Environmental Case Law Index

The court considered an appeal against a decision of the High Court dismissing an application for a remedy over a land dispute on the grounds that there were disputes of fact that could not be ascertained, which the appellants should have foreseen. 

The first, second and third appellants were members of the fourth appellant, a company of Swazi indigenous people, formed to co-ordinate the ploughing of sugar cane by indigenous Swazis. The first and second respondent were adult Swazis employed by a wildlife business undertaking. 

The court considered 1) whether the application should have been dismissed due to a failure by the applicants to join parties who had a substantial interest in the matter, and 2) whether the applicants succeeded in establishing that they were in peaceful and undisturbed possession of the land when they were evicted.  

The court found that the appellants did not attempt to join, as respondents, two parties, including a trust controlling the wildlife business undertaking, which had a direct interest in the disputed land. The appellants argued that a trust is not a juristic person, but the court found that legal proceedings can be brought by and against a trust. It was also established that before they moved onto the land the appellants had already been removed from that land and were aware that their right to occupy the land was disputed. Based on the court’s findings and failure to comply with the rules in the filing of heads of argument, the appeal was dismissed[kb1].

The court considered a criminal appeal against the sentence imposed on the accused. 

The accused was convicted, on his own guilty plea, for contravening s 3(1)(a) of the Gold Trade Act by being in possession of 0.15 grams of gold without authorisation.

The evidence revealed that the accused was asked whether there were any special circumstances, which the court below established did not exist and sentenced him to the mandatory minimum sentence.

The accused argued that the trial judge did not explain in full what special circumstances meant and the inadequate explanation prejudiced him. The respondent agreed and stated that the explanation was “special or extraordinary mitigating factors” where it should have referred to special circumstances. 

The court found that the Act did not define special circumstances, and it was on a case by case basis. However, the court below took all necessary steps to explain the meaning and import of special circumstances, which was given in clear unambiguous terms. 

The court found that the accused was not an illiterate person and appreciated what was taking place and there was nothing preventing him from asking the magistrate for clarity. Further, that the accused’s conduct once arrested, in running away illustrated a guilty state of mind. 

The court found that the accused’s special circumstance of “being the only breadwinner” was clear that he was aware of the offence being committed. As such, the court found no merit in the appeal. 

This was an application to interdict the respondent from disconnecting water supplies from the applicant’s property without a court order and from charging commercial rates for the use of water from the said property.

The applicant submitted that the respondent was infringing on their right to water as provided in s 77(a) of the constitution. In interpreting the right to water, the court found that the right empowers local authorities to levy rates to raise revenue for service provision and does not prohibit disconnections of water services for non-payment. Additionally, the court held that the right to water contains the protection against arbitrary and illegal disconnections. Consequently, when a bill is genuinely disputed there should be recourse to the court before disconnection as per s 69 (3) of the constitution and the holding in Mushoriwa v City of Harare HH 195/14.

The court held that the applicant had proved his right to water but failed to prove the genuineness of his claim, since he did not provide proof letters of complaint disputing the bills. This also had a negative bearing on the grant of the interdict order.

The court also found that the applicant converted domestic premises for use as commercial premises and was not entitled to be charged domestic rates. 

The court also noted that the applicant failed to give adequate information which would show that the respondent did not follow the correct procedure in zoning and rating it.

Accordingly, the application was dismissed with costs.

This was an appeal against the decision of the lower court ’s offer of E110 000.00 as compensation.
The respondent constructed a sewage pipeline across the property belonging to the appellant. In terms of s 5 of the Water Services Corporation Act of1992, the respondent was obliged to compensate the appellant for the damage sustained on the property. For the damage done to the property the appellant sued the respondent for the payment of E350 000.00, interest and costs of suit. 

The issue was whether the appellant was entitled to the sum of E350 000.00 based on the valuation report of an expert as opposed to the sum of value of the property in the sum of E110 000.00.

The court found that while the appellant alleged that the property was rendered of no value and therefore entitled to the sum of E350 000.00 being the market value of the said property, the expert evidence of one witness, stated that the entire property was not rendered valueless by the construction of the sewage pipe, as a percentage of it was still usable. Since the appellant failed to prove what the sum of E350 000.00 claimed represented, the court had no choice than to accept the offer of E110 000.00 from the respondents. 

The view of the judge of the Supreme Court was that the reasoning of the learned judge of the lower court was undisputable. Subsequently the judges of the Supreme Court unanimously dismissed the appeal with costs.

This was an application for a spoliation order to summarily undo the wrongful deprivation of property without investigating the merits.

The applicants claimed that their immovable property (10 Metcalf Road, Greendale) and equipment for water abstraction were seized by the first to sixth respondents.

The first to the sixth respondents raised two preliminary objections: that the matter was not urgent and that there was need for police to join as co-respondents since they were the ones who had seized the applicants’ property. The first objection was abandoned while the second was dealt with in the merits of the case.

