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 against the validity of an order to the Land Valuation Board to assess the compensation payable in respect of buildings and farms belonging to inhabitants of an old village.
The facts of this case were that the appellant, a mining company, requested the respondents and other inhabitants of a village, which adjoined its mining area, to vacate the village and paid them compensation for their buildings, which were later demolished. Section 71 of the Minerals and Mining Act, 1986, provided for compensation for disturbances to owners and occupiers of lands affected by mineral operations. The appellant argued that this compensation was limited to areas within the mineral operations and that these areas were not land designated within its mining lease.
The Supreme Court considered the lawfulness of the board’s decision to award further compensation under s71 of the act. It found that since the mining operations of the appellant affected the owners or occupiers of land they were entitled to statutory compensation. The court stated that whereas compensation for the buildings of the respondents was settled by agreement with the appellants, as permitted under s71(3) of the act, compensation for the disturbance of their farming activities at the old village was mandatory under the act.
The court, however, stated that the lower courts came to the right conclusion but their reasons were not sound in law. Accordingly, the appeal was dismissed but the reasons were substituted for the Supreme Court’s decision.
The court considered an appeal against the decision of the Court of Appeal, staying the proceedings of the High Court.
The origin of the appeal was an application for a mandatory injunction, against the respondent, for disturbing the “natural calm flow” of the Volta River, into the sea, while executing their contractual obligations (marine reclamation). The Respondent appealed 3 interlocutory applications in the High Court, which appeals were still pending.
The stay was granted to the respondents following an application for judgment to be entered against them.
The appellant raised six grounds of appeal, however the court held that the determination of one main issue would dispose of the appeal. Thus, the court had to determine whether the Court of Appeal erred in granting the stay of proceedings.
The court noted that all the interlocutory orders were on appeal before the Court of Appeal. The court found that the court of appeal was right to halt the proceedings, since the determination of the interlocutory orders could have a serious effect on the case before the High Court.
It was further noted that an order staying proceedings is interlocutory, and discretionary and should not be interfered with unless it might result in serious injustice. The court found that the appellant failed to demonstrate that the discretion exercised would result to injustice.
Accordingly, the appeal was dismissed.
This was an appeal by a company and its liquidators against the decision of the lower court to dismiss their claim for the validity of a lease. The appellants claimed in the alternative that the decision of the respondent, the Municipal Council of Windhoek (“the council”) be reviewed and set aside.
The main issues to be determined were, whether the council had validly cancelled the lease prior to the liquidators’ election to continue with it and whether the decision of the council was open to review by the court.
The respondent contended that the cancellation was caused by the appellants’ breach of a term of the contract, by discontinuance of its textile industry. The respondent further contended that the appellants breached another term regarding sound environmental practices.
The court found that the respondent’s decision to terminate the lease was solely contractual and not administrative. On this basis therefore, the court held that the decision was not open to review on administrative law grounds.
Firstly, the court held that financial failure of a company, leading to liquidation, could not terminate a lease. Secondly, that the council failed to establish what the terms for an environmental friendly textile industry were. In conclusion, the court held that the company had in fact given notice to terminate the lease and that the notice was accepted by the respondent. Consequently, the lease had then ceased to exist.
Accordingly, the court dismissed the appeal with costs.
Statutory Appeal - Section 51(1) of the Environmental Management Act, 7 of 2007 - on points of law only - Meaning - Whether grounds of appeal are based on points of law.
Constitutional law — Fundamental rights — Administrative justice —Failure to invite one of the parties to a dispute to the appeal hearing— fundamentally unfair hearing — Violation of arts 12 and 18 of Constitution.
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.
Civil Procedure – application for absolution from the instance – Rules of Court - Rule 100 – principles governing the application discussed – requirement for absolution from the instance - whether or not the plaintiff set out a prima facie case – Law of Evidence - whether failure to examine an expert who has filed his report results in the court attaching no value to the expert report – commercial value attached to the Exclusive Prospecting Licence – court’s discretion on how the value of the EPL License is computed.
This was an appeal against a decision of the High Court to dismiss the appellant’s claim for loss of occupation of communal land. Her second claim was that the land was unlawfully expropriated without compensation by the respondents.
The court determined whether or not the appellant had acquired a valid customary law tenure right in the land in dispute and whether this right was unlawfully interfered with. Further, whether any liability attached to the council arising from its interference with that right.
The first respondent (“the council”), contended that the land belonged to it and had ceased to be communal land thus extinguishing communal land tenure. The court found that the appellant acquired and held a customary land tenure right and the state’s succession to the communal land did not extinguish communal land tenure but the state simply held the land in trust for the affected communities.
The court established that the Constitution guaranteed the enforcement of customary land rights. The court therefore, concluded that the appellant had an exclusive right to the use and occupation of the land in dispute; and that the right attached to the land even after its proclamation as town land.
Accordingly, they court upheld the appeal with costs in favour of the appellant. The matter was remitted to the High Court for the adjudication of the appellant’s claim of unjust enrichment and compensation.
Practice – Judgments and orders – Application for stay of execution of judgment pending appeal to Supreme Court – Court having jurisdiction to determine matter in terms of its inherent jurisdiction where dictates of real and substantial justice required it.
