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.
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This was an appeal in the Court of Appeal against a judgment of the High Court which had dismissed an appeal to it against a judgment of the Judicial Commissioner’s Court, the effect of which was to uphold a decision of a local court. The issue concerned the removal of wood from a plantation by the appellant, which the respondent contended belonged to the community of which he was a headman. The appellant’s reasoning that the plantation was situated in his grandfather’s field was rejected by the court which ordered the appellant to desist from using the plantation and never to use it. The appellant was not satisfied with the ruling, so he appealed unsuccessfully, first to the Central Court, then to the Judicial Commissioner’s Court and finally to the High Court.
The issue for the court’s consideration was whether the local court had the jurisdiction to hear the matter.
The court observed that the matter concerned provisions of the Chieftainship Act 22 of 1968 pursuant to which the judge held that the finding by the Office of the Chief did not preclude the appellant from seeking recourse in the Local Court. The court upheld the High Court judge’s view that the dispute between the parties was not a dispute involving claims to; title, exemption from title, or overriding title. Therefore, the submission that the dispute must be dealt with in the Land Court or the District Land Court was not upheld. The appeal was dismissed with costs.
The court considered an appeal against the conviction and sentence of the appellant, for the killing of an animal, possession of government trophy and failure to report being in possession of government trophy.
The appellant sought leniency and a lighter sentence on the ground that he had reformed. The respondent opposed the appeal and urged the court to uphold, both the conviction and sentence, and maintained that the evidence by the prosecution’s witnesses established the case against the appellant beyond reasonable doubt.
The main issue for the court’s consideration was whether at the trial, there was sufficient evidence to sustain the conviction and sentence of the appellant.
The court found that although the evidence was circumstantial, there was no plausible explanation as to how the appellant came to be in possession of the tusks stolen from the dead elephant. Further that between the discovery of the carcass and arrest of the appellant, there were no intervening factors to weaken the inference of guilt.
The court observed that the appellant was sentenced under the earlier Wildlife Conservation Act, Chapter 376 which had since been repealed. The sentence was more lenient than those introduced by the amended act, thus the sentence was neither excessive, nor wrong. Accordingly, the court held that the appellant had been properly convicted and dismissed the appeal on both sentence and conviction.
The court considered an application for judicial review on the ground that the decision of a magistrate to grant an injunction was ultra vires (i.e beyond the powers). The applicant contended that the magistrate lacked jurisdiction to make such an order and as such the order was a nullity. The respondent argued that the application was misconceived; that it had jurisdiction and that the applicant had failed to lodge an appeal which meant that the remedy of judicial review was not available to it.
The court considered whether the respondent had the jurisdiction to consider the matters before it. The court also considered whether the applicant exhausted other equally convenient, beneficial and effective alternative remedies which were available under the law.
The court found that although the application was brought in terms of the Forests Act, such dispute ought to have been brought before the National Environment Tribunal.
The court found that the learned magistrate acted without jurisdiction and in excess of statutory authority, contrary to Section 63(2) of the Forests Act to receive, entertain, hear and otherwise deal with the said case as the proper forum to hear and determine the interested party’s claim, would have been the National Environment Tribunal. On this basis, the decision issued was ultra vires and thus a nullity ab initio. Accordingly, the court set aside the decision of the magistrate.
This was a judicial review on the administrative decision of the Department of Agriculture, Forestry and Fisheries (“DAFF”) to refuse a permit for the removal of 10 protected trees (white Milkwood trees) to build a new residence.
The court considered whether it was proper for the applicant to seek an order to compel the DAFF to make a decision it had not taken during a review. The court applied the rule that requires the court to exercise its judicial discretion to set aside an administrative decision only when considering the consequences of a decision that was already taken.
The court also considered whether the decision was made by an authorised person. The court applied the provisions of s15 of the Natural Forest Act which prohibits the disturbance (removal) of protected trees without a license or exemption from the minister. It also considered s7 of the that allowed the minister to delegate exercise of his powers. The court found that the decision was made by a forester who was not authorised to make the decision. The court found that alone to be decisive of the matter and set aside the decision by the DAFF.
The court also made an order as to costs to be paid on a joint and several bases by the respondents.
This was an action for damages for assault and battery that led to the removal of one of the plaintiff’s eye; following a beating by the defendant’s guards when the plaintiff was caught stealing on the defendant’s property. The plaintiff also prayed for costs of the action.
It was common cause that the plaintiff was cutting down trees for firewood without permission at the defendant’s estate; and that the plaintiff ran away from the defendant’s agents. The plaintiff averred that one of the defendant’s agents appeared in front of him and threw his baton stick at him, hitting and injuring his eye. The defendant denied the plaintiff’s version of facts and averred that the plaintiff stumbled and fell onto his shovel, thereby injuring himself.
The court, therefore, had to determine whether the plaintiff was entitled to the damages sought.
The court held that in a civil case like this one, the burden was on the plaintiff to prove his case on balance of probabilities. The plaintiff argued that he satisfied this requirement, as the defendant’s witnesses contradicted themselves. The court, however, noted that all of the defendant’s witnesses concurred that they were not carrying baton sticks on the material day and that the plaintiff did not challenge this.
Consequently, the court found that the plaintiff failed to establish that the injuries he sustained were caused by the defendant’s agents. The plaintiff’s action, therefore, failed.
This case interpreted the requirements to qualify for exemptions in s. 47(1) of the Nature Conservation Ordinance of 1975 that allow for the sale of game or game meat or the skins of game which is obviously under the age of one year.
The applicants sought to review a decision by the minister of environment and tourism that revoked and altered the terms of the gaming certificate issued for Erindi farm. The permit was altered to include that it did not apply to game kept in enclosures smaller than 1000 ha. The court found that in doing so, the minister equated the phrase ‘piece of land’ in s. 47(1) (ii) with the phrase ‘enclosure’. This consequently subjected ‘a farm’ to the same requirement governing ‘a piece of land’.
The court noted that not every piece of land in Namibia was a farm. It was held that the respondents’ interpretation of s. 47(1) exemptions was far-fetched. The court held that farms were required to be enclosed with a game-proof fence to qualify for the exemption while a piece of land required the land to be 1000 hectares and be enclosed with a game-proof fence. The court observed that Erindi farm was enclosed with a game-proof fence and should not be subjected to other requirements.
It was also held that the first respondent acted unlawfully for failing to give the applicants an opportunity to be heard.
Accordingly, the respondents were interdicted from enforcing the alterations in the certificate.