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 was an appeal against a judgment of the High Court which ordered the appellants to comply with the terms of a settlement agreement entered into by the parties on 10 November 2006 and later became an order of court. The first appellant was an elected body established in terms of the Regional Councils Act 22 of 1992. The first respondent was a voluntary association representing 104 members out of 110 persons who were lessees of sites in a holiday resort and fishing village of Wlotzkasbaken under the jurisdiction of the first appellant.
The first appellant advertised plots for lease without distinguishing between those already leased to the respondents and other vacant sites, which aggrieved the respondents and was interpreted as a breach of their right of pre-emption. The issues for determination were: the meaning of clause 2 of the 2006 agreement in the context of previous agreements and whether the advertisement was signaling an intention to no longer be bound by the 2006 agreement.
The court deduced that the agreements showed that in each instance the parties agreed to certain rights which would ensure that those existing leaseholders would be able, if so advised, to convert their lease holding into property rights. In their agreement with the appellants, the respondents acquired the right to have all the plots sold once the township was proclaimed. Therefore, the intention to lease those plots was a breach of the right of the respondents. Accordingly, the appellants’ appeal was dismissed with costs.
The matter dealt with an alleged breach of contract that required the plaintiff to supply large amounts of water to the defendantís wine farm. The contract contained two main clauses namely, that the defendant would reimburse the plaintiff a maximum of N$300000 for obtaining tenders and would design and construct the bulk water supply scheme in the absence of an alternative agreement.
The plaintiff contended that the agreement was never entered into despite the work being carried out and as a result, they were entitled to reimbursement because the defendant breached the two main clauses of the contract. In response, the defendant alleged that the plaintiff was vicariously guilty of breach of contract as a result of which the defendant says it terminated contract.
The main question before the court was whether the plaintiff was vicariously guilty of breach of contract which resulted in the defendantís termination of the contract and in the alternative. The court also considered whether the respondent would be required to pay for the work done as per the agreement.
The court found that no such breach existed and that had there been a breach, the defendant, would have been required to communicate termination of the contract which it failed to do. The court concluded that the reliance on an alleged oral agreement had not been proved by facts ëíin the clearest and most satisfactory manneríí. The court found in favour of the applicant.
This was a consolidated case where the court dealt with the issue of delay in instituting review of the decision of the minister of mines and energy to refuse the renewal of an Exclusive Prospecting Licence (EPL).
The court considered the issue of delay and not the merits of the refusal to renew licence. The court applied the rule in Disposable Medical Products v Tender Board of Namibia 1997 NR 129 HC where the court held that an inquiry to determine ‘reasonableness’ should be factual and the court can only exercise its discretion after making a conclusion that the delay was unreasonable. The court also considered the scope and object of the Minerals (Prospecting and Mining) Act, No 33 of 1992 with regard to compliance with specific timelines.
The court held that the delays occasioned by the applicants were unreasonable and the explanations in both applications were unsatisfactory for the court to apply its discretion. Accordingly, both applications were dismissed with costs.
This was an application to review the minister’s decision that differentiated the manner of issuing the sale of trophy hunting concessions as between the applicant and fourth respondent.
The applicant succeeded in obtaining an order to show cause (rule nisi) and an interim interdict of the reliefs in their application to prohibit the implementation of the concessions.
The applicant’s locus standi was challenged during the proceedings. The court applied the reasonable person test and held that the applicant was an ‘aggrieved person’ whose fundamental rights had been infringed or threatened to be infringed.
The court considered whether the minister violated the applicant’s right to equality and held that the minister acted fairly; since the decision was made to redress the injustice of the fourth respondent and did not violate the cabinet’s policy or the constitutional principle of equality.
The court also considered whether the decision violated the applicant’s right to administrative justice as per the concept of legitimate expectation of a hearing. The court applied the rule that the court should consider the existence of a duty to act fairly. The court held that the principles of a sale by private treaty did not require the minister to afford all professional hunters an opportunity to be heard. Having found that the concession was legally granted, the court did not deal further with the issue on violation of the freedom of economic activity.
Accordingly, the court dismissed the application for interdictory relief and made an order as to costs.
The plaintiff claimed that it was patentee and registered proprietor of an invention for the "method of, and apparatus for, underwater mining of mineral deposits known as a "pebble jetting system.” The plaintiff alleged that the defendants infringed on its patent by using integers of its invention in another invention, resulting in financial loss to the plaintiff. The defence argued that the Patents and Designs Proclamation, No. 17 of 1923 upon which the plaintiff relied for the registration of its patent had been repealed by the South African Patents Act, No 37 of 1952 and was therefore no longer in force in Namibia and that the union Act in s18 of the proclamation was to become main legislative piece for patents.
The court therefore had to decide whether the Patent proclamation was still in force and determine the legitimacy of the granting of the patent and the meaning of Union Act in the proclamation.
The court found that that the provisions of the proclamation under which the patent in issue had been granted, were not repealed or amended by the 1952 Act and were valid by virtue of Article 140(1) of the Constitution. Secondly, that the extent to which the Union Act had been applied to the law of patents in the Territory stemmed from s.5 of the Proclamation and, although it applied the Union Act to a wide range of specified matters, it did not apply to applications for the granting of patents. The matter was dismissed with costs.
The plaintiff in this case claimed restitution for a breach of contract. The court determined whether the defendant was in breach of contract for failing to install a working borehole in a geohydrological environment where the plaintiff's farm was located.
The defendant raised a counterclaim that the plaintiff had accepted that work was completed but failed to pay the balance of the agreed amount. The court applied the rule in Du Plessis v Ndjavera that the plaintiff is under no obligation to perform before defendant has completed his performance.
The court held that the defendant was at fault for failing to assess the soil formation in the area and ended up using the incorrect drilling method. The court observed that the defendant admitted to using the riskier direct flush air percussion instead of the mud rotary method to save on expenses and thus failed to complete performance.
Accordingly, the court held that the defendant was in breach of contract and the plaintiff was entitled to cancel the
agreement and claim restitution. The counterclaim was also dismissed with costs.