Environmental Case Law Index

This was an appeal against the decision of the court a quo, which dismissed an urgent application on the ground that the application was not urgent. 

The court dealt with the requirements for a judgment to be appealable. The court relied on the Erasmus Superior Court Practice, A1 – 43 in formulating the requirements. First, the decision must be final in nature and not capable of alteration by the court hearing the matter. Secondly, the decision must be definitive of the rights of the parties, through granting a definite and distinct relief. Lastly, it must have the effect of disposing a substantial portion of the relief claimed in the main proceedings. 

Relying on Lubambi v Presbyterian Church of Africa, the court further found that the ruling that a matter is urgent and must procced on that basis, was found not to be an appealable ‘judgment or order’ and such an order is similar to an order giving direction in regard to evidence, or referring a matter to trial. It is therefore not appealable.

In removing the matter from the roll with costs, the court held that the case was concerned with procedure and not the substance of the application. 

This was an appeal to the Supreme Court against the judgment of the High Court that ordered the appellants to pay security for the costs of the second respondent. The second respondent had opposed an application brought against it by the appellants in the High Court challenging the renewal of an exclusive prospecting licence (EPL 2101) issued by the first respondent in terms of the Minerals (Prospecting and Mining) Act 33 of 1992. The second respondent then filed an application for security in terms of Rule 47(1) as read with Rule 47(3) of the Rules of the High Court, on the basis that the appellants were persons of no or insufficient means to meet an adverse costs order in their main application and further that the appellants were fronts for parties who had been involved in prior litigation with the second respondent.

The Supreme Court relied on various authorities and emphasised that a court of appeal should not interfere with the exercise of the lower court’s discretion. The court saw no basis on which to interfere with the decision of the High Court that the appellants were persons of straw and that they had been put up as a front for others engaged in prior litigation with the applicant. The appeal was dismissed with costs and the second respondent was awarded the wasted costs occasioned by the abandonment by the appellants of the application in terms of Rule 18 of the Rules of the Court.

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.

This case concerned parties who had competing interests (one being a luxury tourist lodge and the other one was a copper mine) over the same piece of land. They were undergoing litigation, which included a pending action before another court, in which the first and second respondent were seeking the eviction of the applicant from the property which they sold to the applicant in 2002. 

The court considered an application to review and set aside a decision to grant the second respondent an environmental clearance certificate, as well as an interdict restraining them from taking any further action from using the mining rights already granted.

The applicant had earlier stated that they would launch urgent proceedings once they become aware that first and second respondent intend commencing mining activities. However, subsequent communication showed that there were no imminent mining activities. On this basis, the court found that the matter was not inherently urgent, and the application was therefore struck from the roll.  

This Supreme Court case revolved around a compromise agreement between the fourth respondent and the appellant. The fourth respondent, a registered mining company, was going bankrupt and its management was entrusted to the liquidator. The liquidator then granted the appellant the right to treat stockpiles of ore at the mine to raise money to pay the creditors. The appellant then attempted to have all mining activities registered under its name. In doing so, the appellant misrepresented the facts to the third respondents without involving the fourth respondent stating that it paid the creditors their dues and as such, it was entitled to have mining activities registered under its name. However, the fourth respondent succeeded in establishing that the appellant was lying. This led the third respondent to cancel the appellant’s falsely obtained mineral rights. The High Court agreed with the respondents that the appellant's mineral rights over the plot in dispute were justifiably cancelled. The appellant felt aggrieved by the court’s judgement and appealed to the Supreme Court.

The issue for determination was whether the appellant was allowed to register mining rights under its name and whether the third respondent erred in cancelling its rights.

The Supreme Court held that agreements cannot be valid if consent was obtained through misrepresentation. Consequently, it found that the appellant was unjustified and supported the third respondent’s decision to cancel the falsely obtained rights.

The first and second respondents, were parties to a contract in respect of a gold plant for three years with the option to renew. At the end of this period, the second respondent did not renew the contract but recommended the applicant to take over its operations. However, the second respondent continued to mine at the plant and refused to hand the plant over to the first respondent thereby prompting it to seek an interdict to stop the continued mining by the second respondent and applicant. This was granted by the High Court.

The appellant immediately, filed an urgent application to the High Court seeking a provisional order to stop the first and second respondents from disturbing its operations at the gold plant. The two matters went before the High Court for confirmation of the provisional orders. The first order, to stop the first respondent and associates mining, was confirmed. However, the second order, to stop the respondents’ disturbance in the mine, was discharged.  This appeal was against the judgment.

The court found that the first order included all business associates of the second respondent and the applicant was a business associate of the second respondent, as evidenced by the joint venture agreement concluded between the two. 

In conclusion, the court held that the appellant was mining in contravention of the contract when it approached the court for the second provisional order and as a result, the provisional order granted in that case was discharged. The appeal was accordingly dismissed.

This was a consolidated case where the court dealt with the issue of delay in instituting review of the decision of the minister of mines and energy to refuse the renewal of an Exclusive Prospecting Licence (EPL). 

