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.
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This was an action for damages for assault and battery that led to the removal of one of the plaintiff’s eye; following a beating by the defendant’s guards when the plaintiff was caught stealing on the defendant’s property. The plaintiff also prayed for costs of the action.
It was common cause that the plaintiff was cutting down trees for firewood without permission at the defendant’s estate; and that the plaintiff ran away from the defendant’s agents. The plaintiff averred that one of the defendant’s agents appeared in front of him and threw his baton stick at him, hitting and injuring his eye. The defendant denied the plaintiff’s version of facts and averred that the plaintiff stumbled and fell onto his shovel, thereby injuring himself.
The court, therefore, had to determine whether the plaintiff was entitled to the damages sought.
The court held that in a civil case like this one, the burden was on the plaintiff to prove his case on balance of probabilities. The plaintiff argued that he satisfied this requirement, as the defendant’s witnesses contradicted themselves. The court, however, noted that all of the defendant’s witnesses concurred that they were not carrying baton sticks on the material day and that the plaintiff did not challenge this.
Consequently, the court found that the plaintiff failed to establish that the injuries he sustained were caused by the defendant’s agents. The plaintiff’s action, therefore, failed.
The court considered a summons to strike out a notice of appeal. The respondent, as applicant in this case, applied to the court for an order that the notice of appeal be struck out with costs on the grounds that it was obviously frivolous, vexation and an abuse of process. The respondent (applicant), contended that the appeal was not competent as it purported to bring up matters that were not raised in the court below for the assessment hearing.
The court considered whether the appeal was admissible or whether it constituted an abuse of process and should be struck out. It was held that the respondent (applicant) needed to satisfy the court that the grounds of appeal were obviously frivolous, vexation and an abuse of process.
The court found that the appellant was not challenging the judgement or liability, but merely the quantum of damages arrived at following the assessment of damages. This, the court held, could not be interpreted as an attempt to re-litigate the matter, as the respondent (applicant) alleged. The court, therefore, concluded that it could not be said with any degree of certainty that the appeal was obviously frivolous, vexation and an abuse of process.
Accordingly, the application failed and each party was ordered to bear its own costs.
The court considered an application for the continuation of an order of injunction to restrain the defendants from trespassing or encroaching on the plaintiff’s land, pending the determination of the plaintiff’s claim. The plaintiff alleged that she purchased customary land from the daughter of its previous owner. The plaintiff enjoyed possession of the land, until the defendants alleged that the land was their grandfather’s and the seller had no authority to sell it. Although, the plaintiff argued that she had ownership of the land, the defendants argued that customary land could not be sold or bought, thus she had no right to protect.
The court considered the temporary injunction and whether the plaintiff had disclosed a triable claim. It found that where the applicant had disclosed a good claim to the right, the court would then consider whether damages was an adequate remedy. The court found that the plaintiff’s use of the word bought was incorrect, stating that she parted with money in exchange to acquire the right to use and occupy the land, she however, had a triable right to protect. The court held that the remedy of damages was not adequate as the land was unique.
In conclusion, the court found that the balance of convenience favoured the status quo in protecting the land, used and occupied by the plaintiff until the outcome of the trial and upheld the application
The applicant sought various reliefs concerning a project to abstract and pump water from Lake Malawi by and under the watch of the respondents. The judge considered the main issue to be an application for leave to apply for judicial review. The second issue was whether the applicant and the Malawi Law Society (MLS), an interested party), had locus standi in the matter in light of s 26(1)(d) of the Legal Education and Legal Practitioners’ Act (LELPA).
The applicant contended that the matters that it raised were matters of public interest and were intended to protect the public on an issue that directly touched on the law, namely compliance with various legal processes relating to environmental protection before a project of the nature of the instant one is commenced. The judge held that prima facie, this was a matter of public interest and that the MLS had a legal duty to take measures intended at protecting the public, within the meaning of s 26(1)(d) of the LELPA. The judge was also satisfied by the applicant’s representations that there was no alternative remedy for the applicant in the circumstances to secure appropriate reliefs. The court was satisfied that the applicant had an arguable case and therefore granted the applicant leave to apply for judicial review. The court further ordered the first respondent to make available to the applicant the contract with the contractor and other relevant environmental information.
The court considered an application for the continuation of an interlocutory injunction which was granted to restrain the defendants from entering, cultivating, occupying or developing on the plaintiff’s land. The plaintiff’s father gave him customary land, which he cleared himself and the land was later subdivided. The first defendant alleged that he held a right to the land on account of the growing population of the family.
The court held that an interlocutory injunction is a temporary and exceptional remedy which was available before the rights of the parties had been finally determined. The first issue for the court to determine was whether there was a triable issue. It found that there were pertinent questions regarding the land that had to be determined at trial. The court then considered the issue of compensability, that is, the extent to which damages could be an adequate remedy. The court found that every piece of land had its own unique value and damages would be an inadequate remedy and as the value was difficult to quantify.
