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
The matter dealt with a claim by the appellants for an equal portion of shares in the 2nd respondent (a company).
The background to the case is that the 1st applicant and 1st respondent entered into an agreement to pursue a joint mining venture. The parties signed an MOU which stated that they would hold shares in the 2nd respondent. The applicants contended that the MOU implied that they would hold 50 per cent shares in the 2nd respondent.
The court considered the interpretation of the words in the MOU. The court gave the words their ordinary and natural meaning. It was concluded that in the absence of the usual qualifying or quantifying words, the natural and proper conclusion was that, at the time of signing the M0U, the 1st applicant and 1st respondent had not agreed as to the exact percentages of their respective holdings.
The court dismissed the application with costs to the respondents.
This was an appeal from a decision in an application for judicial review. The appellant was aggrieved by the lower court’s finding that the appellant was not entitled to the orders sought for failure to disclose that an appellate procedure existed under s 129 of the Environmental and Management Co-ordination Act 1999 (EMCA) and not demonstrating why judicial review was preferred to an appeal to the National Environmental Tribunal under the act, upon being dissatisfied with the National Environmental Management Authority’s (NEMA) decisions.
NEMA had ordered the appellant to conduct a fresh Environmental Impact Assessment (EIA) under s 138 of the EMCA and to cease construction on the suit land.
The court determined whether the trial judge erred in finding that the appellant failed to demonstrate that judicial review was more suitable than an appeal to the tribunal.
The court held that the trial judge arrived at the right conclusion. The court applied the rule that, where an alternative remedy such as a statutory appeal procedure existed, judicial review can only be granted in exceptional circumstances. The court noted that the appellant failed to demonstrate these exceptional circumstances and should have made an appeal to the tribunal instead.
The court also found that public participation is a crucial aspect in environmental matters. The court noted that the fresh EIA as ordered by NEMA would give the appellant an opportunity to ensure public participation which had been ignored in the first EIA.
Accordingly, the appeal was dismissed.
The court considered an appeal against the decision of the House of Representatives. It passed a resolution directing the Respondent to pay to the Appellant compensation in the sum of $1.5 Billion for damages/compensation for environmental degradation of the Appellants' communities by oil drilling.
The High Court ordered the Respondent to comply with the resolution and pay to the Appellants the said sum. However, the respondent was able to obtain a stay of execution of the judgment in the trial court granted that the applicant deposits the outstanding amount pending the outcome of the subsequent appeal.
The Respondent wanted this varied and was successful. The applicant disputed this before this court pleading for unconditional stay of execution.
The court had to determine whether there were justifiable reasons to grant an unconditional stay of execution.
The court held that a stay of execution, conditional or unconditional, is granted at the discretion of the court and an appeal court will only interfere where the discretion was wrongly exercised or irregular.
The learned justices of the Court of Appeal took into consideration the consequences of an unsuccessful appeal and a successful one, and came to the conclusion that an unconditional stay of execution met the justice of the case since the Respondent (in this appeal) had assets within the jurisdiction of the court to defray the judgment sum. The facts and circumstances clearly did not support tying down $1.5 Billion to await judgment at the end of lengthy appeals.
The appeal was thereby dismissed.
The court considered an appeal, concerning a dispute between two companies over the right to mine salt in the Northern Cape.
The high court initially dismissed the appellant’s counter-application in which it sought to review and set aside the Minster's approval of the 1st respondent’s application for a mining permit over the disputed property.
The question on appeal was whether the high court was entitled to refuse to review and set aside the Minister's approval of the 1st respondent’s application without considering whether the 1st respondent had consulted with the appellant, as an 'interested and affected party' as contemplated in the Mineral and Petroleum Resources Development Act 28 of 2002.
The court found that the answer to the question was dependent on the legal basis that the appellant relied on for its occupancy of the property. As the appellant’s occupation of the property was premised on the validity of a permit, which the high court found to be a forgery and thus invalid, the question arose as to whether the appellant had a right to be consulted even though the permit was invalid.
The court, after careful consideration of the requirements set out in the Act, held that a person that relies on an illegally issued permit to occupy land has no right to be consulted by an applicant for a mining right as contemplated in the Act because they do not qualify as an 'interested and affected party'.
