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 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.
The matter dealt with an application to release the applicant’s motor vehicle which was being detained by the Kenya Forest Service pursuant to an order of forfeiture.
The court held that the right to forfeit private property must be subject to both the constitution and the enabling statute.
The court held that the key elements in an application by the state seeking forfeiture in a criminal proceeding are that:
(a) The state must establish the requisite nexus between the property and the offence;
(b) The courts determination may be based on evidence already on record including any plea and or adduced evidence accepted by the court as relevant;
(c) If the court seeks to forfeit a specific property, a notice of the order must be sent to any person who reasonably might appear to be a potential claimant with standing to contest the forfeiture;
(d) This is more so when in practical terms the seized property would be in the hand of an agent, employee, or servant of the person with proprietary interest or right;
(e) Furthermore, as a form of punishment the principle of proportionality ought to apply.
The court held that, a presumptive innocent person whose property is a subject of criminal proceedings should not lose the property without an opportunity to be heard. In the present case, the order on forfeiture was disproportionate to the nature and gravity of the offence and there was a failure to serve notice. Accordingly, the order on forfeiture was quashed.
The court considered a petition whereby the petitioner sought an order of certiorari to quash a Gazette Notice declaring his land to be forest land. The petitioner had entered into a sale agreement with the original owner of the land by which the parties agreed to a down payment upon successful application to the land control board. The Petitioner took immediate possession and contracted to pay the balance of the purchase price after the maize season. The application was made and rejected due to the Ministry of Natural Resource’s interest in the land. Subsequently, the land control board met and the petitioner’s application was granted, however, the land was transferred to the government and marked a forest.
The petitioner argued that during the dispute, its members were harassed and evicted from their farms, with their houses being torched.
The court found that there was no doubt that the petitioner had entered into a sale agreement. Further, the control board acted in a manner to deny the petitioner the land. The court found that based on a letter received from the Commissioner of Land, there was a clear acknowledgment of foul play in the manner in which the government came to buy the land. Further, the government had deprived the petitioner of its right to land and subjected its members to poverty. In conclusion, the court held that the land was to be placed in the name of the petitioner as it was the rightful and lawful owner.
This case concerned a constitutional petition in which the petitioners sought a declaration that the creation of a national reserve through the legal notice 86 of 2000 was unlawful. The court considered the effect of legal notice and whether it was published or degazetted in violation of the law. Lastly, the court considered whether the rights of the community were violated.
The court determined whether the notice was published without consultation and observed that consultations were held between the minister and the county council. The court then considered whether the former president’s alleged verbal revocation of the legal notice at a public rally was a lawful avenue for the revocation of a legal notice. The court held that the Wildlife Conservation and Management Act provided mechanisms on how to withdraw a declaration and as a result, the president had no power to revoke any declaration.
On this basis, the court held that the claim by the petitioners that the land in question was degazetted to be available for their use could not be sustained. In conclusion, the court held that the petitioners failed to show how their rights were violated and therefore could not rely on the new constitution and the act to claim the infringement of their rights. Accordingly, the court dismissed the petition without an order of costs.
The applicants sought a declaratory order, to prevent the respondents from prosecuting them on for the alleged neglecting of their functions under the applicable laws which resulted in the collapse of a dam, injury and loss of life. The court considered whether the applicants’ application amounted to a defence, suitable for determination in the lower court and whether the respondents’ actions in charging the applicants were irrational, unreasonable and procedurally unfair.
The court observed in the first place, that it had no capacity to interfere with lawful exercise of the constitutional and statutory powers of the respondents. The court however stated that in appropriate cases, it was empowered to issue judicial review orders, where there was abuse of power by public authorities. The court further held that the applicable legal provisions, including the constitution place certain duties on public office bearers, particularly the applicants.
The court held that on account of the tragic incident, the actions of the respondents to bring criminal charges against the applicants were not unreasonable or irrational. The court therefore declined to issue the declaratory order, arguing that it was in the public interest that the applicants be subjected to the criminal trial. Accordingly, the application was dismissed with costs.
This was an appeal against the decision of a magistrate to dismiss an application challenging the jurisdiction of that court to determine matters covered under the Wildlife Conservation Act. The respondent who was attacked by a baboon, commenced proceedings, claiming damages for pain and suffering and loss of amenities.
The High Court observed that s 25 of the act limits the claims to be made by virtue of the list contained in the third schedule. The court held that an attack by a baboon did not fall under section 25 of the Act, when read with the schedule. The court further pointed out that section 25 did not remove the jurisdiction of other courts, but merely introduced an easy way for poor farmers to claim compensation for the destruction of their crops and livestock. The court held that the magistrate was empowered to hear the matter. Accordingly, the appeal was dismissed with costs.
