The Environmental Case Law Index is a collection of judgments from 10 African countries on topics relating to environmental law, both substantive and procedural. The collection focuses on cases where an environmental interest interacts with governmental or private interests.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-area expert postgraduate students from the University of Cape Town.
Read also JIFA's Environmental Country Reports for SADC
The court considered an appeal, 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'.
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.