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 matter dealt with an application for access to information relating to Genetically Modified Organisms (GMO). The court considered the applicability of the provisions of the Promotion of Access to Information Act 2 of 2000 (PAIA).
The court applied the test in our law that no statute is to be construed as having retrospective operation unless the legislature clearly intended it to have that effect. In the circumstances, if one were to apply PAIA’s provisions retrospectively they would interfere with the applicant’s then existing rights. The court found that the disclosure of information, or the granting of access to information should be necessary for the proper application of the provisions of the GMO act.
The court considered the applicant’s failure to exhaust internal remedies as required by s19 of the GMO act. The court found that the act does not expressly state that recourse to the courts is to be deferred until the internal appeal procedure provided for in s19 thereof is exhausted. The court found that it is illogical to insist that the applicant should have exhausted the internal appeal remedy first. The court found that this was not necessarily destructive of the relief sought by the applicant.
On the issue of whether the applicant failed to articulate the information sought, the court considered how requesters for information would not always have knowledge of the precise description of the record in which the information sought, is contained. The court found that the applicant has a clear right to some of the information to which access was requested and that the respondent was entitled to refuse access to certain records, or parts thereof, in terms of the grounds for refusal.
The matter dealt with an urgent application for an order declaring the first to the fifth respondents, who were the directors of the first respondent, to be in contempt of an order of the court.
The first respondent had failed to comply with an order directing it to continue pumping and extracting underground water from its mine shafts. The first respondent also failed to comply with an order to obey directives from the Director General.
The court considered whether the directives were unintelligible and therefore not capable of being complied with. The court affirmed the principle that one cannot be held in contempt of an order of court, where the order is unclear, ambiguous or incomplete. In the circumstances, if all three directives, which called for information which the applicant needed and an interim contribution towards the funding of pumping operations at affected shafts, were read together then the meaning of the directives were plain. Thus, the court found that the directives could be complied with.
The court considered whether the nature of the previous order was such that contempt proceedings were inappropriate. The approach of our courts has been that civil contempt can only be committed in terms of ad factum praestandum (obligation to fulfil or perform an act). In the circumstances, the directives constituted a statutory injunction and so were an ad factum praestandum. Accordingly, the court held that contempt proceedings were appropriate as the directives could be understood and complied with.
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 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 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.
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 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.
The matter dealt with an appeal against the decision of the Supreme Court to uphold an interdict against the applicant to stop the applicant from mining until the respective land in contention was re-zoned to permit mining in terms of provincial legislation. The minister had earlier granted mining permits to the appellant to mine areas zoned as public open spaces in terms of the Mineral and Petroleum Resources Development Act. The appellant contended the act was superior to the provincial legislation and Supreme Court had erred in upholding the High Court interdict against it. The appellant had claimed that mining fell under the exclusive competence of national government and that the proposition that provincial legislation regulating municipal planning applied to it would be tantamount to allowing municipal government to intrude into the terrain of the national sphere.
The Constitutional Court in determining whether to grant leave considered whether the provincial legislation that required rezoning did not apply to land used for mining.
The court, in rejecting the applicant’s argument, held that the provincial law and the national law served different purposes which fall within the competences of the local and the national sphere. Each sphere was exercising power allocated to it by the Constitution and regulated by the relevant legislation.
The court concluded that the interdicts were invalidly issued and held further that in order to bring clarity to the application of competing laws, leave to appeal ought to be granted in order to deal with the constitutional issues raised.