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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Pinkstone Mining (PVT) Limited & 2 Others v Lafarge Cement Zimbabwe Limited & Another (HH118-18, HC 1751/18) [2018] ZWHHC 118 (07 March 2018); 
EL Index Interim Interdict Injunctions and interdicts Civil Remedies Land use Human exploitation of the environment Environmental law Minerals, oil and gas Minerals and energy Environmental lawThe court considered an urgent application for an order interdicting the first respondent from carrying on mining operations on the applicants’ mineral claims. At some point, the applicants and the first respondent had business dealings involving minerals from those claims. The respondent then went on to register mining claims over a piece of land which included the first applicant’s mining claims. The respondent argued that the matter was not urgent, and that the relief sought was not competent as it was final in effect.
The court considered whether the applicants had established a right to the relief sought. The court observed that the relief sought was an interim interdict, the requirements for which were: a clear right; irreparable harm; balance of convenience in favour of granting the relief, and no other satisfactory remedy. The court found that the respondent intended to mine on the applicants claim, and although the mining hadn’t commenced, the applicants could not wait until it acted and had established the prejudice likely to be suffered.
In determining the balance of convenience, the court weighed the prejudice to the applicant if the interdict was not granted against the harm to the respondent if the relief was granted. In this instance, as the mining activities were not being carried on yet, there was no prejudice to the respondent. Accordingly, the court found that the requirements for the interdict were met and the application succeeded.
S v Tinodya & 3 Others (HH 215-18, CA 668/16 Ref CRB 3503-7/16) [2018] ZWHHC 215 (25 April 2018); EL Index Land use Human exploitation of the environment Environmental law Administrative Action Administrative Law Criminal offences relating to the environment Criminal offences in environmental law Environmental lawThe 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.
G & W Industrial Minerals (Pvt) Ltd (HH 266-18, CIV Á'367/17) [2018] ZWHHC 266 (16 May 2018); EL Index Judicial Review Appeals and reviews Civil Procedure Minerals, oil and gas Minerals and energy Environmental law Procedural Fairness Justice and fairness Civil ProcedureForbes & Thompson (Bulawayo) (Pvt) Limited v ZINWA & Another (HB 147-18, HC 1148-16) [2017] ZWBHC 147 (08 June 2017); Abuse of Process Conduct of proceedings Civil Procedure Injunction Injunctions and interdicts Civil Remedies Interim Interdict Injunctions and interdicts Civil Remedies Minerals, oil and gas Minerals and energy Environmental law Freshwater use Water and coasts Environmental law EL IndexThe applicant in this High Court case moved the court to issue an interdict order against the first and second respondent. The applicant needed the court to compel the respondents to restore the supply of water that they had disconnected to the applicantÕs mine. The interim relief had been issued in a previous application, but the applicant additionally sought an order interdicting the respondents from terminating the water supply.
The first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicant argument was that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents argued that they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending their contract.
Thus, the issue for determination was whether the applicant satisfied the requirement for an interdict to be issued.
The court held that in the issue of spoliation, it is established in law that for a party to succeed it must show that the party was in peaceful and undisturbed possession. The court was satisfied that the applicant was constitutionally entitled to water supply, and that interference with this right without a court order was unlawful.
As a result, the interdict was allowed pending the main trial.
Anjin Investments (Private) Limited v The Minister of Mines and Mining Development & 3 Others (CCZ 6/18, Constitutional Application No. CCZ 38/16) [2018] ZWCC 6 (27 June 2018); Administrative Action Administrative Law Administrative Review Administrative Law Judicial Review Appeals and reviews Civil Procedure Minerals, oil and gas Minerals and energy Environmental law EL IndexThe applicant, had received a letter from the Secretary for Mines and Mining Development alerting them that their special grants for mining had expired and they had to cease all mining activities and vacate the covered mining areas. The Minister further issued a press statement on the consolidation of all diamond mining activities in the grant areas.
The applicant averred that the above decisions had prejudicial effect on it which also violated its property rights.
