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
This High Court case involved an accused that was charged with contravening section 6(1) (a) (i) and section 33 (2)(i) read with (ii) of the Precious Stones Order of 1970 (“order”). The charges were that the accused was in possession of three rough and uncut diamonds without being duly licenced to deal in rough and uncut diamonds. The accused pleaded guilty and was sentenced to three months’ imprisonment. However, the High Court was tasked to review the sentence on the ground that the accused was wrongfully charged. The record showed that the accused was merely found possessing the diamond unlawfully and not selling the diamond.
Thus, the issue for review was whether the accused was correctly charged under section 6(1)(a)(i) and section 33(2)(i) read with (ii) of the order.
The High Court accepted that the accused was wrongfully charged under section 6(1)(a)(i) and section 33 (2)(i) read with (ii) of the order, after reviewing the submissions. The court held that the offence he committed was limited to possession of the diamond unlawfully. To the alternative, the court stated that the accused ought to have been charged under section 6(1)(c) of the order which deals with unlawful possession of the diamond. Finally, the court allowed the amendment of the charge and confirmed the three months’ sentence stating that the punishment was proportionate to either of the offences.
The court had to review an earlier decision by the same court. The accused was charged with contravening the Precious Stones Order of 1970 for wrongful and unlawful dealing in rough and uncut diamonds as a buyer or seller and for possession of uncut diamonds without a licence. The accused had pleaded guilty to all charges and convicted.
The court at hand had to decide on whether the first count of wrongful and unlawful dealing was appropriate in the circumstances and whether the charge and conviction should be amended.
The prosecutor relied on the testimony of the member in charge of the digging area who stated that when he searched the accused, he found three rough and uncut diamonds in her possession and upon requesting a valid dealing license, she failed to do so. There was no indication that the accused was going to sell those diamonds.
The court held that at the time the accused was apprehended she was not dealing in diamonds, but she was merely in possession of them. For there to be a crime there must be an act or on omission, a mere subjective contemplation of future criminal conduct which does not find outward expression indeed or omission is not criminally punishable.
The court held that the correct charge ought to have been one of possession and nothing more and ordered that the charge be amended accordingly. It however maintained that the previous sentence was adequate.