This was an application for review of the respondent’s decision to authorise the construction of a lodge in a protected area. The lodge was built prior to obtaining the necessary environmental authorisation but this was obtained ex post facto. The applicant had at the time of filing this application alos filed an application for an interdict to stop the construction of the lodge, which application was dismissed.
The main legal issue to be resolved was whether under the National Environmental Management Act No 107 of 1998 (NEMA) a permit to build a house in the Protected Environment (MPE) could be issued ex post facto as was given to the third respondent by the first and second respondents.
The court held that section 24 G of NEMA provided for the rectification of the unlawful commencement of the activity by applying to the Minister or MEC for an ex post facto environmental authorisation. In conclusion, the court held that since the application was done and approved ex post facto the respondents had acted within the confines of the law and therefore the application lacked merit. The court observed further that the was aware, or ought to have been aware that when it was unsuccessful in the urgent application to have the development of the Lodge suspended, the consequences were that the respondent would continue with the construction and finalisation of its building project and the review would be rendered academic. Accordingly, the application was dismissed.
This Supreme Court case revolved around a compromise agreement between the fourth respondent and the appellant. The fourth respondent, a registered mining company, was going bankrupt and its management was entrusted to the liquidator. The liquidator then granted the appellant the right to treat stockpiles of ore at the mine to raise money to pay the creditors. The appellant then attempted to have all mining activities registered under its name. In doing so, the appellant misrepresented the facts to the third respondents without involving the fourth respondent stating that it paid the creditors their dues and as such, it was entitled to have mining activities registered under its name. However, the fourth respondent succeeded in establishing that the appellant was lying. This led the third respondent to cancel the appellant’s falsely obtained mineral rights. The High Court agreed with the respondents that the appellant's mineral rights over the plot in dispute were justifiably cancelled. The appellant felt aggrieved by the court’s judgement and appealed to the Supreme Court.
The issue for determination was whether the appellant was allowed to register mining rights under its name and whether the third respondent erred in cancelling its rights.
The Supreme Court held that agreements cannot be valid if consent was obtained through misrepresentation. Consequently, it found that the appellant was unjustified and supported the third respondent’s decision to cancel the falsely obtained rights.
This was an application for absolution from the instance by the defendant at the close of the plaintiffÕs case on grounds that there was no need to rebut the plaintiffÕs claims since there was a lack of sufficient evidence.
The plaintiff had instituted a claim for damages following the defendantÕs failure to avail water for irrigation purposes as was previously agreed.
The court determined whether the plaintiff had placed before the court sufficient evidence to warrant the defendant to be placed on its defence.
The court applied test of whether the plaintiff has established a prima facie case against the defendant and whether there is evidence that has been placed before the court upon which a reasonable court might give judgment against the defendant.
The court found that the plaintiff failed to establish a case against the defendant. Firstly, because the plaintiff was prevented by third parties from abstracting water from the dam because of low water levels. Secondly, in terms of the agreement between the parties the defendant did not guarantee the availability of water and was not liable for responsible for damages arising out of any failure to supply the water. Thirdly, the plaintiffÕs claim was wrongly premised since only 50 hectares of the land were under irrigation and not 90 hectares as contended.
Accordingly, the application for absolution from the instance at the close of the plaintiffÕs case was granted in favor of the defendant with costs.
This case concerned a preliminary point raised that the first and second respondents’ legal practitioner should be prohibited from appearing on their behalf. The applicant contended that the legal practitioner who was present at a meeting where the Mining Development Board discussed the shareholding of the respondents, was intimately interested in the subject matter of the proceedings. The applicant further contended that the same legal practitioner should not be allowed to appear for the fifth respondent, the minister of mines and mining development, who ought to be represented only by the Attorney-General as the principal legal advisor to the Government.
In response, the practitioner contended that there was no evidence to determine the depth of his alleged involvement in the matters referred to and that the allegations were based on speculation. He further submitted that he had authority to represent the Attorney-General.
The court had to determine whether it was proper for the legal practitioner to appear for the first, second and fifth respondents.
The court observed that it was important that a legal practitioner should at all times retain his independence in relation to his client and the litigation. On account of the practitioner’s previous involvements with the first and second respondents, the court determined that he could not be allowed to serve as their legal practitioner.
With regard to the representation of the fifth respondent, the court did not make any pronouncement on the basis that it lacked sufficient information. Accordingly, the court upheld the preliminary objection.
