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 an appeal against a judgment of the Gauteng Local Division where the appellants refusal to supply information to the respondent about their industrial activities with possible environmental impacts, was declared invalid and set aside.
Following two requests by the respondent, the appellant refused to give them any information based on a failure to meet the threshold requirements of s 50(1)(a), read with s 53 of the Promotion of Access to Information Act 2 of 2000. Further, that their reliance on s 24 of the Constitution was too broad and in conflict with the principle of subsidiarity. I.e. where legislation giving effect to constitutional rights exists, the provisions of the legislation is where the rights should be located.
The court found that the word ‘required’ in s 50(1)(a) of PAIA should be construed as ‘reasonably required’ in the prevailing circumstances for the exercise or protection of the rights by the requestor. Thus, insofar as the environment is concerned, collaborative governance was a virtue.
The court took into consideration the nature of the appellant’s operations and its consequences. The appellant had a reputation for being a major polluter in the areas in which it conducted operations.
The court found that the information was required to make a decision on future actions and could find no error in the court’s reasoning that led it to an order compelling the appellant to provide the requested information and that there is no room for secrecy.
The court considered an appeal against a judgment dismissing the appellant’s exception.
The appellant was a property development company and sought to develop property in low-lying areas adjacent to the Disa river. In order to develop these properties the appellant began to lift these properties to four meters above sea level by dumping waste matter and filling in on the properties. This resulted in the 2nd respondent issuing directives to the appellant in terms of section 31A of the Environmental Conservation Act 73 of 1989 (“ECA”), which required the appellant, at its own expense, to engage a freshwater ecologist and other environmental impacts of their actions.
The appellant complied with the directive but alleged that the directive had prevented it from undertaking any further development on the properties that were below the 1:100-year flood line, as well as the properties that were within the wetland boundary as surveyed by the ecologist.
The court below held that section 34(1) of the ECA provided a right to claim for compensation where loss suffered by a claimant arose from limitations placed on the purposes for which land may be used.
This court found that when the directives were issued, the constitutional and statutory obligations to prevent harm to the environment were met. Thus, section 34 of the ECA could not have been directed at providing compensation for actions taken under section 31A as those provisions regulate harmful activities against the environment.
The court considered an application for review to set aside the decision of the respondent regarding authorisation to develop a filling station on property situated within a commercial area.
The court considered whether the department had acted unfairly by failing to call for further information from the applicant, and subsequently denying the applicant authorisation to develop the filling station. Found, the department was not obliged to request the applicant to amend their report, and as such the applicant was entitled to renew their report at any stage, and thus did not act unfairly.
In order to determine whether the respondent had acted unlawfully and irregularly, environmental legislation and the Constitution, which contain socio-economic considerations, had to be considered.
The court considered whether the department’s policy of protecting the environment met with the guidelines applicable to developing filling stations was reasonable, and reasonably applied. Policy is applicable where (i) it will not preclude the exercise of discretion; (ii) it is compatible with the enabling legislation; and (iii) it is disclosed to the affected person before a decision is reached. The court found that the department met all of the requirements and was lawfully entitled, and duty bound to consider the guidelines.
The court considered whether the respondent’s argument regarding the distance was reasonable. The court found that the department had consulted with stakeholders who agreed with the distance and reduced the distance in the industry’s favour. Accordingly, the court held that the department acted bona fide and reasonably.
This was an application for absolution from the instance by the defendant at the close of the plaintiffÕs case on grounds that there was no need to rebut the plaintiffÕs claims since there was a lack of sufficient evidence.
The plaintiff had instituted a claim for damages following the defendantÕs failure to avail water for irrigation purposes as was previously agreed.
The court determined whether the plaintiff had placed before the court sufficient evidence to warrant the defendant to be placed on its defence.
The court applied test of whether the plaintiff has established a prima facie case against the defendant and whether there is evidence that has been placed before the court upon which a reasonable court might give judgment against the defendant.
The court found that the plaintiff failed to establish a case against the defendant. Firstly, because the plaintiff was prevented by third parties from abstracting water from the dam because of low water levels. Secondly, in terms of the agreement between the parties the defendant did not guarantee the availability of water and was not liable for responsible for damages arising out of any failure to supply the water. Thirdly, the plaintiffÕs claim was wrongly premised since only 50 hectares of the land were under irrigation and not 90 hectares as contended.
Accordingly, the application for absolution from the instance at the close of the plaintiffÕs case was granted in favor of the defendant with costs.
This was an application for a spoliation order to summarily undo the wrongful deprivation of property without investigating the merits.
The applicants claimed that their immovable property (10 Metcalf Road, Greendale) and equipment for water abstraction were seized by the first to sixth respondents.
The first to the sixth respondents raised two preliminary objections: that the matter was not urgent and that there was need for police to join as co-respondents since they were the ones who had seized the applicants’ property. The first objection was abandoned while the second was dealt with in the merits of the case.
The court noted that the applicants were required to prove peaceful and undisturbed control before the disturbance and that the respondent took or destroyed the control unlawfully. However, the applicant would not succeed if the respondent proved valid defenses like they did not commit the spoliation or that they were not involved in the spoliation.
The court found that the applicants were in peaceful and undisturbed possession of the property and equipment although, illegally. However, the court noted that the applicants claimed that they were despoiled of their equipment by the first to sixth respondents who were not natural persons but failed to state who acted on their behalf. The court therefore held that the respondents were not involved in the despoiling.
Accordingly, the application was dismissed with costs.
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 matter dealt with the issue of jurisdiction arising out of a dispute regarding the development of residential flats by the ex parte applicant.
The court considered whether the National Environment Tribunal had jurisdiction to hear and determine Tribunal Appeal No. 74 of 2011. Under section 129(1) of the Environmental Management and Coordination Act, a person who did not participate in the Environmental Impact Assessment study process for the development, in the process of approval or complaint cannot be said to have been an aggrieved by the process which led to the issuance of the licence as no decision could be said to have been made against him. If the tribunal purports to entertain such an appeal under the aforesaid section, the tribunal would be acting ultra vires its authority, hence its decision would be liable to be quashed.
In this case, it was clear that the appeal in issue did not fall within section 129(1) since the second respondent was not a participant in the licensing process. It followed that the limitation period provided under section 129(1) did not apply to the second respondent since, in the court’s view, that limitation only applied to a person appealing pursuant to section 129(1).
There was no evidence that the second respondent was barred from appealing by any other provision in the act or regulations. Accordingly, the court found that the second respondent was entitled under section 129(2) to appeal against the decision of the authority.
The Notice of Motion was dismissed.
The court considered an application by which the applicants sought an order declaring that their right to life had been contravened by forcible eviction and by settlement of other persons on their land. The applicants were members of the Ogiek community who had been living in East Mau Forest for decades, as food gatherers and hunters. Upon the introduction of colonial rule, the land was declared a forest, however, no land was set aside for the applicants.
The court set out the issues as follows: whether the members of the community had recognizable rights arising from their occupation of the forest; whether in the circumstances of the case, their rights had been infringed by their eviction and allocation of other persons; and whether the settlement was ultra vires.
The court found that the right to a livelihood did not have a definition and could be included in the right to life. Thus, their livelihood was directly dependent on forest resources to sustain their way of life. Further, the court held that the applicants were a minority group who had lost their access to land and their right to live in the forests which was key to their livelihood, thus their rights had been infringed.Finally, the court found that there were significant irregularities made during the allocation of land, thus the settlement scheme was ultra vires and the applicants were therefore entitled to the relief sought.
Accordingly, the application was upheld.