Environmental Case Law Index

The court considered an application for an interim interdict preventing the respondents from interfering with the applicant’s business and to remove their security personnel. 

The applicant held a licence to deal in scrap metal, particularly to acquire, sell or deal in copper. Police officers, accompanied by the 1st respondent attended at the applicant’s warehouse and advised of its intention to search for certain materials which were suspected to have been stolen from the 1st respondent. The 1st respondent ensured that security were placed at the premises to guard the warehouse until such time as the warrant had been obtained.

The court stated that the requirements for an interim interdict were: 1) a clear right, 2) a well-grounded apprehension of harm if the relief was not granted, 3) balance of convenience, and 4) absence of any alternative remedy.

The court found that there was an alternative remedy available since dealing in copper was a closely controlled trade and that a holder was obliged to keep proper records of the copper in its possession, thus it should have no difficult in accounting for any loss. 

The court weighed the prejudice to the applicant if the relief was refused against the prejudice to the respondent if granted. It observed that the purpose of placing the security was to ensure that the premises was safe and no items were lost. If relief was granted, this protection would be lost. Thus, the balance of convenience did not favour the applicant. Accordingly,  the application was dismissed.  

The court considered an application for review concerning the decision handed down by the Magistrate’s Court on whether the accused’s case should have been discharged. The facts were that whilst the complainant was being investigated by the police for theft by finding of gold, the accused, a magistrate, approached the complainant and solicited him for a bribe to dispose of his case. The complainant made a report to the police who set a trap to arrest the accused, after she had received the money.

The defence applied for a discharge of the case, which was granted on the basis that the state witnesses were not truthful.
The court considered whether the magistrate’s decision to the discharge the case was exercised judicially. The court found that the trial court had a discretion to discharge or continue with the trial, and that such discretion ought to have be exercised judicially. 

The court stated that a discharge was appropriate where: there was no evidence to prove an essential element of the offence; or no evidence on which a reasonable court would convict; or where the evidence was so unreliable that no reasonable court could act on it.   The court held that there was nothing indicating that the witnesses had been discredited and that it was a misdirection for the magistrate to treat the assertions made by the accused as though they were evidence. Accordingly, the court set aside the accused’s discharge and referred the matter back to court for continuation of trial. 

This was a review in the High Court concerning two accused persons who had been charged with and convicted for contravening s 368(2) as read with s 368 (4) of the Mines and Minerals Act [Chapter 21:05] for prospecting for minerals when they were not holders of licences or permits.

The issue facing the court was to determine whether the accused persons, being widows with minor children, were acting under special circumstances, as the trial magistrate had found. The court held that the learned trial magistrate completely misdirected himself in holding that the circumstances of the accused persons amounted to special circumstances, as there was nothing out of the ordinary about being a widow with minor children to look after. The court also held that the learned magistrate’s line of reasoning was faulty in calling that widows and widowers with minor children should be excused when they break the law so as to fend for the minor children, since it was a recipe for anarchy as there were so many widows and widowers in the country.

Consequently, the sentence imposed by the trial magistrate was not allowed to stand and, therefore, set aside. The matter was sent back to the trial court to recall the two accused persons and impose the sentence of two years imprisonment as mandated by law. Since both accused persons had already served four months imprisonment in the form of community service, they were to serve an effective term of 20 months imprisonment.

The court considered an application to review a sentence imposed on the accused. The accused was charged with contravening s 3(1) of the Gold Trade Act by virtue of being found in possession of 0.62g of gold valued at $20.62. The accused pleaded guilty and was convicted. The lower court imposed a short sentence whereas as the act stipulated of not less than 5 years for persons found guilty of the offence, unless special circumstances existed showing cause why the mandatory sentence should not be imposed. The magistrate relied on special circumstances pleaded in mitigation.

The special circumstances referred to by the accused were that his wife was in hospital and was going to undergo surgery and that he committed the offence to raise hospital fees and money for the surgery 

The court found that these were not special circumstances as envisaged by the act but that what the accused relied on was a common occurrence and did not entail that persons in such situations ought to resort to crime. The court held further, that his illegal action was not a solution to this problem nor would $20 be enough to pay the hospital bills.  

The court held that there was no reason why the mandatory sentence should not be imposed. Accordingly, the court set aside the sentence imposed by the trial court and remitted it back to impose the mandatory sentence. 

The court considered an application for the granting of an order to evict the respondent pending the hearing of an appeal. The applicant was the registered title holder of four mineral claims. It instituted action seeking an eviction of the respondent from its registered claims, which was subsequently granted. The dispute between the parties related to ownership and mining claims of the minerals. It was not disputed that the mineral claims were registered in the name of the applicant. 

