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 matter dealt with an application to review the minister’s refusal to renew an exclusive prospecting license (EPL) for the applicant. Such a license would ordinarily be granted for an initial period of three years and thereafter could be renewed for not more than two successive periods.The applicant held a license from 1997 to 2000 and thereafter sought a renewal which was granted in 2001. However, the second application to renew was denied prompting the applicant to question the validity of the first renewal, The applicant argued that the acceptance of the renewal was done by an unauthorised individual acting outside his mandate and it should therefore be set aside.
The court considered the validity of the first renewal and held that since the initial renewal was by an unauthorised individual, it was void. Consequently it was immaterial whether the minister granted or refused the second application. The court decided further that section 48 of the Act mandates an applicant to accept the terms and conditions of a renewal within one month, failing which the application would be deemed to have lapsed. Consequently, the initial acceptance was ruled to be void because the application for a first renewal had lapsed.
Therefore, the court concluded that because the substance of the applicant's application for review rested on the respondent's refusal of the second renewal of the EPL, that second renewal could not have been granted or refused, because the EPL had already expired and was never legally renewed.
The court considered a petition brought by the applicants against the decision of the Director of Public Prosecutions to charge them with murder.
The petitioners argued that they were employed as rangers in the Wildlife Service and being lawfully armed in the course of their duties, they confronted suspected armed poachers and shot two of them. They contended that the failure to hold an inquest as prescribed by ss 385 and 388 of the Penal Code, before they were charged amounted to a breach of their constitutional rights.
The court considered whether the applicants used their weapons lawfully and in the course of their duties. Further, whether under the circumstances, an inquest was a prerequisite.
The court considered the import of ss 386, 387 or 388 of the Penal Code and found that in the circumstances it was clear that an inquest ought to have taken place. Further, it observed that while the respondent proceeded as if an inquest had been conducted, no inquest, as known in law, was ever conducted and the “inquest” the investigators passed off as having been conducted, had no legal basis.
The court held that the decision to charge the petitioners with the offences of murder violated article 157 (11) of the Constitution and by the same token infringed on the petitioner’s rights under articles 27(1), 47 (1) and 50 (1)(2) of the Constitution
Accordingly, the court allowed the petition and declared the decision of the DPP to charge the applicants a nullity.
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.
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.
The court considered an appeal against the conviction and sentence of the appellant, for the killing of an animal, possession of government trophy and failure to report being in possession of government trophy.
The appellant sought leniency and a lighter sentence on the ground that he had reformed. The respondent opposed the appeal and urged the court to uphold, both the conviction and sentence, and maintained that the evidence by the prosecution’s witnesses established the case against the appellant beyond reasonable doubt.
The main issue for the court’s consideration was whether at the trial, there was sufficient evidence to sustain the conviction and sentence of the appellant.
The court found that although the evidence was circumstantial, there was no plausible explanation as to how the appellant came to be in possession of the tusks stolen from the dead elephant. Further that between the discovery of the carcass and arrest of the appellant, there were no intervening factors to weaken the inference of guilt.
The court observed that the appellant was sentenced under the earlier Wildlife Conservation Act, Chapter 376 which had since been repealed. The sentence was more lenient than those introduced by the amended act, thus the sentence was neither excessive, nor wrong. Accordingly, the court held that the appellant had been properly convicted and dismissed the appeal on both sentence and conviction.
This was an appeal against the decision of the High Court to dismiss an application for review of an application for the setting aside of a decision made by the second respondent, the Member of the Executive Committee of the Department of Agriculture, Conservation and Environment, Mpumalanga (the MEC), and upheld on appeal by the first respondent, the Director General, Environmental Management, Mpumalanga, (the DG). The decision in question was to permit the construction of a filling station in White River. The appellant contended that the permission was given contrary to the provisions of the law.
The court observed that all environmental precautions had been taken into account by the scoping report. It found that the land had been rezoned by the local authority from special area to a business area, based on need and desirability. The court held that that the key factors’ in deciding to grant the application in the circumstance were: firstly, that the property had been rezoned from “special” to “business”; secondly, that no potential threatened plant and animal species were recorded during the site investigation; and, that all identified and perceived impacts were satisfactorily dealt with in the scoping report and the recommendations proposed were sufficient to minimize any negative impacts. Since all this were observed. The appellant case was dismissed with cost.
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 an appeal against a decision of the High Court dismissing the appellant’s claim for a declaration of rights over land and the setting aside of a directive made by the minister. The appellant had contended in the lower court that the act was only applicable to agricultural land and was not intended to relate to land within a proclaimed township.
The main issues for the court’s consideration were whether the land in question fell within the scope of the minister’s powers under the act and whether these powers were lawfully exercised.