The substance of this appeal was a judicial review against the decision by the National Environment Management Authority (NEMA) to grant an EIA license. The appellants alleged that the license was issued without observance of the law.
The 2nd respondent raised preliminary objections and argued that the appeal was statute barred, the appeal was a subject matter of another suit and therefore sub judice and constituted an abuse of court process.
The appellants argued that the appeal was not statute barred since the time limitation, being 60 days only starts to run when the decision is handed down. The court interpreted Rule 7 of the National Environmental Tribunal Procedure, Rules 2003 and found that its provisions only allowed an extension of time to file proceedings where the time limit is not set in the Environmental Management and Coordination Act. The court noted that this appeal was not in the ambit of Rule 7 since s 129(1) of the Act set the time limit to 60 days after occurrence of the Act, which in this case was 60 days after the EIA license was issued. The court held that the appellants were not in compliance of the time limitation and declared the appeal to be incompetent.
The court found that as a result of the appeal being incompetent, there was no need to consider whether the matter was sub judice.
Accordingly, the appeal was dismissed.
In this case the appellant challenged the first respondent’s decision to grant the second and third respondents an Environmental Impact Assessment (EIA) license for the construction of a church and related facilities. The second and third respondents raised an objection to the tribunal’s right to hear the matter on the ground that the appeal had been filed outside the timelines set out in the Environmental Management and Coordination Act 1999 (EMCA) as well as the National Environmental Tribunal Procedure Rules, 2003
The main issue for the tribunal’s consideration was whether it had jurisdiction to entertain an appeal which had been filed out of time. The tribunal relied on the rule established in Owners of the Motor Vessel “Lilian S” vs. Caltex Oil (Kenya) Limited that jurisdiction must be acquired before judgment is given. It also relied on s129(1) of the EMCA and held that the act was clear that an appeal ought to have been filed within 60 days but the evidence revealed that the appellants had filed their appeal after 78 days.
Accordingly, the tribunal found that it lacked jurisdiction to determine the matter, as the appeal was filed out of time and the appeal was dismissed.
In this case the tribunal considered an appeal against the approval and issuance of a license for the construction of a social hall, on the basis that it was issued without proper public consultation. The appellants sought revocation of the license and demolition of structures already built. The respondents denied the appellants allegations, arguing that all relevant laws and requirements were complied with and prayed that the appeal be dismissed. The first respondent testified that it issued a stop order against the construction for failing to comply with the requisite procedures and that it was only thereafter that the second respondent applied for the license.
The tribunal considered whether the requirement for public participation had been complied with before issuance of the EIA license
The tribunal held that public participation was a constitutional right under Article 10(2)(a) and found that the second respondent acted illegally and contrary to the principle of public participation. In conclusion, the tribunal found that the land was public land and that any developments should have been approved by the National Land Commission (NLC). It found that the NLC letter received by the respondents did not express approval of the project.
Accordingly, the appeal was upheld, the license revoked, and an environmental restoration order issued, with costs to the appellants.
The tribunal considered an appeal against the approval and issuance of a license for the construction of human waste sewage ponds in a residential area. The appellants argued the following: that they, had not been consulted; that the project would cause significant environmental damage; that the project lacked adequate mitigation measures; and that the respondents did not follow the relevant statutory provisions. The appellants sought cancellation of the license; an order to stop construction of the project; restitution, compensation as well as a guarantee of non- repetition; and environmental restoration. The respondents insisted that they had satisfied the relevant provisions and urged the tribunal to dismiss the appeal with costs.
The main issue for the tribunal’s consideration was whether there was effective public participation. It found that the respondents fell short of the requirement to issue two public notices. The tribunal also found that the respondents failed to demonstrate that they held three public meetings and that they made radio-announcements. It concluded therefor that public participation was not carried out effectively.
The tribunal went on to consider whether the project adhered to the Environment Management and Coordination (Water Quality) Regulations 2006; the Environment Management and Coordination (Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulations 2009; and the Environmental Management and Co-Ordination (Air Quality) Regulations 2014. It found that the respondents failed to adhere to any of these. Accordingly, the tribunal upheld the appeal.
The court considered an appeal against the decision of the House of Representatives. It passed a resolution directing the Respondent to pay to the Appellant compensation in the sum of $1.5 Billion for damages/compensation for environmental degradation of the Appellants' communities by oil drilling.
