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.
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This was a Supreme Court case that revolved around an agreement between the parties which was suddenly terminated. The agreement demanded that the respondent to import oil resources on behalf of the Government of Namibia. The arrangement proved to be failure as the cost of importing petroleum was high against the market price. Consequently, the first appellant, acting in ministerial capacity decided to end the agreement. The first respondent felt aggrieved and filed a suit in the High Court, asking it to review the decision of the cabinet that terminated the said contract.
As such, the main issue, in this case, was whether the cabinet of the government of the Republic of Namibia acted lawfully when it revoked the mandate of the respondents to import petroleum products. The High Court in determining this issue held that the cabinet had no legally tenable reason(s) to end the contract in question.
However, on appeal, the Supreme Court held that under the Namibian Constitution in article 27(2), the executive power of the Republic of Namibia vests in the president and the cabinet. It further held that under the article, the cabinet has the role of supervising the activities of the government departments. Since the third, fourth, fifth, and sixth respondents are government parastatals the cabinet justifiably exercised its regulatory powers in the best interest of the Namibian people.
The Supreme Court thus overturned the decision of the High Court and accordingly upheld the appeal.
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.
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.
This Supreme Court case revolved around exploration prospecting licenses (EPL) provided by the first appellant, to the second appellant and the respondent over different mining groups of nuclear resources but in the same land.
At the High Court, the respondent challenged the first appellant’s action (the responsible minister) for giving prospecting and mining rights to another company over an area that the respondent had an EPL agreement to operate in. The High Court had quashed the first appellant’s decision in favour of the second appellant, asserting that the first appellant in offering the EPL agreement to the second appellant did not consider the interest of the respondent as required per sections 68(h) and 69(2)(c)(i) of the Minerals (Prospecting and Mining) Act of 1992. Aggrieved, the appellants appealed.
On appeal, the main issue for consideration was whether the first appellant was justified to issue EPL over an area that the respondent had pre-existing EPL. The Supreme Court upheld the decision of the High Court stating that the first appellant was duty-bound to take into consideration the provisions of ss 68(h) and 69(2)(c)(i) of the act which requires regard to be given on what impact will the additional activities have on the existing EPL holders. The Supreme Court held that natural justice requires that a hearing must be given to the person(s) already holding EPL over an area likely to be affected with subsequent EPLs. In conclusion, the Supreme Court upheld the High Court decision and dismissed the appeal with costs.
The matter arose from a power purchase agreement entered into by the Government of Ghana and the first defendant for the rehabilitation of a power barge.
The court considered whether the agreement constituted an international business transaction, within the meaning of Article 181(5) of the Constitution.
The court held that a business transaction is “international” within the context of article 181(5) where the nature of the business which is the subject-matter of the transaction is international, in the sense of having a significant foreign element, or the parties to the transaction (other than the Government) have a foreign nationality or reside in different countries or, in the case of companies, the place of their central management and control is outside Ghana. Accordingly, the court held that the agreement constituted an international business transaction within the meaning of Article 181(5) of the Constitution.
The court considered whether or not the arbitration provisions of the agreement constituted an international business transaction within the meaning of article 181(5) of the Constitution. An international commercial arbitration is not by itself an autonomous transaction commercial in nature which pertains to or impacts on the wealth and resources of the country and is, therefore, difficult to conceive of as a transaction independent from the transaction that generated the dispute it is required to resolve.
Accordingly, the court found that the arbitration provisions did not constitute an international business transaction within the meaning of article 181(5) of the Constitution.
The case was remitted to the High Court to apply this court’s interpretation of article 181(5) in the proceedings before it.
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 matter dealt with an application to review the minister’s refusal to renew an exclusive prospecting license (EPL) for the applicant. Such a license would ordinarily be granted for an initial period of three years and thereafter could be renewed for not more than two successive periods.The applicant held a license from 1997 to 2000 and thereafter sought a renewal which was granted in 2001. However, the second application to renew was denied prompting the applicant to question the validity of the first renewal, The applicant argued that the acceptance of the renewal was done by an unauthorised individual acting outside his mandate and it should therefore be set aside.
The court considered the validity of the first renewal and held that since the initial renewal was by an unauthorised individual, it was void. Consequently it was immaterial whether the minister granted or refused the second application. The court decided further that section 48 of the Act mandates an applicant to accept the terms and conditions of a renewal within one month, failing which the application would be deemed to have lapsed. Consequently, the initial acceptance was ruled to be void because the application for a first renewal had lapsed.
Therefore, the court concluded that because the substance of the applicant's application for review rested on the respondent's refusal of the second renewal of the EPL, that second renewal could not have been granted or refused, because the EPL had already expired and was never legally renewed.