The respondents alluded that the application was improperly brought before the court as it appeared to be a response to the judgment of the High Court which the applicant had previously lodged but never appealed and that the cause of action was res judicata and that the avoidance principle applied here. The court, therefore, had to decide on these three main points.
The court held that the appeal had been disguised as a case concerning constitutional points and should have been brought in terms of s167(5)(b) of the Constitution.
It held that although the basis of the application had changed with the introduction of the constitutional question, the effect of the relief sought remained the same.
The court also held that the bulk of the applicant’s case was on right to just administrative action which was protected under the Administrative Justice Act which had sufficient grounds to deal with the rights they alleged had been infringed.
The matter was dismissed with costs.
Ricnob Suppliers (Private) Limited & Another v Mandizera & Others (HB 262-18, HC 5563/18 X REF HC 1755/18) [2018] ZWBHC 262 (25 October 2018); Land use Human exploitation of the environment Environmental law Minerals, oil and gas Minerals and energy Environmental law Remediation Environmental remedies EL IndexThis was an application for an order for spoliation. The applicants claimed that they had been unlawfully dispossessed of their quiet and peaceful possession of their property by the first respondent. The first respondent contended that he was issued with a prospecting licence by the second respondent on the same land and that he entered the property on the strength of the authority from second respondent. The applicants alleged that the first respondent entered their land by cutting a fence and causing damage to their property.
The court considered whether or not there had been a spoliation and whether the applicants were entitled to relief. The court established that the first respondent unlawfully deprived the first applicant of its possession of the quarry stone site and that this was an unlawful invasion of the property as the land was private property.
The court noted that the first respondent had not raised any of the recognised defences in an action for spoliation. The court found that the first respondent intended to take over the quarry site by forcibly removing them applicants from the quarry site without following due process as he did not possess a court order to justify his intended action.
Accordingly, the court held that the requirements for an order for spoliation had been met and ordered the respondents to return the applicant’s status quo prior to the spoliation.
Ingcayizivele Farmers Association v Mabuza and Others (39/05/01) (39/05/01) [2008] SZHC 75 (30 November 2008); EL Index Declaratory Relief Civil Remedies Land use Human exploitation of the environment Environmental law African customary law and rights of indigenous peoples Human and environmental rights Environmental lawAt the heart of this dispute was a farmers’ association, the applicant in this case, and its use of land in the Nkambeni Area. The association was formed, with the chief’s consent after he was assured that the community unanimously supported the project to turn their land into commercial property. The dispute initially arose because the second respondent was denied membership of the association because his younger brother was already representing their family. This offended the second respondent who considered himself to be the legitimate representative. The dispute mutated and the respondents alleged that the chief deprived them of their fields without consent. The court considered whether there had been unlawful deprivation.
Previously, the dispute was taken to traditional structures for resolution and ultimately was referred to the Swazi National Council where the King rendered a judgement. The applicant and respondents disagreed about the contents and effect of this judgement. The applicants stated that the association was given permission to pursue its activities and the respondents invited to apply for alternative land. On the other hand, the respondents claimed that traditional structures and the regional administrator ruled in their favour before the Swazi National Council was approached and that the latter declined to give a ruling on the matter.
After considering evidence and witness testimony, the court found that the applicant’s evidence was cogent and consistent while the respondents’ evidence was unsatisfactory and contradictory. Consequently, the application was granted.
Aveng (Africa) Limited v Dlamini ((4070 (a)/07)) [2008] SZHC 74 (21 November 2008); EL Index Injunction Injunctions and interdicts Civil Remedies Healthy environment Substantive rights Human RightsThe applicant prayed to the High Court to grant an interim interdict and set aside a previous default judgement. The first respondent had applied for and been granted damages amounting to E65,0000.00 for damages caused by blasting by employees of Grinaker LTA Civil Engineering (Pty) Ltd. At the heart of this dispute laid the fact that Grinaker LTA Civil Engineering (Pty) Ltd did not exist.
