Environmental Case Law Index

The applicant made applications for interdicts prohibiting the use of various properties other than for residential purposes according to the Manzini Development Code of 1991.

The respondents raised technical objections to the legality of the code. The respondents argued that the applicants used the words "scheme" and "code" interchangeably to refer to the code instead of “scheme” as per the Town Planning Act of 1961. It was found that the document met the requirements and that the "code" or "scheme" was the document specifically provided for in the act, regardless of the name by which it was called.

The respondent argued that the code was invalid for lacking any changes proving that it had not been reviewed periodically according to s 21(4) of the act. The court determined whether the term “shall” in s 21(4) of the act was peremptory or merely directive. The provision states that, “every approved scheme shall be reviewed periodically at intervals of not more than five years.” The court applied the rule that a provision is merely directory if it is in positive terms and lacks a penal sanction. Consequently, it was held that reviewing would not always lead to a change in the schemes at all times. The court also held that the operation of the code was valid since it had been previously approved by the minister.

Accordingly, the objections were dismissed.

The court considered a petition against various statutory bodies and offices, who were responsible for land. The petitioners contended that the land in question had been jointly purchased by their late fathers but they were tricked by the respondents, on various occasions, when their land was acquired forcibly without compensation. Subsequently the respondents declined to issue them with a title, purporting that they had surrendered their lease titles for further subdivisions.  

The respondents alleged that the petitioners had no standing to institute proceedings and that this was an abuse of process, as parts of the land had been sold and payment received by the deceased parents.

The court considered whether there had been a violation of the petitioners’ right to property. The court found that the act of the first respondent of surrendering back to the government part of the parcel of land, which was bought by the petitioner’s father, was an act of compulsory acquisition which required compensation. The respondents failed to show that such compensation had been given. 

In conclusion, the court upheld all the petitioners’ prayers and ordered that they were entitled to Kshs. 4,132,942,326.49 billion, being fair compensation for the loss of land with costs to the petitioners.

The court considered a petition whereby the petitioners averred that they were land owners on which a wind farm was to be developed. The respondents bought the project rights from the initial owners whose application for the construction of the farm had been successful and sought to expand the farm. They obtained permission from the National Environmental Management Authority (NEMA) by renewing the initial project application.

The petitioners alleged that this was against the provisions of the Environmental Management and Coordination Act and the Constitution as the expansion was not implemented in accordance with the law and would violate their constitutional rights to a clean and healthy environment and their rights to own property. The expansion entailed the farm would encroaching onto their surrounding properties.

The issue faced by the court was whether the expansion was legal and whether the rights of the petitioners had been violated or not.

The court held that the expansion could not be logically carried out at the site captured in the original Environmental Impact Assessment and the EIA study report initially filed with NEMA. It could therefore, not be renewed. They had to file a new application  and therefore the renewal of the application was contrary to law.
This failure to adhere to the EIA regulations potentially threatened the petitioners’ right to a clean and healthy environment but not their right to own property as the farm did not make use of their land nor did it threaten to use it up.

Petition refused.

The applicants in this matter approached the high court seeking, inter alia, an interdict preventing the respondents from evicting 140 school children and from demolishing their homesteads.

The residents occupied the land in question through the traditional system of Khonta. After paying the prescribed livestock and fees to the area’s chief, they were allowed to settle on the land. However, it  was later discovered that the land belonged to the Swaziland National Provident Fund and was therefore not under the control of the chief.

The applicants argued that the evictions were arbitrary and contravened s 18 and 29 of the Swaziland Constitution and that such evictions were a threat to education of their children. 

The court first dealt with the issue of urgency and concluded that the court was prepared to hear the matter on an urgent basis. The court in deciding the matter weighed the rights of the children against those  of property owners as contained in the Constitution. It concluded that the rights of children did not supersede the rights of the property owners. Therefore, the court held that the applicants failed to establish the requirements of an interdict and the rest of the orders they were seeking.

The matter was dismissed with costs.

The applicants brought a review to set aside the decision of the first respondent to declare the Malkerns area a town, due to failing to consult with the applicant prior to making this decision.

The minister published three notices, one in 1995 and one in 2010, which were not challenged as the first one did not affect the applicants and the second one was welcomed. The applicants contended that the third notice in 2012 was flawed for two reasons: (1) there was no schedule attached to it and (2) there was no commission of enquiry set to receive presentations from affected individuals. 

The court considered whether the minister was bound in law to invite the applicants to make representations or objections before publishing the 2012 notice, and if so, whether the minister did so.

The court found that the minister’s intention in terms of the 2012 notice was to declare the Malkerns a town. It became clear that the minister made her declaration in terms of the Building Act and not the Urban Government Act, and she did so without extending invitation for objection or input from the applicants who would have been prejudiced by her decision.

The court found that instead of making invitation, for objection or input, which the minister failed to do, she declared the area a controlled area, which was grossly irregular. The court held that the conduct of the minister was not within her powers as she made the declaration in terms of two separate pieces of legislation which she tried to use interchangeably. Thus, the decision by the minister was reviewable and set aside. 

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.

Civil Procedure   ̶  Action by Appellant claiming damages for negligence ­­– Bus conductor throws bottle under bus from which the Appellant has just alighted – Bus stamples over the stump of crushed bottle – Part of the bottle springs up and hits eye of the Appellant resulting in injury – Respondent raises  plea of absolution from the instance on ground that the injury was not foreseeable – court a quo upholds the plea on ground that the bus conductor was not negligent as the damage caused was neither reasonably foreseeable nor preventable – whether court a quo  applied proper test for absolution from the first instance – On appeal, held that on the evidence adduced the conduct of the bus conductor was negligent and the damage caused to the Appellant was reasonably foreseeable and preventable – Appeal allowed with costs – Matter remitted back to the court a quo, to hear the Respondent’s case and determine the case on the merits.