Environmental Case Law Index

The court considered an appeal against the decision of the lower court, seeking among other things, a declaratory order, that a concession agreement signed, and registered in the Register of Deeds, Lands Registry entered by the second respondent on behalf of the native lands was irregular, and liable to be set aside. 

At the core of the challenge was a lease agreement entered by the Ife District Native Authority over a forest, which was communal property. The lease was granted to a timber trading company for a 25-year term. The court had to decide several issues, including: (1) whether the appellants had locus standi (2) whether the Oni if Ife had the capacity to act as both grantor and grantee (3) and whether the deed of concession was made in pursuance of the power vested in the first defendant.

In considering the appellants locus standi in the matter, the court considered the use of the land which included farming, fishing and hunting. The court concluded that the appellants thus had substantial interest in the matter. The court found in favour of the appellants on the question of whether the Oni of Ife executed the deed in a dual capacity as he was both a grantor and a major shareholder of the grantee company. Through being the grantor and the beneficiary of the rights, the Oni of Ife acted in a dual capacity and his interests in the agreement conflicted with his fiduciary duty. The court held that the Oni of Ife and the council, ought to have exercised their rights in a manner consistent and not detrimental to the rights of the appellants. 

Appeal succeeds. 

In this Court of Appeal case, the court determined who breached the contract of oil supply between the appellant and the respondent. The contract ran into a deadlock after three deliveries of the product when the appellants refused to accept one of the respondents’ deliveries upon presentation. The reason given for the resultant stalemate was that the product was not of the specification ordered.
The court below had penalised the appellant for unnecessarily breaching a contract. The appellant felt aggrieved and appealed to seek an overturn of the trial court’s judgment entered in favour of the respondents.

The Court of Appeal thus determined if there was a variation in the contract, when did that occur and also what did the variation entail.

In response, the Court of Appeal held that there was nothing on record to persuade the court that the respondent product was not of the specification ordered. The court thus maintained the decision of the court below. However, the Court of Appeal noted that the cost granted in the court below was exorbitant. In the end, the court dismissed the appellant case, but the costs awarded in the court below was accordingly varied. 

In this Supreme Court case, the first respondent applied for the permit to drill boreholes in the Khan River for uranium mining activities. Subsequently, the second respondent granted the rights to use the boreholes and the water to the first respondent allegedly in the exercise of its powers provided under the Water Act of 1954.  The appellant’s case against the respondents was that the wildlife on its farm depended on the naturally occurring underground water to support natural habitats. Overusing the water from the rare sources in the area would, therefore, disturb the ecosystem. 

At the High Court level, the issue was to determine whether under the act the second respondent had the powers to grant such rights. The High Court held that the powers to grant such rights were limited to subterranean waters. Moreover, the court held that since under the act sections 27, 28 and 30, the president proclaims the underground waters. The president had never declared the areas allocated to the first respondent as such the permits were a nullity. As a result, there was nothing to be determined by the court in favour of the appellant. 

On appeal, the Supreme Court agreed that the permit issued was a nullity. However, it held that the High Court ought to have decided the case in favour of the appellant since, in law, illegal acts can create reviewable actions. Finally, the Supreme Court upheld the appellant’s claim.

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.

The court considered an application for a mandamus by the applicant, as a result of the respondents having applied for the consolidation and rezoning of 2 plots of land. The respondents had their application conditionally approved upon submitting an engineer’s drawing for the erection of retaining walls as part of flood protection and to create 54 client accessible parking bays. 

The court considered if there was a contravention of s 44(5) of the applicant’s town planning scheme in accordance with the Town Planning Ordinance No 18 of 1954 as amended. Without drawing plans being submitted to the applicant for approval, the respondents admitted that a temporary corrugated iron wall was erected on the riverbank which was next to the two properties. On their own admission, the respondents did not create the 54 accessible parking bays. 

The court found that the respondents failed to adhere to the condition of their approved application, so they were ordered to remove the illegally constructed corrugated iron wall, to submit an engineer’s drawing for the erection of the retaining walls to be constructed on the properties, within three months of the order. They were also ordered to construct the retaining wall within six months from the date of the approval by the applicant of the engineering drawing, as well as to remove all building materials and rubble from one plot in order to create 54 accessible parking bays on one of the properties. Respondents were ordered to pay applicant’s costs.

The plaintiff in this case claimed restitution for a breach of contract. The court determined whether the defendant was in breach of contract for failing to install a working borehole in a geohydrological environment where the plaintiff's farm was located.

