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.
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This case was an appeal in the Supreme Court of Namibia against a judgment that dismissed the application brought by the appellants on an urgent basis and discharging a court order issued on 5 May 2000. This matter concerned provisions of the Minerals (Prospecting and Mining) Act No. 33 of 1992. An Exclusive Prospecting Licence 2101 (EPL 2101) was transferred to the third respondent, involved in diamond mining, on 25 June 1997 but it was alleged that its renewal happened without any notice to the landowner, involved in growing and marketing grapes, and who is one of the appellants in the case. The third respondent intended to excavate four pits of which two were situated within the area demarcated for further grape cultivation.
The appeal focused on three main issues, namely the constitutionality of Part XV of the Minerals Act, the review application regarding the renewal of EPL 2101 in 1998 and the application based on the provisions of section 52 of the same act.
The court concluded that Part XV was enacted in the public interest and for a legitimate object and is a reasonable mechanism whereby similar contesting rights are balanced to ensure equal protection of those rights in terms of the Constitution. It was on this basis that it could not be said that the provisions of Part XV of the Minerals Act are unconstitutional. Accordingly, the appellants’ appeal was dismissed with costs including those for the postponement of the appeal and further argument.
This Supreme Court case concerned an appeal against the ruling of the High Court that found the appellant guilty primarily on counts of: (1) theft of unpolished diamonds in contravention of section 74 of Act 13 of 1999; alternatively, possession of unpolished diamonds in contravention of section 30(11) of Act 13 of 1999; (2) robbery; (3) malicious damage to property; and 4) escaping before being locked up in contravention of section 51(1) of Act 51 of 1977.
The appellant was primarily charged in the High Court for stealing unpolished diamonds and fleeing arrest. He was convicted on all the counts and sentenced to both a jail term and payment of fine
The appellant felt aggrieved and appealed to the Supreme Court mainly on the ground that the prosecution side failed to establish that the mining company was the lawful owner of the alleged stolen diamond.
The court held that the evidence obtained from the surveillance cameras clearly showed that the unpolished diamond that the appellant was trying to steal was discovered and recovered from him. The court held that he was caught right at the exit of the mining site. So generally, the mining company was the one licensed to exploit and trade the diamond in that area the court a quo was justified to take a judicial notice that the diamonds belonged to the complainant.
The court therefore refrained from disturbing both the conviction and the sentence of the High Court, so the appeal was dismissed.
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.
The court considered an urgent application for spoliation orders (common law remedy) against the first to eleventh respondents or alternatively, an eviction order against them.
The thirteenth respondent purchased three farms which were adjacent to land which was incorporated in a communal area falling under the jurisdiction of the first applicant, a traditional authority. These farms were intended to be incorporated into the communal land falling under the applicant’s jurisdiction. The Government of Namibia initiated the process of incorporating these farms into the communal area under the first applicant through a notice published in the Government Gazette pursuant to the provisions of the Communal Land Reform Act 5 of 2002.
The issue facing the court was whether the first to eleventh respondents had the prerogative to occupy the farms with their cattle grazing on them, without authority to do so. The respondents argued that the applicant lacked locus standi (capacity) to bring the application since the land had not yet been incorporated into the communal area by way of notice in the Government Gazette, as required by the act, thus the applicant did not have jurisdiction over the land.
The application for spoliation was refused because the applicant could not show deprivation of possession by reason of the respondents’ occupation which predates its possession and control. Thus, the court found that the respondents could not establish any right to be on the farms.
The eviction order was granted with costs.
The matter dealt with an exception raised in the High Court of Namibia by the defendant to the plaintiff’s claim for damages for breach of duty to perform professional work. The plaintiff’s claim was that on account of the defendant’s breach, large quantities of effluent leaked out of the reticulation system beneath its bottling plant and it sustained damage to its property.
The main issue was when the plaintiff’s cause of action arose and if the plaintiff was the owner of the property at the time of the alleged damage. Under this issue the court sought to determine whether the pipes in question were damaged “after or upon installation”.
The defendant had argued that the plaintiff’s claim was not appropriate in delict as the breach was not wrongful for purposes of Aquilian liability. The defendant further claimed that the plaintiff did not have a proprietary interest in the property at the time of the alleged breach.
