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 an appeal before the High Court where the appellant a chief, had been charged before the subordinate court for 35 counts of theft by false pretences. The appellant falsely claimed that he was a representative of the Principal Chief and had been authorised by him to impose and receive fines of cash and small stock from persons who had failed to remove their animals from certain reserved grazing area.
The question was whether the appellant contravened Legal Notice Number 39 of 1980 namely, Range Management and Grazing Control Regulations published in Gazette Number 36 of 10 October 1980 (Supplement Number 4). The Principal Chief of the area gave evidence and denied that he ever authorised the appellant to act, as he did, and the court concluded that the appellant lied. The judge confirmed the conviction on 18 counts but set aside the sentences imposed by the learned magistrate as they were considered lenient. Accordingly, on 18 counts the appellant was sentenced to one-year imprisonment, each to run concurrently, the whole of which was suspended for a period of two years on condition that during the period of the said suspension he is not convicted of an offence involving dishonesty. The appellant was sentenced on two counts to a period of two years imprisonment on each count. Half the sentence was suspended for a period of two years on condition that during the period of the said suspension he was not convicted of an offence involving dishonesty.
This case concerned an appeal to the High Court by the appellant who subsequently made no further effort to prosecute his appeal. However, the judge was not prepared to leave the matter in that unsatisfactory state and decided to have the appellant and the second accused before the lower court, appear before the court and show cause as to why their sentences should not be increased. The two had been charged with selling uncut diamonds in contravention of s 6 (1)(b) of the Precious Stones Order 1970 and subsequently convicted.
The law applied was s 6(4) of the Precious Stones Order which specified the maximum limit of fine and imprisonment for offenders in this case, for the practice of dealing in uncut diamonds without authority. The judge decided that in his case that justice sternly demanded that illegal schemes to get rich quickly could not be tolerated by the courts. The appellant’s fine was increased in addition to a sentence of 6 months' imprisonment in default of payment.
The court exercised its entitlement to revisional powers to correct the inadequate sentence imposed upon the other offender in the lower court. The judge ordered that in addition to the fine that he had paid, and month spent in prison, the original sentence to imprisonment for twelve months be wholly suspended for three years on the condition that he was not convicted of any offence under the same law.
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.
The court considered an application for a mandamus by the applicant, as a result of the respondents having applied for the consolidation and rezoning of 2 plots of land. The respondents had their application conditionally approved upon submitting an engineer’s drawing for the erection of retaining walls as part of flood protection and to create 54 client accessible parking bays.
The court considered if there was a contravention of s 44(5) of the applicant’s town planning scheme in accordance with the Town Planning Ordinance No 18 of 1954 as amended. Without drawing plans being submitted to the applicant for approval, the respondents admitted that a temporary corrugated iron wall was erected on the riverbank which was next to the two properties. On their own admission, the respondents did not create the 54 accessible parking bays.
The court found that the respondents failed to adhere to the condition of their approved application, so they were ordered to remove the illegally constructed corrugated iron wall, to submit an engineer’s drawing for the erection of the retaining walls to be constructed on the properties, within three months of the order. They were also ordered to construct the retaining wall within six months from the date of the approval by the applicant of the engineering drawing, as well as to remove all building materials and rubble from one plot in order to create 54 accessible parking bays on one of the properties. Respondents were ordered to pay applicant’s costs.
The court considered an appeal, based on a judgment from the court below, the issue of importance being political patronage by the Disaster Management Authority (DMA). This issue stemmed from a decision made by the Interim Political Authority (IPA), which sought to eliminate political patronage on the basis that the IPA (respondent) had the power to declare certain conduct political patronage.
Political patronage has been defined as a situation in which one person is rewarded for supporting a particular politician. The respondents argued that the involvement of members of parliament in the work of the DMA had nothing to do with political patronage, and rather to do with the efficient discharge of obligations, thus to feed people during times of famine and natural disasters. Further, that the distribution was done by constituencies, and thus due to members of parliament being elected by the public, they had an intimate knowledge of their communities needs and the constituencies needs in terms of resources.
The court found that this argument was eminently sensible and does not contain an element of political patronage. Further, that political patronage had to be established objectively. The fact that the IPA dictated that conduct was political patronage doesn’t make it so, and to hold this position would amount to an untenable position. Accordingly, the appeal succeeded
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.
