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 validity of an order to the Land Valuation Board to assess the compensation payable in respect of buildings and farms belonging to inhabitants of an old village.
The facts of this case were that the appellant, a mining company, requested the respondents and other inhabitants of a village, which adjoined its mining area, to vacate the village and paid them compensation for their buildings, which were later demolished. Section 71 of the Minerals and Mining Act, 1986, provided for compensation for disturbances to owners and occupiers of lands affected by mineral operations. The appellant argued that this compensation was limited to areas within the mineral operations and that these areas were not land designated within its mining lease.
The Supreme Court considered the lawfulness of the board’s decision to award further compensation under s71 of the act. It found that since the mining operations of the appellant affected the owners or occupiers of land they were entitled to statutory compensation. The court stated that whereas compensation for the buildings of the respondents was settled by agreement with the appellants, as permitted under s71(3) of the act, compensation for the disturbance of their farming activities at the old village was mandatory under the act.
The court, however, stated that the lower courts came to the right conclusion but their reasons were not sound in law. Accordingly, the appeal was dismissed but the reasons were substituted for the Supreme Court’s decision.
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 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.
The court considered an appeal against a judgment dismissing the appellant’s exception.
The appellant was a property development company and sought to develop property in low-lying areas adjacent to the Disa river. In order to develop these properties the appellant began to lift these properties to four meters above sea level by dumping waste matter and filling in on the properties. This resulted in the 2nd respondent issuing directives to the appellant in terms of section 31A of the Environmental Conservation Act 73 of 1989 (“ECA”), which required the appellant, at its own expense, to engage a freshwater ecologist and other environmental impacts of their actions.
The appellant complied with the directive but alleged that the directive had prevented it from undertaking any further development on the properties that were below the 1:100-year flood line, as well as the properties that were within the wetland boundary as surveyed by the ecologist.
The court below held that section 34(1) of the ECA provided a right to claim for compensation where loss suffered by a claimant arose from limitations placed on the purposes for which land may be used.
This court found that when the directives were issued, the constitutional and statutory obligations to prevent harm to the environment were met. Thus, section 34 of the ECA could not have been directed at providing compensation for actions taken under section 31A as those provisions regulate harmful activities against the environment.
The court considered an application for review to set aside the decision of the respondent regarding authorisation to develop a filling station on property situated within a commercial area.
The court considered whether the department had acted unfairly by failing to call for further information from the applicant, and subsequently denying the applicant authorisation to develop the filling station. Found, the department was not obliged to request the applicant to amend their report, and as such the applicant was entitled to renew their report at any stage, and thus did not act unfairly.
In order to determine whether the respondent had acted unlawfully and irregularly, environmental legislation and the Constitution, which contain socio-economic considerations, had to be considered.
The court considered whether the department’s policy of protecting the environment met with the guidelines applicable to developing filling stations was reasonable, and reasonably applied. Policy is applicable where (i) it will not preclude the exercise of discretion; (ii) it is compatible with the enabling legislation; and (iii) it is disclosed to the affected person before a decision is reached. The court found that the department met all of the requirements and was lawfully entitled, and duty bound to consider the guidelines.
The court considered whether the respondent’s argument regarding the distance was reasonable. The court found that the department had consulted with stakeholders who agreed with the distance and reduced the distance in the industry’s favour. Accordingly, the court held that the department acted bona fide and reasonably.
This case considered an application for an exception to the plaintiffs’ particulars of claim. The plaintiff’s claim was based on the alleged degradation of the environment caused by mining activities conducted over a number of years.
The court considered whether the provisions of s28 of the National Environmental Management Principles (NEMA) were retrospective.
The court applied the common law rebuttable presumption against retrospectivity. In the circumstances, the court considered the nature of the duty; enforcement of the duty; what the legislature intended; when the transactions were completed and other alleged indications of retrospectivity. The court found that the presumption against retrospectivity was not disturbed, and was not applicable in this instance because the legislature could not have intended such.
The court considered whether there was proper or substantial compliance with s 28(12) of NEMA. As with the first claim, the court applied the principle of retrospectivity. Accordingly, the court held that the exception to the first alternative claim that it lacks averments necessary to sustain a cause of action must also be upheld because it avers retrospectivity.
In terms of the second alternative claim, the court held that the exception should be dismissed.
Regarding the third and fourth alternative claims, which were based on regulations that no longer had the force of law, the court found them to lack averments necessary to sustain a cause of action. Accordingly, the court upheld the third and fourth exceptions which related to these claims.
