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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Criminal law – defences – ignorance or mistake of law – acting in accordance with advice given by official whom the appellant had reason to believe was charged with administration of the law– mistake or ignorance of the law a defence when directly brought about by such advice
This case concerned an appeal against the appellant’s conviction and the decision to sentence him to six months imprisonment, of which 3 months were suspended for a period of 5 years on condition of future good behaviour.
The appellant, a self-admitted illegal gold dealer, approached three men to buy gold. After paying, he discovered that he bought fake gold. To recover his money, he lied to the police, indicating that he was robbed by the three men. The police arrested them and during their interrogation realized that the appellant had lied to them. The appellant was then arrested and admitted that he made a false report.
While the appellant pleaded guilty, he appealed against the sentence imposed arguing that it did not take into account mitigating factors. He also submitted that the court should have considered a fine as an alternative sentence.
The appeal court found that it should not lightly interfere with the lower court’s sentencing discretion. Further, that the lower court did take into account mitigating factors, such as the fact that the appellant pleaded guilty and was a first offender. It further noted that the court had to also consider aggravating factors, especially the fact that the appellant was an illegal gold dealer trying to use the police as debt collector.
The appeal court held that the lower court adequately took into account all relevant factors and imposed a fair sentence.
Accordingly, the appeal was dismissed.
Environment – environmental impact assessment – requirement for – such requirement additional to considerations for issue of mining permit
Mines and minerals – mining dispute – resolution – decision of mining commissioner appeal from – appeal lying to High Court – Permanent Secretary in Ministry having no appellate jurisdiction
The accused was charged on several counts for the unlawful possession of gold without a licence, smuggling and the use of a vehicle with secret or disguised places for concealing goods. In his defence, the accused stated that he was not aware of the presence of gold on the vehicle having borrowed it from another person who was a gold dealer.
The main issue for the court’s consideration was whether the accused person had knowledge of the existence of the gold. The court noted that the burden of proof in criminal matters rests on the state and that the state is required to prove its case beyond reasonable doubt. The court found that the state failed to adduce sufficient evidence to prove that the accused indeed had knowledge of the existence of the gold and the compartments.
Given these circumstances the court gave the accused person the benefit of the doubt and he was acquitted on all three counts.
In this High Court case, the applicant sought interim and final orders to the effect that the first respondent be stopped from carrying out mining activities on the disputed area.
The applicant was a registered holder of Legion Mine in Gwanda (“mine”). The respondents then entered into a three years’ tribute agreement with the first respondent. Terms of the agreement required the first respondent to pay royalties to the applicant. However, after the three years expired, the first respondent refused to sign the new contract and to pay royalties to the applicant.
The issue for determination was whether the final order and an interim injunction could be issued against the first respondent, as sought by the applicant.
The respondent argued (1) that the damages suffered were reparable, and thus, a stop order could not be issued; (2) the affidavit was defective for failing (a) to indicate that the matter was urgent and (b) to make a distinction between payers that needed a final order and interim order. In response, the court held that (1) an interdict could be issued if the damages suffered are difficult to assess; (2) failure to title an affidavit as urgent does not make it defective if that could be read from the content of the affidavit; and (3) the applicant's affidavit was clear that she wanted an interim injunction stopping the first respondent from carrying out mining operations and the final orders for a complete cessation of mining activities.
Accordingly, the Court ordered the applicants prayers as sought.
The plaintiff issued summons claiming damages for malicious arrest, detention and prosecution due to the first defendant’s conduct during his employment with the second respondent. The second defendant owned a mine and employed the first defendant as a security manager. The plaintiff alleged that the first defendant laid false charges to the effect that the plaintiff had stolen gold slime from the mine, which resulted in his arrest, detention and prosecution for theft of the gold slime. The defendants averred that the first defendant discovered that 75 000 tonnes of gold slime had been stolen from the mine and he made a report to the police. After making investigations it was established that the plaintiff had instructed two of the employees of the second defendant to collect gold slime from the second defendant’s mine, which resulted in the plaintiff being arrested. At the pre-trial conference it was agreed that the issues were whether the defendants maliciously and wrongfully caused the arrest of the plaintiff and whether the plaintiff suffered damages as a result.
Held: (1) it is an actionable wrong to procure the imprisonment or arrest of anyone by setting the law in motion against him maliciously and without reasonable cause.
