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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The appeal stemmed from the denial of the appellant's right to defend on merits due to the lower court’s grant of an Order 14 summary judgement in favor of the respondent, without properly engaging with the merits of the matter.
Substantively, the court held that in a summary judgement application the plaintiff must bring a prima facie case for the claim, which includes showing the basis of the claim, before the burden shifts to the defendant to defend. However, a complete defence is not required but rather the defendant only needs to show that he has a reasonable defence to the claim and his defence is not a sham or intended to delay payment.
Since the respondent’s claim had been based on an agreement and an alleged assignment, the court reasoned that on assessment of the evidence the argument of assignment lacked the element of intent and thus could not stand. Further, the argument that the respondent was a beneficiary of the agreement in question was unfounded. The trial court therefore erred in its decision to grant summary judgment as the very basis of the claim was reasonably challenged on the facts.
The court thus concluded that the appellant had been unjustifiably been shut out of trial. It thus allowed the appeal setting aside the summary judgement.
In this High Court case, the applicant had an agreement with the respondent aimed at selling a herd of cattle to the applicant. Based on this agreement, the respondent proceeded to take the herd of cattle presented in the contract without paying for them. An attempt to charge the respondent for theft through the police did not work as the police hesitated to prosecute the respondent because they contended that they would have a weak case.
Then, the applicant decided to prosecute the case privately charging the respondent for spoliation. The applicant demanded that the court should declare that the herd of cattle that were taken by the respondent, in fact belonged to him.
Thus, the issue for determination by the court was to show cause why a declaration should not be made against the respondent to the effect that the herd of cattle be restored to the applicant.
On perusal of the given evidence, the High Court held that the respondent failed to show that the applicant allowed him to take the herd of cattle in dispute. Subsequently, the applicant was despoiled of the herd of cattle, that is, possession should be restored to the applicant. The respondent was also ordered to hand over to the applicant the progeny of the cattle forming the subject matter of the proceedings.
The court considered an application for eviction of the respondents from certain homestead and fields allegedly owned by the applicant.
The applicant contended that he was the owner in terms of Swazi law and custom, and that the land on which the homestead was built was allocated to his father through a traditional method of land acquisition. He further argued that the respondents claim was based on the fact that their parents were asked to look after the homestead in the past by the applicant’s mother.
The respondents alleged that the property was allocated to their grandparents. They argue that the second respondent’s father gave the applicant three fields where he built his homestead, after the applicant had come to the land asking for a piece of it.
The court found that the dispute relating to the ownership of the land had been the subject of debate for years and had already been dealt with by the royal council, who had made a decision in favour of the second respondent.
The court held that it had no jurisdiction to deal with the matter, because of the nature of the application and the fact that the council had previously ruled on the boundary between the two homesteads. It held that the applicant should have approached the council instead of the court to address its concerns.
The applicants brought a review to set aside the decision of the first respondent to declare the Malkerns area a town, due to failing to consult with the applicant prior to making this decision.
The minister published three notices, one in 1995 and one in 2010, which were not challenged as the first one did not affect the applicants and the second one was welcomed. The applicants contended that the third notice in 2012 was flawed for two reasons: (1) there was no schedule attached to it and (2) there was no commission of enquiry set to receive presentations from affected individuals.
The court considered whether the minister was bound in law to invite the applicants to make representations or objections before publishing the 2012 notice, and if so, whether the minister did so.
The court found that the minister’s intention in terms of the 2012 notice was to declare the Malkerns a town. It became clear that the minister made her declaration in terms of the Building Act and not the Urban Government Act, and she did so without extending invitation for objection or input from the applicants who would have been prejudiced by her decision.
The court found that instead of making invitation, for objection or input, which the minister failed to do, she declared the area a controlled area, which was grossly irregular. The court held that the conduct of the minister was not within her powers as she made the declaration in terms of two separate pieces of legislation which she tried to use interchangeably. Thus, the decision by the minister was reviewable and set aside.
The plaintiff’s claim was for judgment against the defendants for rental money received from the 3rd to 8th defendant from leasing part of plaintiff's land. The plaintiff also claimed compensation for loss of land as per art. 16(2) of the Namibian Constitution.
