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.
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.
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 applicant was a holder of a mining right and was conducting open cast mining operations. Due to changes to the applicant’s mine, they submitted an application to have the EMP amended. The 1st respondent directed that the applicant was to submit a revised environmental liability report in order to cover the inherent risk related to the proposed project, thus they need to provide funding to cover a worst-case scenario.
The crux of the issue concerned the powers conferred on the 1st respondent to approve EMP’s and amended EMP’s. The court found that the applicant’s amended EMP would, if implemented successfully, result in the partial backfilling and flooding as part of its mine closure process, thus creating a dam to supply water to the local community and resulting in a practical closure of the mine.
The court found that the conditions imposed were unreasonable and irrational and that the 1st respondent failed to take cognizance of all relevant conditions. In addition, the decision to impose the conditions and require financial provisions as a worst-case scenario, was ultra vires (acting beyond one’s legal power or authority).
The court found that the 1st respondent committed an error of law when making his decision which he was not entitled to make within the powers vested in him.
Review upheld and decision set aside.
The matter concerned an allegation that the accused’s filling stations presented an environmental risk. Having been granted leave, the prosecutor, an environmental advocacy organisation instituted a private prosecution in the Gauteng Division of the High Court against the accused, a fuel supplies company.
The prosecutor claimed that it had complied with all the legislative requirements set out in s33 of the National Environmental Management Act 107 of 1998 to enable it to initiate such a prosecution. Counts 1 to 21 of the indictment alleged that the accused had contravened ss 21(1), 22(1) and 29(4) of the Environmental Conservation Act 73 of 1986 (“ECA”) as read together with other supporting environmental legislation. The said s 22(2) provided that authorisation of activities like construction of a service station would only be issued after consideration of reports concerning their impact on the environment. The accused formally pleaded to the charges divided into two sections. The first was a plea under s 106(1)(h) denying the prosecutor’s entitlement to prosecute and the other was a plea of not guilty under s 106(1)(b).
The court held that the claim under s 106(1)(h) on defence of want of title to prosecute failed. The court concluded that the prosecutor's case was straightforward and that the accused breached a duty relating to the protection of the environment. It held that in terms of s22(1) of the ECA the undertaking of certain identified activities was prohibited without written authorisation. The accused was convicted on 17 counts and acquitted on four.
The matter dealt with coal mining operations occurring adjacent to a public park in northern KwaZulu-Natal. The first and second applicants were a registered trust pursuing environmental causes and an association of members of communities affected by open-cast mining in the area respectively. The applicants, in the public interest or alternatively affected parties, sought an interdict to shut the mine down completely for being in contravention of s 24 and s 38 of the South African Constitution. The relief sought was subsequently altered to an application to prevent illegal mining. Of the nine respondents cited, the first respondent, a mining company opposed the grant of any relief against it.
The court considered whether the first respondent complied with various national, provincial and local government legislative instruments. The court noted that the applicants were not entirely sure if the interdict they sought was final or interim. The court concluded that the applicants failed to make out a proper case for the relief as claimed, since they failed to put up convincing evidence to support their contentions that the first respondent was mining unlawfully and without the requisite authorisations. The court found that the applicants had not afforded the concerned authorities the opportunity to fully investigate their complaints before deciding to institute proceedings. The court cited various statutes that created regulatory authorities which were empowered to enforce compliance with the statutes they administered. Accordingly, the application was dismissed with costs.
This was an appeal to the Constitutional Court against the decision of the Supreme Court to uphold the unlawfulness of the water meters under operation “Gcin’amanzi”, a project addressing water losses and non-payment of water services in Soweto. This was done by installing pre-paid meters to charge consumers for use of water in excess of the free 6 kilolitre per household monthly water allowance. With access to water being a constitutionally guaranteed right, the Supreme Court ordered that the applicants supply residents with at least 60litres of water, hence quantifying what “sufficient water” as given in the Constitution.
The court in this matter had to deliberate on what the meaning of “sufficient water” was as required by the Constitution and the lawfulness of the pre-paid water meters.