The court found that if the interlocutory injunction was not extended the plaintiff would suffer irreparable harm and justice demanded that the land remain intact until the action was determined. Accordingly, the application succeeded.
This was an appeal to the High Court against the decision of a magistrate to dismiss the appellant’s claim which concerned a dispute over a customary piece of land. While the appellant stated that the part of the land in dispute was his, the respondent maintained otherwise.
The issue for determination was whether the land belonged to the respondent or the appellant. The court held that in civil cases, the evidence was on a balance of probability. As such, the respondent’s evidence that he was the one given the land by the chief carried more weight and was therefore convincing. The court further held that customary lands were owned communally, which meant that the chief did not own the land as his belonging. Therefore, the court stated that the chief did not have the power to deprive one person of land and give it to another. In conclusion, the court upheld the decision of the court below and accordingly dismissed the appeal.
This was a preliminary application for a stay of hearing in order for the matter to be referred to arbitration owing to the existence of an arbitration clause in a Royalties Agreement (RA), entered into in relation to the parties’ mining operations. The main matter involved an application for the discharge of leave to move for judicial review on a decision by the respondents to cancel a mining licence.
The court considered whether the judicial review proceedings should have been stayed owing to the existence of an arbitration clause in the RA; and whether the preliminary objection was or was not caught by the provisions of s 6(1) of the Arbitration Act.
The court noted that the main issues for determination revolved around two agreements: the Mining License (ML) and the (RA). The court found that the two agreements ought to have been applied as one agreement. This was mainly because the RA, was an agreement made pursuant to a provision in the ML, and secondly, because the RA provisions were the very ground upon which the ML was purportedly terminated.
The court therefore held that the arbitration clause was applicable. However, the court went on to hold that s 6(1) of the Act precluded the applicant from referring the matter arbitration after it had taken steps in the proceedings or delivered pleadings. The court found that the evidence was clear that the applicant had taken steps in the proceedings. Accordingly, the applicant could not rely on the arbitration clause.
This was an appeal against the decision of a magistrate to order the appellant to vacate a disputed piece of customary land. The appellant applied for a stay of execution of judgment pending appeal.
The two issues for the court’s determination were, whether the appellant was duly allocated the piece of land according to customary law, and whether he had the right of usage and occupation. The court applied the burden and standard of proof based on a balance of probabilities, and ss 2, 25 and 26 of the Land Act which regarding title and ownership of customary land.
The court found out that the respondent had left the land unattended for a period of 13 years and, although this did not remove his right of usage and occupation, the status quo could not be maintained. The court observed that, the land was lying idle when it was allocated by the Group village Headman to the appellant who in turn redeveloped it by building a house, a grocery store and planted trees and fruits. The court held that the respondent sat on his rights and allowed the appellant to develop the land. The court also found that respondent’s conduct had been unreasonable during the time that the appellant developed the land.
In conclusion, the judge held that the appellant was duly allocated the piece of customary land according to law and that he then had permanent rights of usage and occupation. Accordingly, the appeal succeeded 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.
This was a claim for negligence and damages caused to the plaintiffs’ houses by road construction works that were carried out by the first defendant with the authority of the second defendant. The second defendant argued that the action was statute barred and that it could not be held liable for the first defendant’s negligence since they were independent contractors.
The court noted that the plaintiffs accepted that the action against the second defendant was statute barred but argued that the second defendant waived its right to a remedy under the act. The court held that the joinder of the second defendant to the proceedings was improper. It was further held that the waiver which was not pleaded lacked merit.
Secondly, the court determined whether the first defendant was negligent. The court noted that an action of negligence required the plaintiffs to prove that there was a duty of care owed to them, a breach of the duty and damages suffered thereof. The court held that the first defendant owed the plaintiffs a duty of care not to subject their houses to a risk of damage. However, the court found that the plaintiffs failed to prove a breach of the duty, since there was no evidence that the construction was done without risk assessment and the plaintiffs had been compensated for the damages.
The issue of the second defendant’s liability was found to be redundant, since the action was already dismissed on the basis of the first and second issues.
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.
The matter dealt with an application for an order of interlocutory injunction restraining the defendant from entering, cultivating and burning bricks on the claimant's farm lands pending the hearing and determination of this matter or until a further order of the court.
The court considered whether it should grant an order of interlocutory injunction or dismiss the application. An interlocutory injunction is a temporary and exceptional remedy which is available before the rights of the parties have been finally determined.
When considering an application for injunctions, the following principles apply:
1) as long as there is a serious question to be tried, a prima facie case does not have to be shown;
2) whether the plaintiff would be adequately compensated by damages for the loss if they succeed;
3) whether the defendant would be adequately compensated if the plaintiff fails;
4) consider all matters relevant to the balance of convenience;
5) consider the relative strength of each party’s case.