The matter dealt with an application for review of a decision by the first respondent to grant a reconnaissance licence to the second respondent. The issue for the court’s consideration was whether it was permissible to grant an exclusive reconnaissance license to a non-holder of a reconnaissance license and whether a side note in a statute could be used in the interpretation of a statutory provision.
The applicant conceded that in terms of section 59(1)(a) of the Minerals Act, they were not a holder of a reconnaissance licence and therefore could not have applied for an exclusive reconnaissance as required by that section but contended that an exclusive reconnaissance licence was competent under section 62(1) of the act.
The court in dismissing the application decided that ss 59 to 62 complemented each other. The court cited Chandler v DPP which held that side notes cannot be used as an aid to the construction of legislation as they are mere catchwords inserted by the draftsman and not the legislator. Therefore the notion that the marginal note to s 59 held that the section only deals with exclusive reconnaissance licences was immaterial. The court held that the language of s 59(1)(a) instead demonstrated that an ordinary reconnaissance license could not be issued under s 62(1), unless it was first granted under s 59(1)(a) and ruled that only the holder of a valid reconnaissance license may apply for an exclusive reconnaissance license under s59(1)(b).
This was a consolidated case where the court dealt with the issue of delay in instituting review of the decision of the minister of mines and energy to refuse the renewal of an Exclusive Prospecting Licence (EPL).
The court considered the issue of delay and not the merits of the refusal to renew licence. The court applied the rule in Disposable Medical Products v Tender Board of Namibia 1997 NR 129 HC where the court held that an inquiry to determine ‘reasonableness’ should be factual and the court can only exercise its discretion after making a conclusion that the delay was unreasonable. The court also considered the scope and object of the Minerals (Prospecting and Mining) Act, No 33 of 1992 with regard to compliance with specific timelines.
The court held that the delays occasioned by the applicants were unreasonable and the explanations in both applications were unsatisfactory for the court to apply its discretion. Accordingly, both applications were dismissed with costs.
This was a criminal appeal on the sentences imposed for unlawful possession and import of rough and/or uncut diamonds.
The appellant’s counsel submitted arguments in support of additional grounds of appeal that were not entertained. The court applied the rule that a notice of appeal should clearly set out the grounds of appeal.
The court considered whether the magistrate erred by failing to adequately take into account that the appellant was a first offender, the limited value of the diamonds, the forfeiture of the diamonds, and that the appellant co-operated with the police investigation. The court was satisfied from the contents of the judgment on sentence that the magistrate considered the personal circumstances of the appellant. The court also held that forfeiture was not a mitigating factor since the appellant had no recognisable right in law in the articles forfeited.
The court also considered whether the magistrate overemphasized the seriousness of the offence. It was held that the magistrate was entitled to place the seriousness of the offence and the interest of society when sentencing, due to the potential prejudice of the Namibian Government losing its International trading licence in diamonds.
The court noted that sentencing was a discretionary power. It applied the rule that that an appeal court should not alter discretionary decisions unless the difference between its sentence and the trial court’s is so great to infer that the trial court acted unreasonably. The court held that such a disparity did not exist and dismissed the appeal.
This matter dealt with a dispute as to whether there was illegal mining by the respondent on the applicant’s exclusive prospecting licence.
The High Court considered whether expert evidence was required to establish a cause of action. The relevant test was whether a witness proffering an opinion is competent to give one on the matter in dispute. In this case, the court considered that only a land surveyor would be competent to determine the precise boundaries of disputed land. The applicant’s witness was a geologist and not a land surveyor. Accordingly, the court held that expert evidence of a land surveyor was necessary and failure to present it was fatal.
The court also considered whether it was permissible for the applicant to introduce new evidence in the replying papers. The court relied on the principle that in motion proceedings the affidavits constitute both the pleadings and the evidence. Furthermore, the applicant could not substitute a different claim in the replying papers. Accordingly, the court did not consider the evidence of the land surveyor tendered by the applicant during motion proceedings.
Finally, the court considered whether to impose a special costs order against the applicant on the scale as between attorney and own client. The principle followed was that punitive costs should only be awarded in exceptional circumstances. The court considered that there was no demonstrable reprehensible conduct by the applicant. Accordingly, the costs only include the costs of one instructing and one instructed counsel.
This was an appeal against a decision of the High Court to hold the appellants in contempt of an order of the Minister of Water Affairs and Forestry, issued to the mining companies concerned under s 19(3) of the National Water Act 36 of 1998.
The appellants contended the directives were incapable of implementation because they were so vague. Consequently, the respondent obtained orders from court a quo, compelling the appellant to provide an amount of money as contribution to execute the ministerial order. Following the order, the appellant failed to pay the money. As a result, the appellants applied to have the appellants for contempt.
