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 case concerned parties who had competing interests (one being a luxury tourist lodge and the other one was a copper mine) over the same piece of land. They were undergoing litigation, which included a pending action before another court, in which the first and second respondent were seeking the eviction of the applicant from the property which they sold to the applicant in 2002.
The court considered an application to review and set aside a decision to grant the second respondent an environmental clearance certificate, as well as an interdict restraining them from taking any further action from using the mining rights already granted.
The applicant had earlier stated that they would launch urgent proceedings once they become aware that first and second respondent intend commencing mining activities. However, subsequent communication showed that there were no imminent mining activities. On this basis, the court found that the matter was not inherently urgent, and the application was therefore struck from the roll.
The applicants sought to interdict and restrain the respondent from continuing to refuse access to a parcel of land, based on the respondent refuting an existing and enforceable prospecting right which was held by the applicants.
The court considered whether a prospecting right becomes an enforceable limited real right upon registration in the Mining Titles Office and held, it was universally accepted that mineral rights were real rights. Thus, prospecting rights were limited real rights in respect of the mineral and the land to which such rights related.
The court held that a distinction is drawn between the date the right becomes effective and the date of registration. The right becomes effective from the date of approval and subsequently needs to be registered within 30 days of it becoming effective. Therefore, the prospecting right will become enforceable from the date it is effective. The court found that to interpret the Mineral and Petroleum Development Act to mean that a prospecting right becomes effective but remains unenforceable because it has not been registered, would be impractical.
The court found that the respondent’s refusal was primarily a point of protecting his right as a landowner and to the protecting against being arbitrarily deprived of one’s property. Irrespective of the fact that the applicants renewed their prospecting right, the right remained in force until such time as the renewal had been granted or refused. Thus, the applicants had a valid and existing prospecting right and were entitled to access the land to complete their operations.
The court determined the threshold for public participation required for the coal-mining project. The court noted that there was no litmus test for determining when a court could conclude that there was adequate public participation. However, the court found that it is necessary to consider the bona fides of the public actor, the nature of the subject matter, the length and quality of the engagement and the number of mechanisms used to reach as many people as possible. On consideration of these factors, the court held that the government complied with the requirement for public participation in the project.
Secondly, the court noted that the non-involvement of the Kitui County Government in the Coal mining project was explained by the fact that the County Government was not in existence at the time of the award of the Concessioning Tender.
Thirdly, the court found the apprehension of deprivation of property to be speculative as the Government had indicated that it would compensate and resettle the affected parties.
Fourthly, the court held that the petitioners could not invoke the court’s jurisdiction to question either the procedural propriety or substantive merits of the procurement process since they did not follow the procurement procedures.
Fifthly, the court found it unnecessary to determine the issue on violation of the right to information, since the Government had supplied a copy of the Benefits Sharing Agreement to all the parties. Finally, the court held that the petitioners failed to prove environmental harm.
Accordingly, the petition was dismissed.