The defendant raised a counterclaim that the plaintiff had accepted that work was completed but failed to pay the balance of the agreed amount. The court applied the rule in Du Plessis v Ndjavera that the plaintiff is under no obligation to perform before defendant has completed his performance. 

The court held that the defendant was at fault for failing to assess the soil formation in the area and ended up using the incorrect drilling method. The court observed that the defendant admitted to using the riskier direct flush air percussion instead of the mud rotary method to save on expenses and thus failed to complete performance. 

Accordingly, the court held that the defendant was in breach of contract and the plaintiff was entitled to cancel the
agreement and claim restitution. The counterclaim was also dismissed with costs.

This was an appeal against the decision of the High Court to dismiss an application for review of an application for the setting aside of a decision made by the second respondent, the Member of the Executive Committee of the Department of Agriculture, Conservation and Environment, Mpumalanga (the MEC), and upheld on appeal by the first respondent, the Director General, Environmental Management, Mpumalanga, (the DG). The decision in question was to permit the construction of a filling station in White River. The appellant contended that the permission was given contrary to the provisions of the law. 

The court observed that all environmental precautions had been taken into account by the scoping report. It found that the land had been rezoned by the local authority from special area to a business area, based on need and desirability. The court held that that the key factors’ in deciding to grant the application in the circumstance were: firstly, that the property had been rezoned from “special” to “business”; secondly, that no potential threatened plant and animal species were recorded during the site investigation; and, that all identified and perceived impacts were satisfactorily dealt with in the scoping report and the recommendations proposed were sufficient to minimize any negative impacts. Since all this were observed. The appellant case was dismissed with cost.

In this case, the applicants sought to enforce the decision of the Royal House of Chief Kambazembi (a traditional authority), that allocated communal land to them.

Following the continued occupation of the three square kilometres of the land by the first and second respondents, the applicants decided to enforce the decision by the traditional authority in the court. 

The court analysing s. 24-26 of the Communal Land Reform Act, Act 5 of 2002 held that the traditional authority had the power to allocate customary land rights. However, upon the allocation of a customary land right, the applicant was required to notify the land board for registration of the land. The court observed that the applicant failed to do so and thus failed to establish a right that was capable of enforcement by the court.

Accordingly, the application was dismissed, and the applicants were directed to pay costs of the first and second respondents jointly and severally.

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 a petition against the government’s  failure to recognize the petitioner’s right to property and the right to just compensation when it deprived a person of their property. The case involved the construction of a standard gauge railway (SGR) through private land. The petitioner contended that his right to property and just compensation had been violated and that the third respondent had failed to ensure that the appropriate environmental and social impact study of the SGR was undertaken.

The court considered firstly, whether the compulsory land acquisition was carried out in accordance with the Constitution and the law, and secondly, whether the construction of the SGR was in compliance with environmental laws and the Constitution. 

The court found that the first respondent had accorded the land owners with the requisite notices and at the enquiry, as required by law, many obliged to the acquisition and were paid. Further, that the petitioner’s reliance on a repealed act was unsupported, and that he had not shown any substantive section of the Land Acquisition Act that was misapplied by the respondents through the process of compulsory acquisition, thus there was no violation of the Constitution. 

The court found that an environmental impact assessment had been conducted and that the respondents took into account, all environmental considerations including sustainable development. Accordingly, the petition was dismissed.

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to water (s 77) – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly

Human rights – right to water – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly

The court considered a petition stop the development of flats within a residential area. The property was initially planned as a single dwelling unit but the developer applied for change of user to multiple dwelling units which was approved. The petitioners claimed that the change of user was irregularly granted and claimed that approval from the National Environmental Management Agency was improper because the county government approved the change of user despite multiple objections from the public.

The petitioners sought an order declaring that the decision of the first respondent to change the user was unconstitutional and null and void. Further, that the approval of the re-development amounted to a dereliction of duties. 

The court considered 1) whether a proper Environmental Impact Assessment was conducted, 2) whether the process of planning approval was lawfully adhered to and, 3) whether there was a violation of the petitioners' constitutional rights.

It held that the NEMA processes were casually done as objections to the project, were not given a hearing and were not considered before the decision to allow the project was made.
Further, it held that there was no consultation with interested parties as was required by the law. This meant that no proper EIA was carried out and therefore the process of planning approval was legally flawed. 

As a result of this, the court held that claims for violations of the right to a clean and healthy environment were breached or at the very least, under threat.

Petition successful.