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 matter dealt with the interpretation of particular terms of a prospecting agreement which arose from the mining of a grant area.
The Supreme Court considered whether to declare that clause 8 (a) created an obligation to provide sufficient funds on a continuing basis. The test was whether the obligation to fund was limited. The appellant’s argument was based upon a literal reading which the court held was absurd as it would result in regarding the obligation as an unlimited one. Accordingly, the court held that the express terms of the clause contemplated further funding to be determined by a further mutual agreement.
The court considered whether clause 10 entitled the second respondent to call up its loan. The court reasoned that if the loan was never repayable it would not be a loan. The court held that the respondent, Iscor, was not precluded from calling up its loan and to say that it would be is far too wide.
The court considered whether to grant the declaratory order in terms of clause 9. The court found the prayer to be too vague to warrant a declaration. Accordingly, the court held that the declarator sought was without substance.
In order for a declarator to be granted the issue which the declarator seeks to address must be in dispute between the parties. In the circumstances there was no material time when there had been a dispute about the continued existence of the agreement. Accordingly, the court held that it would not grant the declarator sought.
The appeal was dismissed with costs.
This matter dealt with an appeal against both conviction and sentence of the contravention of ss 30(1) and 28 of Proclamation 17 of 1939 pertaining to the theft of diamonds.
The Supreme Court considered whether contradictions in the state case raised reasonable doubt. The court considered that the failure to testify when there is direct evidence of an offence, tends to strengthen the direct evidence, because there is nothing to contradict it. In this case the state witness gave evidence implicating the appellant which called for an answer but did not receive one.
The court considered whether the state witness was a trap. The definition of a trap is someone who proposes criminal conduct to someone else with the intention of securing the conviction of that other person whilst ostensibly taking part himself. The court considered that the state witness took part in the commission of the offence, knowingly stood to gain from the appellant’s arrest and had broached the subject. However, the appellant should have challenged the truth of the assertions made by the witness which he did not. Accordingly, the court held that the appeal against conviction had no merit.
The court considered mitigating factors, particularly entrapment. The court determined that the interests of society are safeguarded by a system of justice that excludes the false entrapping of innocent people because it may bring to court people who had no interest in stealing diamonds. Accordingly, the court upheld the appeal against sentence.
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 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 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 revolved around exploration prospecting licenses (EPL) provided by the first appellant, to the second appellant and the respondent over different mining groups of nuclear resources but in the same land.
At the High Court, the respondent challenged the first appellant’s action (the responsible minister) for giving prospecting and mining rights to another company over an area that the respondent had an EPL agreement to operate in. The High Court had quashed the first appellant’s decision in favour of the second appellant, asserting that the first appellant in offering the EPL agreement to the second appellant did not consider the interest of the respondent as required per sections 68(h) and 69(2)(c)(i) of the Minerals (Prospecting and Mining) Act of 1992. Aggrieved, the appellants appealed.
On appeal, the main issue for consideration was whether the first appellant was justified to issue EPL over an area that the respondent had pre-existing EPL. The Supreme Court upheld the decision of the High Court stating that the first appellant was duty-bound to take into consideration the provisions of ss 68(h) and 69(2)(c)(i) of the act which requires regard to be given on what impact will the additional activities have on the existing EPL holders. The Supreme Court held that natural justice requires that a hearing must be given to the person(s) already holding EPL over an area likely to be affected with subsequent EPLs. In conclusion, the Supreme Court upheld the High Court decision and dismissed the appeal with costs.
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 was a Supreme Court case that revolved around an agreement between the parties which was suddenly terminated. The agreement demanded that the respondent to import oil resources on behalf of the Government of Namibia. The arrangement proved to be failure as the cost of importing petroleum was high against the market price. Consequently, the first appellant, acting in ministerial capacity decided to end the agreement. The first respondent felt aggrieved and filed a suit in the High Court, asking it to review the decision of the cabinet that terminated the said contract.
As such, the main issue, in this case, was whether the cabinet of the government of the Republic of Namibia acted lawfully when it revoked the mandate of the respondents to import petroleum products. The High Court in determining this issue held that the cabinet had no legally tenable reason(s) to end the contract in question.
However, on appeal, the Supreme Court held that under the Namibian Constitution in article 27(2), the executive power of the Republic of Namibia vests in the president and the cabinet. It further held that under the article, the cabinet has the role of supervising the activities of the government departments. Since the third, fourth, fifth, and sixth respondents are government parastatals the cabinet justifiably exercised its regulatory powers in the best interest of the Namibian people.
The Supreme Court thus overturned the decision of the High Court and accordingly upheld the appeal.
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.