The court held that the duty of care of a professional could be extended to a person who later becomes the owner of a property as the damage to the pipes remained latent until discovered when the plaintiff acquired the property. The court further held that the Aquilian action forms a basis for such a remedy and that there were considerations of policy and convenience which prima facie allowed for an extension in the circumstances
Accordingly, the defendant’s application was dismissed with costs to the plaintiff.
The court considered an appeal, concerning a dispute between two companies over the right to mine salt in the Northern Cape.
The high court initially dismissed the appellant’s counter-application in which it sought to review and set aside the Minster's approval of the 1st respondent’s application for a mining permit over the disputed property.
The question on appeal was whether the high court was entitled to refuse to review and set aside the Minister's approval of the 1st respondent’s application without considering whether the 1st respondent had consulted with the appellant, as an 'interested and affected party' as contemplated in the Mineral and Petroleum Resources Development Act 28 of 2002.
The court found that the answer to the question was dependent on the legal basis that the appellant relied on for its occupancy of the property. As the appellant’s occupation of the property was premised on the validity of a permit, which the high court found to be a forgery and thus invalid, the question arose as to whether the appellant had a right to be consulted even though the permit was invalid.
The court, after careful consideration of the requirements set out in the Act, held that a person that relies on an illegally issued permit to occupy land has no right to be consulted by an applicant for a mining right as contemplated in the Act because they do not qualify as an 'interested and affected party'.
This was an application to review the minister’s decision that differentiated the manner of issuing the sale of trophy hunting concessions as between the applicant and fourth respondent.
The applicant succeeded in obtaining an order to show cause (rule nisi) and an interim interdict of the reliefs in their application to prohibit the implementation of the concessions.
The applicant’s locus standi was challenged during the proceedings. The court applied the reasonable person test and held that the applicant was an ‘aggrieved person’ whose fundamental rights had been infringed or threatened to be infringed.
The court considered whether the minister violated the applicant’s right to equality and held that the minister acted fairly; since the decision was made to redress the injustice of the fourth respondent and did not violate the cabinet’s policy or the constitutional principle of equality.
The court also considered whether the decision violated the applicant’s right to administrative justice as per the concept of legitimate expectation of a hearing. The court applied the rule that the court should consider the existence of a duty to act fairly. The court held that the principles of a sale by private treaty did not require the minister to afford all professional hunters an opportunity to be heard. Having found that the concession was legally granted, the court did not deal further with the issue on violation of the freedom of economic activity.
Accordingly, the court dismissed the application for interdictory relief and made an order as to costs.
The applicants sought to review and set aside the decision of the first respondent to cancel a lease agreement concluded by the 4th applicant after the 4th applicant disregarded environmental standards on wastewater discharge per the agreement.
The court determined whether the first to third applicants’ irregular appointment as liquidators deprived them of locus standi (capacity) to seek review. It was held that these applicants had the required locus standi.
The court also determined whether the application was brought in reasonable time given the delay in filing the application after becoming aware of the cancellation of the lease. It was noted that there is no prescribed time for the institution of review proceedings. However, the court found that the applicants failed to explain the delay and held it to be unreasonable.
The court held that the relationship between the 4th applicant and first respondent was a contractual relationship. The court considered whether the Municipality validly cancelled the lease agreement before the liquidators’ election to continue with the lease agreement. The court considered clause 16.1 of the agreement and observed that the agreement required no formalities for cancellation. It applied the test of whether a reasonable person would conclude that the proper performance will not be forthcoming and held that the Municipality had a right to cancel the lease.
It was also held that the review relief sought was unsustainable since the decision to cancel the agreement did not constitute reviewable administrative action despite being made by a person who would ordinarily perform administrative functions.
The applicants abandoned their claim for declaratory order to exercise an improvement lien and moved for amendment of the relief in prayer 3. However, the amendment was not requested or granted. Hence the two prayers were dismissed.
Accordingly, the matter was dismissed with costs.
Statutory Appeal - Section 51(1) of the Environmental Management Act, 7 of 2007 - on points of law only - Meaning - Whether grounds of appeal are based on points of law.
