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.
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This case concerned an appeal against the appellant’s conviction and the decision to sentence him to six months imprisonment, of which 3 months were suspended for a period of 5 years on condition of future good behaviour.
The appellant, a self-admitted illegal gold dealer, approached three men to buy gold. After paying, he discovered that he bought fake gold. To recover his money, he lied to the police, indicating that he was robbed by the three men. The police arrested them and during their interrogation realized that the appellant had lied to them. The appellant was then arrested and admitted that he made a false report.
While the appellant pleaded guilty, he appealed against the sentence imposed arguing that it did not take into account mitigating factors. He also submitted that the court should have considered a fine as an alternative sentence.
The appeal court found that it should not lightly interfere with the lower court’s sentencing discretion. Further, that the lower court did take into account mitigating factors, such as the fact that the appellant pleaded guilty and was a first offender. It further noted that the court had to also consider aggravating factors, especially the fact that the appellant was an illegal gold dealer trying to use the police as debt collector.
The appeal court held that the lower court adequately took into account all relevant factors and imposed a fair sentence.
Accordingly, the appeal was dismissed.
Criminal law – defences – ignorance or mistake of law – acting in accordance with advice given by official whom the appellant had reason to believe was charged with administration of the law– mistake or ignorance of the law a defence when directly brought about by such advice
Environment – environmental impact assessment – requirement for – such requirement additional to considerations for issue of mining permit
This was a criminal trial in which the accused was charged with two counts for contravening the Mines and Minerals Act and the Money Laundering and Proceeds of Crime Act.
The court determined whether the accused misrepresented that he had the mandate to sell a special grant which prejudiced the buyers. In finding the accused guilty of fraud, the court pointed out that the accused mispresented that he had the authority to deal with a coal mining concession held under a special grant. Through the misrepresentation, the accused personally benefitted from the proceeds. The court further pointed out that the moment the accused benefitted from the criminal activity, the property became proceeds of crime. The accused further received occupation of the immovable property which he was not entitled.
On the criminal charge against the accused for ceding a mining right to a third person without the consent of the president, the court held that the section does not create a criminal offence. It merely sets out the characteristics of the special right and how it can be assigned.
The accused was found guilty on both counts and sentenced to 10 years imprisonment, with 2 years suspended for 5 years. Further 4 years were suspended on condition that the accused paid restitution to the complainant. Effectively, the accused was sentenced to 4 years imprisonment.
This was an urgent application by the applicant, seeking an order to stop the respondents from mining gold ore from an area which the applicant had a prospecting licence.
The court set out the requirements of an interdict and held that the applicant was required to prove the existence of a prima facie right. Secondly, that there was an injury actually committed or reasonably apprehended. Thirdly, that there was an absence of a similar or adequate remedy. Lastly, that the balance of convenience favoured the grant of the relief.
The court pointed out that the applicant had other remedies available. Such remedies included using the Ministry of Mines to demarcate the area between the parties. Secondly, ore claimed by the applicants was held as an exhibit in a criminal case, thereby removing urgency in the application and any irreparable harm that could be occasioned by waiting.
Accordingly, the court declined to deal with the matter on urgent basis, dismissed the application and ordered the applicants to pay the respondents’ costs on an ordinary scale.
This was an application for a decree of perpetual silence against the respondents for engaging in lawsuits aimed at harassing the applicants. The dispute between the parties emanated from certain claims in a mine, which resulted in over 30 court applications between the parties.
The court first dealt with the nature of the relief sought by the applicants. The court after citing authorities pointed out that the relief is recognised in the jurisdiction of the court. The court pointed out that in cases where repeated and persistent litigation between parties, in the the same cause of action, the court can make a general order prohibiting the institution of such litigation without the leave of the court. It was noted that such a remedy is extraordinary as it makes a person deaf before the court. The court also pointed out that the remedy is only granted where a party demonstrates to the court that the defendant or respondent is a serial litigator, with a tendency to abuse the court, the court process and the other party.
