Environmental Case Law Index

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 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 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.

Civil Procedure   ̶ Application by Appellant for an order ejecting the Respondents from the land situate at Mhlaleni, directing the Respondents to demolish all structures they have constructed on the land and interdicting Respondent’s from carrying out any activities on the land – Dispute over the territorial jurisdiction over the area where land is situate – Plea of lis pendens raised by the Respondents -  whether matter pending determination by the          High Court or the traditional authorities – High Court upholds plea of lis pendens  and orders status quo prevailing to be maintained pending determination by appropriate authority – Whether High Court erred in so holding – Whether High Court has jurisdiction to entertain matters relating to land pending before traditional authorities having regard to Section 151 (3) (b) of the Constitution - Held  that High Court has no original jurisdiction to entertain matters in which a Swazi Court has jurisdiction, but High Court has only revisional and appellate juridiction as provided by Section 151 (3) of the Constitution -  where a matter is pending or has been determined by the traditional authorities, the High Court must refer the matter back to those authorities for determination or enforcement – Decision of High Court upheld,  and – Appeal dismissed with costs.

The appellant in this matter claimed that the respondent had encroached onto her land. The lower court found for the respondent and dismissed the claim. The appellant argued that the  learned  Magistrate  erred  in  law  and fact  in  ordering  that  the defendant acquired the land in dispute through adverse possession yet there was evidence that the appellant protested the defendant's conduct and further that the magistrate had erred  in  law  in  disregarding  the  laws  of inheritance.

The court held that the evidence rendered by the appellant, was insufficient to counter the argument on adverse possession. The defendant and his father had used this land for over 35 years without any disturbance legally for growing trees. The court held that if a person occupied land without the sanction of the owner for 12 years, he was deemed to have acquired it through adverse possession. The court went on to hold that the claim had nothing to do with distribution of intestate property. The pleadings merely spoke of the respondent’s encroachment into her land and nothing to do with intestate succession. That being the case, the lower court would have erred if it had decided the case on the basis of the act when inheritance was not an issue before the lower court. 
Accordingly, the case was dismissed.

The matter dealt with an application for an order for the continuation of an interlocutory injunction arising from a dispute regarding encroachment onto the claimant’s land by the defendant.

The court considered whether it should grant an order for the continuation of the interlocutory injunction or discharge the interlocutory injunction. 

An interlocutory injunction is a temporary and exceptional remedy which is available before the rights of the parties have been finally determined. In any application for an interlocutory injunction, the court first needs to determine whether there is a serious issue to be tried. If not, the application fails in limine. In this case, it was clear from reading the sworn statements that the facts herein were in dispute and raised pertinent questions to be determined by the court at a full trial.

The court then considered whether damages would constitute an adequate remedy. It held that damages would have been an inadequate remedy in this application. 

It was the court’s view that the balance of convenience tilted in favour of allowing the continuation of the interlocutory injunction. 

Accordingly, continuation of interlocutory injunction granted.

This was an application by the plaintiff claiming compensation for the land which was compulsorily acquired by the defendant. The plaintiff made a further claim for compensation for the destruction of 390 banana plants. The court had to decide on the quantum of damages payable for the loss of use and occupation of land and the loss of the 390 banana plants. 

 The court first dealt with the general principles guiding compensation and considered the applicable legal provisions. The court held that the main principle underpinning damages was restitution. In addition, the court listed several grounds under which compensation can be calculated. These grounds included a calculation of compensation based on the market value of the land; compensation based on the depreciation of value, if only a part of the land was expropriated; disturbance compensation among other guiding principles. 

In awarding judgment for the plaintiff, the court considered the nature of the deprivation and concluded that such deprivation was permanent. The plaintiff was awarded MK3, 812, 000.00 as compensation and  the respondent was  ordered to pay the costs. 

This was an appeal against a decision of a magistrate to dismiss the appellant’s claim over a piece of customary land which he claimed was unlawfully in the possession of the second respondent, his son. The appellant had left the village for a long time and upon returning found that the first respondent had constructed a home on his land. The appellant instructed the first respondent to vacate land but he refused and proceeded to sell the land to the second respondent. The appellant told the court below that he inherited the piece of land from his father. The lower court found that the appellant had failed to adduce enough evidence to show that the land belonged to him.

The court had to determine the following: which party had the right of occupation of the land; whether the land was lawfully transferred to the second respondent and whether a permanent injunction could be granted restraining the appellant or the respondents from interfering with the land in question.

The court held that although the land had been given to the first respondent customarily, chiefs must be guided by the law specifically, the Constitution and it was against the law to deprive any person the right to use and occupy customary land without any justification at law. It held that indefinite individual usage and occupation of customary land was therefore permissible under the laws of Malawi and the subsequent transfer was legal. Accordingly, the court upheld the lower court ruling.

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 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 [1866] 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.