This was an appeal against the High Court’s decision that declared the land tax imposed under ss 76 to 80 of the Agricultural (Commercial) Land Reform Act as constitutional.
The court determined whether s 76 contravened the constitutional principal of separation of powers which gives the National Assembly power to provide for revenue and taxation.
The appellant contended that the law in question went against separation of powers by devolving legislative power to a minister.
The court held that s 76 did not conflict with the constitutional principles of separation powers as the power of the National Assembly had been exercised by the stipulation of a tax as authorised by the Constitution. The court found that the only role of the minister was to set a rate according to a procedure set out in the regulations. The court stated further that in any event, this rate was subject to the approval of the National Assembly and as such, no independent power was vested in the minister.
The court noted that the regulations that were challenged set out how the land was to be administered. The court held that the appellant’s claim lacked sufficient particularity required for pleadings in constitutional litigation.
Accordingly, the court held that the appellant had failed to establish how these regulations contravened constitutional provisions and dismissed the appeal. The court also dismissed the appellant’s prayer with no order as to costs.
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.
This was a mediation report regarding an action commenced by the plaintiffs against the installation of a water pump and other construction works on what was believed to be customary land. The plaintiffs sought to restrain the defendant from interfering with their customary rights on the land. They contended that the water pump installation plan violated their right to the use and enjoyment of their customary land. The matter was set for mediation.
The issue for resolution was whether the project interfered with the customary land held by the plaintiffs.
An agreement was reached by the parties to the effect that the project was located in an intersection of the road reserve which was public land pursuant to the Waterworks Act and that the defendants had obtained the requisite authority to install the water pump and related works. The proposed construction of the water pump was therefore not in violation of any customary rights for as long as it was restricted within the road reserve. Accordingly, the matter was resolved.
The court considered whether an interim interdict could be granted to stop short-term remedial measures which were put in place to treat acid mine drainage (AMD).
To determine whether to grant the interim interdict, the date on which the ECL would be reached was critical. The court found that pursuant to the date being determined, the court was to apply the precautionary principle, which requires authorities to insist on adequate measures to safeguard against the contamination of underground water.
The court found that the ECL could not be determined and based on the short-term project, the greater the danger and consequences of untreated AMD is averted.
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 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 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.
The petitioner argued that the first respondent violated his right to a clean and healthy environment, by leasing out property to the third respondent for the construction of a telecommunications base transmission mast.
Firstly, the court determined the jurisdiction of the court to decide on a dispute concerning the issuance of an Environmental Impact Assessment License despite the existence of an avenue of redress at the National Environmental Tribunal (NET). The court noted that the dispute could was on one hand based on the issuance of the EIA license by NEMA but it was also based on the violation of the right to health. The court therefore relied on s 13 (3) of the Environment and Land Court Act and held that the court had the requisite jurisdiction.
Secondly, the court determined whether the construction of a telecommunications base transmission mast on property adjacent to that of the petitioner violated the petitioner’s right to a clean and healthy environment. The court noted that the third respondent had not obtained that license thus the mast was constructed illegally and that the 4th respondent had a duty to commence investigation and take necessary legal action.
It was further held that, where a procedure for the protection of the environment was provided for in law but was not followed a presumption would to be drawn that the project violated the right to a clean and healthy environment, or was one that had potential to harm the environment.
Accordingly, the petition was allowed.
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 applicants sought orders of temporary injunction and injunction to restrain the respondents from using the suit property as a wedding ground or place of entertainment of wedding parties and to restrain the respondents from carrying out actions that constitute noise pollution within the meaning of the Environment and Management Co-ordination (Noise and Excessive Vibration) (Control) Regulations 2009 (Legal Notice No.6/2009).
The applicants contended that no Environmental Impact Assessment (EIA) was conducted and notice of change of user was not served on the residents in accordance with the Physical Planning Act. On the other hand, the respondents contended that the applicants had no locus standi as the association was illegal.
The court found that the applicants, being neighbors to the suit property, were aggrieved by the respondents’ actions and had locus to bring the case.
The court noted that the respondents had no EIA license but only a letter of approval from NEMA that contained conditions which they had not complied with. The court also found that the publication of change of user was insufficient as it was done in newspapers of limited circulation and the residents were not personally served. Court further found that the respondents had not complied with Legal Notice No.6/2009.
Accordingly, the court granted the injunctions.