In dismissing the application, the court dealt with the history of the litigants and concluded that the respondents had a defined cause and were not serial litigators.
The court dismissed the application with costs on a higher scale.
Mines and minerals – mining dispute – resolution – decision of mining commissioner appeal from – appeal lying to High Court – Permanent Secretary in Ministry having no appellate jurisdiction
In this High Court case, the applicant sought interim and final orders to the effect that the first respondent be stopped from carrying out mining activities on the disputed area.
The applicant was a registered holder of Legion Mine in Gwanda (“mine”). The respondents then entered into a three years’ tribute agreement with the first respondent. Terms of the agreement required the first respondent to pay royalties to the applicant. However, after the three years expired, the first respondent refused to sign the new contract and to pay royalties to the applicant.
The issue for determination was whether the final order and an interim injunction could be issued against the first respondent, as sought by the applicant.
The respondent argued (1) that the damages suffered were reparable, and thus, a stop order could not be issued; (2) the affidavit was defective for failing (a) to indicate that the matter was urgent and (b) to make a distinction between payers that needed a final order and interim order. In response, the court held that (1) an interdict could be issued if the damages suffered are difficult to assess; (2) failure to title an affidavit as urgent does not make it defective if that could be read from the content of the affidavit; and (3) the applicant's affidavit was clear that she wanted an interim injunction stopping the first respondent from carrying out mining operations and the final orders for a complete cessation of mining activities.
Accordingly, the Court ordered the applicants prayers as sought.
The accused was charged on several counts for the unlawful possession of gold without a licence, smuggling and the use of a vehicle with secret or disguised places for concealing goods. In his defence, the accused stated that he was not aware of the presence of gold on the vehicle having borrowed it from another person who was a gold dealer.
The main issue for the court’s consideration was whether the accused person had knowledge of the existence of the gold. The court noted that the burden of proof in criminal matters rests on the state and that the state is required to prove its case beyond reasonable doubt. The court found that the state failed to adduce sufficient evidence to prove that the accused indeed had knowledge of the existence of the gold and the compartments.
Given these circumstances the court gave the accused person the benefit of the doubt and he was acquitted on all three counts.
The plaintiff issued summons claiming damages for malicious arrest, detention and prosecution due to the first defendant’s conduct during his employment with the second respondent. The second defendant owned a mine and employed the first defendant as a security manager. The plaintiff alleged that the first defendant laid false charges to the effect that the plaintiff had stolen gold slime from the mine, which resulted in his arrest, detention and prosecution for theft of the gold slime. The defendants averred that the first defendant discovered that 75 000 tonnes of gold slime had been stolen from the mine and he made a report to the police. After making investigations it was established that the plaintiff had instructed two of the employees of the second defendant to collect gold slime from the second defendant’s mine, which resulted in the plaintiff being arrested. At the pre-trial conference it was agreed that the issues were whether the defendants maliciously and wrongfully caused the arrest of the plaintiff and whether the plaintiff suffered damages as a result.
Held: (1) it is an actionable wrong to procure the imprisonment or arrest of anyone by setting the law in motion against him maliciously and without reasonable cause.
(2) For the plaintiff to succeed in an action for malicious prosecution he must prove that the prosecution was instigated by the defendants and that it was concluded in favour of the plaintiff and that there was no reasonable and probable cause for the prosecution and that the prosecution was actioned by malice. For malice to be present, the defendant must thus not only have been aware of what he was doing in instituting or initiating the prosecution but must at least have foreseen the possibility that he was acting wrongfully, but nevertheless continued to act, reckless as to the consequences of his conduct (doluseventualis). Negligence on the part of the defendant (or even gross negligence) will not suffice.
(3) The plaintiff failed to prove that his arrest, detention and prosecution were malicious and so the claim would be dismissed with costs.
This High Court case concerned an application for review in which the applicant sought an order that the third respondentÕs decision cancelling the applicants mining registration be set aside.