The court considered an application to set aside the National Water Authority Regulations and tariffs on the ground that they were ultra vires and violated the applicants’ rights.
The applicants’ business operations involved sugar-cane growing and sugar processing. They concluded two agreements with the Zimbabwe National Water Authority (ZINWA), which related to the supply of water. It was a term of the agreement that the parties would, together, review charges for raw water, and should they fail to agree, the respondent would fix the prices. Subsequently, ZINWA addressed a letter advising the applicants of their intention to review the charges. The respondent unilaterally increased the tariffs and failed to notify the applicants. The respondent argued that in terms of the ZINWA Act, she had the authority to impose tariffs for water charges and that the regulations did not violate the applicants’ rights.
The court considered whether the respondent had acted lawfully in imposing the water tariffs. It found that the government reviewed the water charges, and not ZINWA which was lawfully established to review the tariffs in as far as the applicant was concerned.
The court found that the respondent could not unilaterally increase water tariffs, unless ZINWA had made application to it to justify the increase. In this case, the respondent failed to notify the applicants, nor did she give them an opportunity to respond. The court concluded that the respondent acted ultra vires by increasing the tariffs and her actions were unlawful. Accordingly, the application was upheld
This was an application for an interdict to prohibit mining activities at West Nicholson mine and a further order relating to the processing, sale of and distribution of gold ore mined by the applicants.
The applicants were members of the West Nicholson Youth in Mining Association. The 2nd respondent offered to grant a tribute to the association to mine gold ore and three representatives were appointed by the association to negotiate with the 2nd respondent. After operations had begun, the three representatives along with the 3rd respondent, a third party, unilaterally implemented a profit sharing scheme which gave 50 percent of the proceeds to the four of them.
The 3rd respondent opposed the application contending that it did not satisfy the requirements of an interdict because the applicants had no prima facie right.
The main issue for the court’s consideration was whether or not the applicants had satisfied the requirements of an interdict. The court found that the applicants had proved that they were members of the association and had therefore established a prima facie right to the mining benefits granted by the agreement. The court further held that there was a well-grounded apprehension of irreparable harm to the applicants if the interim relief was not granted and that this had been clearly proved by the applicants.
Accordingly, the court granted the interim interdict as prayed.
The court considered an urgent application for an order interdicting the first respondent from carrying on mining operations on the applicants’ mineral claims. At some point, the applicants and the first respondent had business dealings involving minerals from those claims. The respondent then went on to register mining claims over a piece of land which included the first applicant’s mining claims. The respondent argued that the matter was not urgent, and that the relief sought was not competent as it was final in effect.
The court considered whether the applicants had established a right to the relief sought. The court observed that the relief sought was an interim interdict, the requirements for which were: a clear right; irreparable harm; balance of convenience in favour of granting the relief, and no other satisfactory remedy. The court found that the respondent intended to mine on the applicants claim, and although the mining hadn’t commenced, the applicants could not wait until it acted and had established the prejudice likely to be suffered.
In determining the balance of convenience, the court weighed the prejudice to the applicant if the interdict was not granted against the harm to the respondent if the relief was granted. In this instance, as the mining activities were not being carried on yet, there was no prejudice to the respondent. Accordingly, the court found that the requirements for the interdict were met and the application succeeded.
The court considered a criminal appeal, where the applicants had been charged for contravening s7(1)(a) or (b) of the Communal Land Act, by occupying or using communal land without lawful authority. The applicants pleaded guilty and were convicted and sentenced to pay a fine of $5000 or 30 days in prison. The appellants appealed the conviction on the ground that the court committed an irregularity by failing to proceed in terms of the correct procedure.
They contended that by entering a guilty plea, the court had a duty to safeguard the fair trial rights of the accused by adopting a procedure which was most likely to suggest a defence where there was one.
The court considered whether the appellant’s conviction was lawful. It observed that with unrepresented accused persons, there was the ever-present likelihood that out of ignorance of the law, a person would admit to charges of a complex nature out of a desire to draw sympathy of the police or the courts and the onus was upon the court to choose a procedure which would have given the appellants a possible defence.
The court found that the conviction was wrong and remitted the matter back to the lower court. In addition, the court below would be required to take cognizance of s 16 of the Act which required that following a conviction, an order for eviction be granted. Accordingly, the appeal succeeded.
The applicant, had received a letter from the Secretary for Mines and Mining Development alerting them that their special grants for mining had expired and they had to cease all mining activities and vacate the covered mining areas. The Minister further issued a press statement on the consolidation of all diamond mining activities in the grant areas.
The applicant averred that the above decisions had prejudicial effect on it which also violated its property rights.
The respondents alluded that the application was improperly brought before the court as it appeared to be a response to the judgment of the High Court which the applicant had previously lodged but never appealed and that the cause of action was res judicata and that the avoidance principle applied here. The court, therefore, had to decide on these three main points.
The court held that the appeal had been disguised as a case concerning constitutional points and should have been brought in terms of s167(5)(b) of the Constitution.
