Environmental Case Law Index

This was an appeal to the High Court involving an appellant who was co-charged for contravening Section 6(1)(a)(i) read with (4) of Precious Stones Order of 1970 (“order”) as well as theft. In the case, the appellant allegedly bought diamonds with money that he had stolen from the bank account of his employer. The Magistrate Court acquitted the appellant and the co-accused of the charge of contravening the order. However, the appellant was convicted and sentenced for theft.  The appellant’s defence was that he withdrew the money for office use, but that it was then stolen from his wardrobe by an unknown person.

On appeal, the first issue on trial was whether the magistrate erred in finding that the explanation given by the appellant was far from being reasonably accurate. The second was whether there was enough evidence to establish the appellant’s guilt. 

The High Court held that the prosecution showed that the appellant withdrew the amount of money alleged to have been stolen from the bank. It found that the conviction by the lower court was well based on (1) the remainder of the money that was unearthed from the appellant’s house; (2) the uncut diamond that was recovered from the appellant; (3) further evidence. The Magistrate Court’s decision was therefore upheld and the appeal dismissed.

This Supreme Court case concerned an appeal against the ruling of the High Court that found the appellant guilty primarily on counts of: (1) theft of unpolished diamonds in contravention of section 74 of Act 13 of 1999; alternatively, possession of unpolished diamonds in contravention of section 30(11) of Act 13 of 1999; (2) robbery; (3) malicious damage to property; and 4) escaping before being locked up in contravention of section 51(1) of Act 51 of 1977. 

The appellant was primarily charged in the High Court for stealing unpolished diamonds and fleeing arrest. He was convicted on all the counts and sentenced to both a jail term and payment of fine

The appellant felt aggrieved and appealed to the Supreme Court mainly on the ground that the prosecution side failed to establish that the mining company was the lawful owner of the alleged stolen diamond. 

The court held that the evidence obtained from the surveillance cameras clearly showed that the unpolished diamond that the appellant was trying to steal was discovered and recovered from him.  The court held that he was caught right at the exit of the mining site. So generally, the mining company was the one licensed to exploit and trade the diamond in that area the court a quo was justified to take a judicial notice that the diamonds belonged to the complainant. 

The court therefore refrained from disturbing both the conviction and the sentence of the High Court, so the appeal was dismissed.

This was an appeal from the High Court to the Supreme Court. The case concerned a ministerial notice stating that nuclear energy prospecting licenses regarding certain areas will not be provided.  The appellant was allegedly an aspiring applicant. He thus felt aggrieved with the notice.

In the High Court, it was held that the appellant lacked legal capacity to challenge the notice as the notice did not create any triable issue. Aggrieved, the appellant appealed to the Supreme Court.

Thus, the main issue for determination was whether the respondent's notice exempting certain areas from being prospected for nuclear resources was unconstitutional. The appellant’s argument was that the denial of the prospecting license violated his constitutional right to work. 

In response, the Supreme Court upheld the High Court decision, but it disagreed with the High Court that the respondent lacked the legal capacity. According to the Supreme Court, the appellant would have been successful if the minister had no statutory powers to issue the notice or if the process was procedural. However, the minister had such powers under section 122(1) of the Mineral (Prospecting and Mining) Act of 1992. Consequently, the Court held that it cannot order the minister to issue the license if the notice is still in existence. Also, the Supreme Court held that the constitutional provision on the right to work does not mean that people can conduct mining activities without being regulated given the environmental challenges. 

Following this, the appellant's case was dismissed with costs.

This was an appeal against a decision of the High Court to hold the appellants in contempt of an order of the Minister of Water Affairs and Forestry, issued to the mining companies concerned under s 19(3) of the National Water Act 36 of 1998.
The appellants contended the directives were incapable of implementation because they were so vague. Consequently, the respondent obtained orders from court a quo, compelling the appellant to provide an amount of money as contribution to execute the ministerial order. Following the order, the appellant failed to pay the money. As a result, the appellants applied to have the appellants for contempt. 

The main issue for the court’s consideration was whether an order of the court ordering money to be paid could raise a question of contempt. In overruling the decision of court below, the supreme court stated that it was only where performance of an act was ordered – ad factum praestandum – that conviction for contempt of court was permitted as a means of enforcing performance. It held that contempt proceedings were therefore inappropriate in the circumstances. In conclusion, the court stated that an order that a person was in contempt of court, which carries with it criminal sanctions, should be made only where the court order allegedly flouted was clear and capable of enforcement. Accordingly, the appeal was upheld.

The matter dealt with an appeal against the decision of the High Court to set aside a magistrate’s grant of an interdict to the appellant. The High Court held that the magistrate had no jurisdiction to grant the interdict in exercise of its powers under s 30(1) of the Magistrates’ Courts Act 32 of 1944 because s 29(1)(g) sets a monetary limit on the value of the matter in dispute. 

The court considered whether the jurisdiction of the magistrate was excluded due to the limit on the monetary value of the matter in dispute in accordance with the act.

The court established that the matter before the magistrate court related not to the value of the business but to the unlawful activities that the appellant claimed amounted to nuisance. The court found that the respondents had not complied with the requirements for the use of their land including the submission of an environmental and health assessment report and that their activities affected the appellant adversely. The court held that the respondent had not proved that the cost of abating the nuisance was beyond the jurisdiction of the magistrate.

The court concluded that in the circumstances, the magistrate had the jurisdiction to grant an interdict. In conclusion, the court set aside the order of the High Court and replaced it with an order that the appeal to that court be dismissed with costs.
Accordingly, the court upheld the appeal with costs and ordered that the decision of the magistrate be reinstated.