Constitutional law — Fundamental rights — Administrative justice —Failure to invite one of the parties to a dispute to the appeal hearing— fundamentally unfair hearing — Violation of arts 12 and 18 of Constitution.
Customary Law – Communal Land – Communal land rights – Power to evict a leaseholder from a communal land – Whether the Communal Land Reform Act, 2002 empowers a leaseholder to cancel a sub-lease and evict a sub lessee from a communal land area.
The case concerned a dispute between the applicant, a non-profit company involved in the promotion of a wildlife conservancy and the first respondent, a mining business within the area of jurisdiction of the second respondent. The applicant invoked its entitlement in public interest to apply for an interdict restraining the first respondent from making any development on any portion of the concerned properties as defined in s 1 and s 38(3), of the KwaZulu-Natal Planning and Development Act No. 6 of 2008 (KZNPD).
The applicant argued that the first respondent was required to apply for its proposed development but the applicant contended that it had not yet obtained such authorisation. The first respondent contended that it had been granted approval for mining authorisations in March 1998, in terms of the then applicable Minerals Act No. 50 of 199. The first respondent argued that mining authorisations approved and granted under the Minerals Act entailed that no further authorisations were required where a mining right subsisted.
The court pointed out that mining authorisations were subject only to the provisions of the Minerals Act and there was no provision similar to that in the Mineral and Petroleum Resources Development Act, 28 of 2002. The court found that the concerned properties were not inside a municipal area and were never the subject of any zoning controls when mining authorisation was granted. On the basis of this alone, no further authorisations were required under any other legislation. Accordingly, the application was dismissed with costs.
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.
This was an application for an order of remedy of spoliation and an interdict.
The applicantĺs main argument was that the actions of the respondentsĺ occupation of the diamond mining site at the Chiadzwa Concession amounted to an act of spoliation against the fifth respondent.
Firstly, the court determined whether the applicant (a foreign company) was required to furnish security for the costs of the respondents before the application could proceed. The court noted that such orders are matters of its discretion and are only issued when there is a reason to believe that a company will be unable to pay the costs of the suit.
Secondly, the court found that the second to fourth respondents had come to court with Ĺdirty handsĺ but had cleansed themselves.
Thirdly, it was held that the applicant (a shareholder of the fifth respondent) had the locus standi to bring the derivative action as an exception to the rule in Foss v Harbottle  2 Hare 461, 67 ER 189.
Finally, the court found that the applicant had proved the elements of spoliation: peaceful and undisturbed possession and the act of spoliation on a balance of probabilities. However, the court held that allowing the fifth respondent to resume mining operations as before, when the right to do so expired, would be contrary to public policy. Nevertheless, the court noted that the applicant was entitled to a final order and ordered the restoration of its rights when the validity of the special grants was regularized.
Environment – environmental impact assessment – requirement for – such requirement additional to considerations for issue of mining permit
The plaintiff instituted an action in the High Court for the eviction of the defendants from a piece of land. The plaintiff alleged that the defendants were carrying on mining operations at the site without holding a mining lease or a mining licence issued in terms of the Mining Rights Act 43 of 1967, hence acting illegally.
It was common cause that the defendants had not been granted a mining lease or a mining licence by the Mining Board. The defendants argued that the plaintiff did not have locus standi to bring an action of eviction because it did not own the land and that there was a likelihood that granite stone was not a base mineral that fell within the definition in the act.
The judge’s view was that granite stone fell within the definition of a base mineral and the defendants were therefore undertaking a mining operation requiring a lease or licence under the act. The court further held that the defendants held a bogus land grant from the chief. It also found that under s 2 of the Mineral Rights Act the right to minerals in any land were vested in the "Basotho Nation". The judge concluded that the case was not one between landlord and tenant but between landlord (or landowner) and squatter in a situation governed by a unique and unusual land law. Accordingly, a summary judgment was entered for the plaintiff as prayed.
The court considered a petition whereby the petitioners averred that they were land owners on which a wind farm was to be developed. The respondents bought the project rights from the initial owners whose application for the construction of the farm had been successful and sought to expand the farm. They obtained permission from the National Environmental Management Authority (NEMA) by renewing the initial project application.