Confusing the applicant with Ginaker LTA (Pty), one of its former names, the second respondent attempted to attach the applicant’s assets at the applicant’s place of business. The applicants informed the first respondent that the company they had sued did not exist by supplying proof in regard thereto. The first respondent did not, however, amend its summons and the second respondent again attempted to attach the applicant’s assets.
The applicant further noted that it and Consolidated Contractors International Company S.A.L. were partners in a joint venture entered into an agreement with the third respondent, the Government of Swaziland. The contract identified the joint venture as contractor and the third respondent as employer. Relying on provision in the Federation Internationale des Ingenieurs-Conseils, the applicant argued that the employer shall indemnify the contractor against all claims in respect of the unavoidable result of the execution and completion of the works.
The applicant, therefore, argued that the respondents should have addressed the summons properly to Grinaker LTA (Ltd), Aveng (Africa) Ltd (successor) and the Swaziland Government (indemnifier).
The court agreed with the applicant’s arguments and granted the application.
Inkhanyeti Yekusasa Investments (Pty) Limited v Bennett ((444/2004)) [2004] SZHC 159 (12 November 2004); EL Index Locus standi in environmental litigation Litigation of environmental issues Environmental law Injunction Injunctions and interdicts Civil Remedies Land use Human exploitation of the environment Environmental lawNtshalintshali v Central Farm Dwellers Tribunal and Others (1776/2010) [2011] SZHC 164 (11 August 2011); EL Index Administrative Review Administrative Law Land use Human exploitation of the environment Environmental lawThe applicant sought to review and set aside the decision of the Central Farm Dwellers Tribunal (“tribunal”), to evict the applicant.
The decision handed down by the first respondent was initially taken on appeal to the tribunal, which originally denied the request for an appeal as it was filed out of time. The matter was then referred to the Supreme Court, which referred the matter back to the tribunal.
The applicant argued that the decision of the first respondent was reviewable because of the first respondent’s failure to decide whether it acquired the land on which it was situated through acquisitive prescription.
The court considered whether or not it was irregular for the first respondent to direct that the second and third respondents could evict the applicant when there was a claim by the applicant that had not been determined, i.e. the acquisition of the land. The court held that to authorize an eviction before determining the acquisitive prescription would not accord to anyone’s sense of justice.
The court found that the irregular step of the first respondent in authorizing the applicant’s eviction was sufficient to warrant a review and that the court would have to substitute the decision of the first respondent with that of its own.
Application upheld.
Dlamini and Others v Minister of Public Works and Others (3218/2007) [2007] SZHC 203 (24 October 2007); EL Index Injunction Injunctions and interdicts Civil Remedies Public interest in environment Environmental decision-making Environmental lawIn this case the applicants sought an urgent interdict preventing the respondents from demolishing homes in the Mangwaneni, Manzana and Makholokholo, through which the new construction of the New Mbabane Bypass road was carried out.
First, the court had to consider whether the matter was urgent and held that applicants needed to prove the matter’s urgency. The court found that the applicants had shown the urgency of the matter in their founding affidavit.
Second, the respondents argued that the application did not adequately describe the ninth applicant and that it could therefore not be admitted. Considering existing jurisprudence, the court held that a relaxed approach should be taken on the issue to not inhibit public interest litigation. Consequently, the court condoned the citation of the parties.
Finally, the respondents argued that the applicants did not fulfill the conditions for an urgent interdict because they could seek compensation from the committee responsible for compensating resettled people. The applicants claimed that the committee no longer existed. Thus, the court had to consider whether the committee responsible for compensating the people who had been resettled by the project was still active. Given this situation, the court decided to postpone the matter, ordering the applicants to submit their claims to the secretary of the committee within seven days and ordering the committee to address these claims within 21 days. The secretary of the committee was also ordered to submit a report to the court. The court postponed all outstanding matters until then.
