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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This matter dealt with an appeal against both conviction and sentence of the contravention of ss 30(1) and 28 of Proclamation 17 of 1939 pertaining to the theft of diamonds.
The Supreme Court considered whether contradictions in the state case raised reasonable doubt. The court considered that the failure to testify when there is direct evidence of an offence, tends to strengthen the direct evidence, because there is nothing to contradict it. In this case the state witness gave evidence implicating the appellant which called for an answer but did not receive one.
The court considered whether the state witness was a trap. The definition of a trap is someone who proposes criminal conduct to someone else with the intention of securing the conviction of that other person whilst ostensibly taking part himself. The court considered that the state witness took part in the commission of the offence, knowingly stood to gain from the appellant’s arrest and had broached the subject. However, the appellant should have challenged the truth of the assertions made by the witness which he did not. Accordingly, the court held that the appeal against conviction had no merit.
The court considered mitigating factors, particularly entrapment. The court determined that the interests of society are safeguarded by a system of justice that excludes the false entrapping of innocent people because it may bring to court people who had no interest in stealing diamonds. Accordingly, the court upheld the appeal against sentence.
The matter dealt with the interpretation of particular terms of a prospecting agreement which arose from the mining of a grant area.
The Supreme Court considered whether to declare that clause 8 (a) created an obligation to provide sufficient funds on a continuing basis. The test was whether the obligation to fund was limited. The appellant’s argument was based upon a literal reading which the court held was absurd as it would result in regarding the obligation as an unlimited one. Accordingly, the court held that the express terms of the clause contemplated further funding to be determined by a further mutual agreement.
The court considered whether clause 10 entitled the second respondent to call up its loan. The court reasoned that if the loan was never repayable it would not be a loan. The court held that the respondent, Iscor, was not precluded from calling up its loan and to say that it would be is far too wide.
The court considered whether to grant the declaratory order in terms of clause 9. The court found the prayer to be too vague to warrant a declaration. Accordingly, the court held that the declarator sought was without substance.
In order for a declarator to be granted the issue which the declarator seeks to address must be in dispute between the parties. In the circumstances there was no material time when there had been a dispute about the continued existence of the agreement. Accordingly, the court held that it would not grant the declarator sought.
The appeal was dismissed with costs.
This case interpreted the concept of urgency and interim relief pending the outcome of litigation in issues concerning an exclusive license to harvest and process wild mushrooms, according to the 1973 Wild Mushroom Control Order.
The respondents appeared in court pursuant to a rule nisi (an order to show cause) why they should not be interdicted from stopping the applicant from taking and processing wild mushrooms from Usutu Forest.
The court considered whether the application should be dismissed since the applicants had procured the urgency and interdict by failing to disclose material facts. The court found that there was no immediate urgency since the companies had been in discussion for a long time. It also found that the respondents were not given sufficient time to respond to the application.
The court interpreted the provisions of s. 4(1) of the order and held that the applicant’s license did not authorize intrusion into the respondent’s land without consent. Consequently, the applicants’ submissions were unsound and they had abused court’s processes.
The court held that the effect of an interim interdict was not to determine eventual rights of the parties. It found that the interdict placed an obligation on the respondents that was contrary to its rights and the respondent was entitled to costs thereof.
Accordingly, the application was dismissed.