This High Court case involved an accused that was charged with contravening section 6(1) (a) (i) and section 33 (2)(i) read with (ii) of the Precious Stones Order of 1970 (“order”). The charges were that the accused was in possession of three rough and uncut diamonds without being duly licenced to deal in rough and uncut diamonds. The accused pleaded guilty and was sentenced to three months’ imprisonment. However, the High Court was tasked to review the sentence on the ground that the accused was wrongfully charged. The record showed that the accused was merely found possessing the diamond unlawfully and not selling the diamond.
Thus, the issue for review was whether the accused was correctly charged under section 6(1)(a)(i) and section 33(2)(i) read with (ii) of the order.
The High Court accepted that the accused was wrongfully charged under section 6(1)(a)(i) and section 33 (2)(i) read with (ii) of the order, after reviewing the submissions. The court held that the offence he committed was limited to possession of the diamond unlawfully. To the alternative, the court stated that the accused ought to have been charged under section 6(1)(c) of the order which deals with unlawful possession of the diamond. Finally, the court allowed the amendment of the charge and confirmed the three months’ sentence stating that the punishment was proportionate to either of the offences.
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 High Court case concerned an appellant that had been convicted for contravening section 87(1) of the Land Act of 1979. The charge was that the accused (now appellant) did unlawfully and intentionally occupy land without proper authority. The appellant held the land and had agricultural license. When the land was declared urban land, the appellant continued to farm it, hence the accusation.
The main issue to be determined on appeal was whether the appellant was occupying the land in contravention of criminal code after the land was declared urban land.
The High Court held that the appellant did not contravene any
criminal code since the commissioner for land did not take steps required in law to nullify the pre-existing licenses. In that view, since the license held by the appellant was still intact even after declaring the land urban, the appellant was lawfully occupying the land.
The appeal was, therefore, upheld.
This was an appeal against the decision of the High Court to recognise the respondent as the rightful heir to real property. The matter had commenced in the local court, the contention between the parties being, who the rightful heir to the property was.
The issue for the court’s determination was whether it could entertain the appeal. It relied on s 17 of the Court of Appeal Act 1978 and the decision in Mahabanka Mohale v ’Makholu Leuta Mahao C of A (CIV) No. 22 of 2004. The court observed that the appellant filed a notice of motion for leave to appeal almost fourteen months after the High Court judgement had been passed and found that the appeal was out of time.
The Court stated further that although it had discretion to allow a breach of rules in a fitting case, the appellant had failed to file an application for condonation with supporting affidavits to enable the court to make a determination on whether to exercise its discretion.
Accordingly, the court dismissed the appellant’s application for leave to appeal and struck the appeal off the roll.
This matter dealt with an appeal for a decision taken by the Magistrate’s Court to set aside the Local Court’s decision to absolve from the matter about the ownership of a certain piece of arable land.
It was the appellant’s case that while he was out of the country the chieftainship had deprived him of the land and reallocated it to the respondent who since used it. The respondent argued that the chief had rightly allocated the land to him and that the appellant had never been an occupant of said land. The appellant contended that a former directive issued by the court to make a determination of the ownership of the land when a dispute about the ownership arose before, had not been fulfilled and therefore the land would belong to him by default, as he had inherited it.
The High Court found that the issue was never resolved because the chieftainess could not confront the appellant with either of the two tenants whom he had given permission to stay on the land or the witness to the inheritance. Therefore, the appropriateness of the reallocation would have to be determined by senior chiefs before it could be brought to a competent court of law which was the Central Court and not the Local Court. The courts of law had, therefore, no jurisdiction on the matter before it had first been exhausted by the chieftainship in accordance with the Land Act of 1973 and the appeal was thus dismissed.
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.
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 application for absolution from the instance by the defendant at the close of the plaintiffÕs case on grounds that there was no need to rebut the plaintiffÕs claims since there was a lack of sufficient evidence.
The plaintiff had instituted a claim for damages following the defendantÕs failure to avail water for irrigation purposes as was previously agreed.
The court determined whether the plaintiff had placed before the court sufficient evidence to warrant the defendant to be placed on its defence.
The court applied test of whether the plaintiff has established a prima facie case against the defendant and whether there is evidence that has been placed before the court upon which a reasonable court might give judgment against the defendant.
The court found that the plaintiff failed to establish a case against the defendant. Firstly, because the plaintiff was prevented by third parties from abstracting water from the dam because of low water levels. Secondly, in terms of the agreement between the parties the defendant did not guarantee the availability of water and was not liable for responsible for damages arising out of any failure to supply the water. Thirdly, the plaintiffÕs claim was wrongly premised since only 50 hectares of the land were under irrigation and not 90 hectares as contended.
