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 Supreme Court case concerned an appeal against the ruling of the High Court that found the appellant guilty primarily on counts of: (1) theft of unpolished diamonds in contravention of section 74 of Act 13 of 1999; alternatively, possession of unpolished diamonds in contravention of section 30(11) of Act 13 of 1999; (2) robbery; (3) malicious damage to property; and 4) escaping before being locked up in contravention of section 51(1) of Act 51 of 1977.
The appellant was primarily charged in the High Court for stealing unpolished diamonds and fleeing arrest. He was convicted on all the counts and sentenced to both a jail term and payment of fine
The appellant felt aggrieved and appealed to the Supreme Court mainly on the ground that the prosecution side failed to establish that the mining company was the lawful owner of the alleged stolen diamond.
The court held that the evidence obtained from the surveillance cameras clearly showed that the unpolished diamond that the appellant was trying to steal was discovered and recovered from him. The court held that he was caught right at the exit of the mining site. So generally, the mining company was the one licensed to exploit and trade the diamond in that area the court a quo was justified to take a judicial notice that the diamonds belonged to the complainant.
The court therefore refrained from disturbing both the conviction and the sentence of the High Court, so the appeal was dismissed.
This Supreme Court case revolved around exploration prospecting licenses (EPL) provided by the first appellant, to the second appellant and the respondent over different mining groups of nuclear resources but in the same land.
At the High Court, the respondent challenged the first appellant’s action (the responsible minister) for giving prospecting and mining rights to another company over an area that the respondent had an EPL agreement to operate in. The High Court had quashed the first appellant’s decision in favour of the second appellant, asserting that the first appellant in offering the EPL agreement to the second appellant did not consider the interest of the respondent as required per sections 68(h) and 69(2)(c)(i) of the Minerals (Prospecting and Mining) Act of 1992. Aggrieved, the appellants appealed.
On appeal, the main issue for consideration was whether the first appellant was justified to issue EPL over an area that the respondent had pre-existing EPL. The Supreme Court upheld the decision of the High Court stating that the first appellant was duty-bound to take into consideration the provisions of ss 68(h) and 69(2)(c)(i) of the act which requires regard to be given on what impact will the additional activities have on the existing EPL holders. The Supreme Court held that natural justice requires that a hearing must be given to the person(s) already holding EPL over an area likely to be affected with subsequent EPLs. In conclusion, the Supreme Court upheld the High Court decision and dismissed the appeal with costs.
This was a criminal appeal on the sentences imposed for unlawful possession and import of rough and/or uncut diamonds.
The appellant’s counsel submitted arguments in support of additional grounds of appeal that were not entertained. The court applied the rule that a notice of appeal should clearly set out the grounds of appeal.
The court considered whether the magistrate erred by failing to adequately take into account that the appellant was a first offender, the limited value of the diamonds, the forfeiture of the diamonds, and that the appellant co-operated with the police investigation. The court was satisfied from the contents of the judgment on sentence that the magistrate considered the personal circumstances of the appellant. The court also held that forfeiture was not a mitigating factor since the appellant had no recognisable right in law in the articles forfeited.
The court also considered whether the magistrate overemphasized the seriousness of the offence. It was held that the magistrate was entitled to place the seriousness of the offence and the interest of society when sentencing, due to the potential prejudice of the Namibian Government losing its International trading licence in diamonds.
The court noted that sentencing was a discretionary power. It applied the rule that that an appeal court should not alter discretionary decisions unless the difference between its sentence and the trial court’s is so great to infer that the trial court acted unreasonably. The court held that such a disparity did not exist and dismissed the appeal.
This was a judicial review application against the decision of the respondent to approve the alteration of use of the suit land from residential to office premises. The applicants sought orders of certiorari quashing the decision and prohibition, prohibiting the user from further excavation and construction on the land as well mandamus to compel the respondents to exercise its statutory duty in ensuring no further excavation and construction is done.
The court found that applications for judicial review were brought in the name of the Republic, since a judicial review is a mechanic whereby the state checks on the excesses of its officers and public bodies in performance of their administrative duties. The court noted that the application was not brought in the name of the republic and held that the case was not properly instituted.
Additionally, it was found that all parties affected by the judicial review proceedings such as National Environment Management Authority (NEMA) were not served in accordance with Order 53 r 3(2) of the Civil Procedure Rules which was fatal to the application. As such, although there was no evidence of compliance with s 59 of the Environmental Management and Coordination Act 1999 as well as regulation 17 of the Environmental (Impact Assessment and Audit) Regulations 2003 by NEMA and the user, court could not make any finding as to do so would amount to condemning NEMA unheard.
Accordingly, the application was struck out.
The applicants sought orders of temporary injunction and injunction to restrain the respondents from using the suit property as a wedding ground or place of entertainment of wedding parties and to restrain the respondents from carrying out actions that constitute noise pollution within the meaning of the Environment and Management Co-ordination (Noise and Excessive Vibration) (Control) Regulations 2009 (Legal Notice No.6/2009).
The applicants contended that no Environmental Impact Assessment (EIA) was conducted and notice of change of user was not served on the residents in accordance with the Physical Planning Act. On the other hand, the respondents contended that the applicants had no locus standi as the association was illegal.
The court found that the applicants, being neighbors to the suit property, were aggrieved by the respondents’ actions and had locus to bring the case.
The court noted that the respondents had no EIA license but only a letter of approval from NEMA that contained conditions which they had not complied with. The court also found that the publication of change of user was insufficient as it was done in newspapers of limited circulation and the residents were not personally served. Court further found that the respondents had not complied with Legal Notice No.6/2009.
Accordingly, the court granted the injunctions.
The matter dealt with an application for leave to appeal against the decision of the Supreme Court to allow the first respondent to acquire a prospecting licence in terms of the Mineral and Petroleum Resources Development Act over the applicant’s land.
Appeals to the High Court, and later to the Supreme Court were dismissed on the ground that the community had failed to file for review timeously in terms of the provisions of the Promotion of Administrative Justice Act. The merits of the case were not heard in both matters.
In determining the application, the Constitutional Court considered the following: whether there were internal remedies; whether there was proper consultation and whether consideration was given to the environmental requirements.
It found that an internal appeal was available to the applicants, but the respondents’ failure to deal with the appeal frustrated the process, although the review application had been brought in time. Further, the court held that the granting of prospecting rights was an invasion of a property owner’s rights and that the purpose of consultation with landowners, was to provide them with the information necessary to make an informed decision on how to respond to the application.
The court concluded that the decision-maker had not given the community a hearing or complied with the fairness requirements of the Act, and that the environmental requirements in terms of the Act had not been satisfied. Accordingly, leave to appeal was granted and the prospecting rights on the community’s land were set aside.
This was a bail appeal against the decision of the magistrate that denied the appellants bail on grounds that they were likely to abscond trial.
The appellants were charged with unlawful prospecting for minerals, oil and natural gas without a valid license contrary to s 368 (1)(a) as read with s 4 of the Mines and Minerals Act 1 of 2006.
The court noted that the magistrate condemned the applicants to imprisonment where the state was not opposing bail, without evidence that the appellants were likely to abscond trial and without any defence from the appellants on the bail issue.
The court found that the state could not oppose the appeal since they had already conceded that the appellants were good candidates for bail.
It was held that the magistrate misdirected himself. Accordingly, bail was granted subject to conditions. The appellants were required to deposit US$20 with the clerk of Court Bindura Magistrate Court, to continue residing at their places of residence until finalization of the matter and to report to respective police stations as directed by the court.
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 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.