Dlamini and Others v Minister of Public Works and Others (3218/2007) [2007] SZHC 200 (19 September 2007); EL Index Attribution of Costs Costs Civil Remedies Abuse of Process Conduct of proceedings Civil ProcedureThis was a ruling on an application to file a supplementary affidavit that would be admitted by the court as part of the applicant’s case.
The respondents argued that applicants could not rely on the said supplementary affidavit since they failed to join the authority (Director of Swaziland Environmental Authority) as a party to the proceedings. The court noted that one of the respondents was yet to make an application on the non-joinder of the authority.
The court held that admitting the supplementary affidavit before arguments on the non-joinder would prejudice the respondents. The correct approach would be to allow the respondents to argue the non-joinder and the applicants could then bring the supplementary affidavit in their replies.
The court concluded that the application for the filing of the supplementary affidavit be suspended until the applicants responded to the points of law.
No order of costs was granted.
City Council of Manzini v Swaziland Interstate Transport Association and Another (2447/06) [2006] SZHC 112 (13 July 2006); EL Index Injunction Injunctions and interdicts Civil Remedies Urban planning Human exploitation of the environment Environmental lawMHP Geomatics Swaziland (Pty) Ltd t/a Swaziland Surveys v Umbane (Pty) Limited (4236/2007) [2009] SZHC 186 (10 August 2009); EL Index Locus standi in environmental litigation Litigation of environmental issues Environmental law Land use Human exploitation of the environment Environmental law Summary Judgment Civil RemediesIn this case, the High Court had to consider an application for summary judgement. The plaintiff sought judgement to be ordered in the sum of E130373.77 for professional services it rendered to the defendant, plus mora interest and cost of suit. By means of this procedure for summary judgement, a defence of no substance can be disposed of without putting the plaintiff to the expense of a trial.
The plaintiff argued that it was faced with a defence of no substance and that a summary judgement should accordingly be granted.
The court held that in order to determine whether a summary judgement could be granted, it was necessary to evaluate whether the defendant had raised a triable issue. Relying on the judgement in Mater Delarosa High School v RMJ Stationary (Pty) Ltd unreported Appeal Case No. 3/2005, the court held that they would refuse to grant a summary judgement if there was a reasonable possibility that this would cause an injustice.
The court found that a number of issues needed to be decided in the course of a trial and not ignored by granting a summary judgement. Most crucially, a trial was necessary to decide when payment of the plaintiff was due. Given these circumstances, the court found that it would be premature to dismiss the defence and that doing so, by granting a summary judgement, would possibly cause an injustice.
Accordingly, the application for summary judgement was dismissed by the court and costs were ordered in the cause.
Dlamini v Swaziland Government (509/2004) [2010]SZHC 258 (05 February 2010); EL Index Injunction Injunctions and interdicts Civil Remedies Declaratory Relief Civil Remedies Land use Human exploitation of the environment Environmental lawMavimbela & 4 Others v Zwane & Another (3028/06) [2010]SZHC 262 (15 February 2010); EL Index Injunction Injunctions and interdicts Civil Remedies Land use Human exploitation of the environment Environmental law Kirk v Zikalala and Others (405/2009) [2014] SZHC 236 (25 September 2014); EL Index Administrative Review Administrative Law Land use Human exploitation of the environment Environmental lawThe court considered an application for eviction. The plaintiff averred that the defendants were in unlawful occupation of the property and that there was no agreement, either oral or written, giving them permission to occupy the property. In addition, it was argued that they had no right or title in the property.
The defendants argued that the land in question was concession land and that the deed of transfer was not authentic. The court found that, based on the evidence led, the title deed in question had been prepared and registered by the Deeds Registry and was thus valid.
The court found that although the first defendant alleged that she was born and raised on the property at the time when the land was under a concession, she failed to produce any evidence to support this contention. Thus, without any proof, the court held that her point was moot and could not be accepted.
The court held that based on a balance of probabilities, the property in dispute was a privately held property, validly supported by an authentic title deed in favour of the plaintiff. Accordingly, the defendants could be evicted from the property in question.
Application succeeded.