The applicant argued that she acquired a customary land right in respect of riparian land that was designated as communal land by a representative of the Mafwe Traditional Authority, after her father’s death in 2001.
The land became state land after it was declared a township in 1995 and was thus transferred to the Katima Mulilo Town Council.
The defendants argued that the local authority owned the land and the plaintiff had no right thereof. The court held that ownership of the land vested in the local authority as per the Local Authorities Act of 1992. The court applied s. 15(2) of the Communal Land Reform Act of 2002 as read with Section 3 of the Local Authorities Act of 1992 and held that the land ceased to be customary land when the town council became the owner in 1995.
The court noted as an obiter (by the way), that the claim for compensation should have been made against the state for taking possession of the community land not the Local Authority.
Accordingly, the claim was dismissed with costs.
In this case, the applicants sought to enforce the decision of the Royal House of Chief Kambazembi (a traditional authority), that allocated communal land to them.
Following the continued occupation of the three square kilometres of the land by the first and second respondents, the applicants decided to enforce the decision by the traditional authority in the court.
The court analysing s. 24-26 of the Communal Land Reform Act, Act 5 of 2002 held that the traditional authority had the power to allocate customary land rights. However, upon the allocation of a customary land right, the applicant was required to notify the land board for registration of the land. The court observed that the applicant failed to do so and thus failed to establish a right that was capable of enforcement by the court.
Accordingly, the application was dismissed, and the applicants were directed to pay costs of the first and second respondents jointly and severally.
This case concerned the obligation of public authorities to prevent and remediate damage caused by natural disasters. The applicants argued that the respondents had constitutional and statutory duties to remediate the flooded area and to reasonably prevent future harm. They further contended that the respondents fell short of these duties. This was not contested by the respondents and, in fact, largely confirmed by an internal memo.
The High Court considered whether the application for a mandamus interdict ought to be enforced against the respondents following their alleged failure to remediate significant damage to the applicants as a result of flooding, which led to blocked culverts, exposed them to increased risk of future inundations, as well as increased levels of water pollution.
The court held that the applicants had a constitutional right to a safe environment and that the respondents had legal duties to remediate the flooded area and reasonably prevent future harm. Given that no post-disaster rehabilitative work had been conducted and no explanation for this failure had been provided, the court found that the respondents fell short of their duties. It further held that the constitutional rights of the applicant outweighed any inconvenience for the respondents to fulfill their duties.
Consequently, the court directed the first respondent to immediately remediate the flooded area and to clean the culverts to prevent future damage. The first responded was further ordered to provide the applicants with regular feedback concerning its implementation of the orders.
The matter dealt with a dispute among the parties in connection with the breaching of the uMfolozi River mouth which affected sugar cane farming in the area around the iSimangaliso Wetland Park, a World Heritage site. The applicants asserted the following: their entitlement to breach the uMfolozi river mouth to alleviate back-flooding by virtue of a Water Use Certificate issued to them by the second respondent in 2012; the failure of the first respondent to comply with constitutional principles of co-operative governance, and the norm of artificially breaching the uMfolozi river mouth.
The court observed that the relief sought was declaratory in nature and not dependent on an established right. This, it held was contrary to the legal principle that when declaratory relief is sought, it is incumbent upon the applicant to demonstrate that it has legal interest in the relief and set out the facts to sustain the legal interest asserted. The court observed that interested parties, not joined in the application, were going to have their rights affected by the relief sought, so the water use entitlement claimed by applicants was flawed and unenforceable. Although applicants may have established a water use right, this right was limited by territorial limits regulated in the water use certificate therefore, it could not be enforced against first respondent. The court held further that the first respondent had not breached the principles of co-operative governance as an inter-governmental task team had been put in place. Accordingly, the application was dismissed with costs.
The matter was an appeal from a conviction on the charge of being found in possession of wildlife trophies in contravention of s95 and 92 of the Wildlife Conservation and Management Act of 2013 (“Act”).
