Environmental Case Law Index

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.

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 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. 

Appeal succeeds. 

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.

Statutory Appeal - Section 51(1) of the Environmental Management Act, 7 of 2007 - on points of law only - Meaning - Whether grounds of appeal are based on points of law.

Constitutional law — Fundamental rights — Administrative justice —Failure to invite one of the parties to a dispute to the appeal hearing— fundamentally unfair hearing — Violation of arts 12 and 18 of Constitution.

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 case concerned a dispute between the applicant, a non-profit company involved in the promotion of a wildlife conservancy and the first respondent, a mining business within the area of jurisdiction of the second respondent. The applicant invoked its entitlement in public interest to apply for an interdict restraining the first respondent from making any development on any portion of the concerned properties as defined in s 1 and s 38(3), of the KwaZulu-Natal Planning and Development Act No. 6 of 2008 (KZNPD). 

The applicant argued that the first respondent was required to apply for its proposed development but the applicant contended that it had not yet obtained such authorisation. The first respondent contended that it had been granted approval for mining authorisations in March 1998, in terms of the then applicable Minerals Act No. 50 of 199. The first respondent argued that mining authorisations approved and granted under the Minerals Act entailed that no further authorisations were required where a mining right subsisted.

The court pointed out that mining authorisations were subject only to the provisions of the Minerals Act and there was no provision similar to that in the Mineral and Petroleum Resources Development Act, 28 of 2002. The court found that the concerned properties were not inside a municipal area and were never the subject of any zoning controls when mining authorisation was granted. On the basis of this alone, no further authorisations were required under any other legislation. Accordingly, the application was dismissed with costs.