The matter dealt with an application to review the minister’s refusal to renew an exclusive prospecting license (EPL) for the applicant. Such a license would ordinarily be granted for an initial period of three years and thereafter could be renewed for not more than two successive periods.The applicant held a license from 1997 to 2000 and thereafter sought a renewal which was granted in 2001. However, the second application to renew was denied prompting the applicant to question the validity of the first renewal, The applicant argued that the acceptance of the renewal was done by an unauthorised individual acting outside his mandate and it should therefore be set aside.
The court considered the validity of the first renewal and held that since the initial renewal was by an unauthorised individual, it was void. Consequently it was immaterial whether the minister granted or refused the second application. The court decided further that section 48 of the Act mandates an applicant to accept the terms and conditions of a renewal within one month, failing which the application would be deemed to have lapsed. Consequently, the initial acceptance was ruled to be void because the application for a first renewal had lapsed.
Therefore, the court concluded that because the substance of the applicant's application for review rested on the respondent's refusal of the second renewal of the EPL, that second renewal could not have been granted or refused, because the EPL had already expired and was never legally renewed.
The matter dealt with an application for review of a decision by the first respondent to grant a reconnaissance licence to the second respondent. The issue for the court’s consideration was whether it was permissible to grant an exclusive reconnaissance license to a non-holder of a reconnaissance license and whether a side note in a statute could be used in the interpretation of a statutory provision.
The applicant conceded that in terms of section 59(1)(a) of the Minerals Act, they were not a holder of a reconnaissance licence and therefore could not have applied for an exclusive reconnaissance as required by that section but contended that an exclusive reconnaissance licence was competent under section 62(1) of the act.
The court in dismissing the application decided that ss 59 to 62 complemented each other. The court cited Chandler v DPP which held that side notes cannot be used as an aid to the construction of legislation as they are mere catchwords inserted by the draftsman and not the legislator. Therefore the notion that the marginal note to s 59 held that the section only deals with exclusive reconnaissance licences was immaterial. The court held that the language of s 59(1)(a) instead demonstrated that an ordinary reconnaissance license could not be issued under s 62(1), unless it was first granted under s 59(1)(a) and ruled that only the holder of a valid reconnaissance license may apply for an exclusive reconnaissance license under s59(1)(b).
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.
This matter dealt with a dispute as to whether there was illegal mining by the respondent on the applicant’s exclusive prospecting licence.
The High Court considered whether expert evidence was required to establish a cause of action. The relevant test was whether a witness proffering an opinion is competent to give one on the matter in dispute. In this case, the court considered that only a land surveyor would be competent to determine the precise boundaries of disputed land. The applicant’s witness was a geologist and not a land surveyor. Accordingly, the court held that expert evidence of a land surveyor was necessary and failure to present it was fatal.
The court also considered whether it was permissible for the applicant to introduce new evidence in the replying papers. The court relied on the principle that in motion proceedings the affidavits constitute both the pleadings and the evidence. Furthermore, the applicant could not substitute a different claim in the replying papers. Accordingly, the court did not consider the evidence of the land surveyor tendered by the applicant during motion proceedings.
Finally, the court considered whether to impose a special costs order against the applicant on the scale as between attorney and own client. The principle followed was that punitive costs should only be awarded in exceptional circumstances. The court considered that there was no demonstrable reprehensible conduct by the applicant. Accordingly, the costs only include the costs of one instructing and one instructed counsel.
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.
The matter dealt with an application by the state to recall witnesses in a trial in which the accused stood charged in the main count with theft of diamonds, or alternatively with possession of diamonds in contravention of Proclamation 17 of 1939. The court had dismissed the main charge on the basis that the link between the objects which were found in possession of the accused, and which were ultimately valued and identified as rough and uncut diamonds, did not exist. However, the state relied on the alternative and requested the court to recall witnesses to prove that these objects were in fact rough and uncut diamonds.
The main issue was whether it was necessary to recall witnesses for the fair adjudication of a case.
The court stated that where the evidence of a witness was necessary for the fair adjudication of the case, the court was obliged in terms of s 167 of the Criminal Procedure Act 51 of 1977 to recall that witness or those witnesses.
The court established that the evidence was necessary for the fair adjudication of the case between the State and the accused, in the sense that a person who was guilty on that charge might be acquitted but that the giving of such evidence would not lead to an innocent person possibly being found guilty.
The court, therefore, held that the evidence was essential for the fair adjudication of the case and granted the application by the state.
Civil Procedure – application for absolution from the instance – Rules of Court - Rule 100 – principles governing the application discussed – requirement for absolution from the instance - whether or not the plaintiff set out a prima facie case – Law of Evidence - whether failure to examine an expert who has filed his report results in the court attaching no value to the expert report – commercial value attached to the Exclusive Prospecting Licence – court’s discretion on how the value of the EPL License is computed.
Practice – Judgments and orders – Application for stay of execution of judgment pending appeal to Supreme Court – Court having jurisdiction to determine matter in terms of its inherent jurisdiction where dictates of real and substantial justice required it.