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 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'.
The applicant approached the court by motion proceedings claiming that the suspension of the digging licence at Kao Diamond Mininq by the respondents be declared null and void. The applicant also prayed for damages and costs of the suit.
The respondents raised an objection on a point of law and submitted that the applicant was abusing court process by using motion proceedings to institute a case where there was a dispute of facts.
The court applied the rule that motion proceedings are preferred where the issues are clear. Further, the court held that matters brought by motion proceedings on disputed facts should be dismissed with costs. The court found that the applicant’s claim was based on issues of fact and law thus the difficulty in choosing how to institute the claim.
The court noted that it was required to examine the alleged dispute of fact and see whether in truth there was a real issue of fact which cannot be determined without oral evidence. Additionally, the court had the discretion to decide disputed claims by motion proceedings in appropriate cases.
It was held that the claim on license suspension by motion proceedings was correctly instituted and the damages claim was dismissed. The court applied its discretion as per rule 8 sub-rule (14) of the High Court Rules and ordered the matter to trial for the resolution of the license suspension. It was also ordered that the affidavits be considered as pleadings and the costs of the application be costs in the trial.
This was a counter-application by the fifth respondent (now applicant) against first and sixth respondents (respondents), for an order declaring a mining lease between the Basotho Nation and another company void. The applicants also prayed for costs in the event that the application was opposed. The applicant claimed that there was non-compliance with the procedures prescribed by sections 6 and 7 of the Mining Rights Act of 1967, as amended, when granting the lease.
The court determined whether Order No. 1 of 1970 which was enacted after the coup d'etat of 1970 abolished the office of the King and his executive power of allocating land or interest in land as contended by applicants.
The court noted that the applicant quoted Makenete v Lekhanya and others C of A (CIV) 17/1990 in support of the position that the order abolished the office of the king. However, it was noted that this position was only referred to in the obiter, (not the main holding) which failed to consider the effect of the Regent (Assumption of Office) Notice of 1970.
The court then interpreted the definition of regent to be “one who is invested with royal authority by”. Consequently, it was found that the notice appointed Queen Mamohato Seeiso to be regent for the duration of the King’s absence from Lesotho. It was further held that the king’s office had not been abolished since the queen was appointed to be his regent for the duration of his absence.
Accordingly, the application was dismissed.
This was an appeal against the decision of the Court of Appeal that declared that the respondents were the rightful owners of the land in dispute, issued damages for trespass by the appellant and an injunction preventing the appellant from entering the land and harvesting therefrom.
The facts revealed that the appellant's forefather granted the respondent's forefather a portion of land for farming purposes and reserved the right to reap the fruits of trees in the farm. In exchange, the respondent’s forefather was also required to pay Ishakole( land rent) as and when due.
The court determined the rights of the appellant as a customary tenant. The court noted that the appellant’s rights were subject to the respondent’s (landlord) right to reversion in case of any breach of the grant. However, it noted that a landlord is still required to approach the court to forfeit the interest of the tenant.
The court also determined the rights of the parties in a customary tenancy after the Land Use Act 1978 came into operation. The court found that act took away the freehold title vested in individuals or communities but not the customary right of use and control of the land. It was thus held that a customary tenant remained a tenant subject to the conditions attached to the customary tenancy. Further, the court held that the appellant was entitled to harvest fruits and trees and could not be liable for trespassing.
Accordingly, the appeal was allowed.
The matter dealt with an application for review of a decision by the first respondent to grant a reconnaissance licence to the second respondent. The issue for the court’s consideration was whether it was permissible to grant an exclusive reconnaissance license to a non-holder of a reconnaissance license and whether a side note in a statute could be used in the interpretation of a statutory provision.
The applicant conceded that in terms of section 59(1)(a) of the Minerals Act, they were not a holder of a reconnaissance licence and therefore could not have applied for an exclusive reconnaissance as required by that section but contended that an exclusive reconnaissance licence was competent under section 62(1) of the act.