The appellant argued that the trial court overlooked the inconsistencies and contradictions in evidence and applied the doctrine constructive possession of the wildlife trophies erroneously.
The court established that evidence must be led to prove the fact of possession and the contradiction in witnesses’ testimonies put the question of possession in doubt. Court also found that the doctrine of recent possession was erroneously applied.
The court considered s92 and established that it does not create an offence in so far as offences in respect of endangered species or their trophies are concerned but only a punishment and as such the suspect could not be tried under it. Further, that the proper provision that created an offence in respect to wildlife trophies and trophies generally was s95 and that suspects should be charged under the same until the Act is amended.
The conviction was quashed and the appeal was allowed on account of failure of the prosecution to prove the case to the required standard.
This was an appeal to the High Court against the decision of a magistrate to dismiss the appellant’s claim which concerned a dispute over a customary piece of land. While the appellant stated that the part of the land in dispute was his, the respondent maintained otherwise.
The issue for determination was whether the land belonged to the respondent or the appellant. The court held that in civil cases, the evidence was on a balance of probability. As such, the respondent’s evidence that he was the one given the land by the chief carried more weight and was therefore convincing. The court further held that customary lands were owned communally, which meant that the chief did not own the land as his belonging. Therefore, the court stated that the chief did not have the power to deprive one person of land and give it to another. In conclusion, the court upheld the decision of the court below and accordingly dismissed the appeal.
This was a preliminary application for a stay of hearing in order for the matter to be referred to arbitration owing to the existence of an arbitration clause in a Royalties Agreement (RA), entered into in relation to the parties’ mining operations. The main matter involved an application for the discharge of leave to move for judicial review on a decision by the respondents to cancel a mining licence.
The court considered whether the judicial review proceedings should have been stayed owing to the existence of an arbitration clause in the RA; and whether the preliminary objection was or was not caught by the provisions of s 6(1) of the Arbitration Act.
The court noted that the main issues for determination revolved around two agreements: the Mining License (ML) and the (RA). The court found that the two agreements ought to have been applied as one agreement. This was mainly because the RA, was an agreement made pursuant to a provision in the ML, and secondly, because the RA provisions were the very ground upon which the ML was purportedly terminated.
The court therefore held that the arbitration clause was applicable. However, the court went on to hold that s 6(1) of the Act precluded the applicant from referring the matter arbitration after it had taken steps in the proceedings or delivered pleadings. The court found that the evidence was clear that the applicant had taken steps in the proceedings. Accordingly, the applicant could not rely on the arbitration clause.
The court considered an application for the continuation of an order of injunction to restrain the defendants from trespassing or encroaching on the plaintiff’s land, pending the determination of the plaintiff’s claim. The plaintiff alleged that she purchased customary land from the daughter of its previous owner. The plaintiff enjoyed possession of the land, until the defendants alleged that the land was their grandfather’s and the seller had no authority to sell it. Although, the plaintiff argued that she had ownership of the land, the defendants argued that customary land could not be sold or bought, thus she had no right to protect.
The court considered the temporary injunction and whether the plaintiff had disclosed a triable claim. It found that where the applicant had disclosed a good claim to the right, the court would then consider whether damages was an adequate remedy. The court found that the plaintiff’s use of the word bought was incorrect, stating that she parted with money in exchange to acquire the right to use and occupy the land, she however, had a triable right to protect. The court held that the remedy of damages was not adequate as the land was unique.
In conclusion, the court found that the balance of convenience favoured the status quo in protecting the land, used and occupied by the plaintiff until the outcome of the trial and upheld the application
The applicant sought various reliefs concerning a project to abstract and pump water from Lake Malawi by and under the watch of the respondents. The judge considered the main issue to be an application for leave to apply for judicial review. The second issue was whether the applicant and the Malawi Law Society (MLS), an interested party), had locus standi in the matter in light of s 26(1)(d) of the Legal Education and Legal Practitioners’ Act (LELPA).