The dispute arose between the applicant and the second respondent allegedly due to a double allocation of the same mining area to the applicant and the first respondent. The third respondent convinced that there was a double allocation cancelled the applicants mining rights to the extent that their boundaries were overlapping. His reasoning was that the first respondent was the first to be allocated the disputed area. The applicant was dissatisfied with the decision and hence applied for a review to the High Court.
The issue for determination by the Court was thus whether the third respondentÕs decision was justified. The Court held that since the matter was first decided in the Mining CommissionerÕs Court, the appeal was supposed to be directed to the High Court per s361 of the Mines and Minerals Act of 1961 and not to the Minister. The High Court thus held that the entire proceeding, and the decision that followed it, was a nullity.
As such, the determination by the third respondent cancelling the applicantÕs Mining registration certificate held by the applicant was set aside with cost.
The court considered an appeal against the decision of the court below. The appellant was found in possession of gold and arrested because he failed to produce a licence. He was charged with contravening s3 of the Gold Trade Act and convicted following his plea of guilty. He was sentenced to the mandatory five years imprisonment.
The appellant filed a late appeal against his sentence, which the court condoned. In the notice of appeal, the appellant introduced grounds of appeal against the conviction. Thus, the court first had to consider whether the appellants appeal against the conviction was admissible and had merit.
Given that the appellant only filed an appeal against his sentence and not his conviction, and that only the lateness of that appeal was condoned, the court found that the appeal against the conviction was filed out of time and had no merit.
The court then considered the appeal against the sentence. The appellant argued that he did not know he had to have a permit to carry the gold in Zimbabwe, and that he operated under a bona fide mistake of law, that amounted to a special circumstance. The court found that the appellant would not have expected Zimbabwe to have regulations on the possession of gold and his failure to declare the gold upon entry into Zimbabwe reflected his mala fides.
Accordingly, the appeal was dismissed.
The applicant (a mining syndicate) sought several remedies, concerning gold mining and prospecting, against the first respondent, which would materially affect the second respondent (a mining syndicate).
Among the remedies were, that the first respondent should issue the applicant with a certificate of registration over a mining block and that the second respondent, and all those claiming occupation through it, should vacate that site.
The issue facing the court was whether these so-called syndicates were corporate bodies whose corporate status would ordinarily remain unaffected by changes in their membership. The rule applied was the Mines and Minerals Act.
The court held that the applicant described itself as a body corporate, but no incorporation document was produced, thus, the mere coming together of a group of people, or gang, for some commercial purpose such as mining, did not automatically transform it into a body corporate.
The court held that in terms of s 45, which provided for the registration of a mining location, when one applies to the mining commissioner, there was nowhere in that provision, or any other, that said that the mere payment of an application fee for registration, automatically confers rights of ownership or leasehold, or any other entitlement on the applicant. The applicant had not yet acquired any sort of right to enforce, the first respondent’s reason for not having proceeded with issuing a registration certificate was quite reasonable under the circumstances.
The court concluded that the application lacked merit, consequently it was dismissed with costs.
The court considered an urgent application, which was heard in chambers, to prevent the applicants’ eviction from their mining claims.
The mining claims, which were abandoned, were owned by the second respondent. Pursuant to the abandonment, the mining claims were opened up to prospecting third parties.
The applicants claimed that they applied to the relevant authority and were granted a lease of the disputed mining claims. Consequently, they argued that they should not be evicted.
The court, therefore, had to determine whether the eviction of the applicants was lawful.
The court found that the applicants failed to provide evidence showing that they had obtained a lease. It also found that the second respondent, which purportedly abandoned the mining claims in dispute, had been placed under a reconstruction order in terms of the Reconstruction of State-Indebted Insolvent Companies Act [CAP 24:27], which had the effect of voiding every disposition of the property, without the approval of the administrator. In this instance, the administrator did not approve the abandonment. As such, it was null and void, and was not open for prospecting.
The court found that the applicants’ manager and principal officer in person, not the applicants themselves, featured in the provided documents and that the eviction was against that person. The applicants themselves never acquired a right over the mining claims.
Finally, the court found the applicants were sluggard and failed to approach the court in good time.
