Environmental Case Law Index

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.

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. 

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 applicants in this matter approached the high court seeking, inter alia, an interdict preventing the respondents from evicting 140 school children and from demolishing their homesteads.

The residents occupied the land in question through the traditional system of Khonta. After paying the prescribed livestock and fees to the area’s chief, they were allowed to settle on the land. However, it  was later discovered that the land belonged to the Swaziland National Provident Fund and was therefore not under the control of the chief.

The applicants argued that the evictions were arbitrary and contravened s 18 and 29 of the Swaziland Constitution and that such evictions were a threat to education of their children. 

The court first dealt with the issue of urgency and concluded that the court was prepared to hear the matter on an urgent basis. The court in deciding the matter weighed the rights of the children against those  of property owners as contained in the Constitution. It concluded that the rights of children did not supersede the rights of the property owners. Therefore, the court held that the applicants failed to establish the requirements of an interdict and the rest of the orders they were seeking.

The matter was dismissed with costs.

In this High Court case, the applicant had an agreement with the respondent aimed at selling a herd of cattle to the applicant. Based on this agreement, the respondent proceeded to take the herd of cattle presented in the contract without paying for them. An attempt to charge the respondent for theft through the police did not work as the police hesitated to prosecute the respondent because they contended that they would have a weak case. 

Then, the applicant decided to prosecute the case privately charging the respondent for spoliation.  The applicant demanded that the court should declare that the herd of cattle that were taken by the respondent, in fact belonged to him. 

Thus, the issue for determination by the court was to show cause why a declaration should not be made against the respondent to the effect that the herd of cattle be restored to the applicant.

On perusal of the given evidence, the High Court held that the respondent failed to show that the applicant allowed him to take the herd of cattle in dispute. Subsequently, the applicant was despoiled of the herd of cattle, that is, possession should be restored to the applicant. The respondent was also ordered to hand over to the applicant the progeny of the cattle forming the subject matter of the proceedings.

The court considered an appeal against the judgment of the court below declaring the defendant a tenant, alternatively a licensee of the plaintiff, as well as determining the 2nd defendant’s misgivings concerning the costs awarded against him.  

The defendant argued that the land devolved on the chief but was subject to use by both parties’ families. The second defendant was joined as a co-defendant, alleging that the land was founded by his ancestor and that he and his predecessors had been in undisputed possession. 

The defendants argued that the judgment was granted erroneously as the trial judge failed to correctly define the boundaries between the parties’ land.  

The court found that the trial court had adequately defined the boundaries between the parties’ land and that the first defendant’s ancestor and his people had lived on the land for over 300 years. Thus, although the plaintiffs are the land owners, the defendants are in possession and their possessionary rights should not be disturbed by an injunction. 

The court found that in a case that has been on the list for 25 years, costs of ¢1,200,000.00 against 1st Defendant and ¢950,000.00 against 2nd Defendant awarded by the Court in my view is stretching judicial generosity to it limit. I am unable to review the costs mulcted against the Defendants. The appeal by the 2nd Defendant/appellant fails as well as that of the Plaintiff/appellant. In the circumstances the judgment of the lower Court is affirmed.  

Civil Procedure   ̶ Application by Appellant for an order ejecting the Respondents from the land situate at Mhlaleni, directing the Respondents to demolish all structures they have constructed on the land and interdicting Respondent’s from carrying out any activities on the land – Dispute over the territorial jurisdiction over the area where land is situate – Plea of lis pendens raised by the Respondents -  whether matter pending determination by the          High Court or the traditional authorities – High Court upholds plea of lis pendens  and orders status quo prevailing to be maintained pending determination by appropriate authority – Whether High Court erred in so holding – Whether High Court has jurisdiction to entertain matters relating to land pending before traditional authorities having regard to Section 151 (3) (b) of the Constitution - Held  that High Court has no original jurisdiction to entertain matters in which a Swazi Court has jurisdiction, but High Court has only revisional and appellate juridiction as provided by Section 151 (3) of the Constitution -  where a matter is pending or has been determined by the traditional authorities, the High Court must refer the matter back to those authorities for determination or enforcement – Decision of High Court upheld,  and – Appeal dismissed with costs.

The matter focused on the lawfulness of the removal of fencing surrounding land for agricultural purposes in a communal area. 

The respondent, Ohangwena Communal Board, established under s 2 of the Communal Land Reform Act 5 of 2002 removed fencing erected by the applicant, around a tract of agricultural land in a communal area, which the applicant alleged had been duly allocated to him in 1986. 

The applicant approached the High Court on an urgent basis for an interdict to restrain the board from removing the fencing surrounding the grazing farm and from disposing of the fencing material which had already been removed. 

The applicant maintained that in terms of s 18(b) read with s 28(2)(b) and 28(3) of the act, he is entitled to retain the fences which he had erected on and around the farm. The court found that the applicant had erected the perimeter fence prior to the coming into force of the Act and his intention to apply for authorisation for the retention of the perimeter fence, meant that the removal of the fence by the respondent was unlawful and in conflict with the act.  

Given the entitlement to retain a fence if the statutory requisites in s 28(80) are met, it would be unlawful for boards to remove such fencing where applicants intend to make such application prior to the expiration of the period set by the Minister pursuant to s 18. 

The interdictory relief was granted.

The petitioners disputed eviction from the railway reserve. The respondents filed a cross petition arguing that the petitioners were non project affected persons (PAPs) who were illegally squatting in the reserved area.

Firstly, the court determined whether the implementation of the Relocation Action Plan was in compliance with international legal provisions. The court noted that there was no legal framework in Kenya governing adequate housing and forced evictions. The court, therefore applied the United Nations Basic Principles and Guidelines as a source of international law in the matter, in accordance to art 2 (5) and (6) of the Constitution of Kenya. The court held that the Relocation Action Plan was carried out within the required legal framework.

Secondly, the court determined whether the implementation of the Relocation Action Plan caused a violation of the petitioner’s constitutional rights.  The court noted that art 21 of the Constitution of Kenya 2010, imposed a fundamental duty of the state and every state organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. The court found that the affected residents had knowledge of the intended relocation for a period of 9 years, which amounted to adequate notice of the eviction and relocation.

Accordingly, the petition was dismissed. The cross petition succeeded and the court ordered the petitioners whose names did not appear in the list of the PAPs to move out of the railway reserve and allow the second respondent to proceed with the resettlement plan.

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.