(2) For the plaintiff to succeed in an action for malicious prosecution he must prove that the prosecution was instigated by the defendants and that it was concluded in favour of the plaintiff and that there was no reasonable and probable cause for the prosecution and that the prosecution was actioned by malice. For malice to be present, the defendant must thus not only have been aware of what he was doing in instituting or initiating the prosecution but must at least have foreseen the possibility that he was acting wrongfully, but nevertheless continued to act, reckless as to the consequences of his conduct (doluseventualis). Negligence on the part of the defendant (or even gross negligence) will not suffice.
(3) The plaintiff failed to prove that his arrest, detention and prosecution were malicious and so the claim would be dismissed with costs.
This High Court case concerned an application for review in which the applicant sought an order that the third respondentÕs decision cancelling the applicants mining registration be set aside.
The dispute arose between the applicant and the second respondent allegedly due to a double allocation of the same mining area to the applicant and the first respondent. The third respondent convinced that there was a double allocation cancelled the applicants mining rights to the extent that their boundaries were overlapping. His reasoning was that the first respondent was the first to be allocated the disputed area. The applicant was dissatisfied with the decision and hence applied for a review to the High Court.
The issue for determination by the Court was thus whether the third respondentÕs decision was justified. The Court held that since the matter was first decided in the Mining CommissionerÕs Court, the appeal was supposed to be directed to the High Court per s361 of the Mines and Minerals Act of 1961 and not to the Minister. The High Court thus held that the entire proceeding, and the decision that followed it, was a nullity.
As such, the determination by the third respondent cancelling the applicantÕs Mining registration certificate held by the applicant was set aside with cost.
The court considered an appeal against the decision of the court below. The appellant was found in possession of gold and arrested because he failed to produce a licence. He was charged with contravening s3 of the Gold Trade Act and convicted following his plea of guilty. He was sentenced to the mandatory five years imprisonment.
The appellant filed a late appeal against his sentence, which the court condoned. In the notice of appeal, the appellant introduced grounds of appeal against the conviction. Thus, the court first had to consider whether the appellants appeal against the conviction was admissible and had merit.
Given that the appellant only filed an appeal against his sentence and not his conviction, and that only the lateness of that appeal was condoned, the court found that the appeal against the conviction was filed out of time and had no merit.
The court then considered the appeal against the sentence. The appellant argued that he did not know he had to have a permit to carry the gold in Zimbabwe, and that he operated under a bona fide mistake of law, that amounted to a special circumstance. The court found that the appellant would not have expected Zimbabwe to have regulations on the possession of gold and his failure to declare the gold upon entry into Zimbabwe reflected his mala fides.
Accordingly, the appeal was dismissed.
The applicant (a mining syndicate) sought several remedies, concerning gold mining and prospecting, against the first respondent, which would materially affect the second respondent (a mining syndicate).
Among the remedies were, that the first respondent should issue the applicant with a certificate of registration over a mining block and that the second respondent, and all those claiming occupation through it, should vacate that site.
The issue facing the court was whether these so-called syndicates were corporate bodies whose corporate status would ordinarily remain unaffected by changes in their membership. The rule applied was the Mines and Minerals Act.
The court held that the applicant described itself as a body corporate, but no incorporation document was produced, thus, the mere coming together of a group of people, or gang, for some commercial purpose such as mining, did not automatically transform it into a body corporate.
The court held that in terms of s 45, which provided for the registration of a mining location, when one applies to the mining commissioner, there was nowhere in that provision, or any other, that said that the mere payment of an application fee for registration, automatically confers rights of ownership or leasehold, or any other entitlement on the applicant. The applicant had not yet acquired any sort of right to enforce, the first respondent’s reason for not having proceeded with issuing a registration certificate was quite reasonable under the circumstances.
The court concluded that the application lacked merit, consequently it was dismissed with costs.
The court considered an urgent application, which was heard in chambers, to prevent the applicants’ eviction from their mining claims.
The mining claims, which were abandoned, were owned by the second respondent. Pursuant to the abandonment, the mining claims were opened up to prospecting third parties.
The applicants claimed that they applied to the relevant authority and were granted a lease of the disputed mining claims. Consequently, they argued that they should not be evicted.
The court, therefore, had to determine whether the eviction of the applicants was lawful.