The first plaintiff concluded a tribute agreement with the second and third defendants that was to last for ten years. The Mining Commissioner rejected this agreement since it was not registrable. This agreement was replaced by a three-year tribute agreement. When this agreement expired, the first plaintiff entered into another agreement with the second plaintiff and they sought an order registering this agreement and the eviction of the second and third defendant. The eviction order was opposed on grounds that the first agreement was still valid.
In interpreting s289 and 290 of the Mines and Minerals Act on tribute agreements, the court made a distinction between directory and peremptory provisions. The court noted that it is impossible to lay down any conclusive test to distinguish the two provisions. However, provisions in negative form and containing penal sanctions are to be regarded as peremptory rather than directory. The court also noted that the intention of the legislature is to be considered when distinguishing the two.
The court found that the provisions were couched in negative form and that their contravention was to be visited with penal sanctions, hence peremptory. Additionally, it was found that the approval was meant to protect the interests of the tributor and to avoid premature cessation of mining operations.
Accordingly, the court declared that the first agreement was invalid and unenforceable; and that the second agreement was valid but had expired. Consequently, the second and third defendants were ordered to vacate or be evicted.
The case was in the High Court where the applicant sought to interdict the respondent from entering its diamond processing plant and from coming within 100 meters of the plant because the respondent was interfering with its operations.
The issue before the court was to determine if indeed the respondent interfered with the operations of the respondent. In this case, the judge accepted that the applicant had shown prima facie right over the diamond plant, as it set up the plant which it had been mining and operating from for three years. The court held that the right to mine there would have been in doubt but that did not disentitle the applicant to peaceful and undisturbed possession.
The judge also agreed with counsel for the applicant that the respondent had transgressed or disparaged the existing state of affairs by constantly forcing himself onto the plant claiming ownership of same and even attempting to take over the applicant’s employees which amounted to an infringement of the applicant’s rights. The court held that there could be no other remedy except to prevent the respondent from continuing with his unwarranted misadventures at the plant.
Consequently, the respondent, his agents and anyone acting on his instructions were permanently interdicted from entering the applicant’s diamond processing plant or coming within 100 meters of the said plant. The respondent was ordered to bear the costs of the application.
This was a review in the High Court concerning two accused persons who had been charged with and convicted for contravening s 368(2) as read with s 368 (4) of the Mines and Minerals Act [Chapter 21:05] for prospecting for minerals when they were not holders of licences or permits.
The issue facing the court was to determine whether the accused persons, being widows with minor children, were acting under special circumstances, as the trial magistrate had found. The court held that the learned trial magistrate completely misdirected himself in holding that the circumstances of the accused persons amounted to special circumstances, as there was nothing out of the ordinary about being a widow with minor children to look after. The court also held that the learned magistrate’s line of reasoning was faulty in calling that widows and widowers with minor children should be excused when they break the law so as to fend for the minor children, since it was a recipe for anarchy as there were so many widows and widowers in the country.
Consequently, the sentence imposed by the trial magistrate was not allowed to stand and, therefore, set aside. The matter was sent back to the trial court to recall the two accused persons and impose the sentence of two years imprisonment as mandated by law. Since both accused persons had already served four months imprisonment in the form of community service, they were to serve an effective term of 20 months imprisonment.
This was a case in the High Court where two accused persons were convicted on their own pleas of guilty to contravening s 368 of the Mines and Minerals Act by the Provincial Magistrate.
Having found special circumstances as would entitle the trial court to impose a sentence other than the mandatory one provided in the act; the magistrate sentenced each of the accused persons to 24 months imprisonment of which 12 months imprisonment were suspended for 5 years on condition of good future behaviour. The remaining 12 months were suspended on condition they each complete 420 hours of community service.
The issue before the court was to determine the special circumstances as found by the trial court. The judge applied the rule of Judge J Ebrahim in S v Mbewe and others 1988 (1) ZLR 7(H) to make the determination. The judge’s view was that the trial court erred because the issues put up by the accused were mitigating factors of general application which clearly did not amount to special circumstances at all.
Consequently, the judge ordered that the conviction of the two accused persons stood, and set aside the finding of the trial magistrate that there were special circumstances; and the sentence. The judge also ordered the matter to be sent back to the trial court for it to recall the accused persons and impose the appropriate sentence according to law by deducting from it 53 days equivalent to 420 hours community service already served.