The court in dismissing the application decided that ss 59 to 62 complemented each other. The court cited Chandler v DPP which held that side notes cannot be used as an aid to the construction of legislation as they are mere catchwords inserted by the draftsman and not the legislator. Therefore the notion that the marginal note to s 59 held that the section only deals with exclusive reconnaissance licences was immaterial. The court held that the language of s 59(1)(a) instead demonstrated that an ordinary reconnaissance license could not be issued under s 62(1), unless it was first granted under s 59(1)(a) and ruled that only the holder of a valid reconnaissance license may apply for an exclusive reconnaissance license under s59(1)(b).
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.
The fifth respondent was created by statute for the purpose of implementing a project design to dam water. The dam was built and flooded the area that the appellant had obtained a mining lease for, making mining impossible. The government then unilaterally cancelled the appellants’ lease. The appellants filed an application to set aside this cancellation. Their application was granted.
The fifth respondent filed a counter-application to set aside as null and void the mining lease on the grounds that the mining lease was a nullity because it had allegedly been concluded without a recommendation by the Mining Board and without prior consultation with and approval of the Principal Chiefs within whose areas of jurisdiction the mining lease area fell. The fifth respondent further submitted that such recommendation and prior consultation and approval were peremptorily enjoined by s 6 of the Mining Rights Act No. 43 of 1967, so that non-compliance with both, or with either, of these requirements invalidated the granting of the mining lease by the government to the applicants and rendered it a nullity.
The court considered whether the mining lease complied with requirements of the Mining Rights Act. It found on the facts that the fifth respondent had successfully discharged the onus of proving that neither of the abovementioned requirements had been complied with before the lease was concluded. Accordingly, the lease was set aside. Costs were awarded in favour of the respondent herein.
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.
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.
This was an appeal against the decision of the trial court to award damages to the respondent in absence of expert evidence.
The appeal originated from an action for damages by the respondent. The respondent contended that the appellant’s seismic operations involving setting off explosive charges underground, caused cracks on the cement walls and concrete floors of his building.
The court determined whether the trial court erred in its holding. The court noted that the plaintiff led no expert evidence, while an expert for the defence testified that the explosive charges could not have damaged the respondent’s building. It was further noted that both parties disagreed on the extent of the damage on the respondent’s building.
The court held that expert evidence was necessary to connect the damage with seismic operations. The court also held that the trial court erred in its holding since the plaintiff failed to discharge the onus on him to establish such connection.
The court noted that there was a serious conflict in the description of the building; and relied on the holding in Seismograph Service (Nigeria) Limited v Esiso Akporuovo (1974) 6 SC to hold that a proper evaluation of the evidence required a judicial inspection of the building.
Accordingly, the appeal was allowed.
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.
In this case, the applicants sought an interdict against an administrative decision not to renew short term mining leases. The applicants held mining licenses for several years which were renewable every six months. The Minister of Natural Resources, the first respondent sent the Acting Commissioner of Mines and two other officials to inform the applicants that their licenses would expire and not be renewed at the expiration of the six month duration. However, a two months extension was granted to enable final sifting and cessation of operations. Nevertheless, the applicants argued that the notice was too short and that they were legitimately expecting the leases to be renewed again.
The High court noted that the issue at hand was not one of cancellation or revocation, but one of non-renewal. Therefore, the issue that the court examined was whether the administrative decision not to renew the licenses was legal.
The court observed although that the applicants had a legitimate expectation to be heard before the decision not to renew their licences was made, they had been given time and opportunity to air their concerns. The court found that prior to the cancellation, the respondents were informed of the non-renewal on two occasions but made no attempt to persuade the respondents that the intended suspension was inappropriate or prejudicial. The court also held that there was insufficient evidence to show that the respondents had acting in bad faith and dismissed the application.
The matter deal with a land dispute. After the first defendant declared the plot of land in question a “selected development area” and leased it to the second defendant, the second defendant fenced it off. Prior to this, the plaintiffs had been the lawful occupiers and users of that plot of land which they utilised for agricultural purposes.
Initially, the plaintiffs sought a court order declaring as void the first respondent’s decision to define the plot of land a “selected development area” and an eviction order ejecting the second defendant or, alternatively, a compensation order ordering the defendants to compensate the plaintiffs. The plaintiffs conceded however, that the second defendant did come into occupation of the land legally. Eventually, the parties agreed that the court should decide only whether the plaintiffs were entitled to compensation.
