Environmental Case Law Index

The matter concerned an application to the High Court for review of the decision of the first respondent to dismiss an appeal lodged by the applicant against environmental authorisations granted by the second respondent to the fourth and fifth respondent. The applicant argued that its right to procedural fairness was violated because a number of statutory provisions were not strictly followed. It was the applicant’s contention, however, that the words ‘must’ and ‘shall’ indicate the imperative, mandatory and preemptive intention of these provisions. 

The court considered whether the act required exact compliance in every instance and whether the public participation process was flawed in this case. The court cited  s47(a) of the National Environmental Management Act 107 of 1998 and held that requirements classified as mandatory need not, in fact, be strictly complied with, but that substantial or adequate compliance may be sufficient. In the present case, the court found that the failure to strictly comply with the statutory requirements did not materially prejudice the rights of the applicant.

The court also found no support for the applicant’s allegations that the public participation process was flawed or inhibited and that the environment would be endangered in any way. Rather, the court agreed with the respondents that the applicant seemed to attempt to capitalize on trivial deficiencies to discredit the entire process.

The court, therefore, dismissed the applicant’s application with costs.

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 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. 

Application dismissed. 

The matter dealt with an application for access to information relating to Genetically Modified Organisms (GMO). The court considered the applicability of the provisions of the Promotion of Access to Information Act 2 of 2000 (PAIA). 

The court applied the test in our law that no statute is to be construed as having retrospective operation unless the legislature clearly intended it to have that effect. In the circumstances, if one were to apply PAIA’s provisions retrospectively they would interfere with the applicant’s then existing rights. The court found that the disclosure of information, or the granting of access to information should be necessary for the proper application of the provisions of the GMO act.

The court considered the applicant’s failure to exhaust internal remedies as required by s19 of the GMO act. The court found that the act does not expressly state that recourse to the courts is to be deferred until the internal appeal procedure provided for in s19 thereof is exhausted. The court found that it is illogical to insist that the applicant should have exhausted the internal appeal remedy first. The court found that this was not necessarily destructive of the relief sought by the applicant.

On the issue of whether the applicant failed to articulate the information sought, the court considered how requesters for information would not always have knowledge of the precise description of the record in which the information sought, is contained. The court found that the applicant has a clear right to some of the information to which access was requested and that the respondent was entitled to refuse access to certain records, or parts thereof, in terms of the grounds for refusal.

This was a dispute over land ownership and related claims to reversionary interest compensation. Both parties sought orders declaring that they were allodial owners of the land in dispute according to tradition and customs, and that they were entitled to receive the reversionary interest compensation. 

The court determined whether the allodial title to the land in dispute vested in individual families or in the appellant as the Tindana for and on behalf of the whole community. 

The court held that the best way of resolving conflicts arising from traditional evidence concerning ownership of land is to test it against recent acts to see which traditional version is supported. The court found that it is widely accepted, among legal writers, scholars and practitioners, that the Tindana is the landlord or landowner. Additionally, the report of the committee to investigate a land dispute between the Tindonsobligo and the Kalbeo people explicitly stated that the Tindana was the allodial owner of land, while the people were usufucts (settler/farmers).

The court noted that the defendants Tindana status was not in dispute, and concluded that the appellant was the the allodial owner of Kalbeo land and held it in in trust for community.

This was an appeal against the decision of the Court of Appeal that declared that the respondents were the rightful owners of the land in dispute, issued damages for trespass by the appellant and an injunction preventing the appellant from entering the land and harvesting therefrom.

The facts revealed that the appellant's forefather granted the respondent's forefather a portion of land for farming purposes and reserved the right to reap the fruits of trees in the farm. In exchange, the respondent’s forefather was also required to pay Ishakole( land rent) as and when due. 

The court determined the rights of the appellant as a customary tenant. The court noted that the appellant’s rights were subject to the respondent’s (landlord) right to reversion in case of any breach of the grant. However, it noted that a landlord is still required to approach the court to forfeit the interest of the tenant.

The court also determined the rights of the parties in a customary tenancy after the Land Use Act 1978 came into operation. The court found that act took away the freehold title vested in individuals or communities but not the customary right of use and control of the land. It was thus held that a customary tenant remained a tenant subject to the conditions attached to the customary tenancy. Further, the court held that the appellant was entitled to harvest fruits and trees and could not be liable for trespassing.

Accordingly, the appeal was allowed. 

In this case, the respondent claimed two houses, one yard, three fields, and three forests as his property; and alleged that the appellant was using the property unlawfully. A first judgement was rendered in favour of the respondent. The appellant then appealed the judgement. After the appeal was dismissed, the appellant continued to be adamant against the court's decision and the respondent, therefore, applied for interdict orders seeking to restrain the appellant from entering the disputed property. The interdict was granted and was then appealed by the appellant. This case concerned the appeal against the judgment of the resident magistrate confirming the interdict granted against the appellant.

The issues for determination were (1) whether the application for an interdict was the proper remedy in the circumstance and (2) whether the summons was properly served to the defendant.

The High Court held that for it to issue an interdict it must be satisfied that (1) a clear right existed; (2) an injury was actually committed or reasonably apprehended; (3) no other satisfactory remedy was available to the applicant. The High Court held that damages to the property involved would be irreversible and that the matter satisfied the requirements for an interdict. 

The High Court found that the appellant chose to ignore the summons. Moreover, even if he was not duly served with the summons, he was supposed to apply the default judgement to be set aside and not to ignore it.

The appeal was dismissed with cost.

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.

In this case, chieftainship rights over a particular area were contested. The applicant sought an order calling upon the first respondent to show cause why he should not be restrained from holding himself out as chief of the area known as Ha Mochekoane. The applicant argued that he was a gazetted chief, but the respondent denied this and argued that he had been confirmed chief following the death of his father  and that it was not necessary to be gazetted as chief. He further argued that the onus of proof was on the applicant to show that the disputed area was under his jurisdiction. The applicant’s failure to clearly describe his boundaries in the proceedings, the respondent argued, was fatal.

The court considered whether respondent held the office of chief and whether he was legally authorized to exercise the powers and perform the duties of a chief. After reviewing all the evidence, the court found no indication that the contested area was that of the respondent. The court also found that the respondent did not exercise any chiefly functions and lacked locus standi. Finally, the court held that the Chieftainship Act No. 22 of 1968 stated that one could not hold the office of chief without having been gazetted.

Regarding the question of boundaries, the court reviewed historical evidence and held that it was impossible for the respondent to be chief of that area. Accordingly, the application was allowed with costs.

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.

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.