Environmental Case Law Index

The plaintiff instituted an action in the High Court for the eviction of the defendants from a piece of land. The plaintiff alleged that the defendants were carrying on mining operations at the site without holding a mining lease or a mining licence issued in terms of the Mining Rights Act 43 of 1967, hence acting illegally.

It was common cause that the defendants had not been granted a mining lease or a mining licence by the Mining Board. The defendants argued that the plaintiff did not have locus standi to bring an action of eviction because it did not own the land and that there was a likelihood that granite stone was not a base mineral that fell within the definition in the act.

The judge’s view was that granite stone fell within the definition of a base mineral and the defendants were therefore undertaking a mining operation requiring a lease or licence under the act. The court further held that the defendants held a bogus land grant from the chief. It also found that under s 2 of the Mineral Rights Act the right to minerals in any land were vested in the "Basotho Nation". The judge concluded that the case was not one between landlord and tenant but between landlord (or landowner) and squatter in a situation governed by a unique and unusual land law. Accordingly, a summary judgment was entered for the plaintiff as prayed.

This case concerned a preliminary point raised that the first and second respondents’ legal practitioner should be prohibited from appearing on their behalf. The applicant contended that the legal practitioner who was present at a meeting where the Mining Development Board discussed the shareholding of the respondents, was intimately interested in the subject matter of the proceedings. The applicant further contended that the same legal practitioner should not be allowed to appear for the fifth respondent, the minister of mines and mining development, who ought to be represented only by the Attorney-General as the principal legal advisor to the Government. 

In response, the practitioner contended that there was no evidence to determine the depth of his alleged involvement in the matters referred to and that the allegations were based on speculation. He further submitted that he had authority to represent the Attorney-General. 

The court had to determine whether it was proper for the legal practitioner to appear for the first, second and fifth respondents.

The court observed that it was important that a legal practitioner should at all times retain his independence in relation to his client and the litigation. On account of the practitioner’s previous involvements with the first and second respondents, the court determined that he could not be allowed to serve as their legal practitioner.

With regard to the representation of the fifth respondent, the court did not make any pronouncement on the basis that it lacked sufficient information. Accordingly, the court upheld the preliminary objection.

Environment – environmental impact assessment – requirement for – such requirement additional to considerations for issue of mining permit

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 in the Court of Appeal against a judgment of the High Court which had dismissed an appeal to it against a judgment of the Judicial Commissioner’s Court, the effect of which was to uphold a decision of a local court. The issue concerned the removal of wood from a plantation by the appellant, which the respondent contended belonged to the community of which he was a headman. The appellant’s reasoning that the plantation was situated in his grandfather’s field was rejected by the court which ordered the appellant to desist from using the plantation and never to use it. The appellant was not satisfied with the ruling, so he appealed unsuccessfully, first to the Central Court, then to the Judicial Commissioner’s Court and finally to the High Court.

The issue for the court’s consideration was whether the local court had the jurisdiction to hear the matter. 

The court observed that the matter concerned provisions of the Chieftainship Act 22 of 1968 pursuant to which the judge held that the finding by the Office of the Chief did not preclude the appellant from seeking recourse in the Local Court. The court upheld the High Court judge’s view that the dispute between the parties was not a dispute involving claims to; title, exemption from title, or overriding title. Therefore, the submission that the dispute must be dealt with in the Land Court or the District Land Court was not upheld. The appeal was dismissed with costs.

This case was an appeal in the Supreme Court of Namibia against a judgment that dismissed the application brought by the appellants on an urgent basis and discharging a court order issued on 5 May 2000.  This matter concerned provisions of the Minerals (Prospecting and Mining) Act No. 33 of 1992. An Exclusive Prospecting Licence 2101 (EPL 2101) was transferred to the third respondent, involved in diamond mining, on 25 June 1997 but it was alleged that its renewal happened without any notice to the landowner, involved in growing and marketing grapes, and who is one of the appellants in the case. The third respondent intended to excavate four pits of which two were situated within the area demarcated for further grape cultivation.