The petitioners alleged that this was against the provisions of the Environmental Management and Coordination Act and the Constitution as the expansion was not implemented in accordance with the law and would violate their constitutional rights to a clean and healthy environment and their rights to own property. The expansion entailed the farm would encroaching onto their surrounding properties.
The issue faced by the court was whether the expansion was legal and whether the rights of the petitioners had been violated or not.
The court held that the expansion could not be logically carried out at the site captured in the original Environmental Impact Assessment and the EIA study report initially filed with NEMA. It could therefore, not be renewed. They had to file a new application and therefore the renewal of the application was contrary to law.
This failure to adhere to the EIA regulations potentially threatened the petitioners’ right to a clean and healthy environment but not their right to own property as the farm did not make use of their land nor did it threaten to use it up.
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.
The plaintiff was claiming outstanding water use charges together with interest from the defendant.
The court determined if sea water can be owned or managed, and if so by which statutory body. The court held that art 260 of the Constitution defined land to include marine waters in the territorial sea and thus disagreed with the defendant’s argument that sea water is not capable of ownership. It was further held that the National Land Commission was the only body empowered to administer and manage the territorial sea, the exclusive economic zone and the sea bed on behalf of the people of Kenya.
The court noted that the Water Act and the Water Resources Management Rules lacked specific provisions that included sea water as a water resource for the purpose of levying charges for the use of sea water. It was therefore held that the plaintiff lacked the locus standi to levy charges for use of sea water.
Accordingly, the case was struck out with costs to the plaintiff.
The court considered a petition to have a decision handed down by the Ministry of Devolution and Planning quashed and declared unconstitutional.
The petitioners were Embobut Forest dwellers which shared a common border with five other clans. The petitioners alleged that they were genuine evictees and internally displaced persons who were aggrieved, ignored and not compensated when the respondents harmonized their registers.
The petitioners argued that their constitutional right to a clean and healthy environment had been infringed and that they had not been appropriately compensated. They alleged that they ought to have been compensated like any other squatters and that they had been discriminated against.
The court found that the arguments put forward by the petitioners were non-justiciable. Justiciability refers to the types of matters the court can adjudicate on. In this instance, the court found that the harmonization of the register of the petitioners was a political question, and not a legal one.
The court found that the purpose of compensating those who were in illegal occupation of the forest was to give effect to their right to property. However, the court found that the petitioners did not demonstrate that they were part of those who illegally occupied the land, and thus could not be compensated. Further, the court found that the petitioners did not demonstrate that any of the constitutional provisions had been violated, thus their petition was without substance.
This was an application for an injunction order by the plaintiffs to restrain the defendants from harvesting trees without consulting and involving the community. The court had to decide on the following: whether a community that was a beneficiary of a forest had capacity to commence proceedings against the illegal and irregular harvesting of timber and fuel wood materials from the forest; whether public participation was mandatory in the management of forests; and whether the Director of Kenya Forest Service (KFS), the first defendant, could be sued in their capacity as a director.
The court held that there were no provisions in law which barred any suit against the first defendant in that capacity. The court observed that the community had an interest in the preservation and sustainable use of the forest. As such, public participation was an important component of environmental management as enshrined in the constitution. However, the court pointed out that there was no public participation that was demonstrated by the respondents. On the lack of a management plan by the KFS, the court held that it was difficult to know when a tree was planted or harvested, thus creating difficulty to prove which trees were to be cut. The court held that the balance of convenience weighed in favour of the applicants because environmental interests far-outweighed private interests.
Accordingly, the court ordered the respondents to stop harvesting trees, pending the hearing of the suit.
The matter dealt with the issue of jurisdiction arising out of a dispute regarding the development of residential flats by the ex parte applicant.
The court considered whether the National Environment Tribunal had jurisdiction to hear and determine Tribunal Appeal No. 74 of 2011. Under section 129(1) of the Environmental Management and Coordination Act, a person who did not participate in the Environmental Impact Assessment study process for the development, in the process of approval or complaint cannot be said to have been an aggrieved by the process which led to the issuance of the licence as no decision could be said to have been made against him. If the tribunal purports to entertain such an appeal under the aforesaid section, the tribunal would be acting ultra vires its authority, hence its decision would be liable to be quashed.
