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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The applicants sought to interdict and restrain the respondent from continuing to refuse access to a parcel of land, based on the respondent refuting an existing and enforceable prospecting right which was held by the applicants.
The court considered whether a prospecting right becomes an enforceable limited real right upon registration in the Mining Titles Office and held, it was universally accepted that mineral rights were real rights. Thus, prospecting rights were limited real rights in respect of the mineral and the land to which such rights related.
The court held that a distinction is drawn between the date the right becomes effective and the date of registration. The right becomes effective from the date of approval and subsequently needs to be registered within 30 days of it becoming effective. Therefore, the prospecting right will become enforceable from the date it is effective. The court found that to interpret the Mineral and Petroleum Development Act to mean that a prospecting right becomes effective but remains unenforceable because it has not been registered, would be impractical.
The court found that the respondent’s refusal was primarily a point of protecting his right as a landowner and to the protecting against being arbitrarily deprived of one’s property. Irrespective of the fact that the applicants renewed their prospecting right, the right remained in force until such time as the renewal had been granted or refused. Thus, the applicants had a valid and existing prospecting right and were entitled to access the land to complete their operations.
The applicant was a holder of a mining right and was conducting open cast mining operations. Due to changes to the applicant’s mine, they submitted an application to have the EMP amended. The 1st respondent directed that the applicant was to submit a revised environmental liability report in order to cover the inherent risk related to the proposed project, thus they need to provide funding to cover a worst-case scenario.
The crux of the issue concerned the powers conferred on the 1st respondent to approve EMP’s and amended EMP’s. The court found that the applicant’s amended EMP would, if implemented successfully, result in the partial backfilling and flooding as part of its mine closure process, thus creating a dam to supply water to the local community and resulting in a practical closure of the mine.
The court found that the conditions imposed were unreasonable and irrational and that the 1st respondent failed to take cognizance of all relevant conditions. In addition, the decision to impose the conditions and require financial provisions as a worst-case scenario, was ultra vires (acting beyond one’s legal power or authority).
The court found that the 1st respondent committed an error of law when making his decision which he was not entitled to make within the powers vested in him.
Review upheld and decision set aside.
The applicant, sought to review and set aside the 5th respondent’s decision on 3 grounds 1) it failed to adhere to the audi alteram partem principle, 2) the decision was unreasonable, and 3) there was a perception of bias.
The applicant was formed to manage the Long Beach development on behalf of individual members, which gave them the powers to make applications for environmental authorizations.
The audi alteram partem principle entitles affected parties to make representations. The applicant contended that it was denied this opportunity when the 5th respondent made its decision.
The court found that there is a distinction between reasons advanced in support of a decision and concerns that may relate to matters which are not properly addressed. Held, that an uncertainty suggests a lack of clarity to enable the decision maker to apply his mind. However, if an uncertainty is created, the decision maker should afford the applicant an opportunity to answer, and settle those concerns. The court found that the fifth respondent’s actions, in not allowing the applicant to respond, denied it of its right curtail uncertainties and failed to adhere to the audi alteram partem principle.
On the basis of the applicant’s additional grounds, it was found that the arguments for unreasonableness and bias were not sustainable.
The court set aside the 5th respondent’s decision and referred the matter back, to allow the applicant to respond to any uncertainties.
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 case concerned the obligation of public authorities to prevent and remediate damage caused by natural disasters. The applicants argued that the respondents had constitutional and statutory duties to remediate the flooded area and to reasonably prevent future harm. They further contended that the respondents fell short of these duties. This was not contested by the respondents and, in fact, largely confirmed by an internal memo.
The High Court considered whether the application for a mandamus interdict ought to be enforced against the respondents following their alleged failure to remediate significant damage to the applicants as a result of flooding, which led to blocked culverts, exposed them to increased risk of future inundations, as well as increased levels of water pollution.
The court held that the applicants had a constitutional right to a safe environment and that the respondents had legal duties to remediate the flooded area and reasonably prevent future harm. Given that no post-disaster rehabilitative work had been conducted and no explanation for this failure had been provided, the court found that the respondents fell short of their duties. It further held that the constitutional rights of the applicant outweighed any inconvenience for the respondents to fulfill their duties.
Consequently, the court directed the first respondent to immediately remediate the flooded area and to clean the culverts to prevent future damage. The first responded was further ordered to provide the applicants with regular feedback concerning its implementation of the orders.
This application sought a review of regulations requiring a 24-month period for lions to be fending for themselves in an extensive wildlife system before the lion would be hunted (self-sustaining provisions).
