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.
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The matter dealt with an appeal against the decision of the magistrate to sentence the first appellant and second appellant to 15 months and ten months imprisonment respectively, for theft of diamonds. The appellants had pleaded guilty to the charge but appealed against their sentences.
The main issue for the court’s consideration was whether the trial magistrate had erred in passing the respective sentences. The court found that the court below placed too much emphasis on the value of the diamonds and the deterrent nature of the sentences to the exclusion of the personal circumstances of the appellants. Further, it was held that the magistrate did not take into account the cooperation of the appellants or the fact that they were first offenders. The court went on to hold that the magistrate made an unjustified differentiation between the appellants’ sentences.
Accordingly, the court set aside the sentences and substituted them for the payment of a fine amounting to M250 and in default of payment of the fine, imprisonment for two years.
The matter dealt with an appeal against the decision of the Court of Appeal that upheld a decision of the High Court to order that compensation be paid to the respondents for damage caused to economic crops, fish ponds and lakes by the activities of an oil company. The appellants contended that the respondents, despite being occupiers of the land, were customary tenants and that they (appellants) were exclusively entitled to compensation as the owners of the land. The Court of Appeal in upholding the decision of the High Court held that the matter was not predicated on title to land but rather one for entitlement to compensation and granted judgment in favour of the respondents.
The Supreme Court considered whether the lower court was wrong to have heldáthat title to the land, the subject of claim for compensation by the parties, was not in issue. The court held that the issue of claim of title was certainly not before the trialácourt and the learned trial judge was right in not consideringáand determining that issue in his judgment. Accordingly, it held that the court below was right in upholding the trial court's decision that the identity of the land in question was not an issue and claim was solely one for compensation and not title. Accordingly the court dismissed the appeal.
The court had to review an earlier decision by the same court. The accused was charged with contravening the Precious Stones Order of 1970 for wrongful and unlawful dealing in rough and uncut diamonds as a buyer or seller and for possession of uncut diamonds without a licence. The accused had pleaded guilty to all charges and convicted.
The court at hand had to decide on whether the first count of wrongful and unlawful dealing was appropriate in the circumstances and whether the charge and conviction should be amended.
The prosecutor relied on the testimony of the member in charge of the digging area who stated that when he searched the accused, he found three rough and uncut diamonds in her possession and upon requesting a valid dealing license, she failed to do so. There was no indication that the accused was going to sell those diamonds.
The court held that at the time the accused was apprehended she was not dealing in diamonds, but she was merely in possession of them. For there to be a crime there must be an act or on omission, a mere subjective contemplation of future criminal conduct which does not find outward expression indeed or omission is not criminally punishable.
The court held that the correct charge ought to have been one of possession and nothing more and ordered that the charge be amended accordingly. It however maintained that the previous sentence was adequate.
In the High Court, an appellant was applying for bail pending his appeal against both conviction and sentence by the trial court, having been convicted of contravening s368(2) as read with s368(4) of the Mines and Minerals Act [Chapter 21:01] that is, prospecting for gold without a licence. He had been sentenced to two years, being the mandatory minimum penalty for that offence after the magistrate failed to find any special circumstances.
The issue before the court was to exercise its discretion on whether to grant bail to the appellant. The court held that in exercising the discretion on whether or not to grant bail pending appeal, the court must be guided by the prospects of success on appeal and whether there is risk that the applicant would abscond. The judge held that from the court record there was a problem with the rebuttal of the applicant’s defence in the trial court. The applicant had argued that he was carrying a pot and a lid when the police pounced, but state witnesses alleged that he carried a shovel.
The judge was satisfied that the applicant had discharged the responsibility upon him and that the court should indeed exercise its discretion in the applicant’s favour. Accordingly, the judge granted the application on condition that he deposited a sum of $100.00 with the Clerk of Court, he resided at a particular village and to report at a police station twice a week on Mondays and Fridays between 6.00 am and 6.00 pm.
