Environmental Case Law Index

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 court considered a criminal appeal against the sentence imposed on the accused, who was sentenced to a mandatory 2-year imprisonment for contravening s 368 (1), which dealt with the illegal mining of gold, under the Mines and Minerals Act

Before imposing a mandatory sentence, the court asked the accused if there were any special circumstances relating to the commission of the offence which would result in the requisite sentence not being imposed. 

The accused held that his special circumstances were that he did not have enough money for a bus fare. The court found that this did not constitute a special circumstance as poverty desperation could not be excused for the commission of a crime.

The court found that a special circumstance is within the court’s discretion and thus it should be taken to be any extenuating circumstance. Further, that the court should enquire into all circumstances put forward by an accused to validate the aspect of a special circumstance. 

The court held that a trial court had to ensure that economic situations leading to commission of crimes under economic circumstances at the time did not operate differently for the rich and for the poor. The court found that the court below should have performed a proper enquiry and that the accused should be given the benefit of the doubt. Accordingly, the appeal succeeded.

This was a review in the High Court concerning two accused persons who had been charged with and convicted for contravening s 368(2) as read with s 368 (4) of the Mines and Minerals Act [Chapter 21:05] for prospecting for minerals when they were not holders of licences or permits.

The issue facing the court was to determine whether the accused persons, being widows with minor children, were acting under special circumstances, as the trial magistrate had found. The court held that the learned trial magistrate completely misdirected himself in holding that the circumstances of the accused persons amounted to special circumstances, as there was nothing out of the ordinary about being a widow with minor children to look after. The court also held that the learned magistrate’s line of reasoning was faulty in calling that widows and widowers with minor children should be excused when they break the law so as to fend for the minor children, since it was a recipe for anarchy as there were so many widows and widowers in the country.

Consequently, the sentence imposed by the trial magistrate was not allowed to stand and, therefore, set aside. The matter was sent back to the trial court to recall the two accused persons and impose the sentence of two years imprisonment as mandated by law. Since both accused persons had already served four months imprisonment in the form of community service, they were to serve an effective term of 20 months imprisonment.

This was a case in the High Court where two accused persons were convicted on their own pleas of guilty to contravening s 368 of the Mines and Minerals Act by the Provincial Magistrate.

Having found special circumstances as would entitle the trial court to impose a sentence other than the mandatory one provided in the act; the magistrate sentenced each of the accused persons to 24 months imprisonment of which 12 months imprisonment were suspended for 5 years on condition of good future behaviour. The remaining 12 months were suspended on condition they each complete 420 hours of community service.

The issue before the court was to determine the special circumstances as found by the trial court. The judge applied the rule of Judge J Ebrahim in S v Mbewe and others 1988 (1) ZLR 7(H) to make the determination. The judge’s view was that the trial court erred because the issues put up by the accused were mitigating factors of general application which clearly did not amount to special circumstances at all.

Consequently, the judge ordered that the conviction of the two accused persons stood, and set aside the finding of the trial magistrate that there were special circumstances; and the sentence. The judge also ordered the matter to be sent back to the trial court for it to recall the accused persons and impose the appropriate sentence according to law by deducting from it 53 days equivalent to 420 hours community service already served.

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. 

Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – right to protection of the law – prosecution of former farm employees for unlawfully remaining on farm after acquisition – legislation creating an offence to do so constitutional – no constitutional issue arising

Land – acquisition – former employees remaining on farm – no right to do so – employment ceased on acquisition of farm – liable to prosecution for occupying gazetted land without lawful authority

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 court considered a criminal appeal, where the applicants had been charged for contravening s7(1)(a) or (b) of the Communal Land Act, by occupying or using communal land without lawful authority. The applicants pleaded guilty and were convicted and sentenced to pay a fine of $5000 or 30 days in prison. The appellants appealed the conviction on the ground that the court committed an irregularity by failing to proceed in terms of the correct procedure. 

They contended that by entering a guilty plea, the court had a duty to safeguard the fair trial rights of the accused by adopting a procedure which was most likely to suggest a defence where there was one.

The court considered whether the appellant’s conviction was lawful. It observed that with unrepresented accused persons, there was the ever-present likelihood that out of ignorance of the law, a person would admit to charges of a complex nature out of a desire to draw sympathy of the police or the courts and the onus was upon the court to choose a procedure which would have given the appellants a possible defence.

The court found that the conviction was wrong and remitted the matter back to the lower court. In addition, the court below would be required to take cognizance of s 16 of the Act which required that following a conviction, an order for eviction be granted. Accordingly, the appeal succeeded.

The applicants sought two interdicts restraining the first to fourth respondents from noise pollution through their timber business operations on weekdays between 6.00 pm and 8.00 am on weekdays, any time over weekends and on public holidays; and another interdict in requiring the respondents to limit "any noise generated by their operations”.

The court found that the applicants had a clear right to go about their business without the interference of noise unreasonably caused by the respondents. It noted that the respondents’ figures proved that traffic past the applicant’s premises had increased. Expert evidence also revealed that the noise levels were too high at night.

The respondents claimed that the applicants voluntarily assumed the risk by going to the noise. The court noted that the applicants had decided to expand their cottages 20 metres from a public road without adequate noise insulation and found the defence to be partly convincing.

The court held that the co-existence of the timber and the tourism industry in the area required both parties to give and take. The first interdict was granted partly. The court gave an order prohibiting first to fourth respondents from engaging in the noise generating operations from 8.00 pm to 8.00 am on Mondays to Fridays and after 2.00 pm on Saturdays until 8.00 am on Mondays. The restraint on public holidays was held to be unreasonable.