The applicant contended that the matters that it raised were matters of public interest and were intended to protect the public on an issue that directly touched on the law, namely compliance with various legal processes relating to environmental protection before a project of the nature of the instant one is commenced. The judge held that prima facie, this was a matter of public interest and that the MLS had a legal duty to take measures intended at protecting the public, within the meaning of s 26(1)(d) of the LELPA. The judge was also satisfied by the applicant’s representations that there was no alternative remedy for the applicant in the circumstances to secure appropriate reliefs. The court was satisfied that the applicant had an arguable case and therefore granted the applicant leave to apply for judicial review. The court further ordered the first respondent to make available to the applicant the contract with the contractor and other relevant environmental information.
This was an appeal against the decision of a magistrate to order the appellant to vacate a disputed piece of customary land. The appellant applied for a stay of execution of judgment pending appeal.
The two issues for the court’s determination were, whether the appellant was duly allocated the piece of land according to customary law, and whether he had the right of usage and occupation. The court applied the burden and standard of proof based on a balance of probabilities, and ss 2, 25 and 26 of the Land Act which regarding title and ownership of customary land.
The court found out that the respondent had left the land unattended for a period of 13 years and, although this did not remove his right of usage and occupation, the status quo could not be maintained. The court observed that, the land was lying idle when it was allocated by the Group village Headman to the appellant who in turn redeveloped it by building a house, a grocery store and planted trees and fruits. The court held that the respondent sat on his rights and allowed the appellant to develop the land. The court also found that respondent’s conduct had been unreasonable during the time that the appellant developed the land.
In conclusion, the judge held that the appellant was duly allocated the piece of customary land according to law and that he then had permanent rights of usage and occupation. Accordingly, the appeal succeeded with costs.
This was a mediation report regarding an action commenced by the plaintiffs against the installation of a water pump and other construction works on what was believed to be customary land. The plaintiffs sought to restrain the defendant from interfering with their customary rights on the land. They contended that the water pump installation plan violated their right to the use and enjoyment of their customary land. The matter was set for mediation.
The issue for resolution was whether the project interfered with the customary land held by the plaintiffs.
An agreement was reached by the parties to the effect that the project was located in an intersection of the road reserve which was public land pursuant to the Waterworks Act and that the defendants had obtained the requisite authority to install the water pump and related works. The proposed construction of the water pump was therefore not in violation of any customary rights for as long as it was restricted within the road reserve. Accordingly, the matter was resolved.
The court considered an application for a declaratory order, declaring that the applicants had a right to live in a quiet environment, free from any noise pollution that can cause annoyance, inconvenience and interference with their comfort or exercise of their rights. The applicants attempted to rely on the rules of practice to ensure their order was granted by means of summary judgment.
The defence argued that the procedure for a summary judgment was not covered by the available High Court rules, and the absence of new rules created a lacunae (not provided for in statute).
The court found that in terms of the General Interpretation Act, s13 provides for a mechanism to avoid a lacunae in the event that a written law has been repealed.
The court considered s14 of the Act, wherein it states that where there is a “written law which is repealed or re-enacted with or without modification, any provision of any other written law, then unless a contrary intention appears, shall remain in force.”
The court found that the rules of Supreme Court are subsidiary legislation and that by repealing the summary judgment rule, it did not automatically repeal the rule of the supreme court unless they are replaced.
Application dismissed with costs.
This case concerned an appeal against the appellant’s conviction and the decision to sentence him to six months imprisonment, of which 3 months were suspended for a period of 5 years on condition of future good behaviour.
The appellant, a self-admitted illegal gold dealer, approached three men to buy gold. After paying, he discovered that he bought fake gold. To recover his money, he lied to the police, indicating that he was robbed by the three men. The police arrested them and during their interrogation realized that the appellant had lied to them. The appellant was then arrested and admitted that he made a false report.
While the appellant pleaded guilty, he appealed against the sentence imposed arguing that it did not take into account mitigating factors. He also submitted that the court should have considered a fine as an alternative sentence.
The appeal court found that it should not lightly interfere with the lower court’s sentencing discretion. Further, that the lower court did take into account mitigating factors, such as the fact that the appellant pleaded guilty and was a first offender. It further noted that the court had to also consider aggravating factors, especially the fact that the appellant was an illegal gold dealer trying to use the police as debt collector.