The court considered the parties’ rights of ownership of the minerals. These rights were governed by s 172 of the Mines and Minerals Act, which stated that every holder of a registered block of claim would possess the exclusive right of mining or deposit of the mineral in respect of which the block was registered which occurred within the vertical limits of his block. The court found that the applicant had the exclusive right as the registered holder of the claim. 

The court found that to suspend the eviction pending the appeal would entitle the respondent to continue mining, which was an untenable situation and would create a judicial anomaly where the court became a party to the respondent’s unlawful conduct. Accordingly, the court granted the application. 

In the High Court, an appellant was applying for bail pending his appeal against both conviction and sentence by the trial court, having been convicted of contravening s368(2) as read with s368(4) of the Mines and Minerals Act [Chapter 21:01] that is, prospecting for gold without a licence. He had been sentenced to two years, being the mandatory minimum penalty for that offence after the magistrate failed to find any special circumstances.

The issue before the court was to exercise its discretion on whether to grant bail to the appellant. The court held that in exercising the discretion on whether or not to grant bail pending appeal, the court must be guided by the prospects of success on appeal and whether there is risk that the applicant would abscond. The judge held that from the court record there was a problem with the rebuttal of the applicant’s defence in the trial court. The applicant had argued that he was carrying a pot and a lid when the police pounced, but state witnesses alleged that he carried a shovel.

The judge was satisfied that the applicant had discharged the responsibility upon him and that the court should indeed exercise its discretion in the applicant’s favour. Accordingly, the judge granted the application on condition that he deposited a sum of $100.00 with the Clerk of Court, he resided at a particular village and to report at a police station twice a week on Mondays and Fridays between 6.00 am and 6.00 pm. 

The court considered a criminal appeal against the sentence imposed on the accused. 

The accused was convicted, on his own guilty plea, for contravening s 3(1)(a) of the Gold Trade Act by being in possession of 0.15 grams of gold without authorisation.

The evidence revealed that the accused was asked whether there were any special circumstances, which the court below established did not exist and sentenced him to the mandatory minimum sentence.

The accused argued that the trial judge did not explain in full what special circumstances meant and the inadequate explanation prejudiced him. The respondent agreed and stated that the explanation was “special or extraordinary mitigating factors” where it should have referred to special circumstances. 

The court found that the Act did not define special circumstances, and it was on a case by case basis. However, the court below took all necessary steps to explain the meaning and import of special circumstances, which was given in clear unambiguous terms. 

The court found that the accused was not an illiterate person and appreciated what was taking place and there was nothing preventing him from asking the magistrate for clarity. Further, that the accused’s conduct once arrested, in running away illustrated a guilty state of mind. 

The court found that the accused’s special circumstance of “being the only breadwinner” was clear that he was aware of the offence being committed. As such, the court found no merit in the appeal. 

This was an application to interdict the respondent from disconnecting water supplies from the applicant’s property without a court order and from charging commercial rates for the use of water from the said property.

The applicant submitted that the respondent was infringing on their right to water as provided in s 77(a) of the constitution. In interpreting the right to water, the court found that the right empowers local authorities to levy rates to raise revenue for service provision and does not prohibit disconnections of water services for non-payment. Additionally, the court held that the right to water contains the protection against arbitrary and illegal disconnections. Consequently, when a bill is genuinely disputed there should be recourse to the court before disconnection as per s 69 (3) of the constitution and the holding in Mushoriwa v City of Harare HH 195/14.

The court held that the applicant had proved his right to water but failed to prove the genuineness of his claim, since he did not provide proof letters of complaint disputing the bills. This also had a negative bearing on the grant of the interdict order.

The court also found that the applicant converted domestic premises for use as commercial premises and was not entitled to be charged domestic rates. 

The court also noted that the applicant failed to give adequate information which would show that the respondent did not follow the correct procedure in zoning and rating it.

Accordingly, the application was dismissed with costs.

This was an application for a spoliation order to summarily undo the wrongful deprivation of property without investigating the merits.

The applicants claimed that their immovable property (10 Metcalf Road, Greendale) and equipment for water abstraction were seized by the first to sixth respondents.

The first to the sixth respondents raised two preliminary objections: that the matter was not urgent and that there was need for police to join as co-respondents since they were the ones who had seized the applicants’ property. The first objection was abandoned while the second was dealt with in the merits of the case.

The court noted that the applicants were required to prove peaceful and undisturbed control before the disturbance and that the respondent took or destroyed the control unlawfully. However, the applicant would not succeed if the respondent proved valid defenses like they did not commit the spoliation or that they were not involved in the spoliation.

