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 against the decision of the court below. The appellant was found in possession of gold and arrested because he failed to produce a licence. He was charged with contravening s3 of the Gold Trade Act and convicted following his plea of guilty. He was sentenced to the mandatory five years imprisonment.
The appellant filed a late appeal against his sentence, which the court condoned. In the notice of appeal, the appellant introduced grounds of appeal against the conviction. Thus, the court first had to consider whether the appellants appeal against the conviction was admissible and had merit.
Given that the appellant only filed an appeal against his sentence and not his conviction, and that only the lateness of that appeal was condoned, the court found that the appeal against the conviction was filed out of time and had no merit.
The court then considered the appeal against the sentence. The appellant argued that he did not know he had to have a permit to carry the gold in Zimbabwe, and that he operated under a bona fide mistake of law, that amounted to a special circumstance. The court found that the appellant would not have expected Zimbabwe to have regulations on the possession of gold and his failure to declare the gold upon entry into Zimbabwe reflected his mala fides.
Accordingly, the appeal was dismissed.
The applicant (a mining syndicate) sought several remedies, concerning gold mining and prospecting, against the first respondent, which would materially affect the second respondent (a mining syndicate).
Among the remedies were, that the first respondent should issue the applicant with a certificate of registration over a mining block and that the second respondent, and all those claiming occupation through it, should vacate that site.
The issue facing the court was whether these so-called syndicates were corporate bodies whose corporate status would ordinarily remain unaffected by changes in their membership. The rule applied was the Mines and Minerals Act.
The court held that the applicant described itself as a body corporate, but no incorporation document was produced, thus, the mere coming together of a group of people, or gang, for some commercial purpose such as mining, did not automatically transform it into a body corporate.
The court held that in terms of s 45, which provided for the registration of a mining location, when one applies to the mining commissioner, there was nowhere in that provision, or any other, that said that the mere payment of an application fee for registration, automatically confers rights of ownership or leasehold, or any other entitlement on the applicant. The applicant had not yet acquired any sort of right to enforce, the first respondent’s reason for not having proceeded with issuing a registration certificate was quite reasonable under the circumstances.
The court concluded that the application lacked merit, consequently it was dismissed with costs.
The court considered an urgent application, which was heard in chambers, to prevent the applicants’ eviction from their mining claims.
The mining claims, which were abandoned, were owned by the second respondent. Pursuant to the abandonment, the mining claims were opened up to prospecting third parties.
The applicants claimed that they applied to the relevant authority and were granted a lease of the disputed mining claims. Consequently, they argued that they should not be evicted.
The court, therefore, had to determine whether the eviction of the applicants was lawful.
The court found that the applicants failed to provide evidence showing that they had obtained a lease. It also found that the second respondent, which purportedly abandoned the mining claims in dispute, had been placed under a reconstruction order in terms of the Reconstruction of State-Indebted Insolvent Companies Act [CAP 24:27], which had the effect of voiding every disposition of the property, without the approval of the administrator. In this instance, the administrator did not approve the abandonment. As such, it was null and void, and was not open for prospecting.
The court found that the applicants’ manager and principal officer in person, not the applicants themselves, featured in the provided documents and that the eviction was against that person. The applicants themselves never acquired a right over the mining claims.
Finally, the court found the applicants were sluggard and failed to approach the court in good time.
Accordingly, the application was dismissed.
The court considered an urgent application for an order interdicting the first respondent from carrying on mining operations on the applicants’ mineral claims. At some point, the applicants and the first respondent had business dealings involving minerals from those claims. The respondent then went on to register mining claims over a piece of land which included the first applicant’s mining claims. The respondent argued that the matter was not urgent, and that the relief sought was not competent as it was final in effect.
The court considered whether the applicants had established a right to the relief sought. The court observed that the relief sought was an interim interdict, the requirements for which were: a clear right; irreparable harm; balance of convenience in favour of granting the relief, and no other satisfactory remedy. The court found that the respondent intended to mine on the applicants claim, and although the mining hadn’t commenced, the applicants could not wait until it acted and had established the prejudice likely to be suffered.
In determining the balance of convenience, the court weighed the prejudice to the applicant if the interdict was not granted against the harm to the respondent if the relief was granted. In this instance, as the mining activities were not being carried on yet, there was no prejudice to the respondent. Accordingly, the court found that the requirements for the interdict were met and the application succeeded.
