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.
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This 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.
In this case, chieftainship rights over a particular area were contested. The applicant sought an order calling upon the first respondent to show cause why he should not be restrained from holding himself out as chief of the area known as Ha Mochekoane. The applicant argued that he was a gazetted chief, but the respondent denied this and argued that he had been confirmed chief following the death of his father and that it was not necessary to be gazetted as chief. He further argued that the onus of proof was on the applicant to show that the disputed area was under his jurisdiction. The applicant’s failure to clearly describe his boundaries in the proceedings, the respondent argued, was fatal.
The court considered whether respondent held the office of chief and whether he was legally authorized to exercise the powers and perform the duties of a chief. After reviewing all the evidence, the court found no indication that the contested area was that of the respondent. The court also found that the respondent did not exercise any chiefly functions and lacked locus standi. Finally, the court held that the Chieftainship Act No. 22 of 1968 stated that one could not hold the office of chief without having been gazetted.
Regarding the question of boundaries, the court reviewed historical evidence and held that it was impossible for the respondent to be chief of that area. Accordingly, the application was allowed with costs.
The appellants in this case appealed against the decision of the High Court to uphold a counter-application by the respondents. The High Court upheld the respondent’s counter application on the basis that certain peremptory conditions had not been fulfilled and by its judgment set aside the appellants’ mining lease and awarded costs in favour of the respondent.
The applicants argued that the requirements that they failed to fulfill were not peremptory and that these requirements were only peremptory prior to the 1970 and 1986 coups. They contended further that the lease agreement having been concluded thereafter, it should not have been declared null and void. The argued further that the court below erred in awarding costs on the attorney and own client scale.
The Court of Appeal held that, while the coups suspended the 1966 Constitution, they did not set at nought all other legislative provisions. It held that the provisions of the Mining Rights Act, relating to the conclusion of mining leases, were still in place. The court further held that the conditions that the appellants failed to fulfill were grounded in long tradition and custom.
Consequently, the appeal was dismissed save on the issue of costs. The court held that the High Court was justified in making a special order as to costs on the issue of conspiracy but that the punitive costs were more appropriate in the circumstances and accordingly adjusted the costs order against the appellants whose conduct was deemed vexatious.