The Constitutional Court found that it was not appropriate for a court to give a quantified content to what constitutes “sufficient water” because this would be best addressed by the government which pegged it. Further, given that, 80 percent of the households in the City would receive adequate water under the present policy, the Court concluded that it would not have been unreasonable for the City not to have supplied more.
With regard to the pre-paid water meters, the Court held that the national legislation and the City’s own by-laws authorised the local authority to introduce pre-paid water meters as part of Operation Gcin’amanzi. Accordingly, it held that the installation of the meters was neither unfair nor discriminatory.
The matter dealt with an application for leave to appeal against the decision of the Supreme Court to allow the first respondent to acquire a prospecting licence in terms of the Mineral and Petroleum Resources Development Act over the applicant’s land.
Appeals to the High Court, and later to the Supreme Court were dismissed on the ground that the community had failed to file for review timeously in terms of the provisions of the Promotion of Administrative Justice Act. The merits of the case were not heard in both matters.
In determining the application, the Constitutional Court considered the following: whether there were internal remedies; whether there was proper consultation and whether consideration was given to the environmental requirements.
It found that an internal appeal was available to the applicants, but the respondents’ failure to deal with the appeal frustrated the process, although the review application had been brought in time. Further, the court held that the granting of prospecting rights was an invasion of a property owner’s rights and that the purpose of consultation with landowners, was to provide them with the information necessary to make an informed decision on how to respond to the application.
The court concluded that the decision-maker had not given the community a hearing or complied with the fairness requirements of the Act, and that the environmental requirements in terms of the Act had not been satisfied. Accordingly, leave to appeal was granted and the prospecting rights on the community’s land were set aside.
The applicant, sought to review and set aside the 5th respondent’s decision on 3 grounds 1) it failed to adhere to the audi alteram partem principle, 2) the decision was unreasonable, and 3) there was a perception of bias.
The applicant was formed to manage the Long Beach development on behalf of individual members, which gave them the powers to make applications for environmental authorizations.
The audi alteram partem principle entitles affected parties to make representations. The applicant contended that it was denied this opportunity when the 5th respondent made its decision.
The court found that there is a distinction between reasons advanced in support of a decision and concerns that may relate to matters which are not properly addressed. Held, that an uncertainty suggests a lack of clarity to enable the decision maker to apply his mind. However, if an uncertainty is created, the decision maker should afford the applicant an opportunity to answer, and settle those concerns. The court found that the fifth respondent’s actions, in not allowing the applicant to respond, denied it of its right curtail uncertainties and failed to adhere to the audi alteram partem principle.
On the basis of the applicant’s additional grounds, it was found that the arguments for unreasonableness and bias were not sustainable.
The court set aside the 5th respondent’s decision and referred the matter back, to allow the applicant to respond to any uncertainties.
The court considered whether an interim interdict could be granted to stop short-term remedial measures which were put in place to treat acid mine drainage (AMD).
To determine whether to grant the interim interdict, the date on which the ECL would be reached was critical. The court found that pursuant to the date being determined, the court was to apply the precautionary principle, which requires authorities to insist on adequate measures to safeguard against the contamination of underground water.
The court found that the ECL could not be determined and based on the short-term project, the greater the danger and consequences of untreated AMD is averted.
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.
The appellant sought leave to appeal the respondent’s refusal to allow access to information concerning the use of a Pebble Bed Modular Reactor (PBMR) for generating electricity.
The court determined the limitations of the right to information in s 32 of the constitution and the Promotion of Access to Information Act of 2000; and whether the respondent was right in relying on the limitations to deny the applicants access to the information.
The court held that the right to information is not absolute since it is limited by the right to privacy as per s 36 of the constitution. The court determined whether the information required by the appellant fell within the exceptions in the act.
The court also noted that this was a technical matter that required expert evidence since experts are better qualified to draw inferences in such matters than the judicial officer. The court observed that only the respondent brought expert evidence.
The court applied s 42(3)(a) of the Information Act that entitles the respondent to refuse a request for access to a record that contains trade secrets. It found that the respondent had proved its case and that the research requested by the appellant was protected from disclosure.
Accordingly, the appeal was dismissed with costs.
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.