The court considered the issue of delay and not the merits of the refusal to renew licence. The court applied the rule in Disposable Medical Products v Tender Board of Namibia 1997 NR 129 HC where the court held that an inquiry to determine ‘reasonableness’ should be factual and the court can only exercise its discretion after making a conclusion that the delay was unreasonable. The court also considered the scope and object of the Minerals (Prospecting and Mining) Act, No 33 of 1992 with regard to compliance with specific timelines. 

The court held that the delays occasioned by the applicants were unreasonable and the explanations in both applications were unsatisfactory for the court to apply its discretion. Accordingly, both applications were dismissed with costs.

This was a criminal appeal on the sentences imposed for unlawful possession and import of rough and/or uncut diamonds.

The appellant’s counsel submitted arguments in support of additional grounds of appeal that were not entertained. The court applied the rule that a notice of appeal should clearly set out the grounds of appeal.

The court considered whether the magistrate erred by failing to adequately take into account that the appellant was a first offender, the limited value of the diamonds, the forfeiture of the diamonds, and that the appellant co-operated with the police investigation. The court was satisfied from the contents of the judgment on sentence that the magistrate considered the personal circumstances of the appellant. The court also held that forfeiture was not a mitigating factor since the appellant had no recognisable right in law in the articles forfeited.

The court also considered whether the magistrate overemphasized the seriousness of the offence. It was held that the magistrate was entitled to place the seriousness of the offence and the interest of society when sentencing, due to the potential prejudice of the Namibian Government losing its International trading licence in diamonds.

The court noted that sentencing was a discretionary power. It applied the rule that that an appeal court should not alter discretionary decisions unless the difference between its sentence and the trial court’s is so great to infer that the trial court acted unreasonably. The court held that such a disparity did not exist and dismissed the appeal.

In this case the court provided reasons for granting an interlocutory application to prohibit the respondent from mining on private land pending the outcome of an action for eviction of the respondent.

The applicants alleged that the respondent breached his obligation to rehabilitate the land and provide suitable accommodation for the employees. The court observed that the respondent’s replies to these two aspects were bizarre and that the applicants had made a strong case for cancelling the agreement. Consequently, the court held that the relief sought was justified on the merits of the case.

The court went on to observe that, based on the application of the doctrine of res litigiosa (subject of a pending action) according to Namibian law. The court observed that the right to mine generally fell within the meaning of alienating property as per the common law principle of res litigiosa. However, the provision in the Minerals Act provided that the plaintiff in a pending action for delivery of the res (property) would not automatically become entitled to an interdict against the miner.

The court applied the Webster v Mitchell test as read with the provisions of the Minerals Act. Consequently, it held that even if it was open to some doubt that the mining agreement was validly cancelled, the applicant became entitled to an interdict, with no need to comply with the further requirement to obtain an interim interdict.

Accordingly, the court was satisfied that the applicant was entitled to the relief granted.

This was an appeal against the decision of the Magistrates Court, dismissing the appellant’s application for bail. The appellant was arrested for possessing gold without a licence.
At the initial bail hearing, the Magistrate questioned the issue of abscondment and held that the appellant was unlikely to stand trial for various reasons such as him being a “a man of means” who “could use that status to abscond”. The magistrate further held that the stipulated mandatory penalty “could certainly ignite motives of abscondment” and that “the onus was now on the accused to show on a balance of probabilities that his admission to bail would not prejudice the interests of justice”.
The court, therefore, had to decide whether the magistrate’s approach to onus was erroneous in light of the evidence placed before him.
The court held that the magistrate a quo did not misdirect himself as to the approach to follow but had failed to exercise due diligence. He made unfounded allegations which did not indicate whether the appellant was likely to abscond for those reasons. He had also left a lot of issues open ended such as the severity of the penalty, the issue of passports and had ultimately failed to assess the strength of the evidence forwarded by the appellant.
Therefore, the magistrate a quo misdirected himself his evaluation of the likelihood of abscondment by the appellant and the evidence did not indicate that the appellant would abscond. Accordingly, his decision to decline bail was set aside.

This was an application seeking an order setting aside the sale of granite blocks to the second respondent. The application also sought to compel the first respondent to offer the blocks to the applicant in terms of a ‘right of first refusal’ agreement between them. The application was filed following reception of information that the first respondent was moving granite after a sale to the second respondent without their knowledge.
The application was brought on an urgent basis by the applicant.

The court had to determine whether the matter was urgent and whether the applicant had a claim against the second respondent for granite sold and whether to interdict further movement of the granite in question.

The court held that at the time of the hearing, the granite had not been removed from Zimbabwe and if the applicant was entitled to protection of its rights, it was the duty of the court to ensure that the matter was determined urgently.

It also held that any claim that the applicant had to the right of first refusal would depend on whether it can show that the second respondent was aware or ought to have been aware of its prior right or claim to the stone. The claim fell away as the conduct of the second respondent did not show any mala fide intention.

The interdict application was thus denied because the applicant had no rights to enforce against the second respondent.