The appeal at hand flows from an initial application by the respondent for an interdict restraining the second appellant, from directing storm water on to the property of the respondent who cited that the construction of a water drainage system by the second appellant would threaten his properties as they stood lower than the water drainage scheme. He alluded that he foresaw damage to his buildings if the storm water were to come over his properties. A temporary interdict had been granted.

The court in this appeal were tasked with deciding whether the previous court had the jurisdiction to hear the matter and that the interdict be set aside as the second appellant was discharging their statutory obligation as per the Roads Act.

The court found that the Magistrate’s Court’s jurisdiction was confined to claims where the value of the subject matter in dispute did not exceed R2000.00. The court held that in order to give life to the interdict, the second appellant would have to design or construct a new drainage system which would in the courts opinion exceed R2000.00 and therefore the magistrate’s court had no jurisdiction.

Further, the respondent’s averment that a drainage system was necessary for safely leading storm water to its nearest natural drainage point was not opposed by the applicant who merely spoke of his property. The court held that such works were a necessity and the respondents ought to have been allowed to work.

The order was set aside.

The court considered an appeal against a judgment of the Gauteng Local Division where the appellants refusal to supply information to the respondent about their industrial activities with possible environmental impacts, was declared invalid and set aside.

Following two requests by the respondent, the appellant refused to give them any information based on a failure to meet the threshold requirements of s 50(1)(a), read with s 53 of the Promotion of Access to Information Act 2 of 2000. Further, that their reliance on s 24 of the Constitution was too broad and in conflict with the principle of subsidiarity. I.e. where legislation giving effect to constitutional rights exists, the provisions of the legislation is where the rights should be located.

The court found that the word ‘required’ in s 50(1)(a) of PAIA should be construed as ‘reasonably required’ in the prevailing circumstances for the exercise or protection of the rights by the requestor. Thus, insofar as the environment is concerned, collaborative governance was a virtue.

The court took into consideration the nature of the appellant’s operations and its consequences. The appellant had a reputation for being a major polluter in the areas in which it conducted operations.

The court found that the information was required to make a decision on future actions and could find no error in the court’s reasoning that led it to an order compelling the appellant to provide the requested information and that there is no room for secrecy.

Appeal dismissed.

This was an appeal against the order of the High Court that required the appellant to pay M52 900.00 to the respondent. This money was received by the appellant from the Lesotho Highlands Development Authority as compensation for the expropriation of land allotted to the respondent by his widowed mother.
The appellant and respondent, a nephew and uncle, occupied two adjacent properties. These properties were inherited by the appellant’s father and the respondent from their widowed mother in 1964. The court considered firstly, whether the respondent’s mother had a right at law to allocate the land to the appellant’s father and the respondent. Secondly, the court considered whether payment of the compensation ought to have been allocated to the parties in accordance with the portions of land that they occupied.
The court found that there was nothing in law, whether customary law or common law, prohibiting the widow (the respondent’s mother) from making the allotment that she did as it was designed to ensure that, during her lifetime, her sons exercised her rights in and over the fields. The court also found that although there was evidence to show that both properties were registered under the appellant’s father’s name, it was clear that the respondent was occupier and user of the disputed field since 1964, and was therefore entitled to receive compensation.
Accordingly, the appeal was dismissed with costs.

This was an appeal by a company and its liquidators against the decision of the lower court to dismiss their claim for the validity of a lease. The appellants claimed in the alternative that the decision of the respondent, the Municipal Council of Windhoek (“the council”) be reviewed and set aside. 

The main issues to be determined were, whether the council had validly cancelled the lease prior to the liquidators’ election to continue with it and whether the decision of the council was open to review by the court.

The respondent contended that the cancellation was caused by the appellants’ breach of a term of the contract, by discontinuance of its textile industry.  The respondent further contended that the appellants breached another term regarding sound environmental practices.

The court found that the respondent’s decision to terminate the lease was solely contractual and not administrative. On this basis therefore, the court held that the decision was not open to review on administrative law grounds.

Firstly, the court held that financial failure of a company, leading to liquidation, could not terminate a lease. Secondly, that the council failed to establish what the terms for an environmental friendly textile industry were. In conclusion, the court held that the company had in fact given notice to terminate the lease and that the notice was accepted by the respondent. Consequently, the lease had then ceased to exist.
Accordingly, the court dismissed the appeal with costs.

The matter dealt with the issue of jurisdiction arising out of a dispute regarding the development of residential flats by the ex parte applicant.

The court considered whether the National Environment Tribunal had jurisdiction to hear and determine Tribunal Appeal No. 74 of 2011. Under section 129(1) of the Environmental Management and Coordination Act, a person who did not participate in the Environmental Impact Assessment study process for the development, in the process of approval or complaint cannot be said to have been an aggrieved by the process which led to the issuance of the licence as no decision could be said to have been made against him. If the tribunal purports to entertain such an appeal under the aforesaid section, the tribunal would be acting ultra vires its authority, hence its decision would be liable to be quashed.

In this case, it was clear that the appeal in issue did not fall within section 129(1) since the second respondent was not a participant in the licensing process. It followed that the limitation period provided under section 129(1) did not apply to the second respondent since, in the court’s view, that limitation only applied to a person appealing pursuant to section 129(1).

There was no evidence that the second respondent was barred from appealing by any other provision in the act or regulations. Accordingly, the court found that the second respondent was entitled under section 129(2) to appeal against the decision of the authority.

The Notice of Motion was dismissed.