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.
Read also JIFA's Environmental Country Reports for SADC
The court considered an application for an interim interdict preventing the respondents from interfering with the applicant’s business and to remove their security personnel.
The applicant held a licence to deal in scrap metal, particularly to acquire, sell or deal in copper. Police officers, accompanied by the 1st respondent attended at the applicant’s warehouse and advised of its intention to search for certain materials which were suspected to have been stolen from the 1st respondent. The 1st respondent ensured that security were placed at the premises to guard the warehouse until such time as the warrant had been obtained.
The court stated that the requirements for an interim interdict were: 1) a clear right, 2) a well-grounded apprehension of harm if the relief was not granted, 3) balance of convenience, and 4) absence of any alternative remedy.
The court found that there was an alternative remedy available since dealing in copper was a closely controlled trade and that a holder was obliged to keep proper records of the copper in its possession, thus it should have no difficult in accounting for any loss.
The court weighed the prejudice to the applicant if the relief was refused against the prejudice to the respondent if granted. It observed that the purpose of placing the security was to ensure that the premises was safe and no items were lost. If relief was granted, this protection would be lost. Thus, the balance of convenience did not favour the applicant. Accordingly, the application was dismissed.
The court considered an application for a declaratory order and an interdict, declaring the defendants’ waste discharges unlawful and constituting pollution, and prohibiting the defendants from discharging their waste material.
The first and third defendants were mining companies and in conducting their business, they discharged their untreated waste material and effluence into a river. The plaintiffs were inhabitants on the banks of the river and relied on it for their subsistence. The plaintiffs contended that the discharge had polluted the water, aquatic life and disturbed the ecosystem.
The defendants opposed the application by bringing a special plea alleging that the court lacked jurisdiction to hear the matter and it ought to be heard by the Environmental Management Agency. Further, that an interdict should not be granted as there was an alternative remedy available under the Environmental Management Act.
The court found that the argument that the court lacked jurisdiction was without merit. The court observed that there was a glaring need for a declaration as to the existence of a legal right claimed by the plaintiffs but this was not argued nor the fact that the EMA could not issue the declaratory orders sought by the plaintiffs although the plaintiffs were interested persons in the subject matter of the suit. The court found the plaintiffs had a direct and substantial interest in the matter and that there was a need for a declaration to the right claimed by the plaintiffs. Accordingly, the application for special plea was dismissed.
The court considered an application for review concerning the decision handed down by the Magistrate’s Court on whether the accused’s case should have been discharged. The facts were that whilst the complainant was being investigated by the police for theft by finding of gold, the accused, a magistrate, approached the complainant and solicited him for a bribe to dispose of his case. The complainant made a report to the police who set a trap to arrest the accused, after she had received the money.
The defence applied for a discharge of the case, which was granted on the basis that the state witnesses were not truthful.
The court considered whether the magistrate’s decision to the discharge the case was exercised judicially. The court found that the trial court had a discretion to discharge or continue with the trial, and that such discretion ought to have be exercised judicially.
The court stated that a discharge was appropriate where: there was no evidence to prove an essential element of the offence; or no evidence on which a reasonable court would convict; or where the evidence was so unreliable that no reasonable court could act on it. The court held that there was nothing indicating that the witnesses had been discredited and that it was a misdirection for the magistrate to treat the assertions made by the accused as though they were evidence. Accordingly, the court set aside the accused’s discharge and referred the matter back to court for continuation of trial.
The case was in the High Court where the applicant sought to interdict the respondent from entering its diamond processing plant and from coming within 100 meters of the plant because the respondent was interfering with its operations.
The issue before the court was to determine if indeed the respondent interfered with the operations of the respondent. In this case, the judge accepted that the applicant had shown prima facie right over the diamond plant, as it set up the plant which it had been mining and operating from for three years. The court held that the right to mine there would have been in doubt but that did not disentitle the applicant to peaceful and undisturbed possession.
The judge also agreed with counsel for the applicant that the respondent had transgressed or disparaged the existing state of affairs by constantly forcing himself onto the plant claiming ownership of same and even attempting to take over the applicant’s employees which amounted to an infringement of the applicant’s rights. The court held that there could be no other remedy except to prevent the respondent from continuing with his unwarranted misadventures at the plant.
Consequently, the respondent, his agents and anyone acting on his instructions were permanently interdicted from entering the applicant’s diamond processing plant or coming within 100 meters of the said plant. The respondent was ordered to bear the costs of the application.