The court found that the applicants were in peaceful and undisturbed possession of the property and equipment although, illegally. However, the court noted that the applicants claimed that they were despoiled of their equipment by the first to sixth respondents who were not natural persons but failed to state who acted on their behalf. The court therefore held that the respondents were not involved in the despoiling.

Accordingly, the application was dismissed with costs.

The origin of the application is an interim interdict prohibiting the first, second and third respondents from carrying out mining activities and ordering the fourth and fifth respondents to clear illegals who were working at the mine. The first respondent sought a review of this order and got an interim interdict that ordered for the eviction of the applicant and prohibition from mining.

This application arose when the applicant sought direction from the judges in chambers for anticipation of a return date and also rescinding the eviction order.

The court applied Order 33 of the High Court Rules and held that the pending review suspended the operation of the order issued in the magistrate court. Consequently, the applicant could not exercise the rights conferred upon him unless the review was determined in his favor.
The court found that the mine lies in the applicant’s plot. However, the court found it important for peace to prevail at the mine and that both parties be removed from the mine pending resolution of their dispute.

The court held that the applicant was able to prove all the requirements of an interdict: he had a right to mine; he would suffer irreparable damage if the respondent continued with their mining operations; he had no alternative remedy and he proved his case on a balance of probabilities against the respondent.

Accordingly, the interdict was granted pending the resolution of the dispute and the security guards of both parties were ordered to guard the mine jointly. 

This was an application for the discharge of the accused persons for lack of evidence pursuant to s 198 (3) of the Criminal Procedure and Evidence Act. The state had alleged that the accused persons were acting in common purpose through a series of fraudulent misrepresentations to the Government of Zimbabwe, the Ministry of Mines and Mining Development and Zimbabwe Mining Development Corporation (ZMDC) and induced ZMDC to enter into a joint venture agreement of diamond mining with Core Mining (Pvt) Ltd. They fronted Benny Steinmeitz Group Resources (BSGR) as its guarantor and on that representation, the government approved a contract, it never would have otherwise approved. 

Relying on the parole evidence rule that posits that parties are strictly bound by the four corners of the contractual document and nothing outside it, the court held that both government and ZMDC cannot be heard to complain that they were duped into signing the contractual document under the mistaken belief that BSGR was standing as guarantor for Core Mining when the contractual document makes no mention of BSGR at all.

Court further held that the state closed its case without leading any evidence pertaining to the misrepresentations allegedly made by the accused concerning the due diligence exercise on Core Mining. That misrepresentation is a vital component of the crime of fraud without which the crime cannot be committed. The state having failed to establish a prima facie case against the accused, it was accordingly ordered that both accused be acquitted and discharged.

The applicant in this High Court case was seeking interim orders that (1) the first and second respondent be ordered to restore the supply of water from Blanket Dam in Gwanda to the applicant’s mine; (2) the first and the second respondent be interdicted from interfering with the applicant’s possession of his water supply infrastructure without obtaining a court order to that effect. 

The facts were that the first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicants argued that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents, on the other side, argued that the matter was not urgent, and they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending the contract between them.

Thus, the main issue for determination was whether the applicant had satisfied the requirement for an interim order to be issued; 

On the first issue, the Court held that the applicant had satisfied the requirements for an interim order which are, (i) prima facie right; (ii) reasonable apprehension of irreparable injury; (iii) no alternative relief available; (iv) and the balance of convenience favouring the granting of the interdict. 

As a result, the interim order was allowed pending the main trial and the hearing of the interdict.

The court considered an appeal against the High Court’s decision not to interdict arbitration proceedings. 

The facts leading to the appeal were that a joint venture was entered into by the appellant and two mining companies. A dispute subsequently arose which the appellant claimed rendered the contract void ab initio. The first respondent sought a declaration that the contract was valid and soon after, referred the dispute to arbitration. However, the parties failed to agree on an arbitrator and one was appointed by an arbitral institution. Although the appellant boycotted a pre-arbitration meeting, the arbitrator proceeded, identified preliminary issues, and ordered the parties to file submissions. This prompted the appellant to file an urgent application to prevent the arbitration proceedings. The High Court’s refusal grant the interdict is what the appellant appealed against.

Before considering the appeal, the court observed that it was strange that the there was no nexus between the relief sought in the court below and that sought on appeal. The court went on to point out that the appellant refused to correct an error in its citation of the respondent in the proceedings but instead sought to hold out the matter as undefended. This was an abuse of court process. On this basis alone the proceedings could not be sustained.

Accordingly, the appeal was dismissed. The court held that the wrong citation was compounded by the appellant’s refusal to rectify the error and made an order for exemplary costs.