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
This was an appeal against the decision of the High Court to reverse the issuance of a mining licence the second appellant without hearing the respondents. The first appellant was the regional director responsible for providing mineral licenses and the second appellant was the mining company that had obtained a mining licence. The respondents wished to oppose the grant of the mining licence but a notice to the public which would have afforded them the opportunity to raise objections was not issue. The appellants contended that article 9 of the Minerals Act 50 of 1991 did not provide such a duty. The respondents contended that the right to be heard was a natural right and therefore a silent section could not be deemed to oust it.
The Supreme Court considered whether interested parties, wishing to oppose an application by the holder of mineral rights for a mining licence in terms of sec 9 of the act, were entitled to raise environmental objections and be heard by the first appellant, The court held that the right to be heard was such a critical right that it could not be easily ignored and the critical nature of environmental issues at the global level demanded that the first appellant involve the public on environmental assessment measures taken. The court stated further that there was an obligation on the first appellant to provide allow for a hearing on any objections before a license could be issued. Accordingly, the appellants’ case was dismissed.
The appellant sought leave to appeal the respondent’s refusal to allow access to information concerning the use of a Pebble Bed Modular Reactor (PBMR) for generating electricity.
The court determined the limitations of the right to information in s 32 of the constitution and the Promotion of Access to Information Act of 2000; and whether the respondent was right in relying on the limitations to deny the applicants access to the information.
The court held that the right to information is not absolute since it is limited by the right to privacy as per s 36 of the constitution. The court determined whether the information required by the appellant fell within the exceptions in the act.
The court also noted that this was a technical matter that required expert evidence since experts are better qualified to draw inferences in such matters than the judicial officer. The court observed that only the respondent brought expert evidence.
The court applied s 42(3)(a) of the Information Act that entitles the respondent to refuse a request for access to a record that contains trade secrets. It found that the respondent had proved its case and that the research requested by the appellant was protected from disclosure.
Accordingly, the appeal was dismissed with costs.
The matter dealt with an application for access to information relating to Genetically Modified Organisms (GMO). The court considered the applicability of the provisions of the Promotion of Access to Information Act 2 of 2000 (PAIA).
The court applied the test in our law that no statute is to be construed as having retrospective operation unless the legislature clearly intended it to have that effect. In the circumstances, if one were to apply PAIA’s provisions retrospectively they would interfere with the applicant’s then existing rights. The court found that the disclosure of information, or the granting of access to information should be necessary for the proper application of the provisions of the GMO act.
The court considered the applicant’s failure to exhaust internal remedies as required by s19 of the GMO act. The court found that the act does not expressly state that recourse to the courts is to be deferred until the internal appeal procedure provided for in s19 thereof is exhausted. The court found that it is illogical to insist that the applicant should have exhausted the internal appeal remedy first. The court found that this was not necessarily destructive of the relief sought by the applicant.
On the issue of whether the applicant failed to articulate the information sought, the court considered how requesters for information would not always have knowledge of the precise description of the record in which the information sought, is contained. The court found that the applicant has a clear right to some of the information to which access was requested and that the respondent was entitled to refuse access to certain records, or parts thereof, in terms of the grounds for refusal.
The court considered an application for mandamus to compel the government, the first respondent, to disclose agreements relating to the purchase of power, among others. The first respondent and Ethiopia entered into negotiations to develop a power plant. The petitioners argued that by agreeing to purchase electricity from Ethiopia, the respondents were acting in a manner that would deprive members of the affected communities of their livelihood, lifestyle and cultural heritage.
The court considered the following: whether it had jurisdiction to intervene and address the issues; whether the rights of the petitioners had been infringed; and what the respondents’ obligations were. The court held that the subject matter of the petition was an agreement between two sovereign states and the violations of rights were transboundary, thus giving the court jurisdiction to hear the matter.
It stated that the right to life, dignity, economic and social rights were indivisible and would have an adverse impact on the petitioners’ livelihood should the power plant be developed. However, without concrete evidence, the court could not find that their rights were violated. In terms of the access to environmental information, the court held that the State was obliged to encourage public participation, which was only possible if the public had all the information. The court found that the respondents ought to have conducted an environmental impact assessment to ensure that the project would not harm the public. Thus, their right to information was infringed. Accordingly, the court granted the order of a mandamus.
This was an application for judicial review wherein the applicants sought orders to quash the respondents’ decision to place an advertisement in the newspapers calling for applications for concessions in state forests, prohibition orders to prevent the respondent from actualizing any matters concerning the advertisement. They also sought an order of mandamus to compel the respondent to comply with constitutional provisions on the protection of forests.
The respondent argued that they had taken the action in accordance with s 37(2) of the Forest Act.
The court determined whether the respondent had complied with the law in making the decision.
The court interpreted s 37(2) and established that before the board takes a decision to place an advertisement for concessions, it must be satisfied that the forests will be efficiently managed through such concession or license and for the board to be satisfied, factors such as public views and opinion, should be taken into account before the decision is made.
The court found that the respondent had not made provision for public participation, yet it was constitutionally bound to do so and thus failed to comply with the law.
Accordingly, the court granted the orders sought by the applicants.
The petitioners in this matter contented that since 1998, the fourth and fifth respondents had played excessively loud music at night thus causing the petitioners and other residents sleepless nights. The respondents operated an entertainment spot located near a residential area and learning institutions and whose main entertainment menu was the playing of very loud music. The petitioners alleged that the noise interfered with their peace and quiet enjoyment of their properties and violated their right to a clean and healthy environment.
In order to prove that the noise and vibration levels from the respondent’s restaurant were excessive, the petitioners used self-made instruments that were not approved by a relevant lead agency or any person appointed by the National Environmental Management Authority.
This was against the requirements of the Environmental Management and Coordination Act. Therefore, the petition had to fall, although the learned Judge noted that the petitioners had a noble claim.
This was a petition brought by various parties challenging the implementation and design of the Lamu Port-South Sudan-Ethiopia Transport Corridor (LAPSSET Project). The court considered whether the implementation of the project violated the rights of the affected communities.
The court observed that the rights of citizens regarding information on environmental matters, public participation, and access to justice were indispensable to foster sustainable development. The court found that the various petitioners’ rights were violated or could potentially be violated by the project, including the rights to fishing and to a clean and healthy environment.
The court ordered the project designers to engage the community as a distinct group and to mitigate on how the project, would affect their rights to culture. Secondly, it ordered the respondents to design a measurable and actionable plan, in consultation with the affected community on how to protect the cultural identity during and after the construction of the project. Thirdly, it ordered the government to draw up a management plan to preserve the Lamu Island as a UNESCO World Heritage Site as directed through UNESCO declarations. Fourthly, it ordered the department responsible for issuing environmental impact assessments to ensure that the rights of the communities were implemented before reconsidering the licence. Accordingly, the petition was upheld.