Relying on s45(2) of the Land Act No 17 of 1979, the court held that two conditions must be satisfied for the loser of the right to use and occupy particular piece of land to be entitled to compensation. First, the selected development area that has been declared must consist wholly or partly of agricultural land within a selected agricultural area. Second, the land must be within a "selected agricultural area".
The plaintiffs, however, did neither allege nor prove that the land was in a selected agricultural area. Consequently, the plaintiffs claim for compensation failed and was dismissed with costs.
The court considered an appeal, based on a judgment from the court below, the issue of importance being political patronage by the Disaster Management Authority (DMA). This issue stemmed from a decision made by the Interim Political Authority (IPA), which sought to eliminate political patronage on the basis that the IPA (respondent) had the power to declare certain conduct political patronage.
Political patronage has been defined as a situation in which one person is rewarded for supporting a particular politician. The respondents argued that the involvement of members of parliament in the work of the DMA had nothing to do with political patronage, and rather to do with the efficient discharge of obligations, thus to feed people during times of famine and natural disasters. Further, that the distribution was done by constituencies, and thus due to members of parliament being elected by the public, they had an intimate knowledge of their communities needs and the constituencies needs in terms of resources.
The court found that this argument was eminently sensible and does not contain an element of political patronage. Further, that political patronage had to be established objectively. The fact that the IPA dictated that conduct was political patronage doesn’t make it so, and to hold this position would amount to an untenable position. Accordingly, the appeal succeeded
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 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.
The court considered an urgent application regarding quarrying activities, wherein the applicants sought, amongst several other grounds, to interdict the 1st and 2nd respondent from carrying out blasting and quarrying activities, pending the finalisation of the damage caused to the applicants’ houses.
The 3rd respondent operated a quarry for materials needed for the construction of mountain roads and in order to perform their job, blasting was required in order to loosen up the materials. Prior to the commencement of the work photographs of the houses within 500-meter radius of the quarry would be taken, in order to monitor and evaluate the effect of such blasting.
The respondents argued that the applicant had refused to have the liaison committee survey their buildings to detect the damage incurred due to the blasting.
The court considered whether the matter was urgent. It found that even with the applicants’ refusal, the buildings had been photographed and numbered to facilitate the assessment of damage following the blast.
On determining whether the matter was inherently urgent, the court found that the applicants were at all times aware that the blasting had occurred, yet they did nothing. On this basis, the court found that the applicants rights were not being impaired and as such their interdict was not granted. Accordingly, the application was dismissed.
The court considered an application for the applicants to be compensated before removing them from their land for improvements to those sites, as well as an interdict restraining the respondents from removing or demolishing the houses of the applicants without compensating them. The facts surrounded the applicant’s right to occupy the land based on allocation of land letters. The respondents argued that the applicants were in unlawful occupation as only the Urban Land Committee could allocate land. Further, that the Minister had published a legal notice advising the applicants that the land would be taken.
The court considered whether the right to land under s 44 of the Land Act 1979, which governs that the seizure of land for public purposes, was correctly administered. Further, the court stated that in Lesotho, land is not subject to individual ownership, and a person only has a right to occupy and use the land and when land has been taken away by custom, it has to be replaced.
The court found that the applicants, who had collectively spent millions on improvements to their houses, could not have their land taken away and their rights ignored. Further, the court held that peoples land could not be seized without them being consulted and being heard.
The court found that the legal notice issued by the minister was contrary to law as there was no prior consultation and it did not specify the purpose for seizure or the properties to be seized. Accordingly, the application succeeded.
The court considered an application for an injunction to restrain the defendant's act of nuisance and damages, due to excessive noise made by the chickens in the early hours of the morning, which prevented the plaintiff from having a good sleep, an odious smell emanating from the same chicken pens as a result of excreta or droppings from the poultry and, rats, flies and fleas escaping from the poultry into the house and disturbing his comfort and impairing his health.
The issue for determination was whether there was a statutory nuisance or not by applying the principles of common law, which laid down for the protection of individuals, in the exercise or enjoyment of their rights.
The court accepted the evidence of the plaintiff that the chickens made noise at the early hours of the mornings, and when some 400 chickens do join together to click or make noise about the same time and at this particular time of the night, it was bound to be excessive and to disturb the peace of a neighbour, who was barely five feet from their pens.
