the animals that died; M2,000.00 for the loss of wool and mohair; and an interest at the rate of 11% per annum from date of the judgment and costs of the suit.
This was a counter-application by the fifth respondent (now applicant) against first and sixth respondents (respondents), for an order declaring a mining lease between the Basotho Nation and another company void. The applicants also prayed for costs in the event that the application was opposed. The applicant claimed that there was non-compliance with the procedures prescribed by sections 6 and 7 of the Mining Rights Act of 1967, as amended, when granting the lease.
The court determined whether Order No. 1 of 1970 which was enacted after the coup d'etat of 1970 abolished the office of the King and his executive power of allocating land or interest in land as contended by applicants.
The court noted that the applicant quoted Makenete v Lekhanya and others C of A (CIV) 17/1990 in support of the position that the order abolished the office of the king. However, it was noted that this position was only referred to in the obiter, (not the main holding) which failed to consider the effect of the Regent (Assumption of Office) Notice of 1970.
The court then interpreted the definition of regent to be “one who is invested with royal authority by”. Consequently, it was found that the notice appointed Queen Mamohato Seeiso to be regent for the duration of the King’s absence from Lesotho. It was further held that the king’s office had not been abolished since the queen was appointed to be his regent for the duration of his absence.
Accordingly, the application was dismissed.
The matter deal with a land dispute. After the first defendant declared the plot of land in question a “selected development area” and leased it to the second defendant, the second defendant fenced it off. Prior to this, the plaintiffs had been the lawful occupiers and users of that plot of land which they utilised for agricultural purposes.
Initially, the plaintiffs sought a court order declaring as void the first respondent’s decision to define the plot of land a “selected development area” and an eviction order ejecting the second defendant or, alternatively, a compensation order ordering the defendants to compensate the plaintiffs. The plaintiffs conceded however, that the second defendant did come into occupation of the land legally. Eventually, the parties agreed that the court should decide only whether the plaintiffs were entitled to compensation.
Relying on s45(2) of the Land Act No 17 of 1979, the court held that two conditions must be satisfied for the loser of the right to use and occupy particular piece of land to be entitled to compensation. First, the selected development area that has been declared must consist wholly or partly of agricultural land within a selected agricultural area. Second, the land must be within a "selected agricultural area".
The plaintiffs, however, did neither allege nor prove that the land was in a selected agricultural area. Consequently, the plaintiffs claim for compensation failed and was dismissed with costs.
The court considered an application for the applicants to be compensated before removing them from their land for improvements to those sites, as well as an interdict restraining the respondents from removing or demolishing the houses of the applicants without compensating them. The facts surrounded the applicant’s right to occupy the land based on allocation of land letters. The respondents argued that the applicants were in unlawful occupation as only the Urban Land Committee could allocate land. Further, that the Minister had published a legal notice advising the applicants that the land would be taken.
The court considered whether the right to land under s 44 of the Land Act 1979, which governs that the seizure of land for public purposes, was correctly administered. Further, the court stated that in Lesotho, land is not subject to individual ownership, and a person only has a right to occupy and use the land and when land has been taken away by custom, it has to be replaced.
The court found that the applicants, who had collectively spent millions on improvements to their houses, could not have their land taken away and their rights ignored. Further, the court held that peoples land could not be seized without them being consulted and being heard.
The court found that the legal notice issued by the minister was contrary to law as there was no prior consultation and it did not specify the purpose for seizure or the properties to be seized. Accordingly, the application succeeded.
This was an appeal from a decision of the High Court which declared the proclaimed Selected Development Area (SDA) as null and void for failure to comply with Legal Notice 17/1999 and an order requiring compensation of the respondents before they were evicted.
The court determined whether the respondents had legal rights arising from their occupation of the land and if such rights had been extinguished upon proclamation of the SDA, with the non- payment compensation being no bar to eviction.
The court established that the respondents were bona fide occupiers who made useful improvements on the land. Further, the court established that s 17 of the Constitution prohibits compulsory acquisition of any right or interest in property unless the 3 conditions therein are satisfied.: the acquisition must be necessary, justify consequential hardship and there must be prompt and full compensation thereof.
The court found that the constitution does not countenance taking of possession of property without payment of prompt compensation and the appellants cannot assert a right to evict the respondents without compensation.
The court held that the respondents were entitled to compensation and interdicted the appellants from demolishing the developments on the land.
The court considered an application for an interdict, restraining the respondents and their associates from setting foot near the diamond mine.
The respondents raised several issues, including the material disputes of facts, making the application unsuitable. The correct procedure as the respondents argued, was to proceed through the issuing of summons. The court pointed out that over the years, the court has allowed litigants to proceed by way of action proceedings if facts are not disputed, or if no dispute of fact is foreseeable. The court dealt with the requirements for an interdict and concluded that the applicants met the requirements. The court held that the applicants established a clear right to the mine and the respondents were interfering with such a right. The court also pointed out that there was no clear, alternative right available to the applicants. On the contrary, the respondents had other remedies available in the event that the interdict affected their rights.