The court accepted a request by both parties to determine the validity of the regulations as if they were applicable to lions regardless of the omission of lions in the 2008 amendment.
It was also found that the applicantÕs argument that the predator breederÕs industry should be represented on the scientific authority was not a ground for review.
The court considered whether the Promotion of Administrative Justice Act of 2000 (PAJA) was applicable to the making of regulations and held that regulations are administrative actions according to PAJA.
Secondly, the court considered whether sufficient opportunity was provided for the applicant to make representations to the panel. The court considered s3(5) and s4(1)(d) of PAJA that allows a procedure that is fair but different from PAJA provisions. The court accepted that in some instances procedural fairness requires provision of a further opportunity to make representations. The court found that the respondent acted fairly and had no way of knowing the applicantÕs attitude on the self-sustaining provision since they considered the applicantÕs letter of 2006 and the applicantÕs opposing letter of 2007 was received after announcement of the regulations.
Thirdly, the court considered whether there was a rational basis for the self-sustaining provisions. The court appreciated the fact that the hunting of lions bred in captivity has damaged the reputation of the country and the principle of fair chase. It was held that the provisions were rational since they would prevent the hunting of lions that are completely dependent on humans. Consequently, the court also held that the provisions were reasonable.
Accordingly, the application was dismissed with costs.
The case concerned a dispute between the applicant, a non-profit company involved in the promotion of a wildlife conservancy and the first respondent, a mining business within the area of jurisdiction of the second respondent. The applicant invoked its entitlement in public interest to apply for an interdict restraining the first respondent from making any development on any portion of the concerned properties as defined in s 1 and s 38(3), of the KwaZulu-Natal Planning and Development Act No. 6 of 2008 (KZNPD).
The applicant argued that the first respondent was required to apply for its proposed development but the applicant contended that it had not yet obtained such authorisation. The first respondent contended that it had been granted approval for mining authorisations in March 1998, in terms of the then applicable Minerals Act No. 50 of 199. The first respondent argued that mining authorisations approved and granted under the Minerals Act entailed that no further authorisations were required where a mining right subsisted.
The court pointed out that mining authorisations were subject only to the provisions of the Minerals Act and there was no provision similar to that in the Mineral and Petroleum Resources Development Act, 28 of 2002. The court found that the concerned properties were not inside a municipal area and were never the subject of any zoning controls when mining authorisation was granted. On the basis of this alone, no further authorisations were required under any other legislation. Accordingly, the application was dismissed with costs.
The matter dealt with a dispute among the parties in connection with the breaching of the uMfolozi River mouth which affected sugar cane farming in the area around the iSimangaliso Wetland Park, a World Heritage site. The applicants asserted the following: their entitlement to breach the uMfolozi river mouth to alleviate back-flooding by virtue of a Water Use Certificate issued to them by the second respondent in 2012; the failure of the first respondent to comply with constitutional principles of co-operative governance, and the norm of artificially breaching the uMfolozi river mouth.
The court observed that the relief sought was declaratory in nature and not dependent on an established right. This, it held was contrary to the legal principle that when declaratory relief is sought, it is incumbent upon the applicant to demonstrate that it has legal interest in the relief and set out the facts to sustain the legal interest asserted. The court observed that interested parties, not joined in the application, were going to have their rights affected by the relief sought, so the water use entitlement claimed by applicants was flawed and unenforceable. Although applicants may have established a water use right, this right was limited by territorial limits regulated in the water use certificate therefore, it could not be enforced against first respondent. The court held further that the first respondent had not breached the principles of co-operative governance as an inter-governmental task team had been put in place. Accordingly, the application was dismissed with costs.
This was a judicial review on the administrative decision of the Department of Agriculture, Forestry and Fisheries (“DAFF”) to refuse a permit for the removal of 10 protected trees (white Milkwood trees) to build a new residence.
The court considered whether it was proper for the applicant to seek an order to compel the DAFF to make a decision it had not taken during a review. The court applied the rule that requires the court to exercise its judicial discretion to set aside an administrative decision only when considering the consequences of a decision that was already taken.
The court also considered whether the decision was made by an authorised person. The court applied the provisions of s15 of the Natural Forest Act which prohibits the disturbance (removal) of protected trees without a license or exemption from the minister. It also considered s7 of the that allowed the minister to delegate exercise of his powers. The court found that the decision was made by a forester who was not authorised to make the decision. The court found that alone to be decisive of the matter and set aside the decision by the DAFF.