Crabtree v W.B.H.O. (Swd)Ltd (NULL) [2000] SZHC 15 (02 February 2000); EL Index Abuse of Process Conduct of proceedings Civil Procedure Injunction Injunctions and interdicts Civil Remedies Interim Interdict Injunctions and interdicts Civil Remedies Attribution of Costs Costs Civil Remedies Plants, forests and forestry (flora) Flora and fauna Environmental lawThis matter originated from an application where the respondents were required to show cause why a final interdict should not be issued against them, to prohibit them from damaging the applicant's wattle forest and timber at the old Nkoyoyo quarry site.
In a series of events, the applicant requested for postponement of the hearing and later filed a notice of withdrawal and prayed for costs. The respondents prayed that the matter be dismissed with costs.
The court considered whether the withdrawal was proper in terms of rule 41 (1)(a) of the High Court Rules that required withdrawal by consent of the parties or leave of the court. The court found the withdrawal to be invalid since the applicant was not compliant with the rules.
The court considered whether the withdrawal application had any merit. The court held that the respondent had proved that the applicant had no right in the land, as per s 94 of the constitution, s 3 of the Safe Guarding of Swazi Areas Act of 1910 and s 2 of the Contract by Swazi Chief Act of 1924.
Consequently, the applicant failed to prove the requirements for an interim interdict and court found him to be in abuse of court process by seeking commercial advantage through the court.
Accordingly, the application was dismissed, and the applicant was ordered to pay punitive damages for abusing court process.
City Council of Manzini v Cambridge High School (pty)Ltd and 2 Otehrs (NULL) [2004] SZHC 45 (06 April 2004); EL Index Injunction Injunctions and interdicts Civil Remedies Urban planning Human exploitation of the environment Environmental lawThe applicant made applications for interdicts prohibiting the use of various properties other than for residential purposes according to the Manzini Development Code of 1991.
The respondents raised technical objections to the legality of the code. The respondents argued that the applicants used the words "scheme" and "code" interchangeably to refer to the code instead of “scheme” as per the Town Planning Act of 1961. It was found that the document met the requirements and that the "code" or "scheme" was the document specifically provided for in the act, regardless of the name by which it was called.
The respondent argued that the code was invalid for lacking any changes proving that it had not been reviewed periodically according to s 21(4) of the act. The court determined whether the term “shall” in s 21(4) of the act was peremptory or merely directive. The provision states that, “every approved scheme shall be reviewed periodically at intervals of not more than five years.” The court applied the rule that a provision is merely directory if it is in positive terms and lacks a penal sanction. Consequently, it was held that reviewing would not always lead to a change in the schemes at all times. The court also held that the operation of the code was valid since it had been previously approved by the minister.
Accordingly, the objections were dismissed.
Malinga v Myeni and Others (786/14) [2014] SZHC 209 (23 October 2014); EL Index Declaratory Relief Civil Remedies Urban planning Human exploitation of the environment Environmental lawThis application set out the test for determining the validity of an eviction order.
The applicant opposed an eviction order made under the Farm Dwellers Act of 1983 on grounds that it was unlawful. The respondents disputed the court’s jurisdiction. However, the court held that it had the jurisdiction to hear the matter and noted that its jurisdiction was only ousted as a court of first instance
In granting the order to the applicant, the court cited Hoageys Handicraft (PTY) Ltd and Another/Rose Marshall Vilane where the requirements for a lawful eviction in Swaziland were set out.
First, there must be a judgment of a court with jurisdiction to grant an order for eviction. Secondly, there must be a valid, warrant directing the Sheriff to evict the respondent from the premises. Thirdly, there must be a valid appointment and authorisation of the deputy sheriff, for the express purpose of executing a warrant of ejectment or eviction. Lastly, the execution action must be conducted as authorised in the warrant of ejectment or eviction.
The court granted the application, with an order of costs.