The court considered an action, where it was called upon to determine the seaward boundary of the Littoral States within the Federal Republic of Nigeria. The purpose was to calculate the revenue accruing to the Federation account from the natural resources derived.
The Federal State contended that the southern seaward boundary of each of the defendants’ states would be the low-water mark of the land surface akin to such State, alternatively, the seaward limit of inland waters within the State. The contrary argument was that the territory of each State was beyond the low-water mark and extended into the territorial water.
The court found that the southern boundaries of the littoral States are the sea. Thus, as a result, it makes them riparian owners. In terms of common law, as riparian owners the extent of their territory would be the low-water mark, alternatively the seaward limit of their internal waters.
The court found that none of the Territorial Waters Act, Sea Fisheries Act and Exclusive Economic Zone Act had extended the territory beyond southern boundary limit. Therefore, and due to the sea shore and foreshore belonging to the crown, the court held that the low-water mark forms the boundary of the land territory between the littoral States.
Plaintiff’s claim was successful.
This was an appeal before the High Court where the appellant a chief, had been charged before the subordinate court for 35 counts of theft by false pretences. The appellant falsely claimed that he was a representative of the Principal Chief and had been authorised by him to impose and receive fines of cash and small stock from persons who had failed to remove their animals from certain reserved grazing area.
The question was whether the appellant contravened Legal Notice Number 39 of 1980 namely, Range Management and Grazing Control Regulations published in Gazette Number 36 of 10 October 1980 (Supplement Number 4). The Principal Chief of the area gave evidence and denied that he ever authorised the appellant to act, as he did, and the court concluded that the appellant lied. The judge confirmed the conviction on 18 counts but set aside the sentences imposed by the learned magistrate as they were considered lenient. Accordingly, on 18 counts the appellant was sentenced to one-year imprisonment, each to run concurrently, the whole of which was suspended for a period of two years on condition that during the period of the said suspension he is not convicted of an offence involving dishonesty. The appellant was sentenced on two counts to a period of two years imprisonment on each count. Half the sentence was suspended for a period of two years on condition that during the period of the said suspension he was not convicted of an offence involving dishonesty.
This case concerned an appeal to the High Court by the appellant who subsequently made no further effort to prosecute his appeal. However, the judge was not prepared to leave the matter in that unsatisfactory state and decided to have the appellant and the second accused before the lower court, appear before the court and show cause as to why their sentences should not be increased. The two had been charged with selling uncut diamonds in contravention of s 6 (1)(b) of the Precious Stones Order 1970 and subsequently convicted.
The law applied was s 6(4) of the Precious Stones Order which specified the maximum limit of fine and imprisonment for offenders in this case, for the practice of dealing in uncut diamonds without authority. The judge decided that in his case that justice sternly demanded that illegal schemes to get rich quickly could not be tolerated by the courts. The appellant’s fine was increased in addition to a sentence of 6 months' imprisonment in default of payment.
The court exercised its entitlement to revisional powers to correct the inadequate sentence imposed upon the other offender in the lower court. The judge ordered that in addition to the fine that he had paid, and month spent in prison, the original sentence to imprisonment for twelve months be wholly suspended for three years on the condition that he was not convicted of any offence under the same law.
The court considered an appeal, based on a judgment from the court below, the issue of importance being political patronage by the Disaster Management Authority (DMA). This issue stemmed from a decision made by the Interim Political Authority (IPA), which sought to eliminate political patronage on the basis that the IPA (respondent) had the power to declare certain conduct political patronage.
Political patronage has been defined as a situation in which one person is rewarded for supporting a particular politician. The respondents argued that the involvement of members of parliament in the work of the DMA had nothing to do with political patronage, and rather to do with the efficient discharge of obligations, thus to feed people during times of famine and natural disasters. Further, that the distribution was done by constituencies, and thus due to members of parliament being elected by the public, they had an intimate knowledge of their communities needs and the constituencies needs in terms of resources.
The court found that this argument was eminently sensible and does not contain an element of political patronage. Further, that political patronage had to be established objectively. The fact that the IPA dictated that conduct was political patronage doesn’t make it so, and to hold this position would amount to an untenable position. Accordingly, the appeal succeeded