The court considered an appeal against a judgment of the Gauteng Local Division where the appellants refusal to supply information to the respondent about their industrial activities with possible environmental impacts, was declared invalid and set aside.
Following two requests by the respondent, the appellant refused to give them any information based on a failure to meet the threshold requirements of s 50(1)(a), read with s 53 of the Promotion of Access to Information Act 2 of 2000. Further, that their reliance on s 24 of the Constitution was too broad and in conflict with the principle of subsidiarity. I.e. where legislation giving effect to constitutional rights exists, the provisions of the legislation is where the rights should be located.
The court found that the word ‘required’ in s 50(1)(a) of PAIA should be construed as ‘reasonably required’ in the prevailing circumstances for the exercise or protection of the rights by the requestor. Thus, insofar as the environment is concerned, collaborative governance was a virtue.
The court took into consideration the nature of the appellant’s operations and its consequences. The appellant had a reputation for being a major polluter in the areas in which it conducted operations.
The court found that the information was required to make a decision on future actions and could find no error in the court’s reasoning that led it to an order compelling the appellant to provide the requested information and that there is no room for secrecy.
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.
The court considered an application for a provisional order seeking an interim interdict restraining the respondents from interfering in the applicant’s mining operations. A dispute arose between the parties concerning the boundary between their two claims. It was argued that the commissioner found that the respondent was working outside one of his claims and inside one claim belonging to the applicant.
The court considered whether the interim relief sought should be granted. The court found that the respondent acknowledged that the claim belonged to the applicant but that the commissioner erred in determining that the boundary was within the applicant’s claim. The court held that the applicant had established a prima facie right which required legal protection and that the respondent was entitled to challenge the commissioner’s determination.
The court found further that the respondent did not exercise their right to challenge the determination by the commissioner but rather chose to write letters of complaint which were not sufficient. The court stated that the respondent ought to have formally challenged the commissioner’s boundary determination and in the circumstances could not legally resist the interdict sought by the applicant. The court therefore granted the interdict.
The court considered an application to review a sentence imposed on the accused. The accused was charged with contravening s 3(1) of the Gold Trade Act by virtue of being found in possession of 0.62g of gold valued at $20.62. The accused pleaded guilty and was convicted. The lower court imposed a short sentence whereas as the act stipulated of not less than 5 years for persons found guilty of the offence, unless special circumstances existed showing cause why the mandatory sentence should not be imposed. The magistrate relied on special circumstances pleaded in mitigation.
The special circumstances referred to by the accused were that his wife was in hospital and was going to undergo surgery and that he committed the offence to raise hospital fees and money for the surgery
The court found that these were not special circumstances as envisaged by the act but that what the accused relied on was a common occurrence and did not entail that persons in such situations ought to resort to crime. The court held further, that his illegal action was not a solution to this problem nor would $20 be enough to pay the hospital bills.
The court held that there was no reason why the mandatory sentence should not be imposed. Accordingly, the court set aside the sentence imposed by the trial court and remitted it back to impose the mandatory sentence.
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 an application for the granting of an order to evict the respondent pending the hearing of an appeal. The applicant was the registered title holder of four mineral claims. It instituted action seeking an eviction of the respondent from its registered claims, which was subsequently granted. The dispute between the parties related to ownership and mining claims of the minerals. It was not disputed that the mineral claims were registered in the name of the applicant.
The court considered the parties’ rights of ownership of the minerals. These rights were governed by s 172 of the Mines and Minerals Act, which stated that every holder of a registered block of claim would possess the exclusive right of mining or deposit of the mineral in respect of which the block was registered which occurred within the vertical limits of his block. The court found that the applicant had the exclusive right as the registered holder of the claim.
The court found that to suspend the eviction pending the appeal would entitle the respondent to continue mining, which was an untenable situation and would create a judicial anomaly where the court became a party to the respondent’s unlawful conduct. Accordingly, the court granted the application.
The court considered an appeal against a judgment dismissing the appellant’s exception.
The appellant was a property development company and sought to develop property in low-lying areas adjacent to the Disa river. In order to develop these properties the appellant began to lift these properties to four meters above sea level by dumping waste matter and filling in on the properties. This resulted in the 2nd respondent issuing directives to the appellant in terms of section 31A of the Environmental Conservation Act 73 of 1989 (“ECA”), which required the appellant, at its own expense, to engage a freshwater ecologist and other environmental impacts of their actions.
