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.
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The court considered an urgent application regarding quarrying activities, wherein the applicants sought, amongst several other grounds, to interdict the 1st and 2nd respondent from carrying out blasting and quarrying activities, pending the finalisation of the damage caused to the applicants’ houses.
The 3rd respondent operated a quarry for materials needed for the construction of mountain roads and in order to perform their job, blasting was required in order to loosen up the materials. Prior to the commencement of the work photographs of the houses within 500-meter radius of the quarry would be taken, in order to monitor and evaluate the effect of such blasting.
The respondents argued that the applicant had refused to have the liaison committee survey their buildings to detect the damage incurred due to the blasting.
The court considered whether the matter was urgent. It found that even with the applicants’ refusal, the buildings had been photographed and numbered to facilitate the assessment of damage following the blast.
On determining whether the matter was inherently urgent, the court found that the applicants were at all times aware that the blasting had occurred, yet they did nothing. On this basis, the court found that the applicants rights were not being impaired and as such their interdict was not granted. Accordingly, the application was dismissed.
The court considered an application for the applicants to be compensated before removing them from their land for improvements to those sites, as well as an interdict restraining the respondents from removing or demolishing the houses of the applicants without compensating them. The facts surrounded the applicant’s right to occupy the land based on allocation of land letters. The respondents argued that the applicants were in unlawful occupation as only the Urban Land Committee could allocate land. Further, that the Minister had published a legal notice advising the applicants that the land would be taken.
The court considered whether the right to land under s 44 of the Land Act 1979, which governs that the seizure of land for public purposes, was correctly administered. Further, the court stated that in Lesotho, land is not subject to individual ownership, and a person only has a right to occupy and use the land and when land has been taken away by custom, it has to be replaced.
The court found that the applicants, who had collectively spent millions on improvements to their houses, could not have their land taken away and their rights ignored. Further, the court held that peoples land could not be seized without them being consulted and being heard.
The court found that the legal notice issued by the minister was contrary to law as there was no prior consultation and it did not specify the purpose for seizure or the properties to be seized. Accordingly, the application succeeded.
The court considered an application against the decision to suspend the applicant’s license and for compensation as a result of the suspension or non-renewal of his digging license. The applicant was a diamond digger, who found a large diamond and upon enquiring from the mining advisor of the 1st respondent how to dispose of the diamond and to have it valuated, he decided to keep it, until the diamond went missing. The duty of the advisor was to issue digging licenses and to ensure diamonds were sold legally and correctly. Once the advisor noticed that the diamond was missing, he reported to the government representative.
In terms of his digging license, the applicant worked as part of a co-operative society and a mined diamond belonged to the co-operative to be sold. The applicant argued that the reason the diamond was not kept in a safe place, and rather in a grave, and not reported after it went missing was due to the advisor wanting to benefit from the sale.
The court found that there was no reason for the 1st respondent to lie, and in fact it was the applicant who wished to be the sole beneficiary and to gain from the black-market sale. It held further that there was no possibility that the diamond went missing by accident. Accordingly the application was dismissed.
This was an appeal from a decision of the High Court which declared the proclaimed Selected Development Area (SDA) as null and void for failure to comply with Legal Notice 17/1999 and an order requiring compensation of the respondents before they were evicted.
The court determined whether the respondents had legal rights arising from their occupation of the land and if such rights had been extinguished upon proclamation of the SDA, with the non- payment compensation being no bar to eviction.
The court established that the respondents were bona fide occupiers who made useful improvements on the land. Further, the court established that s 17 of the Constitution prohibits compulsory acquisition of any right or interest in property unless the 3 conditions therein are satisfied.: the acquisition must be necessary, justify consequential hardship and there must be prompt and full compensation thereof.
The court found that the constitution does not countenance taking of possession of property without payment of prompt compensation and the appellants cannot assert a right to evict the respondents without compensation.
The court held that the respondents were entitled to compensation and interdicted the appellants from demolishing the developments on the land.