The High Court ordered the Respondent to comply with the resolution and pay to the Appellants the said sum. However, the respondent was able to obtain a stay of execution of the judgment in the trial court granted that the applicant deposits the outstanding amount pending the outcome of the subsequent appeal.
The Respondent wanted this varied and was successful. The applicant disputed this before this court pleading for unconditional stay of execution.
The court had to determine whether there were justifiable reasons to grant an unconditional stay of execution.
The court held that a stay of execution, conditional or unconditional, is granted at the discretion of the court and an appeal court will only interfere where the discretion was wrongly exercised or irregular.
The learned justices of the Court of Appeal took into consideration the consequences of an unsuccessful appeal and a successful one, and came to the conclusion that an unconditional stay of execution met the justice of the case since the Respondent (in this appeal) had assets within the jurisdiction of the court to defray the judgment sum. The facts and circumstances clearly did not support tying down $1.5 Billion to await judgment at the end of lengthy appeals.
The appeal was thereby dismissed.
The applicants challenged the respondent’s issuance of improvement notices with respect to their properties; on grounds of encroachment on a riparian reserve contrary to law.
The applicants prayed for an injunction restraining the respondents from enforcing the notices and entering their properties. They also prayed for a declaration that the notices were void since they were issued without regard for fair administrative action and due process; and an order for costs.
Without delving into the merits of the main matter pending in the tribunal, the court found that the appellants had established
the requirements for an injunction. Firstly, because the appellants had established a prima facie case with a probability of success at trial based on the intriguing legal and factual arguments. Secondly, the court noted that there was no other alternative remedy since the appellants would suffer irreparable harm if the injunction was not granted. Mainly because the subjects of the consolidated appeals suffered the risk of being rendered nugatory by enforcement of the improvement notices. Finally, the court found that the balance of convenience lied in the favour of the appellants because the respondents failed to point an immediate, ongoing or direct harm to the environment that necessitated the immediate enforcement of the improvement notices.
Accordingly, the application succeeded.
This application was brought pursuant to the provisions of Rule 19 of the National Environmental Tribunal Procedure Rules, 2003; to invoke the powers of the tribunal to strike out the respondent’s reply for disobedience of the tribunal’s order. The applicants argued that the 2nd respondent had disobeyed a stop order to stop all activities relating to the construction of 2 residential homes. They contended that this amounted to an abuse of due process of the tribunal.
The respondents argued that the application was defective and bad in law.
The court determined whether the actions of the 2nd respondent were illegal and unlawful. The court found that a stop order was issued and that the 2nd respondent had temporarily complied with the stop order until it decided to proceed with the development. However, the court held that the applicants could not invoke the tribunal’s powers despite the disobedience, mainly because the stop order was not granted upon an application for directions made under part V of the National Environmental Tribunal Procedure Rules.
Further, it became apparent that the advocate appearing for the applicants had deposed to the affidavit in support of the application. The court found that an advocate should not depose to an affidavit in a matter which he is appearing. Further, that he should not depose to an affidavit on information supplied by his client when his client is available to swear on his own. The court thereby struck the affidavit out, and as a result the application could not stand on its own.
Accordingly, the application was dismissed.
In this case the appellants appealed against the first respondent’s decision to issue an environmental impact assessment (EIA) license to the second respondent for the proposed development of offices, staff quarters, and a conference hall. The applicants sought the following: a stop order; cancellation of the license; and an environmental restauration order.
The first respondent filed a notice of preliminary objection contending that the tribunal lacked jurisdiction to entertain the appeal, as the appeal was filed more than 60 days after the issuance of the license and, therefore, out of time.
The appellants argued that they filed the appeal within 60 days of the time they became aware that the license had been issued and urged the court to admit the appeal.
The tribunal considered whether the appeal was one under s129(1) or s129(2) EMCA. It observed that any appeal that sought to challenge matters surrounding the grant or refusal to grant a licence fell within the ambit of s 129(1) whereas s129(2) covered appeals against acts or omissions of the Director General or the committee of the authority or its agents on matters outside the issue of licensing.
The tribunal found that the appeal fell under s129(1) which imposed a strict time limit, incapable of extension. Thus, the tribunal held that the date when the appellants became aware of the decision to issue the license was immaterial in determining whether the appeal was competent or not. Accordingly, the preliminary objection was allowed, and the appeal dismissed.
The court considered an application for review of the Appellate Court’s decision to decline to grant certification to appeal. The applicant argued that the Appellate Court failed to appreciate that the matters, in respect of which the applicant sought a decision, were substantial points of law which were of general public importance and transcended the circumstances of the particular case.
