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
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.
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 matter dealt with an appeal against the decision of the Supreme Court to uphold an interdict against the applicant to stop the applicant from mining until the respective land in contention was re-zoned to permit mining in terms of provincial legislation. The minister had earlier granted mining permits to the appellant to mine areas zoned as public open spaces in terms of the Mineral and Petroleum Resources Development Act. The appellant contended the act was superior to the provincial legislation and Supreme Court had erred in upholding the High Court interdict against it. The appellant had claimed that mining fell under the exclusive competence of national government and that the proposition that provincial legislation regulating municipal planning applied to it would be tantamount to allowing municipal government to intrude into the terrain of the national sphere.
The Constitutional Court in determining whether to grant leave considered whether the provincial legislation that required rezoning did not apply to land used for mining.
The court, in rejecting the applicant’s argument, held that the provincial law and the national law served different purposes which fall within the competences of the local and the national sphere. Each sphere was exercising power allocated to it by the Constitution and regulated by the relevant legislation.
The court concluded that the interdicts were invalidly issued and held further that in order to bring clarity to the application of competing laws, leave to appeal ought to be granted in order to deal with the constitutional issues raised.