The court noted that the applicants were required to prove peaceful and undisturbed control before the disturbance and that the respondent took or destroyed the control unlawfully. However, the applicant would not succeed if the respondent proved valid defenses like they did not commit the spoliation or that they were not involved in the spoliation.

The court found that the applicants were in peaceful and undisturbed possession of the property and equipment although, illegally. However, the court noted that the applicants claimed that they were despoiled of their equipment by the first to sixth respondents who were not natural persons but failed to state who acted on their behalf. The court therefore held that the respondents were not involved in the despoiling.

Accordingly, the application was dismissed with costs.

The origin of the application is an interim interdict prohibiting the first, second and third respondents from carrying out mining activities and ordering the fourth and fifth respondents to clear illegals who were working at the mine. The first respondent sought a review of this order and got an interim interdict that ordered for the eviction of the applicant and prohibition from mining.

This application arose when the applicant sought direction from the judges in chambers for anticipation of a return date and also rescinding the eviction order.

The court applied Order 33 of the High Court Rules and held that the pending review suspended the operation of the order issued in the magistrate court. Consequently, the applicant could not exercise the rights conferred upon him unless the review was determined in his favor.
The court found that the mine lies in the applicant’s plot. However, the court found it important for peace to prevail at the mine and that both parties be removed from the mine pending resolution of their dispute.

The court held that the applicant was able to prove all the requirements of an interdict: he had a right to mine; he would suffer irreparable damage if the respondent continued with their mining operations; he had no alternative remedy and he proved his case on a balance of probabilities against the respondent.

Accordingly, the interdict was granted pending the resolution of the dispute and the security guards of both parties were ordered to guard the mine jointly. 

This was an application for the discharge of the accused persons for lack of evidence pursuant to s 198 (3) of the Criminal Procedure and Evidence Act. The state had alleged that the accused persons were acting in common purpose through a series of fraudulent misrepresentations to the Government of Zimbabwe, the Ministry of Mines and Mining Development and Zimbabwe Mining Development Corporation (ZMDC) and induced ZMDC to enter into a joint venture agreement of diamond mining with Core Mining (Pvt) Ltd. They fronted Benny Steinmeitz Group Resources (BSGR) as its guarantor and on that representation, the government approved a contract, it never would have otherwise approved. 

Relying on the parole evidence rule that posits that parties are strictly bound by the four corners of the contractual document and nothing outside it, the court held that both government and ZMDC cannot be heard to complain that they were duped into signing the contractual document under the mistaken belief that BSGR was standing as guarantor for Core Mining when the contractual document makes no mention of BSGR at all.

Court further held that the state closed its case without leading any evidence pertaining to the misrepresentations allegedly made by the accused concerning the due diligence exercise on Core Mining. That misrepresentation is a vital component of the crime of fraud without which the crime cannot be committed. The state having failed to establish a prima facie case against the accused, it was accordingly ordered that both accused be acquitted and discharged.

This was an urgent chamber application by the applicant in the High Court to interdict the first respondent from carrying out mining operations on its claim; from interfering with its lawful mining operations; and to desist from acts of uncontrolled violence they had unleashed at the site.

The issue before the court was to determine whether the Mining Commissioner should revisit the same dispute. The first respondent contended that the matter was not urgent since the dispute between the parties had been resolved in favour of the first respondent by the Mining Commissioner. However, it was found that the respondent had been ordered to stop but had allegedly resumed illegal activity.

The court held that in terms of s345(1) of the Mines and Minerals Act [Chapter 21:05] where both parties have agreed in writing, the Mining Commissioner should resolve the dispute regardless of the original jurisdiction of the High Court. It was also found that s346 confers upon the Mining Commissioner judicial power to hold a court in order to determine a dispute in the simplest, speediest and cheapest manner possible. The court held that the Mining Commissioner exercised judicial power including the rules of natural justice and that once he pronounced himself on a matter, he became functus officio and so cannot revisit the same dispute in order to review his own decision.

The court held that the applicant had exhibited proof of lawful registration of the mining claims. Consequently, the appeal succeeded.

The applicant in this High Court case was seeking interim orders that (1) the first and second respondent be ordered to restore the supply of water from Blanket Dam in Gwanda to the applicant’s mine; (2) the first and the second respondent be interdicted from interfering with the applicant’s possession of his water supply infrastructure without obtaining a court order to that effect. 

The facts were that the first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicants argued that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents, on the other side, argued that the matter was not urgent, and they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending the contract between them.

Thus, the main issue for determination was whether the applicant had satisfied the requirement for an interim order to be issued; 

On the first issue, the Court held that the applicant had satisfied the requirements for an interim order which are, (i) prima facie right; (ii) reasonable apprehension of irreparable injury; (iii) no alternative relief available; (iv) and the balance of convenience favouring the granting of the interdict. 

As a result, the interim order was allowed pending the main trial and the hearing of the interdict.

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