The court held that an applicant seeking certification “must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case” and if the applicant’s appeal is based on a point of law, he “must demonstrate that such point is a substantial one, the determination of which will have a significant bearing on the public interest.”
In the present case, the court found that the decisions of the lower courts were based on each of those court’s interpretation of the provisions of the private transportation and storage agreement between Triton Petroleum Company Limited (Triton) and the Respondent and the collateral financing agreement between Triton and the applicant. These were not issues of general public importance which transcended the circumstances of the particular case.
Accordingly, the court dismissed the application.
This was a petition brought by various parties challenging the implementation and design of the Lamu Port-South Sudan-Ethiopia Transport Corridor (LAPSSET Project). The court considered whether the implementation of the project violated the rights of the affected communities.
The court observed that the rights of citizens regarding information on environmental matters, public participation, and access to justice were indispensable to foster sustainable development. The court found that the various petitioners’ rights were violated or could potentially be violated by the project, including the rights to fishing and to a clean and healthy environment.
The court ordered the project designers to engage the community as a distinct group and to mitigate on how the project, would affect their rights to culture. Secondly, it ordered the respondents to design a measurable and actionable plan, in consultation with the affected community on how to protect the cultural identity during and after the construction of the project. Thirdly, it ordered the government to draw up a management plan to preserve the Lamu Island as a UNESCO World Heritage Site as directed through UNESCO declarations. Fourthly, it ordered the department responsible for issuing environmental impact assessments to ensure that the rights of the communities were implemented before reconsidering the licence. Accordingly, the petition was upheld.
The two applicants were seeking an order for joinder in a substantive appeal by the petitioner. The court considered whether the applicants ought to be joined to the appeal as interested parties. The appeal dealt with the lawfulness of charges levied against the appellant and the applicants for the use of sea water.
In deciding the case, the court relied on the case of Francis Kariuki Muruatetu and Another v. Republic and Four Others which set out guiding principles when seeking to be joined to proceedings as an interested party. The rule stated that the party seeking to be enjoined must move the court through a formal application and must place sufficient grounds before the court namely: the personal interests that the party has in the matter; the prejudice that the interested party will suffer; and the relevance of the submissions the party seeks to rely on in the case.
In dismissing the application for joinder, the court held that the applicants expressed no interest in the matter during the lower courts. Furthermore, the court held that the applicants could bring their own application since there was no order of stay of proceedings in place. Lastly, it held that the applicants did not stand to suffer or incur any prejudice in the matter. Accordingly, the court dismissed the applications with costs.
This was an appeal against the decision of the Court of Appeal to strike out the appellant’s appeal on the ground that it only paid a fraction of the filing fee.
The respondents had filled an action claiming monetary compensation for a diesel spill from the appellant's facility which polluted the respondents’ water. The appellant admitted the spillage and judgment was passed against it. On appeal it paid N200 instead of N5000 to file documents into the registry. The respondents urged the court to dismiss the appeal on the basis of this and other irregularities. The appeal arose from an attempt by the appellant to regularise the payment of fees prior to the filing of the appeal but this was dismissed as incompetent due to payment of inadequate fees.
The court considered whether the lower court was right to strike out the appeal. It observed that a discretionary decision based on a principle that inadequate filing fees was fatal to an appeal was a wrong exercise of discretion. The court differentiated non-payment of fees from payment of inadequate fees. It held that a court of law could not allow the provisions of an enactment to be read in a way that would deny citizens access to court, thereby denying a litigant access to justice. It found that the lower court’s striking out of the appeal denied the appellant access to court.
Accordingly, the appeal was upheld and the appellant ordered to pay the correct fees.
The matter dealt with an appeal against the decision of the High Court to set aside a magistrate’s grant of an interdict to the appellant. The High Court held that the magistrate had no jurisdiction to grant the interdict in exercise of its powers under s 30(1) of the Magistrates’ Courts Act 32 of 1944 because s 29(1)(g) sets a monetary limit on the value of the matter in dispute.
The court considered whether the jurisdiction of the magistrate was excluded due to the limit on the monetary value of the matter in dispute in accordance with the act.
The court established that the matter before the magistrate court related not to the value of the business but to the unlawful activities that the appellant claimed amounted to nuisance. The court found that the respondents had not complied with the requirements for the use of their land including the submission of an environmental and health assessment report and that their activities affected the appellant adversely. The court held that the respondent had not proved that the cost of abating the nuisance was beyond the jurisdiction of the magistrate.