Accordingly, the application was dismissed.
The court considered an urgent application for an order interdicting the first respondent from carrying on mining operations on the applicants’ mineral claims. At some point, the applicants and the first respondent had business dealings involving minerals from those claims. The respondent then went on to register mining claims over a piece of land which included the first applicant’s mining claims. The respondent argued that the matter was not urgent, and that the relief sought was not competent as it was final in effect.
The court considered whether the applicants had established a right to the relief sought. The court observed that the relief sought was an interim interdict, the requirements for which were: a clear right; irreparable harm; balance of convenience in favour of granting the relief, and no other satisfactory remedy. The court found that the respondent intended to mine on the applicants claim, and although the mining hadn’t commenced, the applicants could not wait until it acted and had established the prejudice likely to be suffered.
In determining the balance of convenience, the court weighed the prejudice to the applicant if the interdict was not granted against the harm to the respondent if the relief was granted. In this instance, as the mining activities were not being carried on yet, there was no prejudice to the respondent. Accordingly, the court found that the requirements for the interdict were met and the application succeeded.
This was an application for an interdict to prohibit mining activities at West Nicholson mine and a further order relating to the processing, sale of and distribution of gold ore mined by the applicants.
The applicants were members of the West Nicholson Youth in Mining Association. The 2nd respondent offered to grant a tribute to the association to mine gold ore and three representatives were appointed by the association to negotiate with the 2nd respondent. After operations had begun, the three representatives along with the 3rd respondent, a third party, unilaterally implemented a profit sharing scheme which gave 50 percent of the proceeds to the four of them.
The 3rd respondent opposed the application contending that it did not satisfy the requirements of an interdict because the applicants had no prima facie right.
The main issue for the court’s consideration was whether or not the applicants had satisfied the requirements of an interdict. The court found that the applicants had proved that they were members of the association and had therefore established a prima facie right to the mining benefits granted by the agreement. The court further held that there was a well-grounded apprehension of irreparable harm to the applicants if the interim relief was not granted and that this had been clearly proved by the applicants.
Accordingly, the court granted the interim interdict as prayed.
The court considered an appeal against a prior criminal conviction.
The appellants had extracted gold ore from a gold mine and were intercepted and arrested by the police. They were charged under s368(2) of the Mines and Minerals Act for illegally prospecting for minerals. They pleaded guilty, were convicted and sentenced to the mandatory two-year prison sentence. They appealed on the ground that they were convicted on a charge which was not supported by the facts admitted between them and the State.
The court had to consider whether the appellants’ plea of guilty was sufficient to convict them for contravening s368(2) of the Act. The court found that courts have a duty to protect the rights of the accused and to ensure that they fully understand the charge and the essential elements, as well as that they genuinely, and unequivocally admit to the charge, its essential elements, and the facts alleged by the prosecution.
In this case, the lower court simply accepted the uninformed admission of guilt by the accused as proof and disregarded the fact that the charge was not proved by the facts relied upon by the State.
Further, the court found that the appellants did not prospect for minerals, they simply stored gold ore from a known mine, thus contravening s379 not s368.
Accordingly, the appeal was upheld.
The court considered an application to set aside the National Water Authority Regulations and tariffs on the ground that they were ultra vires and violated the applicants’ rights.
The applicants’ business operations involved sugar-cane growing and sugar processing. They concluded two agreements with the Zimbabwe National Water Authority (ZINWA), which related to the supply of water. It was a term of the agreement that the parties would, together, review charges for raw water, and should they fail to agree, the respondent would fix the prices. Subsequently, ZINWA addressed a letter advising the applicants of their intention to review the charges. The respondent unilaterally increased the tariffs and failed to notify the applicants. The respondent argued that in terms of the ZINWA Act, she had the authority to impose tariffs for water charges and that the regulations did not violate the applicants’ rights.
The court considered whether the respondent had acted lawfully in imposing the water tariffs. It found that the government reviewed the water charges, and not ZINWA which was lawfully established to review the tariffs in as far as the applicant was concerned.