The matter dealt with an application by the applicants against the respondent’s decision to remove them from and refuse them permission to sell their goods. The applicants were street vendors along the Kingsway Street. The 1st respondent had ordered them to relocate, which the applicants refused as the conditions were unfavourable. As a result, the applicants were removed. The applicants argued that in terms of s 5 of the Constitution, by forcing them to relocate their right to life was infringed as it denied their basic means of a livelihood.
The court considered whether the applicants’ removal from the Kingsway Street, was a violation of their right to life. The court found that “life” can be defined as a mammalian biological existence, and in a wider sense, it can be defined as the deprivation of human life itself. In this instance, the court held that the opportunity to trade should be viewed and weighed against other competing interests and values.
The court observed that, trading as a street vendor was a deliberate choice and not the only alternative to a living. Thus, the interests and values of livelihood were outweighed. In conclusion, the court found that to include the right to trade as one’s livelihood in the constitutional right to life would lead to absurd results. Accordingly, the application was dismissed.
The matter dealt with a claim by the appellants for an equal portion of shares in the 2nd respondent (a company).
The background to the case is that the 1st applicant and 1st respondent entered into an agreement to pursue a joint mining venture. The parties signed an MOU which stated that they would hold shares in the 2nd respondent. The applicants contended that the MOU implied that they would hold 50 per cent shares in the 2nd respondent.
The court considered the interpretation of the words in the MOU. The court gave the words their ordinary and natural meaning. It was concluded that in the absence of the usual qualifying or quantifying words, the natural and proper conclusion was that, at the time of signing the M0U, the 1st applicant and 1st respondent had not agreed as to the exact percentages of their respective holdings.
The court dismissed the application with costs to the respondents.
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.
The court considered an application for an interdict, restraining the respondents and their associates from setting foot near the diamond mine.
The respondents raised several issues, including the material disputes of facts, making the application unsuitable. The correct procedure as the respondents argued, was to proceed through the issuing of summons. The court pointed out that over the years, the court has allowed litigants to proceed by way of action proceedings if facts are not disputed, or if no dispute of fact is foreseeable. The court dealt with the requirements for an interdict and concluded that the applicants met the requirements. The court held that the applicants established a clear right to the mine and the respondents were interfering with such a right. The court also pointed out that there was no clear, alternative right available to the applicants. On the contrary, the respondents had other remedies available in the event that the interdict affected their rights.
The court granted the interdict and restrained the first and second respondents from setting foot at the diamond mine under the administration of the applicant.
This was an appeal in the Court of Appeal against a judgment of the High Court which had dismissed an appeal to it against a judgment of the Judicial Commissioner’s Court, the effect of which was to uphold a decision of a local court. The issue concerned the removal of wood from a plantation by the appellant, which the respondent contended belonged to the community of which he was a headman. The appellant’s reasoning that the plantation was situated in his grandfather’s field was rejected by the court which ordered the appellant to desist from using the plantation and never to use it. The appellant was not satisfied with the ruling, so he appealed unsuccessfully, first to the Central Court, then to the Judicial Commissioner’s Court and finally to the High Court.
The issue for the court’s consideration was whether the local court had the jurisdiction to hear the matter.
The court observed that the matter concerned provisions of the Chieftainship Act 22 of 1968 pursuant to which the judge held that the finding by the Office of the Chief did not preclude the appellant from seeking recourse in the Local Court. The court upheld the High Court judge’s view that the dispute between the parties was not a dispute involving claims to; title, exemption from title, or overriding title. Therefore, the submission that the dispute must be dealt with in the Land Court or the District Land Court was not upheld. The appeal was dismissed with costs.
This matter dealt with a land dispute which had commenced in the District Court but was transferred to the Land Court by agreement of the parties. At the end of the trial, an application for absolution from the instance (an order to dismiss a claim on the basis that no order can be made) was made. This application, the applicant sought to include an amendment that would introduce new evidence. The respondents argued that the application was an attempt to cover its failure to comply with the rules of court.