In this Supreme Court case, the first respondent applied for the permit to drill boreholes in the Khan River for uranium mining activities. Subsequently, the second respondent granted the rights to use the boreholes and the water to the first respondent allegedly in the exercise of its powers provided under the Water Act of 1954. The appellant’s case against the respondents was that the wildlife on its farm depended on the naturally occurring underground water to support natural habitats. Overusing the water from the rare sources in the area would, therefore, disturb the ecosystem.
At the High Court level, the issue was to determine whether under the act the second respondent had the powers to grant such rights. The High Court held that the powers to grant such rights were limited to subterranean waters. Moreover, the court held that since under the act sections 27, 28 and 30, the president proclaims the underground waters. The president had never declared the areas allocated to the first respondent as such the permits were a nullity. As a result, there was nothing to be determined by the court in favour of the appellant.
On appeal, the Supreme Court agreed that the permit issued was a nullity. However, it held that the High Court ought to have decided the case in favour of the appellant since, in law, illegal acts can create reviewable actions. Finally, the Supreme Court upheld the appellant’s claim.
This matter dealt with a dispute as to whether there was illegal mining by the respondent on the applicant’s exclusive prospecting licence.
The High Court considered whether expert evidence was required to establish a cause of action. The relevant test was whether a witness proffering an opinion is competent to give one on the matter in dispute. In this case, the court considered that only a land surveyor would be competent to determine the precise boundaries of disputed land. The applicant’s witness was a geologist and not a land surveyor. Accordingly, the court held that expert evidence of a land surveyor was necessary and failure to present it was fatal.
The court also considered whether it was permissible for the applicant to introduce new evidence in the replying papers. The court relied on the principle that in motion proceedings the affidavits constitute both the pleadings and the evidence. Furthermore, the applicant could not substitute a different claim in the replying papers. Accordingly, the court did not consider the evidence of the land surveyor tendered by the applicant during motion proceedings.
Finally, the court considered whether to impose a special costs order against the applicant on the scale as between attorney and own client. The principle followed was that punitive costs should only be awarded in exceptional circumstances. The court considered that there was no demonstrable reprehensible conduct by the applicant. Accordingly, the costs only include the costs of one instructing and one instructed counsel.
In this case the court provided reasons for granting an interlocutory application to prohibit the respondent from mining on private land pending the outcome of an action for eviction of the respondent.
The applicants alleged that the respondent breached his obligation to rehabilitate the land and provide suitable accommodation for the employees. The court observed that the respondent’s replies to these two aspects were bizarre and that the applicants had made a strong case for cancelling the agreement. Consequently, the court held that the relief sought was justified on the merits of the case.
The court went on to observe that, based on the application of the doctrine of res litigiosa (subject of a pending action) according to Namibian law. The court observed that the right to mine generally fell within the meaning of alienating property as per the common law principle of res litigiosa. However, the provision in the Minerals Act provided that the plaintiff in a pending action for delivery of the res (property) would not automatically become entitled to an interdict against the miner.
The court applied the Webster v Mitchell test as read with the provisions of the Minerals Act. Consequently, it held that even if it was open to some doubt that the mining agreement was validly cancelled, the applicant became entitled to an interdict, with no need to comply with the further requirement to obtain an interim interdict.
Accordingly, the court was satisfied that the applicant was entitled to the relief granted.
The matter dealt with a delay by the respondents to issue a permit for the import into Namibia of elephants published in Government Gazette No. 4236, Notice 60, dated 1 April 2009.
The court considered whether the delay was ultra vires the provisions of the Nature Conservation Ordinance No. 4 of 1975. The respondents conceded that the moratorium was ultra vires the ordinance and accordingly, the court agreed with their concession.
The court considered further, whether it should make an order directing the second respondent to issue the required permit to the applicant. The principle to be applied in the circumstances was that the court had discretion once it set aside an administrative decision to take the decision itself and this discretion was to be exercised judicially. The court observed that the second respondent had not yet decided whether to grant or deny the application and that the second respondent was better positioned to decide because it was privy to factual material which the court was not. Accordingly, the court held that it could not order the second respondent to issue the permit to the applicant.
The court considered whether the applicant and second respondent entered into a valid agreement. The test to be applied was to inspect the intention of the parties. The court concluded that whilst the applicant and second respondent had discussed and agreed upon some conditions, those were not intended to be the only conditions. Accordingly, the court held that no valid agreement was concluded.
The 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.
The 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.