Kalafata (Pty)Ltd v Atlas Motors (Pty) Ltd (NULL) [1993] SZHC 86 (21 November 1993); EL Index Environmental duties Concepts and principles Environmental law Natural disasters Accidents and emergencies Environmental law Hazardous substances Waste and pollution Environmental law Waste management Waste and pollution Environmental law Notice of Termination of Contract Termination of Contract Contract LawThe plaintiff’s claim against the defendant in this case was that the defendant’s negligent and faulty roofing resulted in a flood that consequently damaged the plaintiff’s restaurant. The parties’ properties were located on a steep hill and shared a boundary. It was alleged that, on account of the defendant’s failure maintain a proper gutter, water was discharged from its roof onto the plaintiff’s property resulting in a flood. The defendant’s only defense was that there was no proof that the water that flowed towards the plaintiff’s restaurant came from the defendant’s restaurant.
The court held that since the onus of proof was on a balance of probability, the plaintiff’s case was clear. The evidence showed that a significant amount of water was discharged from the defendant’s roof due to its ill-fitted gutter towards the plaintiff’s house, which would have otherwise been channeled into a catch pit. The court reasoned that the presumption that the defendant’s poorly fixed gutter led to the flood was proved when soon after the defendant repaired its gutters the floods did not reoccur despite heavy rainfalls in following seasons. The court thus concluded that the defendant’s poorly fitted roofing contributed to the floods. Accordingly, the plaintiff’s claim succeeded.
Henwood v Maloma Colliery Limited and Another (NULL) [1994] SZHC 68 (30 September 1994); EL Index Injunction Injunctions and interdicts Civil Remedies Declaratory Relief Civil Remedies Free prior informed consent Human and environmental rights Environmental law Private prosecutions Criminal offences in environmental law Environmental law Notice of Termination of Contract Termination of Contract Contract LawMakhowe Investment (Pty) Ltd v Usutu Pulp Company Ltd (NULL) [1994] SZHC 93 (29 November 1994); EL Index Injunction Injunctions and interdicts Civil Remedies Abuse of Process Conduct of proceedings Civil Procedure Plants, forests and forestry (flora) Flora and fauna Environmental lawThis case interpreted the concept of urgency and interim relief pending the outcome of litigation in issues concerning an exclusive license to harvest and process wild mushrooms, according to the 1973 Wild Mushroom Control Order.
The respondents appeared in court pursuant to a rule nisi (an order to show cause) why they should not be interdicted from stopping the applicant from taking and processing wild mushrooms from Usutu Forest.
The court considered whether the application should be dismissed since the applicants had procured the urgency and interdict by failing to disclose material facts. The court found that there was no immediate urgency since the companies had been in discussion for a long time. It also found that the respondents were not given sufficient time to respond to the application.
The court interpreted the provisions of s. 4(1) of the order and held that the applicant’s license did not authorize intrusion into the respondent’s land without consent. Consequently, the applicants’ submissions were unsound and they had abused court’s processes.
The court held that the effect of an interim interdict was not to determine eventual rights of the parties. It found that the interdict placed an obligation on the respondents that was contrary to its rights and the respondent was entitled to costs thereof.
Accordingly, the application was dismissed.
Tsabedze & Others v Swaziland National Provident Fund & Others (1400/11) [2011] SZHC 30 (12 June 2011); EL Index Injunction Injunctions and interdicts Civil Remedies Functus Officio Conclusion of proceedings Civil Procedure Attribution of Costs Costs Civil Remedies African customary law and rights of indigenous peoples Human and environmental rights Environmental law Land use Human exploitation of the environment Environmental lawThe applicants in this matter approached the high court seeking, inter alia, an interdict preventing the respondents from evicting 140 school children and from demolishing their homesteads.
The residents occupied the land in question through the traditional system of Khonta. After paying the prescribed livestock and fees to the area’s chief, they were allowed to settle on the land. However, it was later discovered that the land belonged to the Swaziland National Provident Fund and was therefore not under the control of the chief.
The applicants argued that the evictions were arbitrary and contravened s 18 and 29 of the Swaziland Constitution and that such evictions were a threat to education of their children.