The court found that the respondent could not unilaterally increase water tariffs, unless ZINWA had made application to it to justify the increase. In this case, the respondent failed to notify the applicants, nor did she give them an opportunity to respond. The court concluded that the respondent acted ultra vires by increasing the tariffs and her actions were unlawful. Accordingly, the application was upheld
The court considered a criminal appeal, where the applicants had been charged for contravening s7(1)(a) or (b) of the Communal Land Act, by occupying or using communal land without lawful authority. The applicants pleaded guilty and were convicted and sentenced to pay a fine of $5000 or 30 days in prison. The appellants appealed the conviction on the ground that the court committed an irregularity by failing to proceed in terms of the correct procedure.
They contended that by entering a guilty plea, the court had a duty to safeguard the fair trial rights of the accused by adopting a procedure which was most likely to suggest a defence where there was one.
The court considered whether the appellant’s conviction was lawful. It observed that with unrepresented accused persons, there was the ever-present likelihood that out of ignorance of the law, a person would admit to charges of a complex nature out of a desire to draw sympathy of the police or the courts and the onus was upon the court to choose a procedure which would have given the appellants a possible defence.
The court found that the conviction was wrong and remitted the matter back to the lower court. In addition, the court below would be required to take cognizance of s 16 of the Act which required that following a conviction, an order for eviction be granted. Accordingly, the appeal succeeded.
The applicant in this High Court case moved the court to issue an interdict order against the first and second respondent. The applicant needed the court to compel the respondents to restore the supply of water that they had disconnected to the applicantÕs mine. The interim relief had been issued in a previous application, but the applicant additionally sought an order interdicting the respondents from terminating the water supply.
The first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicant argument was that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents argued that they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending their contract.
Thus, the issue for determination was whether the applicant satisfied the requirement for an interdict to be issued.
The court held that in the issue of spoliation, it is established in law that for a party to succeed it must show that the party was in peaceful and undisturbed possession. The court was satisfied that the applicant was constitutionally entitled to water supply, and that interference with this right without a court order was unlawful.
As a result, the interdict was allowed pending the main trial.
The applicant, had received a letter from the Secretary for Mines and Mining Development alerting them that their special grants for mining had expired and they had to cease all mining activities and vacate the covered mining areas. The Minister further issued a press statement on the consolidation of all diamond mining activities in the grant areas.
The applicant averred that the above decisions had prejudicial effect on it which also violated its property rights.
The respondents alluded that the application was improperly brought before the court as it appeared to be a response to the judgment of the High Court which the applicant had previously lodged but never appealed and that the cause of action was res judicata and that the avoidance principle applied here. The court, therefore, had to decide on these three main points.
The court held that the appeal had been disguised as a case concerning constitutional points and should have been brought in terms of s167(5)(b) of the Constitution.
It held that although the basis of the application had changed with the introduction of the constitutional question, the effect of the relief sought remained the same.
The court also held that the bulk of the applicant’s case was on right to just administrative action which was protected under the Administrative Justice Act which had sufficient grounds to deal with the rights they alleged had been infringed.
The matter was dismissed with costs.
This was an application for an order for spoliation. The applicants claimed that they had been unlawfully dispossessed of their quiet and peaceful possession of their property by the first respondent. The first respondent contended that he was issued with a prospecting licence by the second respondent on the same land and that he entered the property on the strength of the authority from second respondent. The applicants alleged that the first respondent entered their land by cutting a fence and causing damage to their property.
The court considered whether or not there had been a spoliation and whether the applicants were entitled to relief. The court established that the first respondent unlawfully deprived the first applicant of its possession of the quarry stone site and that this was an unlawful invasion of the property as the land was private property.
The court noted that the first respondent had not raised any of the recognised defences in an action for spoliation. The court found that the first respondent intended to take over the quarry site by forcibly removing them applicants from the quarry site without following due process as he did not possess a court order to justify his intended action.
Accordingly, the court held that the requirements for an order for spoliation had been met and ordered the respondents to return the applicant’s status quo prior to the spoliation.