The appeal court held that the lower court adequately took into account all relevant factors and imposed a fair sentence.
Accordingly, the appeal was dismissed.
Criminal law – defences – ignorance or mistake of law – acting in accordance with advice given by official whom the appellant had reason to believe was charged with administration of the law– mistake or ignorance of the law a defence when directly brought about by such advice
Environment – environmental impact assessment – requirement for – such requirement additional to considerations for issue of mining permit
Mines and minerals – mining dispute – resolution – decision of mining commissioner appeal from – appeal lying to High Court – Permanent Secretary in Ministry having no appellate jurisdiction
In this High Court case, the applicant sought interim and final orders to the effect that the first respondent be stopped from carrying out mining activities on the disputed area.
The applicant was a registered holder of Legion Mine in Gwanda (“mine”). The respondents then entered into a three years’ tribute agreement with the first respondent. Terms of the agreement required the first respondent to pay royalties to the applicant. However, after the three years expired, the first respondent refused to sign the new contract and to pay royalties to the applicant.
The issue for determination was whether the final order and an interim injunction could be issued against the first respondent, as sought by the applicant.
The respondent argued (1) that the damages suffered were reparable, and thus, a stop order could not be issued; (2) the affidavit was defective for failing (a) to indicate that the matter was urgent and (b) to make a distinction between payers that needed a final order and interim order. In response, the court held that (1) an interdict could be issued if the damages suffered are difficult to assess; (2) failure to title an affidavit as urgent does not make it defective if that could be read from the content of the affidavit; and (3) the applicant's affidavit was clear that she wanted an interim injunction stopping the first respondent from carrying out mining operations and the final orders for a complete cessation of mining activities.
Accordingly, the Court ordered the applicants prayers as sought.
The accused was charged on several counts for the unlawful possession of gold without a licence, smuggling and the use of a vehicle with secret or disguised places for concealing goods. In his defence, the accused stated that he was not aware of the presence of gold on the vehicle having borrowed it from another person who was a gold dealer.
The main issue for the court’s consideration was whether the accused person had knowledge of the existence of the gold. The court noted that the burden of proof in criminal matters rests on the state and that the state is required to prove its case beyond reasonable doubt. The court found that the state failed to adduce sufficient evidence to prove that the accused indeed had knowledge of the existence of the gold and the compartments.
Given these circumstances the court gave the accused person the benefit of the doubt and he was acquitted on all three counts.
The plaintiff issued summons claiming damages for malicious arrest, detention and prosecution due to the first defendant’s conduct during his employment with the second respondent. The second defendant owned a mine and employed the first defendant as a security manager. The plaintiff alleged that the first defendant laid false charges to the effect that the plaintiff had stolen gold slime from the mine, which resulted in his arrest, detention and prosecution for theft of the gold slime. The defendants averred that the first defendant discovered that 75 000 tonnes of gold slime had been stolen from the mine and he made a report to the police. After making investigations it was established that the plaintiff had instructed two of the employees of the second defendant to collect gold slime from the second defendant’s mine, which resulted in the plaintiff being arrested. At the pre-trial conference it was agreed that the issues were whether the defendants maliciously and wrongfully caused the arrest of the plaintiff and whether the plaintiff suffered damages as a result.
Held: (1) it is an actionable wrong to procure the imprisonment or arrest of anyone by setting the law in motion against him maliciously and without reasonable cause.
(2) For the plaintiff to succeed in an action for malicious prosecution he must prove that the prosecution was instigated by the defendants and that it was concluded in favour of the plaintiff and that there was no reasonable and probable cause for the prosecution and that the prosecution was actioned by malice. For malice to be present, the defendant must thus not only have been aware of what he was doing in instituting or initiating the prosecution but must at least have foreseen the possibility that he was acting wrongfully, but nevertheless continued to act, reckless as to the consequences of his conduct (doluseventualis). Negligence on the part of the defendant (or even gross negligence) will not suffice.
(3) The plaintiff failed to prove that his arrest, detention and prosecution were malicious and so the claim would be dismissed with costs.