Environmental Case Law Index

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.

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 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 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.

The court determined the test for applying its discretion to allow an application for an order for the production of documents during the course of proceedings as per rule 34(14) of the High Court Rules of 1980.
The applicants had previously requested for the production of some documents relating to the grant of mining leases before the trial started but made no attempt to enforce the discovery notice a year later into the proceedings. Thereafter, the applicants made a counter application for production of further documents but never pursued it. The reason for this was the belief that the fifth respondent was no longer represented in the proceedings. The applicants then launched this application against the fifth respondent.
The court made a consideration of the element of delay, insofar as it prejudiced the opposite party by preventing them to bring back their own witnesses and the materiality of the evidence in so far as it was practically conclusive.
It was held that the applicants failed to give an acceptable explanation for the delay for requesting the two sets of documents since they could not prove that they became aware of the documents sought at a later stage.
It was also held that the fifth respondent had not formally withdrawn from the case and would be prejudiced if the discovery was allowed,mainly because they could no longer bring back their witnesses and put the documents in cross-examination.
Accordingly, the application was dismissed.

The matter dealt with an appeal in which the respondent had commenced proceedings in the Local Court against the appellant and his mother for trespassing in a forest. The appellant denied the trespass and claimed that the forest had belonged to his father and that he was the heir. The court delivered a very confusing judgement which was hard to comprehend and so the respondent sought an appeal that would see the Magistrate’s Court revisit the matter.

The magistrate reviewed and set aside the matter issuing a new judgement. The principal question was if the magistrate had the power to review the matter from the local court.

Section 26 of the Central and Local Courts Proclamation granted magistrates the power to review matters but that such a magistrate must not constitute himself a court of appeal and arbitrarily interfere with the working of the lower court. He was empowered to ensure that there were no irregularities on the face of the proceedings or prejudice or bias in a decision given by the President of a Local or Central Court only.

The court in this matter therefore, found that the magistrate, by setting aside the decision of the local court and delivering an alternative judgment was exercising an appellate function which was beyond its authority. The court found that it could not consider issues of law in the present matter and referred the matter back to the local court for review as should have been done by the magistrate.

The court had to review an earlier decision by the same court. The accused was charged with contravening the Precious Stones Order of 1970 for wrongful and unlawful dealing in rough and uncut diamonds as a buyer or seller and for possession of uncut diamonds without a licence. The accused had pleaded guilty to all charges and convicted. 

The court at hand had to decide on whether the first count of wrongful and unlawful dealing was appropriate in the circumstances and whether the charge and conviction should be amended. 

The prosecutor relied on the testimony of the member in charge of the digging area who stated that when he searched the accused, he found three rough and uncut diamonds in her possession and upon requesting a valid dealing license, she failed to do so. There was no indication that the accused was going to sell those diamonds.

The court held that at the time the accused was apprehended she was not dealing in diamonds, but she was merely in possession of them. For there to be a crime there must be an act or on omission, a mere subjective contemplation of future criminal conduct which does not find outward expression indeed or omission is not criminally punishable.

The court held that the correct charge ought to have been one of possession and nothing more and ordered that the charge be amended accordingly. It however maintained that the previous sentence was adequate.

This appeal arose from a rule nisi application that required the appellant to justify why an interdict should not be issued against him for the unlawful use of the respondent’s property.

The respondent instituted interdict proceedings when the appellant continued to use the disputed property after a default judgment that reinstated a previous judgment in his favor.

The court noted that interdict applications require proof of a clear right, an injury and the absence of any other satisfactory remedy.

The appellant submitted that the respondent had alternative remedies in contempt proceedings and a writ of execution. The court noted that the real issue was whether the alternative remedies would afford adequate protection from the continuing mischief. The court held that contempt proceedings are entirely unsatisfactory, where the injury has already started and is continuing. It was also held that a writ of execution was unsatisfactory for immovable property such as land.

The appellant claimed that service by postal service did not constitute proper service of summons as per rule 44 of Central and Local Courts (Practice and Procedure) Rules; and that this affected the validity of the default judgment. However, the court noted that the service was properly effected. It was also held that the validity of a default judgment was not affected by service of summons so, it was valid unless set aside lawfully.

Accordingly, the appeal was dismissed with costs.

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.

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.

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.