Accordingly, the application for absolution from the instance at the close of the plaintiffÕs case was granted in favor of the defendant with costs.
This was an appeal against the decision of the lower court ’s offer of E110 000.00 as compensation.
The respondent constructed a sewage pipeline across the property belonging to the appellant. In terms of s 5 of the Water Services Corporation Act of1992, the respondent was obliged to compensate the appellant for the damage sustained on the property. For the damage done to the property the appellant sued the respondent for the payment of E350 000.00, interest and costs of suit.
The issue was whether the appellant was entitled to the sum of E350 000.00 based on the valuation report of an expert as opposed to the sum of value of the property in the sum of E110 000.00.
The court found that while the appellant alleged that the property was rendered of no value and therefore entitled to the sum of E350 000.00 being the market value of the said property, the expert evidence of one witness, stated that the entire property was not rendered valueless by the construction of the sewage pipe, as a percentage of it was still usable. Since the appellant failed to prove what the sum of E350 000.00 claimed represented, the court had no choice than to accept the offer of E110 000.00 from the respondents.
The view of the judge of the Supreme Court was that the reasoning of the learned judge of the lower court was undisputable. Subsequently the judges of the Supreme Court unanimously dismissed the appeal with costs.
This was an application for a spoliation order to summarily undo the wrongful deprivation of property without investigating the merits.
The applicants claimed that their immovable property (10 Metcalf Road, Greendale) and equipment for water abstraction were seized by the first to sixth respondents.
The first to the sixth respondents raised two preliminary objections: that the matter was not urgent and that there was need for police to join as co-respondents since they were the ones who had seized the applicants’ property. The first objection was abandoned while the second was dealt with in the merits of the case.
The court noted that the applicants were required to prove peaceful and undisturbed control before the disturbance and that the respondent took or destroyed the control unlawfully. However, the applicant would not succeed if the respondent proved valid defenses like they did not commit the spoliation or that they were not involved in the spoliation.
The court found that the applicants were in peaceful and undisturbed possession of the property and equipment although, illegally. However, the court noted that the applicants claimed that they were despoiled of their equipment by the first to sixth respondents who were not natural persons but failed to state who acted on their behalf. The court therefore held that the respondents were not involved in the despoiling.
Accordingly, the application was dismissed with costs.
Environment – environmental impact assessment – requirement for – such requirement additional to considerations for issue of mining permit
The plaintiff’s claim against the defendant in this case was that the defendant’s negligent and faulty roofing resulted in a flood that consequently damaged the plaintiff’s restaurant. The parties’ properties were located on a steep hill and shared a boundary. It was alleged that, on account of the defendant’s failure maintain a proper gutter, water was discharged from its roof onto the plaintiff’s property resulting in a flood. The defendant’s only defense was that there was no proof that the water that flowed towards the plaintiff’s restaurant came from the defendant’s restaurant.
The court held that since the onus of proof was on a balance of probability, the plaintiff’s case was clear. The evidence showed that a significant amount of water was discharged from the defendant’s roof due to its ill-fitted gutter towards the plaintiff’s house, which would have otherwise been channeled into a catch pit. The court reasoned that the presumption that the defendant’s poorly fixed gutter led to the flood was proved when soon after the defendant repaired its gutters the floods did not reoccur despite heavy rainfalls in following seasons. The court thus concluded that the defendant’s poorly fitted roofing contributed to the floods. Accordingly, the plaintiff’s claim succeeded.
This was an application for an injunction order by the plaintiffs to restrain the defendants from harvesting trees without consulting and involving the community. The court had to decide on the following: whether a community that was a beneficiary of a forest had capacity to commence proceedings against the illegal and irregular harvesting of timber and fuel wood materials from the forest; whether public participation was mandatory in the management of forests; and whether the Director of Kenya Forest Service (KFS), the first defendant, could be sued in their capacity as a director.
The court held that there were no provisions in law which barred any suit against the first defendant in that capacity. The court observed that the community had an interest in the preservation and sustainable use of the forest. As such, public participation was an important component of environmental management as enshrined in the constitution. However, the court pointed out that there was no public participation that was demonstrated by the respondents. On the lack of a management plan by the KFS, the court held that it was difficult to know when a tree was planted or harvested, thus creating difficulty to prove which trees were to be cut. The court held that the balance of convenience weighed in favour of the applicants because environmental interests far-outweighed private interests.
Accordingly, the court ordered the respondents to stop harvesting trees, pending the hearing of the suit.
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.