The court considered whether the application was properly before it. The court observed that the applicant had not obtained leave of the court for the application nor consent from the other parties to amend and file further evidence. It relied on r 13 of the Land Court Rules, No. 1 of 2010 and stated that even if the applicant had obtained leave or consent, the court could not grant the application for absolution so as to assist the applicant to cure a defect of none compliance with the rules of court.
It was held that the amendments were an abuse of the court process because the applicant was in fact curing the deficiencies in his pleadings after he had closed his case. Further, the court found that there were no exceptional circumstances to allow the application.
Accordingly, the application was dismissed with costs to the respondents.
The court considered an appeal against a decision of the High Court dismissing an application for a remedy over a land dispute on the grounds that there were disputes of fact that could not be ascertained, which the appellants should have foreseen.
The first, second and third appellants were members of the fourth appellant, a company of Swazi indigenous people, formed to co-ordinate the ploughing of sugar cane by indigenous Swazis. The first and second respondent were adult Swazis employed by a wildlife business undertaking.
The court considered 1) whether the application should have been dismissed due to a failure by the applicants to join parties who had a substantial interest in the matter, and 2) whether the applicants succeeded in establishing that they were in peaceful and undisturbed possession of the land when they were evicted.
The court found that the appellants did not attempt to join, as respondents, two parties, including a trust controlling the wildlife business undertaking, which had a direct interest in the disputed land. The appellants argued that a trust is not a juristic person, but the court found that legal proceedings can be brought by and against a trust. It was also established that before they moved onto the land the appellants had already been removed from that land and were aware that their right to occupy the land was disputed. Based on the court’s findings and failure to comply with the rules in the filing of heads of argument, the appeal was dismissed[kb1].
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.
At the heart of this dispute was a farmers’ association, the applicant in this case, and its use of land in the Nkambeni Area. The association was formed, with the chief’s consent after he was assured that the community unanimously supported the project to turn their land into commercial property. The dispute initially arose because the second respondent was denied membership of the association because his younger brother was already representing their family. This offended the second respondent who considered himself to be the legitimate representative. The dispute mutated and the respondents alleged that the chief deprived them of their fields without consent. The court considered whether there had been unlawful deprivation.
Previously, the dispute was taken to traditional structures for resolution and ultimately was referred to the Swazi National Council where the King rendered a judgement. The applicant and respondents disagreed about the contents and effect of this judgement. The applicants stated that the association was given permission to pursue its activities and the respondents invited to apply for alternative land. On the other hand, the respondents claimed that traditional structures and the regional administrator ruled in their favour before the Swazi National Council was approached and that the latter declined to give a ruling on the matter.
After considering evidence and witness testimony, the court found that the applicant’s evidence was cogent and consistent while the respondents’ evidence was unsatisfactory and contradictory. Consequently, the application was granted.
The applicant prayed to the High Court to grant an interim interdict and set aside a previous default judgement. The first respondent had applied for and been granted damages amounting to E65,0000.00 for damages caused by blasting by employees of Grinaker LTA Civil Engineering (Pty) Ltd. At the heart of this dispute laid the fact that Grinaker LTA Civil Engineering (Pty) Ltd did not exist.
Confusing the applicant with Ginaker LTA (Pty), one of its former names, the second respondent attempted to attach the applicant’s assets at the applicant’s place of business. The applicants informed the first respondent that the company they had sued did not exist by supplying proof in regard thereto. The first respondent did not, however, amend its summons and the second respondent again attempted to attach the applicant’s assets.
The applicant further noted that it and Consolidated Contractors International Company S.A.L. were partners in a joint venture entered into an agreement with the third respondent, the Government of Swaziland. The contract identified the joint venture as contractor and the third respondent as employer. Relying on provision in the Federation Internationale des Ingenieurs-Conseils, the applicant argued that the employer shall indemnify the contractor against all claims in respect of the unavoidable result of the execution and completion of the works.
The applicant, therefore, argued that the respondents should have addressed the summons properly to Grinaker LTA (Ltd), Aveng (Africa) Ltd (successor) and the Swaziland Government (indemnifier).