In this case, the High Court considered a murder charge and whether the defence of private defence and/or the defence of property was sufficient to warrant an acquittal.
The accused was employed as a security guard by a private security company. While on duty he shot and killed an illegal diamond panner. Against the murder charge, the accused raised the defence of private defence and the defence of property. The facts were not disputed that the accused and his colleague were attacked by a mob of illegal panners who threatened to kill them. The accused fired a warning shot but the mob persisted until he fired the deadly shot which dispersed the mob.
The court held that the accused was lawfully employed to protect the employer’s assets from theft and entitled by law to protect himself. The court found that in this case a warning shot had been given and the life of the accused was in danger. The court held further that the action in self-defence was not disproportionate or unreasonable. Accordingly, the court found the accused not guilty and he was acquitted.
This was an application for an order of remedy of spoliation and an interdict.
The applicantĺs main argument was that the actions of the respondentsĺ occupation of the diamond mining site at the Chiadzwa Concession amounted to an act of spoliation against the fifth respondent.
Firstly, the court determined whether the applicant (a foreign company) was required to furnish security for the costs of the respondents before the application could proceed. The court noted that such orders are matters of its discretion and are only issued when there is a reason to believe that a company will be unable to pay the costs of the suit.
Secondly, the court found that the second to fourth respondents had come to court with Ĺdirty handsĺ but had cleansed themselves.
Thirdly, it was held that the applicant (a shareholder of the fifth respondent) had the locus standi to bring the derivative action as an exception to the rule in Foss v Harbottle  2 Hare 461, 67 ER 189.
Finally, the court found that the applicant had proved the elements of spoliation: peaceful and undisturbed possession and the act of spoliation on a balance of probabilities. However, the court held that allowing the fifth respondent to resume mining operations as before, when the right to do so expired, would be contrary to public policy. Nevertheless, the court noted that the applicant was entitled to a final order and ordered the restoration of its rights when the validity of the special grants was regularized.
The court considered whether the State High Court had jurisdiction to entertain a matter about mines and minerals.
The court held that according to s 251(1)(n) of the Constitution as amended, the Federal High Court had jurisdiction about mining operations.
The court found that the statement of claim showed that the cause of action accrued in 1996; therefore, the law that was in existence at that time is applicable. Further, the court found that the construction, operation and maintenance of an oil pipeline by a holder of oil prospecting license is an act of mining operations. The facts of the case therefore fell within s 230(1)(0) of the 1979 Constitution. The trial court lacked jurisdiction.
The court accordingly upheld the appeal.
The court considered a criminal appeal against the sentence imposed on the accused.
The accused was convicted, on his own guilty plea, for contravening s 3(1)(a) of the Gold Trade Act by being in possession of 0.15 grams of gold without authorisation.
The evidence revealed that the accused was asked whether there were any special circumstances, which the court below established did not exist and sentenced him to the mandatory minimum sentence.
The accused argued that the trial judge did not explain in full what special circumstances meant and the inadequate explanation prejudiced him. The respondent agreed and stated that the explanation was “special or extraordinary mitigating factors” where it should have referred to special circumstances.
The court found that the Act did not define special circumstances, and it was on a case by case basis. However, the court below took all necessary steps to explain the meaning and import of special circumstances, which was given in clear unambiguous terms.
The court found that the accused was not an illiterate person and appreciated what was taking place and there was nothing preventing him from asking the magistrate for clarity. Further, that the accused’s conduct once arrested, in running away illustrated a guilty state of mind.
The court found that the accused’s special circumstance of “being the only breadwinner” was clear that he was aware of the offence being committed. As such, the court found no merit in the appeal.
This was an application for an interim relief of setting aside the first respondent’s directive that ordered the applicant to cease their diamond mining operations after the applicant’s rights in a ceded portion of a special grant 4765 expired.
The applicant argued that clause 8 of the grant allowed it to work the sites which were ceded to it for an indefinite period of time. The first respondent countered this on the basis of s 291 of the Mines and Minerals Act that requires special grants to be issued for a specified period of time.