The court established that the wording of the act was clear, and that the extent of the minister’s power did not cover non-agricultural land. The court concluded that the decision of the minister should have been set aside. The court stated further that the powers under s 31A of the Environment Conservation Act 73 of 1989 were not to be applied without the procedure set out in the act. Therefore, in the absence of compliance with these procedures, the minister’s decision was invalid. Accordingly, the court upheld the appeal with costs to the appellant.
Jafta JA in a dissenting judgment held that the procedure set out in the act dealt mainly with procedural fairness and was not a prerequisite for the exercise of the minister’s powers. He concluded that the procedural aspects if applied in this context would defeat the purpose of the powers under s 31A of the act, to protect the environment.
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.
This was an appeal against a decision of the High Court to hold the appellants in contempt of an order of the Minister of Water Affairs and Forestry, issued to the mining companies concerned under s 19(3) of the National Water Act 36 of 1998.
The appellants contended the directives were incapable of implementation because they were so vague. Consequently, the respondent obtained orders from court a quo, compelling the appellant to provide an amount of money as contribution to execute the ministerial order. Following the order, the appellant failed to pay the money. As a result, the appellants applied to have the appellants for contempt.
The main issue for the court’s consideration was whether an order of the court ordering money to be paid could raise a question of contempt. In overruling the decision of court below, the supreme court stated that it was only where performance of an act was ordered – ad factum praestandum – that conviction for contempt of court was permitted as a means of enforcing performance. It held that contempt proceedings were therefore inappropriate in the circumstances. In conclusion, the court stated that an order that a person was in contempt of court, which carries with it criminal sanctions, should be made only where the court order allegedly flouted was clear and capable of enforcement. Accordingly, the appeal was upheld.
The matter dealt with an appeal against the decision of the High Court to remit the decision of a board, regarding the appellant’s submission to build below the control flood line, back to that board for determination.
The main issues for consideration were: whether the lower court had set aside the initial decision of the board; whether the court should have determined the matter on the merits; and whether the board had authority to grant permission or not, without any proof of pollution.
The appellant had argued that the matter should not have been remitted back to the board but determined on its merits and further that the court should have ordered costs to the appellant, as the decision was made in its favour.
The court established that it was clear from a reading of the judgment in its entirety that the intention of the lower court had been to set aside the decision of the board. The court held further that the lower court was right in refusing to determine the matter when the evidence revealed that a decision was taken by the Chief Executive Officer alone and not the board. The court concluded that since no decision had been taken by the board as required, it would have to determine whether permission should be granted and whether there was any danger of pollution.
Accordingly, the court dismissed the appeal but ordered the first respondent to bear the appellant’s costs in the matter before the lower court.
The matter dealt with an appeal against the decision of the High Court to set aside a magistrate’s grant of an interdict to the appellant. The High Court held that the magistrate had no jurisdiction to grant the interdict in exercise of its powers under s 30(1) of the Magistrates’ Courts Act 32 of 1944 because s 29(1)(g) sets a monetary limit on the value of the matter in dispute.
The court considered whether the jurisdiction of the magistrate was excluded due to the limit on the monetary value of the matter in dispute in accordance with the act.
The court established that the matter before the magistrate court related not to the value of the business but to the unlawful activities that the appellant claimed amounted to nuisance. The court found that the respondents had not complied with the requirements for the use of their land including the submission of an environmental and health assessment report and that their activities affected the appellant adversely. The court held that the respondent had not proved that the cost of abating the nuisance was beyond the jurisdiction of the magistrate.
The court concluded that in the circumstances, the magistrate had the jurisdiction to grant an interdict. In conclusion, the court set aside the order of the High Court and replaced it with an order that the appeal to that court be dismissed with costs.
Accordingly, the court upheld the appeal with costs and ordered that the decision of the magistrate be reinstated.
In this case the court provided reasons for granting an interlocutory application to prohibit the respondent from mining on private land pending the outcome of an action for eviction of the respondent.
The applicants alleged that the respondent breached his obligation to rehabilitate the land and provide suitable accommodation for the employees. The court observed that the respondent’s replies to these two aspects were bizarre and that the applicants had made a strong case for cancelling the agreement. Consequently, the court held that the relief sought was justified on the merits of the case.
The court went on to observe that, based on the application of the doctrine of res litigiosa (subject of a pending action) according to Namibian law. The court observed that the right to mine generally fell within the meaning of alienating property as per the common law principle of res litigiosa. However, the provision in the Minerals Act provided that the plaintiff in a pending action for delivery of the res (property) would not automatically become entitled to an interdict against the miner.