The court considered an application to set aside the National Water Authority Regulations and tariffs on the ground that they were ultra vires and violated the applicants’ rights.
The applicants’ business operations involved sugar-cane growing and sugar processing. They concluded two agreements with the Zimbabwe National Water Authority (ZINWA), which related to the supply of water. It was a term of the agreement that the parties would, together, review charges for raw water, and should they fail to agree, the respondent would fix the prices. Subsequently, ZINWA addressed a letter advising the applicants of their intention to review the charges. The respondent unilaterally increased the tariffs and failed to notify the applicants. The respondent argued that in terms of the ZINWA Act, she had the authority to impose tariffs for water charges and that the regulations did not violate the applicants’ rights.
The court considered whether the respondent had acted lawfully in imposing the water tariffs. It found that the government reviewed the water charges, and not ZINWA which was lawfully established to review the tariffs in as far as the applicant was concerned.
The court found that the respondent could not unilaterally increase water tariffs, unless ZINWA had made application to it to justify the increase. In this case, the respondent failed to notify the applicants, nor did she give them an opportunity to respond. The court concluded that the respondent acted ultra vires by increasing the tariffs and her actions were unlawful. Accordingly, the application was upheld
This was an application for an interdict to prohibit mining activities at West Nicholson mine and a further order relating to the processing, sale of and distribution of gold ore mined by the applicants.
The applicants were members of the West Nicholson Youth in Mining Association. The 2nd respondent offered to grant a tribute to the association to mine gold ore and three representatives were appointed by the association to negotiate with the 2nd respondent. After operations had begun, the three representatives along with the 3rd respondent, a third party, unilaterally implemented a profit sharing scheme which gave 50 percent of the proceeds to the four of them.
The 3rd respondent opposed the application contending that it did not satisfy the requirements of an interdict because the applicants had no prima facie right.
The main issue for the court’s consideration was whether or not the applicants had satisfied the requirements of an interdict. The court found that the applicants had proved that they were members of the association and had therefore established a prima facie right to the mining benefits granted by the agreement. The court further held that there was a well-grounded apprehension of irreparable harm to the applicants if the interim relief was not granted and that this had been clearly proved by the applicants.
Accordingly, the court granted the interim interdict as prayed.
The court considered an appeal against a prior criminal conviction.
The appellants had extracted gold ore from a gold mine and were intercepted and arrested by the police. They were charged under s368(2) of the Mines and Minerals Act for illegally prospecting for minerals. They pleaded guilty, were convicted and sentenced to the mandatory two-year prison sentence. They appealed on the ground that they were convicted on a charge which was not supported by the facts admitted between them and the State.
The court had to consider whether the appellants’ plea of guilty was sufficient to convict them for contravening s368(2) of the Act. The court found that courts have a duty to protect the rights of the accused and to ensure that they fully understand the charge and the essential elements, as well as that they genuinely, and unequivocally admit to the charge, its essential elements, and the facts alleged by the prosecution.
In this case, the lower court simply accepted the uninformed admission of guilt by the accused as proof and disregarded the fact that the charge was not proved by the facts relied upon by the State.
Further, the court found that the appellants did not prospect for minerals, they simply stored gold ore from a known mine, thus contravening s379 not s368.
Accordingly, the appeal was upheld.
The court considered a criminal appeal, where the applicants had been charged for contravening s7(1)(a) or (b) of the Communal Land Act, by occupying or using communal land without lawful authority. The applicants pleaded guilty and were convicted and sentenced to pay a fine of $5000 or 30 days in prison. The appellants appealed the conviction on the ground that the court committed an irregularity by failing to proceed in terms of the correct procedure.
They contended that by entering a guilty plea, the court had a duty to safeguard the fair trial rights of the accused by adopting a procedure which was most likely to suggest a defence where there was one.
The court considered whether the appellant’s conviction was lawful. It observed that with unrepresented accused persons, there was the ever-present likelihood that out of ignorance of the law, a person would admit to charges of a complex nature out of a desire to draw sympathy of the police or the courts and the onus was upon the court to choose a procedure which would have given the appellants a possible defence.
The court found that the conviction was wrong and remitted the matter back to the lower court. In addition, the court below would be required to take cognizance of s 16 of the Act which required that following a conviction, an order for eviction be granted. Accordingly, the appeal succeeded.