Further, the first respondent argued that no real cession had occurred since the applicant as the holder of the ceded and ‘residual’ portions of the grant were operating outside the law.
The court noted that the first respondent gave the applicants a 5-year period to renew the grant when they allowed the grant to operate outside the law before declaring it invalid, and the applicants still failed to renew it. For this reason, the applicant was found to have approached the court with ‘dirty hands’ since it was in breach of the condition of the special grant and s 29 of the act.
The applicant failed to prove that the first respondent acted unlawfully, unreasonably or disproportionately for the court to apply its review discretion. The court, therefore, held that the first respondent was right in exercising its administrative discretion and pronouncing what the law said.
Accordingly, the application was dismissed with costs.
The origin of the application is an interim interdict prohibiting the first, second and third respondents from carrying out mining activities and ordering the fourth and fifth respondents to clear illegals who were working at the mine. The first respondent sought a review of this order and got an interim interdict that ordered for the eviction of the applicant and prohibition from mining.
This application arose when the applicant sought direction from the judges in chambers for anticipation of a return date and also rescinding the eviction order.
The court applied Order 33 of the High Court Rules and held that the pending review suspended the operation of the order issued in the magistrate court. Consequently, the applicant could not exercise the rights conferred upon him unless the review was determined in his favor.
The court found that the mine lies in the applicant’s plot. However, the court found it important for peace to prevail at the mine and that both parties be removed from the mine pending resolution of their dispute.
The court held that the applicant was able to prove all the requirements of an interdict: he had a right to mine; he would suffer irreparable damage if the respondent continued with their mining operations; he had no alternative remedy and he proved his case on a balance of probabilities against the respondent.
Accordingly, the interdict was granted pending the resolution of the dispute and the security guards of both parties were ordered to guard the mine jointly.
The applicant instituted proceedings by urgent chamber applications seeking interim relief against the respondents relating to mining activities in Antelope 68 Mine.
The court ruled on three preliminary objections by the first and second respondents that opposed the validity of the certificate of urgency, the urgency of the matter and that domestic remedies provided in the Mines and Minerals Act were not exhausted.
Firstly, the court noted that a certificate of urgency differs from an affidavit. It was held that the rules allowed the execution of a certificate of urgency by a legal practitioner who is employed by the firm of attorneys which represents the applicant. It was further noted that the validity of the certificate urgency is a cause of concern only when a chamber application is not served to the respondent.
Secondly, the court found that a party must show good cause for preferential treatment that comes with certifying a matter as urgent. The court held that the applicant failed to account for his failure to seek relief on an urgent basis at the very latest soon after the early March invasion when the respondents continued to go to the mine. Consequently, it was held that the matter lost its urgency when the applicant failed to treat it as urgent.
Accordingly, the court ordered that the matter be struck off the roll of urgent matters and did not find it necessary to deal with the third objection. The applicant was also ordered to pay costs.
This was an application for the discharge of the accused persons for lack of evidence pursuant to s 198 (3) of the Criminal Procedure and Evidence Act. The state had alleged that the accused persons were acting in common purpose through a series of fraudulent misrepresentations to the Government of Zimbabwe, the Ministry of Mines and Mining Development and Zimbabwe Mining Development Corporation (ZMDC) and induced ZMDC to enter into a joint venture agreement of diamond mining with Core Mining (Pvt) Ltd. They fronted Benny Steinmeitz Group Resources (BSGR) as its guarantor and on that representation, the government approved a contract, it never would have otherwise approved.
Relying on the parole evidence rule that posits that parties are strictly bound by the four corners of the contractual document and nothing outside it, the court held that both government and ZMDC cannot be heard to complain that they were duped into signing the contractual document under the mistaken belief that BSGR was standing as guarantor for Core Mining when the contractual document makes no mention of BSGR at all.