In this case, according to the claimants' own evidence, each of them received a court order to the effect that the judgement of the First Grade Magistrate Court sitting at Mulanje extended to the claimants. Therefore, the court order had to continue to apply until, if at all, a contrary decision was made in the substantive action.
Application for interlocutory injunction dismissed.
This was a mediation report regarding an action commenced by the plaintiffs against the installation of a water pump and other construction works on what was believed to be customary land. The plaintiffs sought to restrain the defendant from interfering with their customary rights on the land. They contended that the water pump installation plan violated their right to the use and enjoyment of their customary land. The matter was set for mediation.
The issue for resolution was whether the project interfered with the customary land held by the plaintiffs.
An agreement was reached by the parties to the effect that the project was located in an intersection of the road reserve which was public land pursuant to the Waterworks Act and that the defendants had obtained the requisite authority to install the water pump and related works. The proposed construction of the water pump was therefore not in violation of any customary rights for as long as it was restricted within the road reserve. Accordingly, the matter was resolved.
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.
The court considered an appeal against a decision in the Environment and Land court, declaring that the respondent had trespassed on the applicant’s premises and that the respondent be ordered to vacate the area and demolish and structures it had erected.
The respondent alleged that it had settled in the area 45 years prior and had inherited the land from his father.
The appellant alleged it had purchased the property in 1994 but had not occupied or used the land. The lower court held that by the time the action was brought in 2008 there was evidence that the respondent had been in occupation for a period of time that would entitle him to raise the defense of limitation, and after the expiration of over 12 years, the appellant was precluded from bringing an action to recover the premises.
The question was whether the respondent had been in possession of the premises for over 12 years as at the time the suit to evict him was instituted in 2008, and whether his possession was averse to that of the appellant?
The court held that the relevant period would be between 1994, the date of registration of the appellant as the proprietor, and 2008, when the suit was filed. It held that the period translated to 14 years which meant the respondent could legitimately base his claim and dealt with the premises as if it was exclusively his. Thus dispossessing the appellant of its right to the land.
This was an action for damages for nuisance and trespass against the defendant. The plaintiff claimed that he was the owner of a property on which the defendant erected a 55m antenna in a brick enclosure along with an unsilenced diesel generator which produced noise. He further claimed that the defendant erected a girder with red flashing lights and positioned two 24-hour security guards at the enclosure. The defendant contended that the property was part of a forest reserve for which it had obtained a licence from the Department of Forestry.
The court considered whether or not the defendant was liable in trespass and nuisance and whether or not the plaintiff was entitled to the damages claimed.
The court found that the plaintiff held a 99-year lease over his property and that the licence granted to the defendant by the Department of Forestry did not specify the exact site for the location of the antenna. It was therefore held that the licence did not justify the trespass. The court concluded that the defendant was liable for trespass on the plaintiff’s land.
In determining the issue on nuisance, the court noted that the plaintiff did not plead the particulars of the alleged nuisance by the defendant and that he did not adduce evidence to prove the allegation of the nuisance. As such, the claim for nuisance was dismissed.
Accordingly, the court awarded the plaintiff damages for trespass.
The court considered a petition stop the development of flats within a residential area. The property was initially planned as a single dwelling unit but the developer applied for change of user to multiple dwelling units which was approved. The petitioners claimed that the change of user was irregularly granted and claimed that approval from the National Environmental Management Agency was improper because the county government approved the change of user despite multiple objections from the public.
The petitioners sought an order declaring that the decision of the first respondent to change the user was unconstitutional and null and void. Further, that the approval of the re-development amounted to a dereliction of duties.
The court considered 1) whether a proper Environmental Impact Assessment was conducted, 2) whether the process of planning approval was lawfully adhered to and, 3) whether there was a violation of the petitioners' constitutional rights.
It held that the NEMA processes were casually done as objections to the project, were not given a hearing and were not considered before the decision to allow the project was made.
Further, it held that there was no consultation with interested parties as was required by the law. This meant that no proper EIA was carried out and therefore the process of planning approval was legally flawed.
As a result of this, the court held that claims for violations of the right to a clean and healthy environment were breached or at the very least, under threat.
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 an application for a declaratory order, declaring that the applicants had a right to live in a quiet environment, free from any noise pollution that can cause annoyance, inconvenience and interference with their comfort or exercise of their rights. The applicants attempted to rely on the rules of practice to ensure their order was granted by means of summary judgment.
The defence argued that the procedure for a summary judgment was not covered by the available High Court rules, and the absence of new rules created a lacunae (not provided for in statute).
The court found that in terms of the General Interpretation Act, s13 provides for a mechanism to avoid a lacunae in the event that a written law has been repealed.
The court considered s14 of the Act, wherein it states that where there is a “written law which is repealed or re-enacted with or without modification, any provision of any other written law, then unless a contrary intention appears, shall remain in force.”
The court found that the rules of Supreme Court are subsidiary legislation and that by repealing the summary judgment rule, it did not automatically repeal the rule of the supreme court unless they are replaced.
Application dismissed with costs.