The appellant complied with the directive but alleged that the directive had prevented it from undertaking any further development on the properties that were below the 1:100-year flood line, as well as the properties that were within the wetland boundary as surveyed by the ecologist.
The court below held that section 34(1) of the ECA provided a right to claim for compensation where loss suffered by a claimant arose from limitations placed on the purposes for which land may be used.
This court found that when the directives were issued, the constitutional and statutory obligations to prevent harm to the environment were met. Thus, section 34 of the ECA could not have been directed at providing compensation for actions taken under section 31A as those provisions regulate harmful activities against the environment.
The court considered a petition against various statutory bodies and offices, who were responsible for land. The petitioners contended that the land in question had been jointly purchased by their late fathers but they were tricked by the respondents, on various occasions, when their land was acquired forcibly without compensation. Subsequently the respondents declined to issue them with a title, purporting that they had surrendered their lease titles for further subdivisions.
The respondents alleged that the petitioners had no standing to institute proceedings and that this was an abuse of process, as parts of the land had been sold and payment received by the deceased parents.
The court considered whether there had been a violation of the petitioners’ right to property. The court found that the act of the first respondent of surrendering back to the government part of the parcel of land, which was bought by the petitioner’s father, was an act of compulsory acquisition which required compensation. The respondents failed to show that such compensation had been given.
In conclusion, the court upheld all the petitioners’ prayers and ordered that they were entitled to Kshs. 4,132,942,326.49 billion, being fair compensation for the loss of land with costs to the petitioners.
The court considered an application for review concerning the forfeiture of gold whereby the respondent was found guilty of contravening s 8(1) of the Gold Trade Act. The accused owned a jewelry shop whereby he traded gold. The Zimbabwe Republic Police Gold Squad regularly visited the accused’s shop to ensure that he was complying with the act. On one visit, it became clear that the accused had not registered 8.59g of gold into the register as required by the act.
The court found that after the conviction of the accused, a review of the record revealed that the learned magistrate had not made an order for the forfeiture of the gold. Despite the accused attempting to secure the return of the gold, he was informed it had been forfeited to the state. Pursuant to the accused’s investigation, and obtaining the record again, the record appeared to make reference to the forfeiture of the gold.
The court found that the only explanation was that the trial magistrate entered the forfeiture clause well after the sentence had been imposed and the accused started claiming the gold. In conclusion, the court found that the conviction and sentence were adequate but held that the forfeiture clause contained in the record be set aside and the accused be sentenced afresh.
The court considered a petition whereby the petitioners averred that they were land owners on which a wind farm was to be developed. The respondents bought the project rights from the initial owners whose application for the construction of the farm had been successful and sought to expand the farm. They obtained permission from the National Environmental Management Authority (NEMA) by renewing the initial project application.
The petitioners alleged that this was against the provisions of the Environmental Management and Coordination Act and the Constitution as the expansion was not implemented in accordance with the law and would violate their constitutional rights to a clean and healthy environment and their rights to own property. The expansion entailed the farm would encroaching onto their surrounding properties.
The issue faced by the court was whether the expansion was legal and whether the rights of the petitioners had been violated or not.
The court held that the expansion could not be logically carried out at the site captured in the original Environmental Impact Assessment and the EIA study report initially filed with NEMA. It could therefore, not be renewed. They had to file a new application and therefore the renewal of the application was contrary to law.
This failure to adhere to the EIA regulations potentially threatened the petitioners’ right to a clean and healthy environment but not their right to own property as the farm did not make use of their land nor did it threaten to use it up.
The court considered a petition against the government’s failure to recognize the petitioner’s right to property and the right to just compensation when it deprived a person of their property. The case involved the construction of a standard gauge railway (SGR) through private land. The petitioner contended that his right to property and just compensation had been violated and that the third respondent had failed to ensure that the appropriate environmental and social impact study of the SGR was undertaken.
The court considered firstly, whether the compulsory land acquisition was carried out in accordance with the Constitution and the law, and secondly, whether the construction of the SGR was in compliance with environmental laws and the Constitution.
The court found that the first respondent had accorded the land owners with the requisite notices and at the enquiry, as required by law, many obliged to the acquisition and were paid. Further, that the petitioner’s reliance on a repealed act was unsupported, and that he had not shown any substantive section of the Land Acquisition Act that was misapplied by the respondents through the process of compulsory acquisition, thus there was no violation of the Constitution.
The court found that an environmental impact assessment had been conducted and that the respondents took into account, all environmental considerations including sustainable development. Accordingly, the petition was dismissed.