The court concluded that in the circumstances, the magistrate had the jurisdiction to grant an interdict. In conclusion, the court set aside the order of the High Court and replaced it with an order that the appeal to that court be dismissed with costs.
Accordingly, the court upheld the appeal with costs and ordered that the decision of the magistrate be reinstated.
The matter dealt with an appeal against the decision of the High Court to issue an interdict restraining the appellant, from utilising a coal boiler at its factory and the removal of the boiler within 30 days. The respondent had claimed in the lower court that the appellant had erected a coal fired boiler on the property in contravention of regulation 3 of its Smoke Control regulations under s 18 of the Atmospheric Pollution Prevention Act 45 of 1965.
The court considered whether the decision of the High Court to restrain the appellant from using the boiler and the subsequent order for its removal was lawful. The court found that the appellant had installed the boiler without submitting plans or specifications to the respondent as required by the regulations. However, the court established that upon giving the appellant the opportunity to submit its plans, the respondent rejected the appellant’s application on account of the type of boiler that the appellant sought to erect and not smoke emissions as envisaged by s 15(1) of the act. The Court applied the rule in Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) and stated that the facts of this case did not fall within the scope of that decision.
The court held that the respondent did not stay within the boundaries of the act and constraints of the Constitution and this was unlawful. Accordingly, the court upheld the appeal with costs.
The court considered an appeal, concerning a dispute between two companies over the right to mine salt in the Northern Cape.
The high court initially dismissed the appellant’s counter-application in which it sought to review and set aside the Minster's approval of the 1st respondent’s application for a mining permit over the disputed property.
The question on appeal was whether the high court was entitled to refuse to review and set aside the Minister's approval of the 1st respondent’s application without considering whether the 1st respondent had consulted with the appellant, as an 'interested and affected party' as contemplated in the Mineral and Petroleum Resources Development Act 28 of 2002.
The court found that the answer to the question was dependent on the legal basis that the appellant relied on for its occupancy of the property. As the appellant’s occupation of the property was premised on the validity of a permit, which the high court found to be a forgery and thus invalid, the question arose as to whether the appellant had a right to be consulted even though the permit was invalid.
The court, after careful consideration of the requirements set out in the Act, held that a person that relies on an illegally issued permit to occupy land has no right to be consulted by an applicant for a mining right as contemplated in the Act because they do not qualify as an 'interested and affected party'.
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.
This case concerned a dispute over the applicant’s land which became the subject of a mining permit held by the respondent. The applicants sought an interdict from the High Court to suspend all of the respondent’s mining activities. They contended that these activities would cause environmental harm and have negative effects on their business. The respondents argued that by failing to seek suspension of the permit timeously, the applicants exacerbated difficulties for both parties.
The court considered whether the matter was one of urgency and whether the applicants were entitled to the interdict sought. Although the court agreed with the respondent’s observations regarding the failings of the applicants, it held that both parties had an interest in certainty and therefore, took a liberal approach to consider the matter as urgent, noting that this would not prejudice either party.
The court did not find sufficient merit in the grounds for an interdict. The court held that the applicants needed to establish not only a prima facie right, but to show that they would suffer irreparable harm if the relief was not granted. The applicant, however, failed to demonstrate that irreparable harm would ensue if the interdict was not granted.
Consequently, the court did not grant the temporary interdict.
The court also refused to review the administrative decision to grant the respondent a mining permit. It held that the applicant needed to first exhaust all other possible remedies, which it did not do. Accordingly, the court refused the application for review.
This case concerned the duty of a public authority to provide portable water to a community that had been exposed to unsafe water. The applicants sought the following orders: the declaration of the respondents’ failure to provide water over one week as unlawful; a directive to the respondents find a temporary solution to provide water and a directive that the respondents take steps to restore the water supply services. The applicants stressed the urgency of the matter and asked the court to condone non-compliance with the provisions of the rules of the court.
The court considered whether the application before it was one of urgency and whether the applicants’ failure to comply with procedural rules could be condoned in the circumstances. The court held that the right to adequate access to water was a constitutional one and that when it was violated, the matter automatically became urgent. Consequently, it determined that the application was urgent and condoned the procedural irregularities.
The court held that it was the function of the local government to provide water. Consequently, the court ordered only the sixth and seventh respondents to temporarily make portable water available and to restore the water supply services in consultation with the applicants. These respondents were further ordered to report back to the court within one month.
The court was, however, disinclined to declare as unlawful the failure of the respondents to provide portable water for over one week, because the community residents themselves were partially to blame for this.
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.