The court first dealt with the issue of urgency and concluded that the court was prepared to hear the matter on an urgent basis. The court in deciding the matter weighed the rights of the children against those of property owners as contained in the Constitution. It concluded that the rights of children did not supersede the rights of the property owners. Therefore, the court held that the applicants failed to establish the requirements of an interdict and the rest of the orders they were seeking.
The matter was dismissed with costs.
Malinga v Malinga (264/2012) [2017] SZHC 72 (18 April 2017); EL Index Private prosecutions Criminal offences in environmental law Environmental law Declaratory Relief Civil Remedies Permanent Employment Wages, pensions and benefits Labour and Employment Law African customary law and rights of indigenous peoples Human and environmental rights Environmental law Defective Goods Condition and treatment of property Property LawIn this High Court case, the applicant had an agreement with the respondent aimed at selling a herd of cattle to the applicant. Based on this agreement, the respondent proceeded to take the herd of cattle presented in the contract without paying for them. An attempt to charge the respondent for theft through the police did not work as the police hesitated to prosecute the respondent because they contended that they would have a weak case.
Then, the applicant decided to prosecute the case privately charging the respondent for spoliation. The applicant demanded that the court should declare that the herd of cattle that were taken by the respondent, in fact belonged to him.
Thus, the issue for determination by the court was to show cause why a declaration should not be made against the respondent to the effect that the herd of cattle be restored to the applicant.
On perusal of the given evidence, the High Court held that the respondent failed to show that the applicant allowed him to take the herd of cattle in dispute. Subsequently, the applicant was despoiled of the herd of cattle, that is, possession should be restored to the applicant. The respondent was also ordered to hand over to the applicant the progeny of the cattle forming the subject matter of the proceedings.
Motsa v Motsa and Another (96/08) [2017] SZHC 133 (27 June 2017); EL Index Administrative Review Administrative Law Land use Human exploitation of the environment Environmental lawThe court considered an application for eviction of the respondents from certain homestead and fields allegedly owned by the applicant.
The applicant contended that he was the owner in terms of Swazi law and custom, and that the land on which the homestead was built was allocated to his father through a traditional method of land acquisition. He further argued that the respondents claim was based on the fact that their parents were asked to look after the homestead in the past by the applicant’s mother.
The respondents alleged that the property was allocated to their grandparents. They argue that the second respondent’s father gave the applicant three fields where he built his homestead, after the applicant had come to the land asking for a piece of it.
The court found that the dispute relating to the ownership of the land had been the subject of debate for years and had already been dealt with by the royal council, who had made a decision in favour of the second respondent.
The court held that it had no jurisdiction to deal with the matter, because of the nature of the application and the fact that the council had previously ruled on the boundary between the two homesteads. It held that the applicant should have approached the council instead of the court to address its concerns.
Application dismissed.
Mabila and Others v Minister of Housing and Urban Development and Others (1366 /2016) [2017] SZHC 174 (10 August 2017); EL Index Administrative Review Administrative Law Land use Human exploitation of the environment Environmental lawThe applicants brought a review to set aside the decision of the first respondent to declare the Malkerns area a town, due to failing to consult with the applicant prior to making this decision.
The minister published three notices, one in 1995 and one in 2010, which were not challenged as the first one did not affect the applicants and the second one was welcomed. The applicants contended that the third notice in 2012 was flawed for two reasons: (1) there was no schedule attached to it and (2) there was no commission of enquiry set to receive presentations from affected individuals.
The court considered whether the minister was bound in law to invite the applicants to make representations or objections before publishing the 2012 notice, and if so, whether the minister did so.
The court found that the minister’s intention in terms of the 2012 notice was to declare the Malkerns a town. It became clear that the minister made her declaration in terms of the Building Act and not the Urban Government Act, and she did so without extending invitation for objection or input from the applicants who would have been prejudiced by her decision.