The main issue for the court’s consideration was whether an order of the court ordering money to be paid could raise a question of contempt. In overruling the decision of court below, the supreme court stated that it was only where performance of an act was ordered – ad factum praestandum – that conviction for contempt of court was permitted as a means of enforcing performance. It held that contempt proceedings were therefore inappropriate in the circumstances. In conclusion, the court stated that an order that a person was in contempt of court, which carries with it criminal sanctions, should be made only where the court order allegedly flouted was clear and capable of enforcement. Accordingly, the appeal was upheld.
In this case the court provided reasons for granting an interlocutory application to prohibit the respondent from mining on private land pending the outcome of an action for eviction of the respondent.
The applicants alleged that the respondent breached his obligation to rehabilitate the land and provide suitable accommodation for the employees. The court observed that the respondent’s replies to these two aspects were bizarre and that the applicants had made a strong case for cancelling the agreement. Consequently, the court held that the relief sought was justified on the merits of the case.
The court went on to observe that, based on the application of the doctrine of res litigiosa (subject of a pending action) according to Namibian law. The court observed that the right to mine generally fell within the meaning of alienating property as per the common law principle of res litigiosa. However, the provision in the Minerals Act provided that the plaintiff in a pending action for delivery of the res (property) would not automatically become entitled to an interdict against the miner.
The court applied the Webster v Mitchell test as read with the provisions of the Minerals Act. Consequently, it held that even if it was open to some doubt that the mining agreement was validly cancelled, the applicant became entitled to an interdict, with no need to comply with the further requirement to obtain an interim interdict.
Accordingly, the court was satisfied that the applicant was entitled to the relief granted.
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'.
The court considered a summons to strike out a notice of appeal. The respondent, as applicant in this case, applied to the court for an order that the notice of appeal be struck out with costs on the grounds that it was obviously frivolous, vexation and an abuse of process. The respondent (applicant), contended that the appeal was not competent as it purported to bring up matters that were not raised in the court below for the assessment hearing.
The court considered whether the appeal was admissible or whether it constituted an abuse of process and should be struck out. It was held that the respondent (applicant) needed to satisfy the court that the grounds of appeal were obviously frivolous, vexation and an abuse of process.
The court found that the appellant was not challenging the judgement or liability, but merely the quantum of damages arrived at following the assessment of damages. This, the court held, could not be interpreted as an attempt to re-litigate the matter, as the respondent (applicant) alleged. The court, therefore, concluded that it could not be said with any degree of certainty that the appeal was obviously frivolous, vexation and an abuse of process.
Accordingly, the application failed and each party was ordered to bear its own costs.
This was a preliminary application for a stay of hearing in order for the matter to be referred to arbitration owing to the existence of an arbitration clause in a Royalties Agreement (RA), entered into in relation to the parties’ mining operations. The main matter involved an application for the discharge of leave to move for judicial review on a decision by the respondents to cancel a mining licence.
The court considered whether the judicial review proceedings should have been stayed owing to the existence of an arbitration clause in the RA; and whether the preliminary objection was or was not caught by the provisions of s 6(1) of the Arbitration Act.
The court noted that the main issues for determination revolved around two agreements: the Mining License (ML) and the (RA). The court found that the two agreements ought to have been applied as one agreement. This was mainly because the RA, was an agreement made pursuant to a provision in the ML, and secondly, because the RA provisions were the very ground upon which the ML was purportedly terminated.
The court therefore held that the arbitration clause was applicable. However, the court went on to hold that s 6(1) of the Act precluded the applicant from referring the matter arbitration after it had taken steps in the proceedings or delivered pleadings. The court found that the evidence was clear that the applicant had taken steps in the proceedings. Accordingly, the applicant could not rely on the arbitration clause.
This case concerned a dispute over the applicant’s land which became the subject of a mining permit held by the respondent. The applicants sought an interdict from the High Court to suspend all of the respondent’s mining activities. They contended that these activities would cause environmental harm and have negative effects on their business. The respondents argued that by failing to seek suspension of the permit timeously, the applicants exacerbated difficulties for both parties.
The court considered whether the matter was one of urgency and whether the applicants were entitled to the interdict sought. Although the court agreed with the respondent’s observations regarding the failings of the applicants, it held that both parties had an interest in certainty and therefore, took a liberal approach to consider the matter as urgent, noting that this would not prejudice either party.
The court did not find sufficient merit in the grounds for an interdict. The court held that the applicants needed to establish not only a prima facie right, but to show that they would suffer irreparable harm if the relief was not granted. The applicant, however, failed to demonstrate that irreparable harm would ensue if the interdict was not granted.
Consequently, the court did not grant the temporary interdict.
The court also refused to review the administrative decision to grant the respondent a mining permit. It held that the applicant needed to first exhaust all other possible remedies, which it did not do. Accordingly, the court refused the application for review.