The court applied the Webster v Mitchell test as read with the provisions of the Minerals Act. Consequently, it held that even if it was open to some doubt that the mining agreement was validly cancelled, the applicant became entitled to an interdict, with no need to comply with the further requirement to obtain an interim interdict.
Accordingly, the court was satisfied that the applicant was entitled to the relief granted.
The matter dealt with a delay by the respondents to issue a permit for the import into Namibia of elephants published in Government Gazette No. 4236, Notice 60, dated 1 April 2009.
The court considered whether the delay was ultra vires the provisions of the Nature Conservation Ordinance No. 4 of 1975. The respondents conceded that the moratorium was ultra vires the ordinance and accordingly, the court agreed with their concession.
The court considered further, whether it should make an order directing the second respondent to issue the required permit to the applicant. The principle to be applied in the circumstances was that the court had discretion once it set aside an administrative decision to take the decision itself and this discretion was to be exercised judicially. The court observed that the second respondent had not yet decided whether to grant or deny the application and that the second respondent was better positioned to decide because it was privy to factual material which the court was not. Accordingly, the court held that it could not order the second respondent to issue the permit to the applicant.
The court considered whether the applicant and second respondent entered into a valid agreement. The test to be applied was to inspect the intention of the parties. The court concluded that whilst the applicant and second respondent had discussed and agreed upon some conditions, those were not intended to be the only conditions. Accordingly, the court held that no valid agreement was concluded.
The matter dealt with an appeal against the decision of the High Court to issue an interdict restraining the appellant, from utilising a coal boiler at its factory and the removal of the boiler within 30 days. The respondent had claimed in the lower court that the appellant had erected a coal fired boiler on the property in contravention of regulation 3 of its Smoke Control regulations under s 18 of the Atmospheric Pollution Prevention Act 45 of 1965.
The court considered whether the decision of the High Court to restrain the appellant from using the boiler and the subsequent order for its removal was lawful. The court found that the appellant had installed the boiler without submitting plans or specifications to the respondent as required by the regulations. However, the court established that upon giving the appellant the opportunity to submit its plans, the respondent rejected the appellant’s application on account of the type of boiler that the appellant sought to erect and not smoke emissions as envisaged by s 15(1) of the act. The Court applied the rule in Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) and stated that the facts of this case did not fall within the scope of that decision.
The court held that the respondent did not stay within the boundaries of the act and constraints of the Constitution and this was unlawful. Accordingly, the court upheld the appeal with costs.
The court considered an appeal, concerning a dispute between two companies over the right to mine salt in the Northern Cape.
The high court initially dismissed the appellant’s counter-application in which it sought to review and set aside the Minster's approval of the 1st respondent’s application for a mining permit over the disputed property.
The question on appeal was whether the high court was entitled to refuse to review and set aside the Minister's approval of the 1st respondent’s application without considering whether the 1st respondent had consulted with the appellant, as an 'interested and affected party' as contemplated in the Mineral and Petroleum Resources Development Act 28 of 2002.
The court found that the answer to the question was dependent on the legal basis that the appellant relied on for its occupancy of the property. As the appellant’s occupation of the property was premised on the validity of a permit, which the high court found to be a forgery and thus invalid, the question arose as to whether the appellant had a right to be consulted even though the permit was invalid.
The court, after careful consideration of the requirements set out in the Act, held that a person that relies on an illegally issued permit to occupy land has no right to be consulted by an applicant for a mining right as contemplated in the Act because they do not qualify as an 'interested and affected party'.
This was an action for damages for assault and battery that led to the removal of one of the plaintiff’s eye; following a beating by the defendant’s guards when the plaintiff was caught stealing on the defendant’s property. The plaintiff also prayed for costs of the action.
It was common cause that the plaintiff was cutting down trees for firewood without permission at the defendant’s estate; and that the plaintiff ran away from the defendant’s agents. The plaintiff averred that one of the defendant’s agents appeared in front of him and threw his baton stick at him, hitting and injuring his eye. The defendant denied the plaintiff’s version of facts and averred that the plaintiff stumbled and fell onto his shovel, thereby injuring himself.
The court, therefore, had to determine whether the plaintiff was entitled to the damages sought.
The court held that in a civil case like this one, the burden was on the plaintiff to prove his case on balance of probabilities. The plaintiff argued that he satisfied this requirement, as the defendant’s witnesses contradicted themselves. The court, however, noted that all of the defendant’s witnesses concurred that they were not carrying baton sticks on the material day and that the plaintiff did not challenge this.
Consequently, the court found that the plaintiff failed to establish that the injuries he sustained were caused by the defendant’s agents. The plaintiff’s action, therefore, failed.
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.