The applicant in this High Court case moved the court to issue an interdict order against the first and second respondent. The applicant needed the court to compel the respondents to restore the supply of water that they had disconnected to the applicantÕs mine. The interim relief had been issued in a previous application, but the applicant additionally sought an order interdicting the respondents from terminating the water supply.
The first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicant argument was that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents argued that they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending their contract.
Thus, the issue for determination was whether the applicant satisfied the requirement for an interdict to be issued.
The court held that in the issue of spoliation, it is established in law that for a party to succeed it must show that the party was in peaceful and undisturbed possession. The court was satisfied that the applicant was constitutionally entitled to water supply, and that interference with this right without a court order was unlawful.
As a result, the interdict was allowed pending the main trial.
The applicant, had received a letter from the Secretary for Mines and Mining Development alerting them that their special grants for mining had expired and they had to cease all mining activities and vacate the covered mining areas. The Minister further issued a press statement on the consolidation of all diamond mining activities in the grant areas.
The applicant averred that the above decisions had prejudicial effect on it which also violated its property rights.
The respondents alluded that the application was improperly brought before the court as it appeared to be a response to the judgment of the High Court which the applicant had previously lodged but never appealed and that the cause of action was res judicata and that the avoidance principle applied here. The court, therefore, had to decide on these three main points.
The court held that the appeal had been disguised as a case concerning constitutional points and should have been brought in terms of s167(5)(b) of the Constitution.
It held that although the basis of the application had changed with the introduction of the constitutional question, the effect of the relief sought remained the same.
The court also held that the bulk of the applicant’s case was on right to just administrative action which was protected under the Administrative Justice Act which had sufficient grounds to deal with the rights they alleged had been infringed.
The matter was dismissed with costs.
This was an application for an order for spoliation. The applicants claimed that they had been unlawfully dispossessed of their quiet and peaceful possession of their property by the first respondent. The first respondent contended that he was issued with a prospecting licence by the second respondent on the same land and that he entered the property on the strength of the authority from second respondent. The applicants alleged that the first respondent entered their land by cutting a fence and causing damage to their property.
The court considered whether or not there had been a spoliation and whether the applicants were entitled to relief. The court established that the first respondent unlawfully deprived the first applicant of its possession of the quarry stone site and that this was an unlawful invasion of the property as the land was private property.
The court noted that the first respondent had not raised any of the recognised defences in an action for spoliation. The court found that the first respondent intended to take over the quarry site by forcibly removing them applicants from the quarry site without following due process as he did not possess a court order to justify his intended action.
Accordingly, the court held that the requirements for an order for spoliation had been met and ordered the respondents to return the applicant’s status quo prior to the spoliation.
The court considered an application requesting an order to commit the respondents for contempt of court for not respecting an interdict which restrained them from undertaking any developments on the land in dispute, until the determination of an application for interlocutory injunction.
The respondents argued that they were not in contempt since no formal order had been issued to give effect to the orders of the court. The respondents also denied developing the land in dispute. The court noted that there was no requirement for a formal order to be issued, since both parties and their counsel were in court when the order was issued.
The court considered whether the respondents willfully disobeyed the interdict order by going to the land in dispute, to work. The court found that contempt is a criminal offence, which requires an applicant to prove the case beyond reasonable doubt, and to make a prima facie case before the respondent’s defence is considered.
The court found that the evidence was inconclusive since the applicant relied on pictures of people building on the land, but failed to identify the respondents as the people in the pictures, alternatively to prove that the respondents sent the people in the pictures.
Accordingly, the application was dismissed.
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.
The Fees and Charges Act (the act) calculated the plaintiff’s rent for five mining leases. The plaintiff challenged the Minister of Finance’s authority to amend the legislation.
Issue one: whether the Administrator of Stool Lands had any role to play in fixing annual ground rents. The court held that the Administrator did not fix the rates, but wrote to demand payment.
Issue two: whether the administrator was part of a review team that recommended the adjustments, amounting to prescribing annual ground rent. The administrator provided an advisory opinion with no legal force.
Issue three: whether the grant of power to the Minister of Finance was unconstitutional. A schedule forms part of an act. Subordinate legislation cannot amend an act; however, this rule is not invariable regarding schedules. Acts may empower another to revise the contents of a schedule, and this power must be expressly conferred by Parliament. It was found that it was.
