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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The matter dealt with an appeal against the decision of the High Court to issue an interdict restraining the appellant, from utilising a coal boiler at its factory and the removal of the boiler within 30 days. The respondent had claimed in the lower court that the appellant had erected a coal fired boiler on the property in contravention of regulation 3 of its Smoke Control regulations under s 18 of the Atmospheric Pollution Prevention Act 45 of 1965.
The court considered whether the decision of the High Court to restrain the appellant from using the boiler and the subsequent order for its removal was lawful. The court found that the appellant had installed the boiler without submitting plans or specifications to the respondent as required by the regulations. However, the court established that upon giving the appellant the opportunity to submit its plans, the respondent rejected the appellant’s application on account of the type of boiler that the appellant sought to erect and not smoke emissions as envisaged by s 15(1) of the act. The Court applied the rule in Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) and stated that the facts of this case did not fall within the scope of that decision.
The court held that the respondent did not stay within the boundaries of the act and constraints of the Constitution and this was unlawful. Accordingly, the court upheld the appeal with costs.
The applicant brought this matter to the Constitutional court as a court of first instance having cited the respondents for their failure to implement legislation aimed at containing pollution and to prosecute state a company alleged to have caused pollution.
The court first had to decide whether it was necessary for the Constitutional Court to be the court of first instance in this matter.
The court stressed that direct access should be granted only in exceptional circumstances. The court stated that justification for direct access was set out in rule 18(2) of the Uniform Rules of the court on the following grounds: if it is in the interests of justice to do so; where the nature of relief sought and the grounds relied upon justify it; whether the matter can be dealt with by the Court without the hearing of oral evidence; and, if it cannot, how evidence should be adduced and conflicts of fact resolved. The court held that these grounds were not satisfied. Therefore the court could not adjudicate further on the allegations against the respondents and dismissed the application. However, in the alternative the court ordered that the Registrar bring the judgment to the attention of the Law Society of the Northern Provinces, with a request that it consider whether one of its members may provide assistance to the applicant as the issues were not set out clearly but were of importance and deserved the attention of the court.
This case considered an application for an exception to the plaintiffs’ particulars of claim. The plaintiff’s claim was based on the alleged degradation of the environment caused by mining activities conducted over a number of years.
The court considered whether the provisions of s28 of the National Environmental Management Principles (NEMA) were retrospective.
The court applied the common law rebuttable presumption against retrospectivity. In the circumstances, the court considered the nature of the duty; enforcement of the duty; what the legislature intended; when the transactions were completed and other alleged indications of retrospectivity. The court found that the presumption against retrospectivity was not disturbed, and was not applicable in this instance because the legislature could not have intended such.
The court considered whether there was proper or substantial compliance with s 28(12) of NEMA. As with the first claim, the court applied the principle of retrospectivity. Accordingly, the court held that the exception to the first alternative claim that it lacks averments necessary to sustain a cause of action must also be upheld because it avers retrospectivity.
In terms of the second alternative claim, the court held that the exception should be dismissed.
Regarding the third and fourth alternative claims, which were based on regulations that no longer had the force of law, the court found them to lack averments necessary to sustain a cause of action. Accordingly, the court upheld the third and fourth exceptions which related to these claims.
The applicants sought two interdicts restraining the first to fourth respondents from noise pollution through their timber business operations on weekdays between 6.00 pm and 8.00 am on weekdays, any time over weekends and on public holidays; and another interdict in requiring the respondents to limit "any noise generated by their operations”.
The court found that the applicants had a clear right to go about their business without the interference of noise unreasonably caused by the respondents. It noted that the respondents’ figures proved that traffic past the applicant’s premises had increased. Expert evidence also revealed that the noise levels were too high at night.
The respondents claimed that the applicants voluntarily assumed the risk by going to the noise. The court noted that the applicants had decided to expand their cottages 20 metres from a public road without adequate noise insulation and found the defence to be partly convincing.