Court further held that the state closed its case without leading any evidence pertaining to the misrepresentations allegedly made by the accused concerning the due diligence exercise on Core Mining. That misrepresentation is a vital component of the crime of fraud without which the crime cannot be committed. The state having failed to establish a prima facie case against the accused, it was accordingly ordered that both accused be acquitted and discharged.
This was an application by the plaintiff seeking an order declaring the first and second defendants’ construction of a milling plant and prospecting activities as unlawful, for interfering with the plaintiff’s agricultural activities.
The first defendant opposed the reliefs sought, on grounds that he was the lawful owner of the mining blocks.
The court first assessed the evidence and concluded that the defendants were not in compliance of the procedures set out under the Mines and Minerals Act, for registering the claims and the subsequent conversion into blocks. The court further held that the defendants failed to show any plan lodged with the Commissioner of Mines, as required under the Mines and Minerals Act.
Lastly, the court determined whether the land in dispute was cleared on or before the registration of the blocks and whether such land is the only portion, suitable of for farming. After outlining the rights of various parties, the court concluded that the plaintiff had no right to clear the land pegged for mining. However, the court could not make a holding on whether the prospecting operations were interfering with the plaintiff’s agricultural activities. This is because the plaintiff failed to
clarify whether the cleared field was located 450 metres from the principal homestead. The court therefore referred this issue to the Mining Commissioner for investigation and report, according to s 345 of the Mines and Minerals Act.
The court ordered the defendants to stop mining operations without complying with the law and to pay costs.
The applicant in this High Court case was seeking interim orders that (1) the first and second respondent be ordered to restore the supply of water from Blanket Dam in Gwanda to the applicant’s mine; (2) the first and the second respondent be interdicted from interfering with the applicant’s possession of his water supply infrastructure without obtaining a court order to that effect.
The facts were that the first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicants argued that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents, on the other side, argued that the matter was not urgent, and they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending the contract between them.
Thus, the main issue for determination was whether the applicant had satisfied the requirement for an interim order to be issued;
On the first issue, the Court held that the applicant had satisfied the requirements for an interim order which are, (i) prima facie right; (ii) reasonable apprehension of irreparable injury; (iii) no alternative relief available; (iv) and the balance of convenience favouring the granting of the interdict.
As a result, the interim order was allowed pending the main trial and the hearing of the interdict.
This was an urgent chamber application by the applicant in the High Court to interdict the first respondent from carrying out mining operations on its claim; from interfering with its lawful mining operations; and to desist from acts of uncontrolled violence they had unleashed at the site.
The issue before the court was to determine whether the Mining Commissioner should revisit the same dispute. The first respondent contended that the matter was not urgent since the dispute between the parties had been resolved in favour of the first respondent by the Mining Commissioner. However, it was found that the respondent had been ordered to stop but had allegedly resumed illegal activity.
The court held that in terms of s345(1) of the Mines and Minerals Act [Chapter 21:05] where both parties have agreed in writing, the Mining Commissioner should resolve the dispute regardless of the original jurisdiction of the High Court. It was also found that s346 confers upon the Mining Commissioner judicial power to hold a court in order to determine a dispute in the simplest, speediest and cheapest manner possible. The court held that the Mining Commissioner exercised judicial power including the rules of natural justice and that once he pronounced himself on a matter, he became functus officio and so cannot revisit the same dispute in order to review his own decision.
The court held that the applicant had exhibited proof of lawful registration of the mining claims. Consequently, the appeal succeeded.
The court considered an appeal against the High Court’s decision not to interdict arbitration proceedings.
The facts leading to the appeal were that a joint venture was entered into by the appellant and two mining companies. A dispute subsequently arose which the appellant claimed rendered the contract void ab initio. The first respondent sought a declaration that the contract was valid and soon after, referred the dispute to arbitration. However, the parties failed to agree on an arbitrator and one was appointed by an arbitral institution. Although the appellant boycotted a pre-arbitration meeting, the arbitrator proceeded, identified preliminary issues, and ordered the parties to file submissions. This prompted the appellant to file an urgent application to prevent the arbitration proceedings. The High Court’s refusal grant the interdict is what the appellant appealed against.