Issue four: whether or not the Fees and Charges Instruments contravened the act and the Constitution. The Minister of Finance was empowered to amend the schedule in fixing fees and charges; however the inclusion of the administrator in the amended list was inconsistent with the Constitution, and void to the extent of this inclusion
Issue five: whether the power conferred on the Minister of Lands and Natural Resources was transferred to the Minister of Finance. The court held that no such transfer of power occurred.
Issue six: whether the failure by the Minister of Lands and Natural Resources to exercise the power conferred on him in the act violated the Constitution. The Minister of Mines was empowered in terms of the act; however the parties incorrectly cited the Minister of Lands.
The Minister of Mines was ordered to fix the fees and charges under the act.
This was a dispute over land ownership and related claims to reversionary interest compensation. Both parties sought orders declaring that they were allodial owners of the land in dispute according to tradition and customs, and that they were entitled to receive the reversionary interest compensation.
The court determined whether the allodial title to the land in dispute vested in individual families or in the appellant as the Tindana for and on behalf of the whole community.
The court held that the best way of resolving conflicts arising from traditional evidence concerning ownership of land is to test it against recent acts to see which traditional version is supported. The court found that it is widely accepted, among legal writers, scholars and practitioners, that the Tindana is the landlord or landowner. Additionally, the report of the committee to investigate a land dispute between the Tindonsobligo and the Kalbeo people explicitly stated that the Tindana was the allodial owner of land, while the people were usufucts (settler/farmers).
The court noted that the defendants Tindana status was not in dispute, and concluded that the appellant was the the allodial owner of Kalbeo land and held it in in trust for community.
This was an appeal before the High Court where the appellant a chief, had been charged before the subordinate court for 35 counts of theft by false pretences. The appellant falsely claimed that he was a representative of the Principal Chief and had been authorised by him to impose and receive fines of cash and small stock from persons who had failed to remove their animals from certain reserved grazing area.
The question was whether the appellant contravened Legal Notice Number 39 of 1980 namely, Range Management and Grazing Control Regulations published in Gazette Number 36 of 10 October 1980 (Supplement Number 4). The Principal Chief of the area gave evidence and denied that he ever authorised the appellant to act, as he did, and the court concluded that the appellant lied. The judge confirmed the conviction on 18 counts but set aside the sentences imposed by the learned magistrate as they were considered lenient. Accordingly, on 18 counts the appellant was sentenced to one-year imprisonment, each to run concurrently, the whole of which was suspended for a period of two years on condition that during the period of the said suspension he is not convicted of an offence involving dishonesty. The appellant was sentenced on two counts to a period of two years imprisonment on each count. Half the sentence was suspended for a period of two years on condition that during the period of the said suspension he was not convicted of an offence involving dishonesty.
This case concerned an appeal to the High Court by the appellant who subsequently made no further effort to prosecute his appeal. However, the judge was not prepared to leave the matter in that unsatisfactory state and decided to have the appellant and the second accused before the lower court, appear before the court and show cause as to why their sentences should not be increased. The two had been charged with selling uncut diamonds in contravention of s 6 (1)(b) of the Precious Stones Order 1970 and subsequently convicted.
The law applied was s 6(4) of the Precious Stones Order which specified the maximum limit of fine and imprisonment for offenders in this case, for the practice of dealing in uncut diamonds without authority. The judge decided that in his case that justice sternly demanded that illegal schemes to get rich quickly could not be tolerated by the courts. The appellant’s fine was increased in addition to a sentence of 6 months' imprisonment in default of payment.
The court exercised its entitlement to revisional powers to correct the inadequate sentence imposed upon the other offender in the lower court. The judge ordered that in addition to the fine that he had paid, and month spent in prison, the original sentence to imprisonment for twelve months be wholly suspended for three years on the condition that he was not convicted of any offence under the same law.
The plaintiff instituted an action in the High Court for the eviction of the defendants from a piece of land. The plaintiff alleged that the defendants were carrying on mining operations at the site without holding a mining lease or a mining licence issued in terms of the Mining Rights Act 43 of 1967, hence acting illegally.