The court also made an order as to costs to be paid on a joint and several bases by the respondents.
This was a judicial review against a decision by the Minister of Environmental affairs approving a flawed strategic plan to show commitment for the establishment of a seabird and marine mammal rehabilitation centre. The applicant sought a declaratory order that the first and second respondents failed to adhere to the Revised Record of Decision (ROD).
The origin of the case was an administrative appeal by South African Marine Rehabilitation and Education Trust (Samrec) faulting a specific condition in the ROD for not placing any obligation on stakeholders whose operations were likely to affect the marine life of Algoa Bay. Samrec proposed amendments that were rejected.
The ROD was amended to require the stakeholders to submit a strategic plan indicating their commitment to facilitating the establishment of the rehabilitation centre. Samrec faulted this amendment, arguing that the obligation created was not sufficient.
The minister maintained that the first and second respondents were compliant and her department bore the responsibility for environmental protection and oil spillage damage, but considered it necessary to have her views placed before court.
The court applied the rule that it should be slow to substitute or vary an administrative decision since an administrative body is better equipped and has the expertise to make the right decisions than the court, unless court has to step in to ensure fairness. The court held that this was not such a case.
Accordingly, the application was dismissed and each party was ordered to bear its own costs.
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 case considered an application for an exception to the plaintiffs’ particulars of claim. The plaintiff’s claim was based on the alleged degradation of the environment caused by mining activities conducted over a number of years.
The court considered whether the provisions of s28 of the National Environmental Management Principles (NEMA) were retrospective.
The court applied the common law rebuttable presumption against retrospectivity. In the circumstances, the court considered the nature of the duty; enforcement of the duty; what the legislature intended; when the transactions were completed and other alleged indications of retrospectivity. The court found that the presumption against retrospectivity was not disturbed, and was not applicable in this instance because the legislature could not have intended such.
The court considered whether there was proper or substantial compliance with s 28(12) of NEMA. As with the first claim, the court applied the principle of retrospectivity. Accordingly, the court held that the exception to the first alternative claim that it lacks averments necessary to sustain a cause of action must also be upheld because it avers retrospectivity.
In terms of the second alternative claim, the court held that the exception should be dismissed.
Regarding the third and fourth alternative claims, which were based on regulations that no longer had the force of law, the court found them to lack averments necessary to sustain a cause of action. Accordingly, the court upheld the third and fourth exceptions which related to these claims.
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 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 court considered a final appeal against a decision by the Court of Appeal to dismiss the plaintiff’s first appeal against the judgement of the Trial Court.
The origin of this matter was a writ of summons issued to the respondent for payment of money that was deposited as compensation by a third party for their mining operations. The respondent then filed a cross-action seeking a declaration that he was entitled to the compensation and an injunction restraining the appellant’s from claiming the money.
The suits were consolidated and the trial judge gave judgement in favor of the respondent after having found that land used for the third party’s mining operations belonged to him, not the appellant. The appellant then filed an appeal which was dismissed by the Court of Appeal. Still dissatisfied, the appellant filed this final appeal calling upon the Supreme Court to review the lower court’s decision and to finally determine the matter.
The court found that the lower court adequately considered all the relevant issues. It further found that the High Court of Imo State had requisite jurisdiction to hear the case. The court noted that the appellant stretched the meaning of s 7(1)(p) of Decree No. 60 of 199, beyond reasonable limit by purporting that it ousted the High Court’s jurisdiction in matters of compensating land owners.
The court concluded that the appeal was without merit and deserving of punitive costs. The appeal was dismissed.
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 matter dealt with an appeal against the decision of the Court of Appeal that upheld a decision of the High Court to order that compensation be paid to the respondents for damage caused to economic crops, fish ponds and lakes by the activities of an oil company. The appellants contended that the respondents, despite being occupiers of the land, were customary tenants and that they (appellants) were exclusively entitled to compensation as the owners of the land. The Court of Appeal in upholding the decision of the High Court held that the matter was not predicated on title to land but rather one for entitlement to compensation and granted judgment in favour of the respondents.
The Supreme Court considered whether the lower court was wrong to have heldáthat title to the land, the subject of claim for compensation by the parties, was not in issue. The court held that the issue of claim of title was certainly not before the trialácourt and the learned trial judge was right in not consideringáand determining that issue in his judgment. Accordingly, it held that the court below was right in upholding the trial court's decision that the identity of the land in question was not an issue and claim was solely one for compensation and not title. Accordingly the court dismissed the appeal.