The court granted the interdict and restrained the first and second respondents from setting foot at the diamond mine under the administration of the applicant.
This matter dealt with a land dispute which had commenced in the District Court but was transferred to the Land Court by agreement of the parties. At the end of the trial, an application for absolution from the instance (an order to dismiss a claim on the basis that no order can be made) was made. This application, the applicant sought to include an amendment that would introduce new evidence. The respondents argued that the application was an attempt to cover its failure to comply with the rules of court.
The court considered whether the application was properly before it. The court observed that the applicant had not obtained leave of the court for the application nor consent from the other parties to amend and file further evidence. It relied on r 13 of the Land Court Rules, No. 1 of 2010 and stated that even if the applicant had obtained leave or consent, the court could not grant the application for absolution so as to assist the applicant to cure a defect of none compliance with the rules of court.
It was held that the amendments were an abuse of the court process because the applicant was in fact curing the deficiencies in his pleadings after he had closed his case. Further, the court found that there were no exceptional circumstances to allow the application.
Accordingly, the application was dismissed with costs to the respondents.
The court considered an appeal against a decision of the High Court dismissing an application for a remedy over a land dispute on the grounds that there were disputes of fact that could not be ascertained, which the appellants should have foreseen.
The first, second and third appellants were members of the fourth appellant, a company of Swazi indigenous people, formed to co-ordinate the ploughing of sugar cane by indigenous Swazis. The first and second respondent were adult Swazis employed by a wildlife business undertaking.
The court considered 1) whether the application should have been dismissed due to a failure by the applicants to join parties who had a substantial interest in the matter, and 2) whether the applicants succeeded in establishing that they were in peaceful and undisturbed possession of the land when they were evicted.
The court found that the appellants did not attempt to join, as respondents, two parties, including a trust controlling the wildlife business undertaking, which had a direct interest in the disputed land. The appellants argued that a trust is not a juristic person, but the court found that legal proceedings can be brought by and against a trust. It was also established that before they moved onto the land the appellants had already been removed from that land and were aware that their right to occupy the land was disputed. Based on the court’s findings and failure to comply with the rules in the filing of heads of argument, the appeal was dismissed[kb1].
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 applicant sought to review and set aside the decision of the Central Farm Dwellers Tribunal (“tribunal”), to evict the applicant.
The decision handed down by the first respondent was initially taken on appeal to the tribunal, which originally denied the request for an appeal as it was filed out of time. The matter was then referred to the Supreme Court, which referred the matter back to the tribunal.
The applicant argued that the decision of the first respondent was reviewable because of the first respondent’s failure to decide whether it acquired the land on which it was situated through acquisitive prescription.
The court considered whether or not it was irregular for the first respondent to direct that the second and third respondents could evict the applicant when there was a claim by the applicant that had not been determined, i.e. the acquisition of the land. The court held that to authorize an eviction before determining the acquisitive prescription would not accord to anyone’s sense of justice.
The court found that the irregular step of the first respondent in authorizing the applicant’s eviction was sufficient to warrant a review and that the court would have to substitute the decision of the first respondent with that of its own.
In this case, the High Court had to consider an application for summary judgement. The plaintiff sought judgement to be ordered in the sum of E130373.77 for professional services it rendered to the defendant, plus mora interest and cost of suit. By means of this procedure for summary judgement, a defence of no substance can be disposed of without putting the plaintiff to the expense of a trial.
The plaintiff argued that it was faced with a defence of no substance and that a summary judgement should accordingly be granted.
The court held that in order to determine whether a summary judgement could be granted, it was necessary to evaluate whether the defendant had raised a triable issue. Relying on the judgement in Mater Delarosa High School v RMJ Stationary (Pty) Ltd unreported Appeal Case No. 3/2005, the court held that they would refuse to grant a summary judgement if there was a reasonable possibility that this would cause an injustice.
The court found that a number of issues needed to be decided in the course of a trial and not ignored by granting a summary judgement. Most crucially, a trial was necessary to decide when payment of the plaintiff was due. Given these circumstances, the court found that it would be premature to dismiss the defence and that doing so, by granting a summary judgement, would possibly cause an injustice.
Accordingly, the application for summary judgement was dismissed by the court and costs were ordered in the cause.
The court considered an application for eviction. The plaintiff averred that the defendants were in unlawful occupation of the property and that there was no agreement, either oral or written, giving them permission to occupy the property. In addition, it was argued that they had no right or title in the property.
The defendants argued that the land in question was concession land and that the deed of transfer was not authentic. The court found that, based on the evidence led, the title deed in question had been prepared and registered by the Deeds Registry and was thus valid.
The court found that although the first defendant alleged that she was born and raised on the property at the time when the land was under a concession, she failed to produce any evidence to support this contention. Thus, without any proof, the court held that her point was moot and could not be accepted.