Before considering the appeal, the court observed that it was strange that the there was no nexus between the relief sought in the court below and that sought on appeal. The court went on to point out that the appellant refused to correct an error in its citation of the respondent in the proceedings but instead sought to hold out the matter as undefended. This was an abuse of court process. On this basis alone the proceedings could not be sustained.
Accordingly, the appeal was dismissed. The court held that the wrong citation was compounded by the appellant’s refusal to rectify the error and made an order for exemplary costs.
The court considered an appeal against the conviction and sentence of the appellant. The appellant had been convicted and sentenced for wrongfully, and unlawfully possessing 269 grains of concentrates containing gold, valued at $1 896,23 while not being the holder of a licence or permit, and not being the employee of any permit or licence holder, in contravention of s 3 of the Gold Trade Act.
In considering the evidence, the court noted that a detective constable jumped over the fence towards the back of the house and saw the appellant (who had a smelting pot in his hand) and another person. The constable succeeded in grabbing a plastic bag protruding from the appellant's pocket as he ran through a gate, dropping two gold stones in the process. The appellant was later arrested, giving a warned and cautioned statement, in the presence of his legal practitioner.
The court upheld that although the statement made it very clear that the appellant knew that gold was being smelted in his workshop, his defence was that he was unaware of that fact until the police were about to come on the scene. This explanation might have raised a modicum of doubt but since it had been confirmed some months later in the presence of the appellant's legal representative, it was inherently improbable.
The court found that on that state of the evidence, it was quite clear that the conviction was fully justified on the facts and the appeal was thus dismissed.
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.
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
Environment – environmental impact assessment – requirement for – such requirement additional to considerations for issue of mining permit
The applicant approached the court by motion proceedings claiming that the suspension of the digging licence at Kao Diamond Mininq by the respondents be declared null and void. The applicant also prayed for damages and costs of the suit.
The respondents raised an objection on a point of law and submitted that the applicant was abusing court process by using motion proceedings to institute a case where there was a dispute of facts.
The court applied the rule that motion proceedings are preferred where the issues are clear. Further, the court held that matters brought by motion proceedings on disputed facts should be dismissed with costs. The court found that the applicant’s claim was based on issues of fact and law thus the difficulty in choosing how to institute the claim.
The court noted that it was required to examine the alleged dispute of fact and see whether in truth there was a real issue of fact which cannot be determined without oral evidence. Additionally, the court had the discretion to decide disputed claims by motion proceedings in appropriate cases.
It was held that the claim on license suspension by motion proceedings was correctly instituted and the damages claim was dismissed. The court applied its discretion as per rule 8 sub-rule (14) of the High Court Rules and ordered the matter to trial for the resolution of the license suspension. It was also ordered that the affidavits be considered as pleadings and the costs of the application be costs in the trial.
This was a counter-application by the fifth respondent (now applicant) against first and sixth respondents (respondents), for an order declaring a mining lease between the Basotho Nation and another company void. The applicants also prayed for costs in the event that the application was opposed. The applicant claimed that there was non-compliance with the procedures prescribed by sections 6 and 7 of the Mining Rights Act of 1967, as amended, when granting the lease.
The court determined whether Order No. 1 of 1970 which was enacted after the coup d'etat of 1970 abolished the office of the King and his executive power of allocating land or interest in land as contended by applicants.
The court noted that the applicant quoted Makenete v Lekhanya and others C of A (CIV) 17/1990 in support of the position that the order abolished the office of the king. However, it was noted that this position was only referred to in the obiter, (not the main holding) which failed to consider the effect of the Regent (Assumption of Office) Notice of 1970.
The court then interpreted the definition of regent to be “one who is invested with royal authority by”. Consequently, it was found that the notice appointed Queen Mamohato Seeiso to be regent for the duration of the King’s absence from Lesotho. It was further held that the king’s office had not been abolished since the queen was appointed to be his regent for the duration of his absence.
