Environmental Case Law Index

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 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. 

Appeal upheld.

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.

Application dismissed.

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 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 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.

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 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.

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.