The court accepted the plaintiff's evidence that bad smells came out of the defendant's poultry. Concerning the question of flies, rats and fleas, it was found that in the absence of satisfactory evidence on these points, it was difficult to say that nuisance had been established.
Consequently, the injunction was granted, and ordered that the plaintiff was entitled to damages
The court considered an application against the decision to suspend the applicant’s license and for compensation as a result of the suspension or non-renewal of his digging license. The applicant was a diamond digger, who found a large diamond and upon enquiring from the mining advisor of the 1st respondent how to dispose of the diamond and to have it valuated, he decided to keep it, until the diamond went missing. The duty of the advisor was to issue digging licenses and to ensure diamonds were sold legally and correctly. Once the advisor noticed that the diamond was missing, he reported to the government representative.
In terms of his digging license, the applicant worked as part of a co-operative society and a mined diamond belonged to the co-operative to be sold. The applicant argued that the reason the diamond was not kept in a safe place, and rather in a grave, and not reported after it went missing was due to the advisor wanting to benefit from the sale.
The court found that there was no reason for the 1st respondent to lie, and in fact it was the applicant who wished to be the sole beneficiary and to gain from the black-market sale. It held further that there was no possibility that the diamond went missing by accident. Accordingly the application was dismissed.
The court considered an appeal against a judgment of the Gauteng Local Division where the appellants refusal to supply information to the respondent about their industrial activities with possible environmental impacts, was declared invalid and set aside.
Following two requests by the respondent, the appellant refused to give them any information based on a failure to meet the threshold requirements of s 50(1)(a), read with s 53 of the Promotion of Access to Information Act 2 of 2000. Further, that their reliance on s 24 of the Constitution was too broad and in conflict with the principle of subsidiarity. I.e. where legislation giving effect to constitutional rights exists, the provisions of the legislation is where the rights should be located.
The court found that the word ‘required’ in s 50(1)(a) of PAIA should be construed as ‘reasonably required’ in the prevailing circumstances for the exercise or protection of the rights by the requestor. Thus, insofar as the environment is concerned, collaborative governance was a virtue.
The court took into consideration the nature of the appellant’s operations and its consequences. The appellant had a reputation for being a major polluter in the areas in which it conducted operations.
The court found that the information was required to make a decision on future actions and could find no error in the court’s reasoning that led it to an order compelling the appellant to provide the requested information and that there is no room for secrecy.
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.
This was an appeal from a decision of the High Court which declared the proclaimed Selected Development Area (SDA) as null and void for failure to comply with Legal Notice 17/1999 and an order requiring compensation of the respondents before they were evicted.
The court determined whether the respondents had legal rights arising from their occupation of the land and if such rights had been extinguished upon proclamation of the SDA, with the non- payment compensation being no bar to eviction.
The court established that the respondents were bona fide occupiers who made useful improvements on the land. Further, the court established that s 17 of the Constitution prohibits compulsory acquisition of any right or interest in property unless the 3 conditions therein are satisfied.: the acquisition must be necessary, justify consequential hardship and there must be prompt and full compensation thereof.
The court found that the constitution does not countenance taking of possession of property without payment of prompt compensation and the appellants cannot assert a right to evict the respondents without compensation.
The court held that the respondents were entitled to compensation and interdicted the appellants from demolishing the developments on the land.
The matter dealt with an application by the applicants against the respondent’s decision to remove them from and refuse them permission to sell their goods. The applicants were street vendors along the Kingsway Street. The 1st respondent had ordered them to relocate, which the applicants refused as the conditions were unfavourable. As a result, the applicants were removed. The applicants argued that in terms of s 5 of the Constitution, by forcing them to relocate their right to life was infringed as it denied their basic means of a livelihood.
The court considered whether the applicants’ removal from the Kingsway Street, was a violation of their right to life. The court found that “life” can be defined as a mammalian biological existence, and in a wider sense, it can be defined as the deprivation of human life itself. In this instance, the court held that the opportunity to trade should be viewed and weighed against other competing interests and values.
The court observed that, trading as a street vendor was a deliberate choice and not the only alternative to a living. Thus, the interests and values of livelihood were outweighed. In conclusion, the court found that to include the right to trade as one’s livelihood in the constitutional right to life would lead to absurd results. Accordingly, the application was dismissed.