The appeal focused on three main issues, namely the constitutionality of Part XV of the Minerals Act, the review application regarding the renewal of EPL 2101 in 1998 and the application based on the provisions of section 52 of the same act.  

The court concluded that Part XV was enacted in the public interest and for a legitimate object and is a reasonable mechanism whereby similar contesting rights are balanced to ensure equal protection of those rights in terms of the Constitution.  It was on this basis that it could not be said that the provisions of Part XV of the Minerals Act are unconstitutional.  Accordingly, the appellants’ appeal was dismissed with costs including those for the postponement of the appeal and further argument.

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.

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.

This was an application to review the minister’s decision that differentiated the manner of issuing the sale of trophy hunting concessions as between the applicant and fourth respondent.

The applicant succeeded in obtaining an order to show cause (rule nisi) and an interim interdict of the reliefs in their application to prohibit the implementation of the concessions.

The applicant’s locus standi was challenged during the proceedings. The court applied the reasonable person test and held that the applicant was an ‘aggrieved person’ whose fundamental rights had been infringed or threatened to be infringed.

The court considered whether the minister violated the applicant’s right to equality and held that the minister acted fairly; since the decision was made to redress the injustice of the fourth respondent and did not violate the cabinet’s policy or the constitutional principle of equality.

The court also considered whether the decision violated the applicant’s right to administrative justice as per the concept of legitimate expectation of a hearing. The court applied the rule that the court should consider the existence of a duty to act fairly. The court held that the principles of a sale by private treaty did not require the minister to afford all professional hunters an opportunity to be heard. Having found that the concession was legally granted, the court did not deal further with the issue on violation of the freedom of economic activity.

Accordingly, the court dismissed the application for interdictory relief and made an order as to costs.

The court considered an appeal, concerning a dispute between two companies over the right to mine salt in the Northern Cape. 
The high court initially dismissed the appellant’s counter-application in which it sought to review and set aside the Minster's approval of the 1st respondent’s application for a mining permit over the disputed property.
The question on appeal was whether the high court was entitled to refuse to review and set aside the Minister's approval of the 1st respondent’s application without considering whether the 1st respondent had consulted with the appellant, as an 'interested and affected party' as contemplated in the Mineral and Petroleum Resources Development Act 28 of 2002.
The court found that the answer to the question was dependent on the legal basis that the appellant relied on for its occupancy of the property. As the appellant’s occupation of the property was premised on the validity of a permit, which the high court found to be a forgery and thus invalid, the question arose as to whether the appellant had a right to be consulted even though the permit was invalid.
The court, after careful consideration of the requirements set out in the Act, held that a person that relies on an illegally issued permit to occupy land has no right to be consulted by an applicant for a mining right as contemplated in the Act because they do not qualify as an 'interested and affected party'.
Appeal dismissed.

The applicants sought to review and set aside the decision of the first respondent to cancel a lease agreement concluded by the 4th applicant after the 4th applicant disregarded environmental standards on wastewater discharge per the agreement.

The court determined whether the first to third applicants’ irregular appointment as liquidators deprived them of locus standi (capacity) to seek review. It was held that these applicants had the required locus standi.

The court also determined whether the application was brought in reasonable time given the delay in filing the application after becoming aware of the cancellation of the lease. It was noted that there is no prescribed time for the institution of review proceedings. However, the court found that the applicants failed to explain the delay and held it to be unreasonable.

The court held that the relationship between the 4th applicant and first respondent was a contractual relationship. The court considered whether the Municipality validly cancelled the lease agreement before the liquidators’ election to continue with the lease agreement. The court considered clause 16.1 of the agreement and observed that the agreement required no formalities for cancellation. It applied the test of whether a reasonable person would conclude that the proper performance will not be forthcoming and held that the Municipality had a right to cancel the lease.

It was also held that the review relief sought was unsustainable since the decision to cancel the agreement did not constitute reviewable administrative action despite being made by a person who would ordinarily perform administrative functions.

The applicants abandoned their claim for declaratory order to exercise an improvement lien and moved for amendment of the relief in prayer 3. However, the amendment was not requested or granted. Hence the two prayers were dismissed.

Accordingly, the matter was dismissed with 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.