It was common cause that the defendants had not been granted a mining lease or a mining licence by the Mining Board. The defendants argued that the plaintiff did not have locus standi to bring an action of eviction because it did not own the land and that there was a likelihood that granite stone was not a base mineral that fell within the definition in the act.
The judge’s view was that granite stone fell within the definition of a base mineral and the defendants were therefore undertaking a mining operation requiring a lease or licence under the act. The court further held that the defendants held a bogus land grant from the chief. It also found that under s 2 of the Mineral Rights Act the right to minerals in any land were vested in the "Basotho Nation". The judge concluded that the case was not one between landlord and tenant but between landlord (or landowner) and squatter in a situation governed by a unique and unusual land law. Accordingly, a summary judgment was entered for the plaintiff as prayed.
This High Court case involved an accused that was charged with contravening section 6(1) (a) (i) and section 33 (2)(i) read with (ii) of the Precious Stones Order of 1970 (“order”). The charges were that the accused was in possession of three rough and uncut diamonds without being duly licenced to deal in rough and uncut diamonds. The accused pleaded guilty and was sentenced to three months’ imprisonment. However, the High Court was tasked to review the sentence on the ground that the accused was wrongfully charged. The record showed that the accused was merely found possessing the diamond unlawfully and not selling the diamond.
Thus, the issue for review was whether the accused was correctly charged under section 6(1)(a)(i) and section 33(2)(i) read with (ii) of the order.
The High Court accepted that the accused was wrongfully charged under section 6(1)(a)(i) and section 33 (2)(i) read with (ii) of the order, after reviewing the submissions. The court held that the offence he committed was limited to possession of the diamond unlawfully. To the alternative, the court stated that the accused ought to have been charged under section 6(1)(c) of the order which deals with unlawful possession of the diamond. Finally, the court allowed the amendment of the charge and confirmed the three months’ sentence stating that the punishment was proportionate to either of the offences.
This was an appeal to the High Court involving an appellant who was co-charged for contravening Section 6(1)(a)(i) read with (4) of Precious Stones Order of 1970 (“order”) as well as theft. In the case, the appellant allegedly bought diamonds with money that he had stolen from the bank account of his employer. The Magistrate Court acquitted the appellant and the co-accused of the charge of contravening the order. However, the appellant was convicted and sentenced for theft. The appellant’s defence was that he withdrew the money for office use, but that it was then stolen from his wardrobe by an unknown person.
On appeal, the first issue on trial was whether the magistrate erred in finding that the explanation given by the appellant was far from being reasonably accurate. The second was whether there was enough evidence to establish the appellant’s guilt.
The High Court held that the prosecution showed that the appellant withdrew the amount of money alleged to have been stolen from the bank. It found that the conviction by the lower court was well based on (1) the remainder of the money that was unearthed from the appellant’s house; (2) the uncut diamond that was recovered from the appellant; (3) further evidence. The Magistrate Court’s decision was therefore upheld and the appeal dismissed.
In this case, the respondent claimed two houses, one yard, three fields, and three forests as his property; and alleged that the appellant was using the property unlawfully. A first judgement was rendered in favour of the respondent. The appellant then appealed the judgement. After the appeal was dismissed, the appellant continued to be adamant against the court's decision and the respondent, therefore, applied for interdict orders seeking to restrain the appellant from entering the disputed property. The interdict was granted and was then appealed by the appellant. This case concerned the appeal against the judgment of the resident magistrate confirming the interdict granted against the appellant.
The issues for determination were (1) whether the application for an interdict was the proper remedy in the circumstance and (2) whether the summons was properly served to the defendant.
The High Court held that for it to issue an interdict it must be satisfied that (1) a clear right existed; (2) an injury was actually committed or reasonably apprehended; (3) no other satisfactory remedy was available to the applicant. The High Court held that damages to the property involved would be irreversible and that the matter satisfied the requirements for an interdict.
The High Court found that the appellant chose to ignore the summons. Moreover, even if he was not duly served with the summons, he was supposed to apply the default judgement to be set aside and not to ignore it.
The appeal was dismissed with cost.
This High Court case concerned an appellant that had been convicted for contravening section 87(1) of the Land Act of 1979. The charge was that the accused (now appellant) did unlawfully and intentionally occupy land without proper authority. The appellant held the land and had agricultural license. When the land was declared urban land, the appellant continued to farm it, hence the accusation.
