Environmental damages

McLaren NO v The Municipal Council of Windhoek (A110/2009) [2016] NAHCMD 161 (06 August 2016);

Headnote and Holding: 

The applicants sought to review and set aside the decision of the first respondent to cancel a lease agreement concluded by the 4th applicant after the 4th applicant disregarded environmental standards on wastewater discharge per the agreement.

The court determined whether the first to third applicants’ irregular appointment as liquidators deprived them of locus standi (capacity) to seek review. It was held that these applicants had the required locus standi.

The court also determined whether the application was brought in reasonable time given the delay in filing the application after becoming aware of the cancellation of the lease. It was noted that there is no prescribed time for the institution of review proceedings. However, the court found that the applicants failed to explain the delay and held it to be unreasonable.

The court held that the relationship between the 4th applicant and first respondent was a contractual relationship. The court considered whether the Municipality validly cancelled the lease agreement before the liquidators’ election to continue with the lease agreement. The court considered clause 16.1 of the agreement and observed that the agreement required no formalities for cancellation. It applied the test of whether a reasonable person would conclude that the proper performance will not be forthcoming and held that the Municipality had a right to cancel the lease.

It was also held that the review relief sought was unsustainable since the decision to cancel the agreement did not constitute reviewable administrative action despite being made by a person who would ordinarily perform administrative functions.

The applicants abandoned their claim for declaratory order to exercise an improvement lien and moved for amendment of the relief in prayer 3. However, the amendment was not requested or granted. Hence the two prayers were dismissed.

Accordingly, the matter was dismissed with costs.

Namib Plains Farming and Tourism CC v Valencia Uranium (Pty) Ltd and Others (SA 25/2008) [2011] NASC 3 (19 May 2011);

Headnote and Holding: 

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.

Minister of Mines and Energy and Others v Black Range Mining (Pty) Ltd (SA 18/2009) [2010] NASC 7 (15 July 2010);

Headnote and Holding: 

This Supreme Court case revolved around exploration prospecting licenses (EPL) provided by the first appellant, to the second appellant and the respondent over different mining groups of nuclear resources but in the same land. 

At the High Court, the respondent challenged the first appellant’s action (the responsible minister) for giving prospecting and mining rights to another company over an area that the respondent had an EPL agreement to operate in. The High Court had quashed the first appellant’s decision in favour of the second appellant, asserting that the first appellant in offering the EPL agreement to the second appellant did not consider the interest of the respondent as required per sections 68(h) and 69(2)(c)(i) of the Minerals (Prospecting and Mining) Act of 1992. Aggrieved, the appellants appealed. 

On appeal, the main issue for consideration was whether the first appellant was justified to issue EPL over an area that the respondent had pre-existing EPL. The  Supreme Court upheld the decision of the High Court stating that the first appellant was duty-bound to take into consideration the provisions of ss 68(h) and 69(2)(c)(i) of the act which requires regard to be given on what impact will the additional activities have on the existing EPL holders. The Supreme Court held that natural justice requires that a hearing must be given to the person(s) already holding EPL over an area likely to be affected with subsequent EPLs. In conclusion, the Supreme Court upheld the High Court decision and dismissed the appeal with costs.