The court agreed with the applicant’s arguments and granted the application.
The applicant sought to review and set aside the decision of the Central Farm Dwellers Tribunal (“tribunal”), to evict the applicant.
The decision handed down by the first respondent was initially taken on appeal to the tribunal, which originally denied the request for an appeal as it was filed out of time. The matter was then referred to the Supreme Court, which referred the matter back to the tribunal.
The applicant argued that the decision of the first respondent was reviewable because of the first respondent’s failure to decide whether it acquired the land on which it was situated through acquisitive prescription.
The court considered whether or not it was irregular for the first respondent to direct that the second and third respondents could evict the applicant when there was a claim by the applicant that had not been determined, i.e. the acquisition of the land. The court held that to authorize an eviction before determining the acquisitive prescription would not accord to anyone’s sense of justice.
The court found that the irregular step of the first respondent in authorizing the applicant’s eviction was sufficient to warrant a review and that the court would have to substitute the decision of the first respondent with that of its own.
In this case the applicants sought an urgent interdict preventing the respondents from demolishing homes in the Mangwaneni, Manzana and Makholokholo, through which the new construction of the New Mbabane Bypass road was carried out.
First, the court had to consider whether the matter was urgent and held that applicants needed to prove the matter’s urgency. The court found that the applicants had shown the urgency of the matter in their founding affidavit.
Second, the respondents argued that the application did not adequately describe the ninth applicant and that it could therefore not be admitted. Considering existing jurisprudence, the court held that a relaxed approach should be taken on the issue to not inhibit public interest litigation. Consequently, the court condoned the citation of the parties.
Finally, the respondents argued that the applicants did not fulfill the conditions for an urgent interdict because they could seek compensation from the committee responsible for compensating resettled people. The applicants claimed that the committee no longer existed. Thus, the court had to consider whether the committee responsible for compensating the people who had been resettled by the project was still active. Given this situation, the court decided to postpone the matter, ordering the applicants to submit their claims to the secretary of the committee within seven days and ordering the committee to address these claims within 21 days. The secretary of the committee was also ordered to submit a report to the court. The court postponed all outstanding matters until then.
This was a ruling on an application to file a supplementary affidavit that would be admitted by the court as part of the applicant’s case.
The respondents argued that applicants could not rely on the said supplementary affidavit since they failed to join the authority (Director of Swaziland Environmental Authority) as a party to the proceedings. The court noted that one of the respondents was yet to make an application on the non-joinder of the authority.
The court held that admitting the supplementary affidavit before arguments on the non-joinder would prejudice the respondents. The correct approach would be to allow the respondents to argue the non-joinder and the applicants could then bring the supplementary affidavit in their replies.
The court concluded that the application for the filing of the supplementary affidavit be suspended until the applicants responded to the points of law.
No order of costs was granted.
In this case, the High Court had to consider an application for summary judgement. The plaintiff sought judgement to be ordered in the sum of E130373.77 for professional services it rendered to the defendant, plus mora interest and cost of suit. By means of this procedure for summary judgement, a defence of no substance can be disposed of without putting the plaintiff to the expense of a trial.
The plaintiff argued that it was faced with a defence of no substance and that a summary judgement should accordingly be granted.
The court held that in order to determine whether a summary judgement could be granted, it was necessary to evaluate whether the defendant had raised a triable issue. Relying on the judgement in Mater Delarosa High School v RMJ Stationary (Pty) Ltd unreported Appeal Case No. 3/2005, the court held that they would refuse to grant a summary judgement if there was a reasonable possibility that this would cause an injustice.
The court found that a number of issues needed to be decided in the course of a trial and not ignored by granting a summary judgement. Most crucially, a trial was necessary to decide when payment of the plaintiff was due. Given these circumstances, the court found that it would be premature to dismiss the defence and that doing so, by granting a summary judgement, would possibly cause an injustice.
Accordingly, the application for summary judgement was dismissed by the court and costs were ordered in the cause.