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.
Read also JIFA's Environmental Country Reports for SADC
S v Kurotwi & Another (HH 270-16 CRB 35-39/11) [2016] ZWHHC 270 (04 May 2016); 
EL Index Minerals, oil and gas Minerals and energy Environmental law Criminal offences relating to the environment Criminal offences in environmental law Environmental law Procedural Fairness Justice and fairness Civil ProcedureThis 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.
S v Chikukwa (HH 813/16 CRB NO. 146/16) [2016] ZWHHC 813 (03 October 2016); EL Index Minerals, oil and gas Minerals and energy Environmental law Criminal offences relating to the environment Criminal offences in environmental law Environmental lawThis 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.
S v Matura (HB 78-17 HC (CRB) 33-16) [2017] ZWBHC 78 (09 April 2017); Criminal offences relating to the environment Criminal offences in environmental law Environmental law Minerals, oil and gas Minerals and energy Environmental law EL IndexThe 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.
S v Tinodya & 3 Others (HH 215-18, CA 668/16 Ref CRB 3503-7/16) [2018] ZWHHC 215 (25 April 2018); EL Index Land use Human exploitation of the environment Environmental law Administrative Action Administrative Law Criminal offences relating to the environment Criminal offences in environmental law Environmental lawThe 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.
Namibia Breweries Ltd v Seelenbinder Henning & Parnters (PI1606/99) [2002] NAHC 2 (12 February 2002); EL Index Locus standi in environmental litigation Litigation of environmental issues Environmental law Pollution and waste management offences Criminal offences in environmental law Environmental law Waste management Waste and pollution Environmental lawThe matter dealt with an exception raised in the High Court of Namibia by the defendant to the plaintiff’s claim for damages for breach of duty to perform professional work. The plaintiff’s claim was that on account of the defendant’s breach, large quantities of effluent leaked out of the reticulation system beneath its bottling plant and it sustained damage to its property.
The main issue was when the plaintiff’s cause of action arose and if the plaintiff was the owner of the property at the time of the alleged damage. Under this issue the court sought to determine whether the pipes in question were damaged “after or upon installation”.
The defendant had argued that the plaintiff’s claim was not appropriate in delict as the breach was not wrongful for purposes of Aquilian liability. The defendant further claimed that the plaintiff did not have a proprietary interest in the property at the time of the alleged breach.
The court held that the duty of care of a professional could be extended to a person who later becomes the owner of a property as the damage to the pipes remained latent until discovered when the plaintiff acquired the property. The court further held that the Aquilian action forms a basis for such a remedy and that there were considerations of policy and convenience which prima facie allowed for an extension in the circumstances
Accordingly, the defendant’s application was dismissed with costs to the plaintiff.
Henwood v Maloma Colliery Limited and Another (NULL) [1994] SZHC 68 (30 September 1994); EL Index Injunction Injunctions and interdicts Civil Remedies Declaratory Relief Civil Remedies Free prior informed consent Human and environmental rights Environmental law Private prosecutions Criminal offences in environmental law Environmental law Notice of Termination of Contract Termination of Contract Contract LawMalinga v Malinga (264/2012) [2017] SZHC 72 (18 April 2017); EL Index Private prosecutions Criminal offences in environmental law Environmental law Declaratory Relief Civil Remedies Permanent Employment Wages, pensions and benefits Labour and Employment Law African customary law and rights of indigenous peoples Human and environmental rights Environmental law Defective Goods Condition and treatment of property Property LawIn this High Court case, the applicant had an agreement with the respondent aimed at selling a herd of cattle to the applicant. Based on this agreement, the respondent proceeded to take the herd of cattle presented in the contract without paying for them. An attempt to charge the respondent for theft through the police did not work as the police hesitated to prosecute the respondent because they contended that they would have a weak case.
Then, the applicant decided to prosecute the case privately charging the respondent for spoliation. The applicant demanded that the court should declare that the herd of cattle that were taken by the respondent, in fact belonged to him.
Thus, the issue for determination by the court was to show cause why a declaration should not be made against the respondent to the effect that the herd of cattle be restored to the applicant.
On perusal of the given evidence, the High Court held that the respondent failed to show that the applicant allowed him to take the herd of cattle in dispute. Subsequently, the applicant was despoiled of the herd of cattle, that is, possession should be restored to the applicant. The respondent was also ordered to hand over to the applicant the progeny of the cattle forming the subject matter of the proceedings.
Mabuza v Phinduvuke Bus Service (66/2017) [2018] SZSC 13 (29 May 2018); EL Index Pollution and waste management offences Criminal offences in environmental law Environmental lawCivil Procedure ̶ Action by Appellant claiming damages for negligence – Bus conductor throws bottle under bus from which the Appellant has just alighted – Bus stamples over the stump of crushed bottle – Part of the bottle springs up and hits eye of the Appellant resulting in injury – Respondent raises plea of absolution from the instance on ground that the injury was not foreseeable – court a quo upholds the plea on ground that the bus conductor was not negligent as the damage caused was neither reasonably foreseeable nor preventable – whether court a quo applied proper test for absolution from the first instance – On appeal, held that on the evidence adduced the conduct of the bus conductor was negligent and the damage caused to the Appellant was reasonably foreseeable and preventable – Appeal allowed with costs – Matter remitted back to the court a quo, to hear the Respondent’s case and determine the case on the merits.
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