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 was an appeal against the decision of the High Court to reverse the issuance of a mining licence the second appellant without hearing the respondents. The first appellant was the regional director responsible for providing mineral licenses and the second appellant was the mining company that had obtained a mining licence. The respondents wished to oppose the grant of the mining licence but a notice to the public which would have afforded them the opportunity to raise objections was not issue. The appellants contended that article 9 of the Minerals Act 50 of 1991 did not provide such a duty. The respondents contended that the right to be heard was a natural right and therefore a silent section could not be deemed to oust it.
The Supreme Court considered whether interested parties, wishing to oppose an application by the holder of mineral rights for a mining licence in terms of sec 9 of the act, were entitled to raise environmental objections and be heard by the first appellant, The court held that the right to be heard was such a critical right that it could not be easily ignored and the critical nature of environmental issues at the global level demanded that the first appellant involve the public on environmental assessment measures taken. The court stated further that there was an obligation on the first appellant to provide allow for a hearing on any objections before a license could be issued. Accordingly, the appellants’ case was dismissed.
The matter concerned an application to the High Court for review of the decision of the first respondent to dismiss an appeal lodged by the applicant against environmental authorisations granted by the second respondent to the fourth and fifth respondent. The applicant argued that its right to procedural fairness was violated because a number of statutory provisions were not strictly followed. It was the applicant’s contention, however, that the words ‘must’ and ‘shall’ indicate the imperative, mandatory and preemptive intention of these provisions.
The court considered whether the act required exact compliance in every instance and whether the public participation process was flawed in this case. The court cited s47(a) of the National Environmental Management Act 107 of 1998 and held that requirements classified as mandatory need not, in fact, be strictly complied with, but that substantial or adequate compliance may be sufficient. In the present case, the court found that the failure to strictly comply with the statutory requirements did not materially prejudice the rights of the applicant.
The court also found no support for the applicant’s allegations that the public participation process was flawed or inhibited and that the environment would be endangered in any way. Rather, the court agreed with the respondents that the applicant seemed to attempt to capitalize on trivial deficiencies to discredit the entire process.
The court, therefore, dismissed the applicant’s application with costs.
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 review of the respondent’s decision to authorise the construction of a lodge in a protected area. The lodge was built prior to obtaining the necessary environmental authorisation but this was obtained ex post facto. The applicant had at the time of filing this application alos filed an application for an interdict to stop the construction of the lodge, which application was dismissed.
The main legal issue to be resolved was whether under the National Environmental Management Act No 107 of 1998 (NEMA) a permit to build a house in the Protected Environment (MPE) could be issued ex post facto as was given to the third respondent by the first and second respondents.
The court held that section 24 G of NEMA provided for the rectification of the unlawful commencement of the activity by applying to the Minister or MEC for an ex post facto environmental authorisation. In conclusion, the court held that since the application was done and approved ex post facto the respondents had acted within the confines of the law and therefore the application lacked merit. The court observed further that the was aware, or ought to have been aware that when it was unsuccessful in the urgent application to have the development of the Lodge suspended, the consequences were that the respondent would continue with the construction and finalisation of its building project and the review would be rendered academic. Accordingly, the application was dismissed.