The court found that instead of making invitation, for objection or input, which the minister failed to do, she declared the area a controlled area, which was grossly irregular. The court held that the conduct of the minister was not within her powers as she made the declaration in terms of two separate pieces of legislation which she tried to use interchangeably. Thus, the decision by the minister was reviewable and set aside.
Masundvwini Royal Kraal v Evangelical Church (By Christ Ambassadors) and Another (19/2017) [2018] SZSC 10 (03 May 2018); EL Index Injunction Injunctions and interdicts Civil Remedies African customary law and rights of indigenous peoples Human and environmental rights Environmental lawCivil Procedure ̶ Application by Appellant for an order ejecting the Respondents from the land situate at Mhlaleni, directing the Respondents to demolish all structures they have constructed on the land and interdicting Respondent’s from carrying out any activities on the land – Dispute over the territorial jurisdiction over the area where land is situate – Plea of lis pendens raised by the Respondents - whether matter pending determination by the High Court or the traditional authorities – High Court upholds plea of lis pendens and orders status quo prevailing to be maintained pending determination by appropriate authority – Whether High Court erred in so holding – Whether High Court has jurisdiction to entertain matters relating to land pending before traditional authorities having regard to Section 151 (3) (b) of the Constitution - Held that High Court has no original jurisdiction to entertain matters in which a Swazi Court has jurisdiction, but High Court has only revisional and appellate juridiction as provided by Section 151 (3) of the Constitution - where a matter is pending or has been determined by the traditional authorities, the High Court must refer the matter back to those authorities for determination or enforcement – Decision of High Court upheld, and – Appeal dismissed with costs.
Mabuza v Phinduvuke Bus Service (66/2017) [2018] SZSC 13 (29 May 2018); EL Index Pollution and waste management offences Criminal offences in environmental law Environmental lawCivil Procedure ̶ Action by Appellant claiming damages for negligence – Bus conductor throws bottle under bus from which the Appellant has just alighted – Bus stamples over the stump of crushed bottle – Part of the bottle springs up and hits eye of the Appellant resulting in injury – Respondent raises plea of absolution from the instance on ground that the injury was not foreseeable – court a quo upholds the plea on ground that the bus conductor was not negligent as the damage caused was neither reasonably foreseeable nor preventable – whether court a quo applied proper test for absolution from the first instance – On appeal, held that on the evidence adduced the conduct of the bus conductor was negligent and the damage caused to the Appellant was reasonably foreseeable and preventable – Appeal allowed with costs – Matter remitted back to the court a quo, to hear the Respondent’s case and determine the case on the merits.
R v Lelingoana (CRI/A/60/82) (CRI/A/60/82) [1982] LSCA 83 (05 November 1982); EL Index Procedural Fairness Justice and fairness Civil Procedure Public interest in environment Environmental decision-making Environmental law Plants, forests and forestry (flora) Flora and fauna Environmental law African customary law and rights of indigenous peoples Human and environmental rights Environmental lawThis was an appeal before the High Court where the appellant a chief, had been charged before the subordinate court for 35 counts of theft by false pretences. The appellant falsely claimed that he was a representative of the Principal Chief and had been authorised by him to impose and receive fines of cash and small stock from persons who had failed to remove their animals from certain reserved grazing area.
The question was whether the appellant contravened Legal Notice Number 39 of 1980 namely, Range Management and Grazing Control Regulations published in Gazette Number 36 of 10 October 1980 (Supplement Number 4). The Principal Chief of the area gave evidence and denied that he ever authorised the appellant to act, as he did, and the court concluded that the appellant lied. The judge confirmed the conviction on 18 counts but set aside the sentences imposed by the learned magistrate as they were considered lenient. Accordingly, on 18 counts the appellant was sentenced to one-year imprisonment, each to run concurrently, the whole of which was suspended for a period of two years on condition that during the period of the said suspension he is not convicted of an offence involving dishonesty. The appellant was sentenced on two counts to a period of two years imprisonment on each count. Half the sentence was suspended for a period of two years on condition that during the period of the said suspension he was not convicted of an offence involving dishonesty.
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