It held that although the basis of the application had changed with the introduction of the constitutional question, the effect of the relief sought remained the same.
The court also held that the bulk of the applicant’s case was on right to just administrative action which was protected under the Administrative Justice Act which had sufficient grounds to deal with the rights they alleged had been infringed.
The matter was dismissed with costs.
This was an application for an order for spoliation. The applicants claimed that they had been unlawfully dispossessed of their quiet and peaceful possession of their property by the first respondent. The first respondent contended that he was issued with a prospecting licence by the second respondent on the same land and that he entered the property on the strength of the authority from second respondent. The applicants alleged that the first respondent entered their land by cutting a fence and causing damage to their property.
The court considered whether or not there had been a spoliation and whether the applicants were entitled to relief. The court established that the first respondent unlawfully deprived the first applicant of its possession of the quarry stone site and that this was an unlawful invasion of the property as the land was private property.
The court noted that the first respondent had not raised any of the recognised defences in an action for spoliation. The court found that the first respondent intended to take over the quarry site by forcibly removing them applicants from the quarry site without following due process as he did not possess a court order to justify his intended action.
Accordingly, the court held that the requirements for an order for spoliation had been met and ordered the respondents to return the applicant’s status quo prior to the spoliation.
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.
The court considered a petition declaring that the violation of Article 42 of the Constitution of Kenya resulted in a denial of the right to a clean and healthy environment, as well as an injunction to have a waste disposal site relocated.
The court found that the main issues for determination were 1) whether the respondents’ actions violated or threatened the petitioners’ right to a clean and healthy environment, and 2) whether they are deserving of the relief sought.
The court found the right to a clean and healthy environment to be a fundamental right and held that the duty to have the environment protected for the benefit of the present and future generations is imposed on the State and every person.
The court considered various provisions of the Constitution, wherein it argued that the first respondent had the mandate to establish and maintain sanitary services for the removal of all kinds of refuse and effluent. It was argued that when dealing with the disposal of waste, no person shall operate a waste disposal site without a licence.
It was clear that the respondent did not have the requisite licence and the court found that the first and third respondents violated the petitioners’ right to a clear and healthy environment, but that the second respondent did not.
The petition partly succeeded. The court granted the declaration but refused to grant the injunction to relocate the waste disposal site.
The court considered a petition to have a decision handed down by the Ministry of Devolution and Planning quashed and declared unconstitutional.
The petitioners were Embobut Forest dwellers which shared a common border with five other clans. The petitioners alleged that they were genuine evictees and internally displaced persons who were aggrieved, ignored and not compensated when the respondents harmonized their registers.
The petitioners argued that their constitutional right to a clean and healthy environment had been infringed and that they had not been appropriately compensated. They alleged that they ought to have been compensated like any other squatters and that they had been discriminated against.
The court found that the arguments put forward by the petitioners were non-justiciable. Justiciability refers to the types of matters the court can adjudicate on. In this instance, the court found that the harmonization of the register of the petitioners was a political question, and not a legal one.
The court found that the purpose of compensating those who were in illegal occupation of the forest was to give effect to their right to property. However, the court found that the petitioners did not demonstrate that they were part of those who illegally occupied the land, and thus could not be compensated. Further, the court found that the petitioners did not demonstrate that any of the constitutional provisions had been violated, thus their petition was without substance.
The petitioners in this matter contented that since 1998, the fourth and fifth respondents had played excessively loud music at night thus causing the petitioners and other residents sleepless nights. The respondents operated an entertainment spot located near a residential area and learning institutions and whose main entertainment menu was the playing of very loud music. The petitioners alleged that the noise interfered with their peace and quiet enjoyment of their properties and violated their right to a clean and healthy environment.
In order to prove that the noise and vibration levels from the respondent’s restaurant were excessive, the petitioners used self-made instruments that were not approved by a relevant lead agency or any person appointed by the National Environmental Management Authority.
This was against the requirements of the Environmental Management and Coordination Act. Therefore, the petition had to fall, although the learned Judge noted that the petitioners had a noble claim.
The matter dealt with a petition of appeal arising out of a dispute over the destruction of the respondent’s crops by wild animals that entered the respondent’s farm.
The court considered whether s3A(l) of the Wildlife Act, imposed liability on the appellant to compensate for loss or destruction of crop. The court held that s3A(l) imposed a duty on the appellant to protect the crops from destruction by wildlife and compensate for destruction.
The court considered whether there is a common law obligation under the principle in Donoghue v Stevenson 1932 SC (HL) 31 and the rule in Ryland v Fletcher  LR 1Ex 265 on the appellant to compensate for damage or destruction caused by wildlife. The court found that neither were applicable to the present matter based on the facts of the case.
The court considered whether damage caused by migrating wildlife is an act of God. Consideration must be given to the question whether the event was reasonably foreseeable. Migration of wildlife is an annual occurrence thus, foreseeable and so not an act of God.
The court considered whether the government ought to be liable for destruction by wildlife. Factually, the appellant had the duty of control of the wildlife because of s3A of the Wildlife Act and so the court held that liability for the damage fell on the appellant.
Court of Appeal judgment upheld.