In this case, it was clear that the appeal in issue did not fall within section 129(1) since the second respondent was not a participant in the licensing process. It followed that the limitation period provided under section 129(1) did not apply to the second respondent since, in the court’s view, that limitation only applied to a person appealing pursuant to section 129(1).
There was no evidence that the second respondent was barred from appealing by any other provision in the act or regulations. Accordingly, the court found that the second respondent was entitled under section 129(2) to appeal against the decision of the authority.
The Notice of Motion was dismissed.
The appellants appealed against the decision of the High Court to dismiss an application for judicial review. The appellants sought orders of certiorari and prohibition against the County council to set apart a portion of land for the purposes of a boat landing base and the subsequent granting of a lease to the third respondents. The court had to consider several issues including: whether judicial review was the proper avenue for nullifying a title which was granted by law; whether a person other than the ministry in charge of forest could challenge an allocation of land; and what the correct status of the land in question was.
The court observed that the remedy of judicial review under Kenyan law was not wide enough to accommodate a party who was not just aggrieved by the process but sought to ventilate other issues. The court however concluded that there was no material dispute of fact, and the case could be decided on the papers. The court held that the Commissioner of lands had no power to grant more land than what the statute empowered him to do and that he had no power to set aside public land. On the locus standi of the appellants, the court held that the land which was allocated was a beach in front of the appellants’ pieces of land which tourists and local villagers used. There was therefore substantial interest by the appellants in the matter.
Accordingly, the appeal was allowed and the order of the High court dismissing the appellants’ notice of motion was set aside.
This was an application for a temporary injunction to restrain the defendant from developing the land until it obtained a positive environmental impact assessment, causing excessive noise and dust pollution from his property.
The applicant contended that the defendant was interfering with its right to a clean, safe and secure environment and, that the plaintiff’s tenants were unable to occupy the plaintiff’s premises due to nuisance and pollution on the defendant’s property.
The court determined whether the plaintiff had the necessary locus standi.
The court noted that non-compliance of statutory provisions or conditions made there were of a public nature and could have been dealt with by reporting to the Nairobi City Council officials,and the Commissioner of Lands. It was further noted that the grievances on non-compliance with provisions relating to environmental impact assessments should have been dealt with by the National Environmental Management Authority. For these reasons, the court held that the plaintiff lacked locus standi to institute the suit. Consequently, the application was dismissed with costs.
This was a ruling on a preliminary objection that disputed the jurisdiction of the court. The respondents argued that its discretionary powers were not amenable to judicial review.
This objection was raised in the course of a review of a decision of the respondent to cancel the applicants’ licences that gave them a right to carry out sludge and waste disposal at the port of Mombasa. The applicants sought an order to quash the respondent’s decision and a further order to prohibit the respondent from implementing and enforcing the purported cancellation of the licenses.
Having considered the competing arguments for and against the preliminary objection, the court found that the objection was challenging the jurisdiction of the court. The respondents argued that its discretionary powers were not amenable to judicial review. The court held in the contrary that the decision was administrative and therefore could be the subject of a judicial review. It was further held that the applicants were not barred from coming to that court for assistance when they had grievances with administrative matters.
The court found that the preliminary objection had no merit and dismissed the application with costs to the applicant.
The court considered an application declaring that the applicants right to life had been contravened by forcible eviction, as well as their right to protection of the law.
The applicants averred that they had resided and carried on farming on the land from which they were evicted for 61 years. After the land had been degazetted for settlement by Gazette Notices, the applicants claimed that their subsequent eviction was an infringement of their constitutional rights.
The Applicants claimed to reside and possess the land in dispute but did not lay any credible foundation to that claim. The only document they placed before the court to support their claim was what was described as “The fact-finding Report of Mr Cheruiyot Kiplangat.” The said person was not known to this court and the court was not told what authority he had, nor his competence to make the report.
The court held that the report had no legal basis and was to be rejected. As the application was substantially based on the fact that the appellants had wrongly been evicted from the land, to which they purported to lay a stake, the court found that their reference had automatically failed, based on the finding that the fact-finding report they relied on had no legal authority.