The court found that the applicants failed to provide evidence showing that they had obtained a lease. It also found that the second respondent, which purportedly abandoned the mining claims in dispute, had been placed under a reconstruction order in terms of the Reconstruction of State-Indebted Insolvent Companies Act [CAP 24:27], which had the effect of voiding every disposition of the property, without the approval of the administrator. In this instance, the administrator did not approve the abandonment. As such, it was null and void, and was not open for prospecting.
The court found that the applicants’ manager and principal officer in person, not the applicants themselves, featured in the provided documents and that the eviction was against that person. The applicants themselves never acquired a right over the mining claims.
Finally, the court found the applicants were sluggard and failed to approach the court in good time.
Accordingly, the application was dismissed.
The court considered an appeal against a prior criminal conviction.
The appellants had extracted gold ore from a gold mine and were intercepted and arrested by the police. They were charged under s368(2) of the Mines and Minerals Act for illegally prospecting for minerals. They pleaded guilty, were convicted and sentenced to the mandatory two-year prison sentence. They appealed on the ground that they were convicted on a charge which was not supported by the facts admitted between them and the State.
The court had to consider whether the appellants’ plea of guilty was sufficient to convict them for contravening s368(2) of the Act. The court found that courts have a duty to protect the rights of the accused and to ensure that they fully understand the charge and the essential elements, as well as that they genuinely, and unequivocally admit to the charge, its essential elements, and the facts alleged by the prosecution.
In this case, the lower court simply accepted the uninformed admission of guilt by the accused as proof and disregarded the fact that the charge was not proved by the facts relied upon by the State.
Further, the court found that the appellants did not prospect for minerals, they simply stored gold ore from a known mine, thus contravening s379 not s368.
Accordingly, the appeal was upheld.
The applicant in this High Court case moved the court to issue an interdict order against the first and second respondent. The applicant needed the court to compel the respondents to restore the supply of water that they had disconnected to the applicantÕs mine. The interim relief had been issued in a previous application, but the applicant additionally sought an order interdicting the respondents from terminating the water supply.
The first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicant argument was that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents argued that they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending their contract.
Thus, the issue for determination was whether the applicant satisfied the requirement for an interdict to be issued.
The court held that in the issue of spoliation, it is established in law that for a party to succeed it must show that the party was in peaceful and undisturbed possession. The court was satisfied that the applicant was constitutionally entitled to water supply, and that interference with this right without a court order was unlawful.
As a result, the interdict was allowed pending the main trial.
The appeal stemmed from the denial of the appellant's right to defend on merits due to the lower court’s grant of an Order 14 summary judgement in favor of the respondent, without properly engaging with the merits of the matter.
Substantively, the court held that in a summary judgement application the plaintiff must bring a prima facie case for the claim, which includes showing the basis of the claim, before the burden shifts to the defendant to defend. However, a complete defence is not required but rather the defendant only needs to show that he has a reasonable defence to the claim and his defence is not a sham or intended to delay payment.
Since the respondent’s claim had been based on an agreement and an alleged assignment, the court reasoned that on assessment of the evidence the argument of assignment lacked the element of intent and thus could not stand. Further, the argument that the respondent was a beneficiary of the agreement in question was unfounded. The trial court therefore erred in its decision to grant summary judgment as the very basis of the claim was reasonably challenged on the facts.
The court thus concluded that the appellant had been unjustifiably been shut out of trial. It thus allowed the appeal setting aside the summary judgement.
This was a preliminary application for a stay of hearing in order for the matter to be referred to arbitration owing to the existence of an arbitration clause in a Royalties Agreement (RA), entered into in relation to the parties’ mining operations. The main matter involved an application for the discharge of leave to move for judicial review on a decision by the respondents to cancel a mining licence.
The court considered whether the judicial review proceedings should have been stayed owing to the existence of an arbitration clause in the RA; and whether the preliminary objection was or was not caught by the provisions of s 6(1) of the Arbitration Act.
The court noted that the main issues for determination revolved around two agreements: the Mining License (ML) and the (RA). The court found that the two agreements ought to have been applied as one agreement. This was mainly because the RA, was an agreement made pursuant to a provision in the ML, and secondly, because the RA provisions were the very ground upon which the ML was purportedly terminated.
The court therefore held that the arbitration clause was applicable. However, the court went on to hold that s 6(1) of the Act precluded the applicant from referring the matter arbitration after it had taken steps in the proceedings or delivered pleadings. The court found that the evidence was clear that the applicant had taken steps in the proceedings. Accordingly, the applicant could not rely on the arbitration clause.