Environmental Case Law Index

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.

This was an appeal to the Supreme Court on a judgment of the High Court which had dismissed an application for the review and setting aside of a decision by the respondent to refuse the importation of Mountain Reedbuck from South Africa into Namibia.

The appellant cited the respondent, pursuant to his duties, powers and functions as set out in the Nature Conservation Ordinance No. 4 of 1975. The appellant placed particular emphasis on his duty to consider and decide on the importation of live game from South Africa in accordance with Section 49(1) of the ordinance as amended by Section 12 of Act 5 of 1996. The evidence revealed that the decision to refuse the import of Mountain Reedbuck was made by a subordinate official who was not authorised to do so and based on a new policy which had not been communicated to the appellant.

The court found out that this issue hinged on the confusion surrounding the parties involved, the reasons for the refusal and the failure of the respondent to abide by Rule 53 of the Rules of the High Court and Article 18 of the Namibian Constitution linked to administrative justice and the doctrine of “reasonable expectation”. The court held that the subordinate official acting on behalf of the respondent did not have the authority to make the decision which was set aside. Accordingly, the appeal succeeded, and the court directed the respondent to issue the permits applied for and pay the appellant’s costs.

This was an appeal against the decision of the court a quo, which dismissed an urgent application on the ground that the application was not urgent. 

The court dealt with the requirements for a judgment to be appealable. The court relied on the Erasmus Superior Court Practice, A1 – 43 in formulating the requirements. First, the decision must be final in nature and not capable of alteration by the court hearing the matter. Secondly, the decision must be definitive of the rights of the parties, through granting a definite and distinct relief. Lastly, it must have the effect of disposing a substantial portion of the relief claimed in the main proceedings. 

Relying on Lubambi v Presbyterian Church of Africa, the court further found that the ruling that a matter is urgent and must procced on that basis, was found not to be an appealable ‘judgment or order’ and such an order is similar to an order giving direction in regard to evidence, or referring a matter to trial. It is therefore not appealable.

In removing the matter from the roll with costs, the court held that the case was concerned with procedure and not the substance of the application. 

This Supreme Court case concerned an appeal against the ruling of the High Court that found the appellant guilty primarily on counts of: (1) theft of unpolished diamonds in contravention of section 74 of Act 13 of 1999; alternatively, possession of unpolished diamonds in contravention of section 30(11) of Act 13 of 1999; (2) robbery; (3) malicious damage to property; and 4) escaping before being locked up in contravention of section 51(1) of Act 51 of 1977. 

The appellant was primarily charged in the High Court for stealing unpolished diamonds and fleeing arrest. He was convicted on all the counts and sentenced to both a jail term and payment of fine

The appellant felt aggrieved and appealed to the Supreme Court mainly on the ground that the prosecution side failed to establish that the mining company was the lawful owner of the alleged stolen diamond. 

The court held that the evidence obtained from the surveillance cameras clearly showed that the unpolished diamond that the appellant was trying to steal was discovered and recovered from him.  The court held that he was caught right at the exit of the mining site. So generally, the mining company was the one licensed to exploit and trade the diamond in that area the court a quo was justified to take a judicial notice that the diamonds belonged to the complainant. 

The court therefore refrained from disturbing both the conviction and the sentence of the High Court, so the appeal was dismissed.

In this Supreme Court case, the first respondent applied for the permit to drill boreholes in the Khan River for uranium mining activities. Subsequently, the second respondent granted the rights to use the boreholes and the water to the first respondent allegedly in the exercise of its powers provided under the Water Act of 1954.  The appellant’s case against the respondents was that the wildlife on its farm depended on the naturally occurring underground water to support natural habitats. Overusing the water from the rare sources in the area would, therefore, disturb the ecosystem. 