The second interdict was not granted for being too general and failing to specifically state what the respondents would be refrained from.

The matter concerned an allegation that the accused’s filling stations presented an environmental risk. Having been granted leave, the prosecutor, an environmental advocacy organisation instituted a private prosecution in the Gauteng Division of the High Court against the accused, a fuel supplies company.

The prosecutor claimed that it had complied with all the legislative requirements set out in s33 of the National Environmental Management Act 107 of 1998 to enable it to initiate such a prosecution. Counts 1 to 21 of the indictment alleged that the accused had contravened ss 21(1), 22(1) and 29(4) of the Environmental Conservation Act 73 of 1986 (“ECA”) as read together with other supporting environmental legislation. The said s 22(2) provided that authorisation of activities like construction of a service station would only be issued after consideration of reports concerning their impact on the environment. The accused formally pleaded to the charges divided into two sections. The first was a plea under s 106(1)(h) denying the prosecutor’s entitlement to prosecute and the other was a plea of not guilty under s 106(1)(b). 

The court held that the claim under s 106(1)(h) on defence of want of title to prosecute failed. The court concluded that the prosecutor's case was straightforward and that the accused breached a duty relating to the protection of the environment. It held that in terms of s22(1) of the ECA the undertaking of certain identified activities was prohibited without written authorisation. The accused was convicted on 17 counts and acquitted on four.

The applicant brought this matter to the Constitutional court as a court of first instance having cited the respondents for their failure to implement legislation aimed at containing pollution and to prosecute state a company alleged to have caused pollution. 

The court first had to decide whether it was necessary for the Constitutional Court to be the court of first instance in this matter.

The court stressed that direct access should be granted only in exceptional circumstances. The court stated that justification for direct access was set out in rule 18(2) of the Uniform Rules of the court on the following grounds: if it is in the interests of justice to do so; where the nature of relief sought and the grounds relied upon justify it; whether the matter can be dealt with by the Court without the hearing of oral evidence; and, if it cannot, how evidence should be adduced and conflicts of fact resolved. The court held that these grounds were not satisfied. Therefore the court could not adjudicate further on the allegations against the respondents and dismissed the application. However, in the alternative the court ordered that the Registrar bring the judgment to the attention of the Law Society of the Northern Provinces, with a request that it consider whether one of its members may provide assistance to the applicant as the issues were not set out clearly but were of importance and deserved the attention of the court.

The matter was an appeal from a conviction on the charge of being found in possession of wildlife trophies in contravention of s95 and 92 of the Wildlife Conservation and Management Act of 2013 (“Act”).

The appellant argued that the trial court overlooked the inconsistencies and contradictions in evidence and applied the doctrine constructive possession of the wildlife trophies erroneously.

The court established that evidence must be led to prove the fact of possession and the contradiction in witnesses’ testimonies put the question of possession in doubt. Court also found that the doctrine of recent possession was erroneously applied.

The court considered s92 and established that it does not create an offence in so far as offences in respect of endangered species or their trophies are concerned but only a punishment and as such the suspect could not be tried under it. Further, that the proper provision that created an offence in respect to wildlife trophies and trophies generally was s95 and that suspects should be charged under the same until the Act is amended.

The conviction was quashed and the appeal was allowed on account of failure of the prosecution to prove the case to the required standard.

The court considered an appeal, whereby the plaintiff was claiming pecuniary damages incurred for cleaning up an oil leak into the harbour, for which the defendant was allegedly responsible. 

The defence pleaded that the suit was misconceived and that the alleged loss and damage were not recoverable in law. Further, that the plaintiff disclosed no cause of action and that the case ought to be dismissed. The plaintiff relied on two causes of action, the first in negligence and the second, in terms of the strict liability rule.

The high court held that the only damage proved to have been caused by the oil leak was to the sea water surrounding the harbour, and that the plaintiff did not own that water. Thus, the plaintiff had not suffered any damage to its property and further that in bringing oil to its land in the port area, the defendant was not making a non-natural use of the land.

On appeal, the court held that the plaintiff suffered no actual damage to any of its property as water was not the property of the plaintiff, and pecuniary loss arising out of purely precautionary measures taken to clean up pollution, which might cause damage to property, is not recoverable at common law. It held that the storage of oil on land by a person licensed to generate electricity there, the oil being essential for the production of electricity, did not amount to a non-natural user of the land.

Appeal dismissed.

The court considered a petition whereby the petitioner sought an order of certiorari to quash a Gazette Notice declaring his land to be forest land. The petitioner had entered into a sale agreement with the original owner of the land by which the parties agreed to a down payment upon successful application to the land control board. The Petitioner took immediate possession and contracted to pay the balance of the purchase price after the maize season. The application was made and rejected due to the Ministry of Natural Resource’s interest in the land. Subsequently, the land control board met and the petitioner’s application was granted, however, the land was transferred to the government  and marked a forest.

The petitioner argued that during the dispute, its members were harassed and evicted from their farms, with their houses being torched. 

The court found that there was no doubt that the petitioner had entered into a sale agreement. Further, the control board acted in a manner to deny the petitioner the land. The court found that based on a letter received from the Commissioner of Land, there was a clear acknowledgment of foul play in the manner in which the government came to buy the land. Further, the government had deprived the petitioner of its right to land and subjected its members to poverty. In conclusion, the court held that the land was to be placed in the name of the petitioner as it was the rightful and lawful owner.