The court held that the co-existence of the timber and the tourism industry in the area required both parties to give and take. The first interdict was granted partly. The court gave an order prohibiting first to fourth respondents from engaging in the noise generating operations from 8.00 pm to 8.00 am on Mondays to Fridays and after 2.00 pm on Saturdays until 8.00 am on Mondays. The restraint on public holidays was held to be unreasonable.
The second interdict was not granted for being too general and failing to specifically state what the respondents would be refrained from.
The court considered an application for a declaratory order and an interdict, declaring the defendants’ waste discharges unlawful and constituting pollution, and prohibiting the defendants from discharging their waste material.
The first and third defendants were mining companies and in conducting their business, they discharged their untreated waste material and effluence into a river. The plaintiffs were inhabitants on the banks of the river and relied on it for their subsistence. The plaintiffs contended that the discharge had polluted the water, aquatic life and disturbed the ecosystem.
The defendants opposed the application by bringing a special plea alleging that the court lacked jurisdiction to hear the matter and it ought to be heard by the Environmental Management Agency. Further, that an interdict should not be granted as there was an alternative remedy available under the Environmental Management Act.
The court found that the argument that the court lacked jurisdiction was without merit. The court observed that there was a glaring need for a declaration as to the existence of a legal right claimed by the plaintiffs but this was not argued nor the fact that the EMA could not issue the declaratory orders sought by the plaintiffs although the plaintiffs were interested persons in the subject matter of the suit. The court found the plaintiffs had a direct and substantial interest in the matter and that there was a need for a declaration to the right claimed by the plaintiffs. Accordingly, the application for special plea was dismissed.
Civil Procedure ̶ Action by Appellant claiming damages for negligence – Bus conductor throws bottle under bus from which the Appellant has just alighted – Bus stamples over the stump of crushed bottle – Part of the bottle springs up and hits eye of the Appellant resulting in injury – Respondent raises plea of absolution from the instance on ground that the injury was not foreseeable – court a quo upholds the plea on ground that the bus conductor was not negligent as the damage caused was neither reasonably foreseeable nor preventable – whether court a quo applied proper test for absolution from the first instance – On appeal, held that on the evidence adduced the conduct of the bus conductor was negligent and the damage caused to the Appellant was reasonably foreseeable and preventable – Appeal allowed with costs – Matter remitted back to the court a quo, to hear the Respondent’s case and determine the case on the merits.
The court considered an appeal, whereby the plaintiff was claiming pecuniary damages incurred for cleaning up an oil leak into the harbour, for which the defendant was allegedly responsible.
The defence pleaded that the suit was misconceived and that the alleged loss and damage were not recoverable in law. Further, that the plaintiff disclosed no cause of action and that the case ought to be dismissed. The plaintiff relied on two causes of action, the first in negligence and the second, in terms of the strict liability rule.
The high court held that the only damage proved to have been caused by the oil leak was to the sea water surrounding the harbour, and that the plaintiff did not own that water. Thus, the plaintiff had not suffered any damage to its property and further that in bringing oil to its land in the port area, the defendant was not making a non-natural use of the land.
On appeal, the court held that the plaintiff suffered no actual damage to any of its property as water was not the property of the plaintiff, and pecuniary loss arising out of purely precautionary measures taken to clean up pollution, which might cause damage to property, is not recoverable at common law. It held that the storage of oil on land by a person licensed to generate electricity there, the oil being essential for the production of electricity, did not amount to a non-natural user of the land.
The petitioners in this matter contented that since 1998, the fourth and fifth respondents had played excessively loud music at night thus causing the petitioners and other residents sleepless nights. The respondents operated an entertainment spot located near a residential area and learning institutions and whose main entertainment menu was the playing of very loud music. The petitioners alleged that the noise interfered with their peace and quiet enjoyment of their properties and violated their right to a clean and healthy environment.
In order to prove that the noise and vibration levels from the respondent’s restaurant were excessive, the petitioners used self-made instruments that were not approved by a relevant lead agency or any person appointed by the National Environmental Management Authority.
This was against the requirements of the Environmental Management and Coordination Act. Therefore, the petition had to fall, although the learned Judge noted that the petitioners had a noble claim.
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.