At the High Court level, the issue was to determine whether under the act the second respondent had the powers to grant such rights. The High Court held that the powers to grant such rights were limited to subterranean waters. Moreover, the court held that since under the act sections 27, 28 and 30, the president proclaims the underground waters. The president had never declared the areas allocated to the first respondent as such the permits were a nullity. As a result, there was nothing to be determined by the court in favour of the appellant. 

On appeal, the Supreme Court agreed that the permit issued was a nullity. However, it held that the High Court ought to have decided the case in favour of the appellant since, in law, illegal acts can create reviewable actions. Finally, the Supreme Court upheld the appellant’s claim.

This was an appeal against a judgment of the High Court which ordered the appellants to comply with the terms of a settlement agreement entered into by the parties on 10 November 2006 and later became an order of court. The first appellant was an elected body established in terms of the Regional Councils Act 22 of 1992. The first respondent was a voluntary association representing 104 members out of 110 persons who were lessees of sites in a holiday resort and fishing village of Wlotzkasbaken under the jurisdiction of the first appellant.

The first appellant advertised plots for lease without distinguishing between those already leased to the respondents and other vacant sites, which aggrieved the respondents and was interpreted as a breach of their right of pre-emption. The issues for determination were: the meaning of clause 2 of the 2006 agreement in the context of previous agreements and whether the advertisement was signaling an intention to no longer be bound by the 2006 agreement.

The court deduced that the agreements showed that in each instance the parties agreed to certain rights which would ensure that those existing leaseholders would be able, if so advised, to convert their lease holding into property rights. In their agreement with the appellants, the respondents acquired the right to have all the plots sold once the township was proclaimed. Therefore, the intention to lease those plots was a breach of the right of the respondents. Accordingly, the appellants’ appeal was dismissed with costs.

The court considered an urgent application for spoliation orders (common law remedy) against the first to eleventh respondents or alternatively, an eviction order against them.

The thirteenth respondent purchased three farms which were adjacent to land which was incorporated in a communal area falling under the jurisdiction of the first applicant, a traditional authority. These farms were intended to be incorporated into the communal land falling under the applicant’s jurisdiction. The Government of Namibia initiated the process of incorporating these farms into the communal area under the first applicant through a notice published in the Government Gazette pursuant to the provisions of the Communal Land Reform Act 5 of 2002. 

The issue facing the court was whether the first to eleventh respondents had the prerogative to occupy the farms with their cattle grazing on them, without authority to do so. The respondents argued that the applicant lacked locus standi (capacity) to bring the application since the land had not yet been incorporated into the communal area by way of notice in the Government Gazette, as required by the act, thus the applicant did not have jurisdiction over the land. 

The application for spoliation was refused because the applicant could not show deprivation of possession by reason of the respondents’ occupation which predates its possession and control. Thus, the court found that the respondents could not establish any right to be on the farms. 

The eviction order was granted with costs.

The matter focused on the lawfulness of the removal of fencing surrounding land for agricultural purposes in a communal area. 

The respondent, Ohangwena Communal Board, established under s 2 of the Communal Land Reform Act 5 of 2002 removed fencing erected by the applicant, around a tract of agricultural land in a communal area, which the applicant alleged had been duly allocated to him in 1986. 

The applicant approached the High Court on an urgent basis for an interdict to restrain the board from removing the fencing surrounding the grazing farm and from disposing of the fencing material which had already been removed. 

The applicant maintained that in terms of s 18(b) read with s 28(2)(b) and 28(3) of the act, he is entitled to retain the fences which he had erected on and around the farm. The court found that the applicant had erected the perimeter fence prior to the coming into force of the Act and his intention to apply for authorisation for the retention of the perimeter fence, meant that the removal of the fence by the respondent was unlawful and in conflict with the act.  

Given the entitlement to retain a fence if the statutory requisites in s 28(80) are met, it would be unlawful for boards to remove such fencing where applicants intend to make such application prior to the expiration of the period set by the Minister pursuant to s 18. 

The interdictory relief was granted.