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
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.
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 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.
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.
This was an appeal to the Constitutional Court against the decision of the Supreme Court to uphold the unlawfulness of the water meters under operation “Gcin’amanzi”, a project addressing water losses and non-payment of water services in Soweto. This was done by installing pre-paid meters to charge consumers for use of water in excess of the free 6 kilolitre per household monthly water allowance. With access to water being a constitutionally guaranteed right, the Supreme Court ordered that the applicants supply residents with at least 60litres of water, hence quantifying what “sufficient water” as given in the Constitution.
The court in this matter had to deliberate on what the meaning of “sufficient water” was as required by the Constitution and the lawfulness of the pre-paid water meters.
The Constitutional Court found that it was not appropriate for a court to give a quantified content to what constitutes “sufficient water” because this would be best addressed by the government which pegged it. Further, given that, 80 percent of the households in the City would receive adequate water under the present policy, the Court concluded that it would not have been unreasonable for the City not to have supplied more.
With regard to the pre-paid water meters, the Court held that the national legislation and the City’s own by-laws authorised the local authority to introduce pre-paid water meters as part of Operation Gcin’amanzi. Accordingly, it held that the installation of the meters was neither unfair nor discriminatory.
The matter dealt with an application for leave to appeal against the decision of the Supreme Court to allow the first respondent to acquire a prospecting licence in terms of the Mineral and Petroleum Resources Development Act over the applicant’s land.
Appeals to the High Court, and later to the Supreme Court were dismissed on the ground that the community had failed to file for review timeously in terms of the provisions of the Promotion of Administrative Justice Act. The merits of the case were not heard in both matters.
In determining the application, the Constitutional Court considered the following: whether there were internal remedies; whether there was proper consultation and whether consideration was given to the environmental requirements.
It found that an internal appeal was available to the applicants, but the respondents’ failure to deal with the appeal frustrated the process, although the review application had been brought in time. Further, the court held that the granting of prospecting rights was an invasion of a property owner’s rights and that the purpose of consultation with landowners, was to provide them with the information necessary to make an informed decision on how to respond to the application.
The court concluded that the decision-maker had not given the community a hearing or complied with the fairness requirements of the Act, and that the environmental requirements in terms of the Act had not been satisfied. Accordingly, leave to appeal was granted and the prospecting rights on the community’s land were set aside.