The matter dealt with an application by the state to recall witnesses in a trial in which the accused stood charged in the main count with theft of diamonds, or alternatively with possession of diamonds in contravention of Proclamation 17 of 1939. The court had dismissed the main charge on the basis that the link between the objects which were found in possession of the accused, and which were ultimately valued and identified as rough and uncut diamonds, did not exist. However, the state relied on the alternative and requested the court to recall witnesses to prove that these objects were in fact rough and uncut diamonds.
The main issue was whether it was necessary to recall witnesses for the fair adjudication of a case.
The court stated that where the evidence of a witness was necessary for the fair adjudication of the case, the court was obliged in terms of s 167 of the Criminal Procedure Act 51 of 1977 to recall that witness or those witnesses.
The court established that the evidence was necessary for the fair adjudication of the case between the State and the accused, in the sense that a person who was guilty on that charge might be acquitted but that the giving of such evidence would not lead to an innocent person possibly being found guilty.
The court, therefore, held that the evidence was essential for the fair adjudication of the case and granted the application by the state.
Civil Procedure – application for absolution from the instance – Rules of Court - Rule 100 – principles governing the application discussed – requirement for absolution from the instance - whether or not the plaintiff set out a prima facie case – Law of Evidence - whether failure to examine an expert who has filed his report results in the court attaching no value to the expert report – commercial value attached to the Exclusive Prospecting Licence – court’s discretion on how the value of the EPL License is computed.
Practice – Judgments and orders – Application for stay of execution of judgment pending appeal to Supreme Court – Court having jurisdiction to determine matter in terms of its inherent jurisdiction where dictates of real and substantial justice required it.
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 considered an appeal against the decision of the court below, dismissing an application for judicial review. The issue for consideration was whether the doctrine of res judicata applied to judicial review.
Res judicata refers to a matter which has been heard by a competent court and cannot be pursued further by the same parties.
The 16th respondent alleged that the Minister had used the information from them to grant permits to the parties named as interested parties, in respect of the concerned areas and that such licenses should be revoked. Further that the interested parties cease operations in the areas immediately.
The court below dismissed this, prompting a review by the 16th respondent, who sought an order “compelling the respondents to vacate and stay out of the disputed areas. This was based on the interested parties trespassing on the disputed land.
The interested parties argued that the court could not entertain the matter because of the principle of res judicata. However, the court below held that res judicata did not apply to reviews.
The court in this instance held that the basis upon which the 16th respondent instituted the previous judicial review application was essentially the same basis upon which the subsequent judicial review application was based and was thus res judicata. Further, that the subsequent judicial review application was not only barred by the doctrine of res judicata, but was also an abuse of court processes
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 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.
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 applicant intended to erect a petrol station and submitted an Environmental Impact Assessment (EIA) report to the respondent for approval. The respondent did not, however, respond to the report within three months, as envisaged in the Environmental Management and Co-ordination Act. The applicant decided to proceed with the project, as permitted by section 58 (9) of the Act.
The respondent stopped the project and handed the applicant a letter to the effect that the proposal for the project had been rejected.
The applicant applied for judicial review orders and submitted that the respondent had failed to conduct public hearings to assess the acceptability of the proposal. Thus, the respondent could not interfere with the applicant’s statutory discretion under section 58 (9) of the Act.
The court had to decide whether the rejection by the respondent was binding and if the respondent had sufficient grounds for the rejection.
The court held that the remedy of judicial review deals with the process, but not the merits of the decision by a tribunal, therefore the respondent’s submission that the applicant should have appealed to the tribunal if aggrieved, was untenable.
Further, that members of the public were denied sufficient opportunity to respond and make their comments. The applicant could not blame the respondents for failing to comply with section 58 (9). The delay in giving the decision was only one month, which in view of the court, was reasonable in the circumstances.
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.
The matter dealt with an appeal against the decision of the Supreme Court to uphold an interdict against the applicant to stop the applicant from mining until the respective land in contention was re-zoned to permit mining in terms of provincial legislation. The minister had earlier granted mining permits to the appellant to mine areas zoned as public open spaces in terms of the Mineral and Petroleum Resources Development Act. The appellant contended the act was superior to the provincial legislation and Supreme Court had erred in upholding the High Court interdict against it. The appellant had claimed that mining fell under the exclusive competence of national government and that the proposition that provincial legislation regulating municipal planning applied to it would be tantamount to allowing municipal government to intrude into the terrain of the national sphere.
The Constitutional Court in determining whether to grant leave considered whether the provincial legislation that required rezoning did not apply to land used for mining.
The court, in rejecting the applicant’s argument, held that the provincial law and the national law served different purposes which fall within the competences of the local and the national sphere. Each sphere was exercising power allocated to it by the Constitution and regulated by the relevant legislation.
The court concluded that the interdicts were invalidly issued and held further that in order to bring clarity to the application of competing laws, leave to appeal ought to be granted in order to deal with the constitutional issues raised.