Accordingly, the application was dismissed.
This was a criminal trial in which the accused was charged with two counts for contravening the Mines and Minerals Act and the Money Laundering and Proceeds of Crime Act.
The court determined whether the accused misrepresented that he had the mandate to sell a special grant which prejudiced the buyers. In finding the accused guilty of fraud, the court pointed out that the accused mispresented that he had the authority to deal with a coal mining concession held under a special grant. Through the misrepresentation, the accused personally benefitted from the proceeds. The court further pointed out that the moment the accused benefitted from the criminal activity, the property became proceeds of crime. The accused further received occupation of the immovable property which he was not entitled.
On the criminal charge against the accused for ceding a mining right to a third person without the consent of the president, the court held that the section does not create a criminal offence. It merely sets out the characteristics of the special right and how it can be assigned.
The accused was found guilty on both counts and sentenced to 10 years imprisonment, with 2 years suspended for 5 years. Further 4 years were suspended on condition that the accused paid restitution to the complainant. Effectively, the accused was sentenced to 4 years imprisonment.
The fifth respondent was created by statute for the purpose of implementing a project design to dam water. The dam was built and flooded the area that the appellant had obtained a mining lease for, making mining impossible. The government then unilaterally cancelled the appellants’ lease. The appellants filed an application to set aside this cancellation. Their application was granted.
The fifth respondent filed a counter-application to set aside as null and void the mining lease on the grounds that the mining lease was a nullity because it had allegedly been concluded without a recommendation by the Mining Board and without prior consultation with and approval of the Principal Chiefs within whose areas of jurisdiction the mining lease area fell. The fifth respondent further submitted that such recommendation and prior consultation and approval were peremptorily enjoined by s 6 of the Mining Rights Act No. 43 of 1967, so that non-compliance with both, or with either, of these requirements invalidated the granting of the mining lease by the government to the applicants and rendered it a nullity.
The court considered whether the mining lease complied with requirements of the Mining Rights Act. It found on the facts that the fifth respondent had successfully discharged the onus of proving that neither of the abovementioned requirements had been complied with before the lease was concluded. Accordingly, the lease was set aside. Costs were awarded in favour of the respondent herein.
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 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.
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 was an urgent application by the applicant, seeking an order to stop the respondents from mining gold ore from an area which the applicant had a prospecting licence.
The court set out the requirements of an interdict and held that the applicant was required to prove the existence of a prima facie right. Secondly, that there was an injury actually committed or reasonably apprehended. Thirdly, that there was an absence of a similar or adequate remedy. Lastly, that the balance of convenience favoured the grant of the relief.
The court pointed out that the applicant had other remedies available. Such remedies included using the Ministry of Mines to demarcate the area between the parties. Secondly, ore claimed by the applicants was held as an exhibit in a criminal case, thereby removing urgency in the application and any irreparable harm that could be occasioned by waiting.
Accordingly, the court declined to deal with the matter on urgent basis, dismissed the application and ordered the applicants to pay the respondents’ costs on an ordinary scale.
This was an application for a decree of perpetual silence against the respondents for engaging in lawsuits aimed at harassing the applicants. The dispute between the parties emanated from certain claims in a mine, which resulted in over 30 court applications between the parties.
The court first dealt with the nature of the relief sought by the applicants. The court after citing authorities pointed out that the relief is recognised in the jurisdiction of the court. The court pointed out that in cases where repeated and persistent litigation between parties, in the the same cause of action, the court can make a general order prohibiting the institution of such litigation without the leave of the court. It was noted that such a remedy is extraordinary as it makes a person deaf before the court. The court also pointed out that the remedy is only granted where a party demonstrates to the court that the defendant or respondent is a serial litigator, with a tendency to abuse the court, the court process and the other party.
In dismissing the application, the court dealt with the history of the litigants and concluded that the respondents had a defined cause and were not serial litigators.
The court dismissed the application with costs on a higher scale.
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