The court held that based on a balance of probabilities, the property in dispute was a privately held property, validly supported by an authentic title deed in favour of the plaintiff. Accordingly, the defendants could be evicted from the property in question.
The applicant made applications for interdicts prohibiting the use of various properties other than for residential purposes according to the Manzini Development Code of 1991.
The respondents raised technical objections to the legality of the code. The respondents argued that the applicants used the words "scheme" and "code" interchangeably to refer to the code instead of “scheme” as per the Town Planning Act of 1961. It was found that the document met the requirements and that the "code" or "scheme" was the document specifically provided for in the act, regardless of the name by which it was called.
The respondent argued that the code was invalid for lacking any changes proving that it had not been reviewed periodically according to s 21(4) of the act. The court determined whether the term “shall” in s 21(4) of the act was peremptory or merely directive. The provision states that, “every approved scheme shall be reviewed periodically at intervals of not more than five years.” The court applied the rule that a provision is merely directory if it is in positive terms and lacks a penal sanction. Consequently, it was held that reviewing would not always lead to a change in the schemes at all times. The court also held that the operation of the code was valid since it had been previously approved by the minister.
Accordingly, the objections were dismissed.
This application set out the test for determining the validity of an eviction order.
The applicant opposed an eviction order made under the Farm Dwellers Act of 1983 on grounds that it was unlawful. The respondents disputed the court’s jurisdiction. However, the court held that it had the jurisdiction to hear the matter and noted that its jurisdiction was only ousted as a court of first instance
In granting the order to the applicant, the court cited Hoageys Handicraft (PTY) Ltd and Another/Rose Marshall Vilane where the requirements for a lawful eviction in Swaziland were set out.
First, there must be a judgment of a court with jurisdiction to grant an order for eviction. Secondly, there must be a valid, warrant directing the Sheriff to evict the respondent from the premises. Thirdly, there must be a valid appointment and authorisation of the deputy sheriff, for the express purpose of executing a warrant of ejectment or eviction. Lastly, the execution action must be conducted as authorised in the warrant of ejectment or eviction.
The court granted the application, with an order of costs.
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.
The court considered an application for eviction of the respondents from certain homestead and fields allegedly owned by the applicant.
The applicant contended that he was the owner in terms of Swazi law and custom, and that the land on which the homestead was built was allocated to his father through a traditional method of land acquisition. He further argued that the respondents claim was based on the fact that their parents were asked to look after the homestead in the past by the applicant’s mother.
The respondents alleged that the property was allocated to their grandparents. They argue that the second respondent’s father gave the applicant three fields where he built his homestead, after the applicant had come to the land asking for a piece of it.
The court found that the dispute relating to the ownership of the land had been the subject of debate for years and had already been dealt with by the royal council, who had made a decision in favour of the second respondent.
The court held that it had no jurisdiction to deal with the matter, because of the nature of the application and the fact that the council had previously ruled on the boundary between the two homesteads. It held that the applicant should have approached the council instead of the court to address its concerns.
The applicants brought a review to set aside the decision of the first respondent to declare the Malkerns area a town, due to failing to consult with the applicant prior to making this decision.
The minister published three notices, one in 1995 and one in 2010, which were not challenged as the first one did not affect the applicants and the second one was welcomed. The applicants contended that the third notice in 2012 was flawed for two reasons: (1) there was no schedule attached to it and (2) there was no commission of enquiry set to receive presentations from affected individuals.
The court considered whether the minister was bound in law to invite the applicants to make representations or objections before publishing the 2012 notice, and if so, whether the minister did so.
The court found that the minister’s intention in terms of the 2012 notice was to declare the Malkerns a town. It became clear that the minister made her declaration in terms of the Building Act and not the Urban Government Act, and she did so without extending invitation for objection or input from the applicants who would have been prejudiced by her decision.
The court found that instead of making invitation, for objection or input, which the minister failed to do, she declared the area a controlled area, which was grossly irregular. The court held that the conduct of the minister was not within her powers as she made the declaration in terms of two separate pieces of legislation which she tried to use interchangeably. Thus, the decision by the minister was reviewable and set aside.
The court considered an application requesting an order to commit the respondents for contempt of court for not respecting an interdict which restrained them from undertaking any developments on the land in dispute, until the determination of an application for interlocutory injunction.
The respondents argued that they were not in contempt since no formal order had been issued to give effect to the orders of the court. The respondents also denied developing the land in dispute. The court noted that there was no requirement for a formal order to be issued, since both parties and their counsel were in court when the order was issued.
The court considered whether the respondents willfully disobeyed the interdict order by going to the land in dispute, to work. The court found that contempt is a criminal offence, which requires an applicant to prove the case beyond reasonable doubt, and to make a prima facie case before the respondent’s defence is considered.
The court found that the evidence was inconclusive since the applicant relied on pictures of people building on the land, but failed to identify the respondents as the people in the pictures, alternatively to prove that the respondents sent the people in the pictures.
Accordingly, the application was dismissed.