The main issue to be determined on appeal was whether the appellant was occupying the land in contravention of criminal code after the land was declared urban land.
The High Court held that the appellant did not contravene any
criminal code since the commissioner for land did not take steps required in law to nullify the pre-existing licenses. In that view, since the license held by the appellant was still intact even after declaring the land urban, the appellant was lawfully occupying the land.
The appeal was, therefore, upheld.
The court considered an application for the ejectment of the respondent from the applicant’s premises.
The respondent was a sublease on property leased by the applicant. The area was subsequently declared a development in terms of the Land Act of 1979. The respondent had earlier applied for the setting aside of the declaration, which application was unsuccessful.
The court distinguished several cases that supported the view that in ejectment matters, courts should not quickly order the ejectment of a respondent who is carrying out business on the land.
The court found that the declaration of the area into a development, and the subsequent publication in the government gazette all supported the view that development had to continue.
The court further balanced the costs incurred by the applicants, the benefits of the development to the public and the fact that the applicant offered the respondents space in the completed development to support that the respondent had to vacate the premises.
The court ordered the respondent to vacate and to pay the costs of the application.
The court considered an application declaring the suspension and non-renewal of the licence by the respondent, null and void. The applicant was further seeking an order compelling the respondent to pay damages incurred as a result of the suspension.
The court was faced with the question of how a court must approach cases brought through motion proceedings, which require oral evidence to be heard..
The court pointed out that while the suspension and non-renewal of the licence could be decided on motion proceedings, the application for damages required oral evidence.
The court found that damages require proof and therefore cannot be decided on motion proceedings.
The court came to decision that the matter be referred to trial and all affidavits and depositions which formed part of the application be used as pleadings in the action.
The court postponed the issue of costs, until the trial.
The court considered an appeal of the judgment handed down in the lower court, granting an interim interdict.
The respondents in the matter argued that a court of appeal should not interfere with the discretion of the lower court, unless compelling reasons exist to do so.
The requirements for an interim interdict are that the applicant must prove 1) a prima facie right. 2) a well-grounded apprehension of irreparable harm occurring 3) a balance of convenience must favour the granting of the interim relief and 4) it must be the only satisfactory relief available.
The court found that despite the requirements, a court has a discretion on whether to grant such a relief. Despite the existence of the requirements, the court held that there are no comprehensive guidelines that can be laid down to prevent a court from using the discretion.
The court after weighing up the delay in the court a quo and the public interest in the project, came to the conclusion that the appropriate relief was one which protected the right of the respondents to claim relief through damages.
The court restrained the appellants from interfering or obstructing any agents, employee or experts employed by the respondents from carrying out tests or investigations for the purposes of establishing and estimating the damages.
The court granted the interim prohibitory interdict.
The court considered an appeal against the judgment of the lower the court in in that the lower court erred in law by handing down the judgment in favour of the respondents.
The appellants argued that 1) the court had failed to acknowledge estoppel as part of the law of Lesotho. 2) that the learned judge erred in not finding that the respondent was precluded from seeking the relief by virtue of estoppel and 3) that the court had no power to make the order of costs.
On the question of whether the court was empowered to make a costs order, since it was not legislatively empowered to do so, the court held that despite the express powers in statute, the court had the capacity to make such order for reasons to do with justice.
On the withdrawal of the appeal, the court held that any party which wishes to withdraw an appeal must do so unequivocally. A litigant cannot unilaterally impose conditions on a case withdrawal to which an opponent and the court are enjoined.
The appeal was struck off the roll with costs.
This was an appeal against the decision of the High Court to recognise the respondent as the rightful heir to real property. The matter had commenced in the local court, the contention between the parties being, who the rightful heir to the property was.
The issue for the court’s determination was whether it could entertain the appeal. It relied on s 17 of the Court of Appeal Act 1978 and the decision in Mahabanka Mohale v ’Makholu Leuta Mahao C of A (CIV) No. 22 of 2004. The court observed that the appellant filed a notice of motion for leave to appeal almost fourteen months after the High Court judgement had been passed and found that the appeal was out of time.
The Court stated further that although it had discretion to allow a breach of rules in a fitting case, the appellant had failed to file an application for condonation with supporting affidavits to enable the court to make a determination on whether to exercise its discretion.
Accordingly, the court dismissed the appellant’s application for leave to appeal and struck the appeal off the roll.