Environmental Case Law Index

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 court considered an appeal against an injunction to restrain the appellants from going onto the disputed land to demarcate, dig, construct etc. any tree on the land until the action had been finally determined. The court considered, 1) the weight of evidence and 2) the capacity of the respondent. 

The respondent obtained a customary grant of land 22 years before the action. Later, he obtained a formal lease and was reallocated additional acres of land, which was used to cultivate cash and food crops. Due to development in the area, the respondent’s land was whittled away. The respondent alleged that the appellants trespassed on his land and undertook various activities such as alienation of portions of his land, in the premise.

On the ground of capacity, it was found that once a party’s capacity had been challenged, it should be determined as a preliminary point and the suit can only be heard after this is determined. The court held that the appellants did not raise capacity as a preliminary issue and as such, the manner in which it was raised was a ploy to confuse the trial judge. 

On ground of the weight of evidence, the court found that if the injunction had not been granted, the respondents land would have been pillaged and its nature entirely changed. Thus, an injunction was necessary to ensure that irreparable damage was not caused. 

The court found that the trial judge exercised his discretion properly and thus the appeal was dismissed and remitted to the trial court for continuation.   

The court considered an application for review concerning the forfeiture of gold whereby the respondent was found guilty of contravening s 8(1) of the Gold Trade Act. The accused owned a jewelry shop whereby he traded gold. The Zimbabwe Republic Police Gold Squad regularly visited the accused’s shop to ensure that he was complying with the act. On one visit, it became clear that the accused had not registered 8.59g of gold into the register as required by the act. 

The court found that after the conviction of the accused, a review of the record revealed that the learned magistrate had not made an order for the forfeiture of the gold. Despite the accused attempting to secure the return of the gold, he was informed it had been forfeited to the state. Pursuant to the accused’s investigation, and obtaining the record again, the record appeared to make reference to the forfeiture of the gold. 

The court found that the only explanation was that the trial magistrate entered the forfeiture clause well after the sentence had been imposed and the accused started claiming the gold.  In conclusion, the court found that the conviction and sentence were adequate but held that the forfeiture clause contained in the record be set aside and the accused be sentenced afresh. 

This was an appeal to the Supreme Court against the judgment of the High Court that ordered the appellants to pay security for the costs of the second respondent. The second respondent had opposed an application brought against it by the appellants in the High Court challenging the renewal of an exclusive prospecting licence (EPL 2101) issued by the first respondent in terms of the Minerals (Prospecting and Mining) Act 33 of 1992. The second respondent then filed an application for security in terms of Rule 47(1) as read with Rule 47(3) of the Rules of the High Court, on the basis that the appellants were persons of no or insufficient means to meet an adverse costs order in their main application and further that the appellants were fronts for parties who had been involved in prior litigation with the second respondent.

The Supreme Court relied on various authorities and emphasised that a court of appeal should not interfere with the exercise of the lower court’s discretion. The court saw no basis on which to interfere with the decision of the High Court that the appellants were persons of straw and that they had been put up as a front for others engaged in prior litigation with the applicant. The appeal was dismissed with costs and the second respondent was awarded the wasted costs occasioned by the abandonment by the appellants of the application in terms of Rule 18 of the Rules of the Court.

At the heart of this dispute was a farmers’ association, the applicant in this case, and its use of land in the Nkambeni Area. The association was formed, with the chief’s consent after he was assured that the community unanimously supported the project to turn their land into commercial property. The dispute initially arose because the second respondent was denied membership of the association because his younger brother was already representing their family. This offended the second respondent who considered himself to be the legitimate representative. The dispute mutated and the respondents alleged that the chief deprived them of their fields without consent. The court considered whether there had been unlawful deprivation.

Previously, the dispute was taken to traditional structures for resolution and ultimately was referred to the Swazi National Council where the King rendered a judgement. The applicant and respondents disagreed about the contents and effect of this judgement. The applicants stated that the association was given permission to pursue its activities and the respondents invited to apply for alternative land. On the other hand, the respondents claimed that traditional structures and the regional administrator ruled in their favour before the Swazi National Council was approached and that the latter declined to give a ruling on the matter.

After considering evidence and witness testimony, the court found that the applicant’s evidence was cogent and consistent while the respondents’ evidence was unsatisfactory and contradictory. Consequently, the application was granted.