This case concerned a dispute over the applicant’s land which became the subject of a mining permit held by the respondent. The applicants sought an interdict from the High Court to suspend all of the respondent’s mining activities. They contended that these activities would cause environmental harm and have negative effects on their business. The respondents argued that by failing to seek suspension of the permit timeously, the applicants exacerbated difficulties for both parties.
The court considered whether the matter was one of urgency and whether the applicants were entitled to the interdict sought. Although the court agreed with the respondent’s observations regarding the failings of the applicants, it held that both parties had an interest in certainty and therefore, took a liberal approach to consider the matter as urgent, noting that this would not prejudice either party.
The court did not find sufficient merit in the grounds for an interdict. The court held that the applicants needed to establish not only a prima facie right, but to show that they would suffer irreparable harm if the relief was not granted. The applicant, however, failed to demonstrate that irreparable harm would ensue if the interdict was not granted.
Consequently, the court did not grant the temporary interdict.
The court also refused to review the administrative decision to grant the respondent a mining permit. It held that the applicant needed to first exhaust all other possible remedies, which it did not do. Accordingly, the court refused the application for review.
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.
Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to water (s 77) – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly
Human rights – right to water – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly
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 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.
This was an application to interdict the respondent from disconnecting water supplies from the applicant’s property without a court order and from charging commercial rates for the use of water from the said property.
The applicant submitted that the respondent was infringing on their right to water as provided in s 77(a) of the constitution. In interpreting the right to water, the court found that the right empowers local authorities to levy rates to raise revenue for service provision and does not prohibit disconnections of water services for non-payment. Additionally, the court held that the right to water contains the protection against arbitrary and illegal disconnections. Consequently, when a bill is genuinely disputed there should be recourse to the court before disconnection as per s 69 (3) of the constitution and the holding in Mushoriwa v City of Harare HH 195/14.
The court held that the applicant had proved his right to water but failed to prove the genuineness of his claim, since he did not provide proof letters of complaint disputing the bills. This also had a negative bearing on the grant of the interdict order.
The court also found that the applicant converted domestic premises for use as commercial premises and was not entitled to be charged domestic rates.
The court also noted that the applicant failed to give adequate information which would show that the respondent did not follow the correct procedure in zoning and rating it.
Accordingly, the application was dismissed with costs.
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.
This case concerned the duty of a public authority to provide portable water to a community that had been exposed to unsafe water. The applicants sought the following orders: the declaration of the respondents’ failure to provide water over one week as unlawful; a directive to the respondents find a temporary solution to provide water and a directive that the respondents take steps to restore the water supply services. The applicants stressed the urgency of the matter and asked the court to condone non-compliance with the provisions of the rules of the court.
The court considered whether the application before it was one of urgency and whether the applicants’ failure to comply with procedural rules could be condoned in the circumstances. The court held that the right to adequate access to water was a constitutional one and that when it was violated, the matter automatically became urgent. Consequently, it determined that the application was urgent and condoned the procedural irregularities.
The court held that it was the function of the local government to provide water. Consequently, the court ordered only the sixth and seventh respondents to temporarily make portable water available and to restore the water supply services in consultation with the applicants. These respondents were further ordered to report back to the court within one month.
The court was, however, disinclined to declare as unlawful the failure of the respondents to provide portable water for over one week, because the community residents themselves were partially to blame for this.
This was an application for a spoliation order to summarily undo the wrongful deprivation of property without investigating the merits.
The applicants claimed that their immovable property (10 Metcalf Road, Greendale) and equipment for water abstraction were seized by the first to sixth respondents.
The first to the sixth respondents raised two preliminary objections: that the matter was not urgent and that there was need for police to join as co-respondents since they were the ones who had seized the applicants’ property. The first objection was abandoned while the second was dealt with in the merits of the case.
The court noted that the applicants were required to prove peaceful and undisturbed control before the disturbance and that the respondent took or destroyed the control unlawfully. However, the applicant would not succeed if the respondent proved valid defenses like they did not commit the spoliation or that they were not involved in the spoliation.
The court found that the applicants were in peaceful and undisturbed possession of the property and equipment although, illegally. However, the court noted that the applicants claimed that they were despoiled of their equipment by the first to sixth respondents who were not natural persons but failed to state who acted on their behalf. The court therefore held that the respondents were not involved in the despoiling.
Accordingly, the application was dismissed with costs.
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.
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 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.