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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The court considered and application for an injunction to restrain the defendant from directing storm and waste water into the plaintiff’s dam, or into the neighboring dam.
The defendant had acceded to a request by the members of the community to desilt the dam at the primary school, but as the plaintiff submitted, had failed to conduct an environmental impact assessment before undertaking the rehabilitation of the dam. Further, that the storm water from the defendant’s farm had spilled over to the dam in her parcel of land, thereby polluting it and infringing her right to live in a clean environment.
The issue for determination by this court was whether the plaintiff had established a prima facie case to enable the court to grant her the order of injunction sought.
The court held that the defendant undertook the project before seeking the authority of the National Environmental Management Authority and had therefore not consulted with all parties likely to be affected by the dam in co-ordination with the NEMA, before rehabilitating the dam. Therefore, the defendant breached the law by channeling storm water into the neighboring dam, without first complying with the provisions of the Environmental Management Act and that the plaintiff was within her rights to seek an injunction.
The court considered an appeal against the condition attached by the respondent, to its approval of a housing project.
The appellant intended to build a seven storey building, but the respondent restricted it to four. The appellant contended that the limitation placed on the number of storeys and refusal to allow construction for residential floors, below ground level, was unlawful, which had already been approved by the city council.
Upon request to the tribunal, residents of the area were enjoined to the appeal as interested parties, arguing that the appellant’s development did not respect the stipulated environment, and planning regulations, that permitted only a maximum of four storey buildings in Zone 4, where the proposed construction was located.
The tribunal considered whether the limitations placed on the construction were justified. It held that the respondent had the authority to impose conditions that it deemed necessary to prevent and/or reduce negative environmental impacts that might result from an activity, and therefore had the lawful authority to regulate the appellant’s activity.
Under the Environmental Management and Coordination Act (EMCA) and the regulations made under it, the respondent’s authority superseded that of the city council and any action the Council may have taken regarding the proposed development. The tribunal found that the city council’s approval was not lawful. Accordingly, the appeal was dismissed.
The court considered an appeal against the first respondent’s approval of the Environmental Impact Assessment (EIA) Project Report, submitted by the second respondent, in support of its application for the development of a housing estate.
The appellant contended that the housing estate was located in an industrial area with high levels of air and noise pollution, among others, and that a full EIA study ought to have been conducted.
During the course of the trial, it became evident that the Appellant objected to this proposed development, due to its concern that the proposed development, would introduce a conflict between its commercial activities within its premises, and the use of neighboring property for residential purposes.
The tribunal observed that the purpose of the EIA licensing process as prescribed by the Environmental Management and Coordination Act of 1999 and the Environmental (Impact Assessment and Audit) Regulations, Legal Notice No 101 of 2003 was to assess the likely significant impacts of a proposed project on the environment.
The tribunal found that the alleged serious health risks on account of the high levels of pollution in the area were not substantiated by credible evidence, and as such the first respondent was justified in rating approval. Further, the tribunal held that there was no evidence to show that this project would adversely impact on the environment in ways that could not be mitigated by the measures that had been proposed by the project proponent in the EIA project report.
Accordingly, the appeal was dismissed.
This matter determined whether the principles of granting an injunction should be applied differently in environmental litigation.
The applicants sought an injunction to restrain the respondents from mining and excavation activities which were likely to trigger environmental and health problems. The respondents argued that they were not mining but prospecting and had a license to do so.
The court determined that the applicants had the necessary locus standi by virtue of being persons entitled to a clean and healthy environment as per s3(2) of the Environment Management and Coordination Act (EMCA).
The court determined whether the grounds for the grant of an injunction were satisfied by the application. The court noted that breaches of the environmental statute must be looked at without the trappings of the law on injunctions but rather in line with the principles under s3 of the EMCA.
The court established that anybody who intends to mine or conduct prospecting activities is required to submit a project report and an Environmental Impact Assessment (EIA) to the National Environment Management Authority (NEMA) as per s58 of the EMCA. It was further held that where the provision is not complied with, it is immaterial whether such person had a license. The court found that the respondent failed to comply with the provisions of the act and declared the respondent’s activities illegal.
The injunction was granted since the environmental factors were not taken into account before the project commenced.
The petitioners in this matter contented that since 1998, the fourth and fifth respondents had played excessively loud music at night thus causing the petitioners and other residents sleepless nights. The respondents operated an entertainment spot located near a residential area and learning institutions and whose main entertainment menu was the playing of very loud music. The petitioners alleged that the noise interfered with their peace and quiet enjoyment of their properties and violated their right to a clean and healthy environment.
In order to prove that the noise and vibration levels from the respondent’s restaurant were excessive, the petitioners used self-made instruments that were not approved by a relevant lead agency or any person appointed by the National Environmental Management Authority.
This was against the requirements of the Environmental Management and Coordination Act. Therefore, the petition had to fall, although the learned Judge noted that the petitioners had a noble claim.
This case concerned a constitutional petition in which the petitioners sought a declaration that the creation of a national reserve through the legal notice 86 of 2000 was unlawful. The court considered the effect of legal notice and whether it was published or degazetted in violation of the law. Lastly, the court considered whether the rights of the community were violated.
The court determined whether the notice was published without consultation and observed that consultations were held between the minister and the county council. The court then considered whether the former president’s alleged verbal revocation of the legal notice at a public rally was a lawful avenue for the revocation of a legal notice. The court held that the Wildlife Conservation and Management Act provided mechanisms on how to withdraw a declaration and as a result, the president had no power to revoke any declaration.
On this basis, the court held that the claim by the petitioners that the land in question was degazetted to be available for their use could not be sustained. In conclusion, the court held that the petitioners failed to show how their rights were violated and therefore could not rely on the new constitution and the act to claim the infringement of their rights. Accordingly, the court dismissed the petition without an order of costs.
The applicants sought a declaratory order, to prevent the respondents from prosecuting them on for the alleged neglecting of their functions under the applicable laws which resulted in the collapse of a dam, injury and loss of life. The court considered whether the applicants’ application amounted to a defence, suitable for determination in the lower court and whether the respondents’ actions in charging the applicants were irrational, unreasonable and procedurally unfair.
The court observed in the first place, that it had no capacity to interfere with lawful exercise of the constitutional and statutory powers of the respondents. The court however stated that in appropriate cases, it was empowered to issue judicial review orders, where there was abuse of power by public authorities. The court further held that the applicable legal provisions, including the constitution place certain duties on public office bearers, particularly the applicants.
The court held that on account of the tragic incident, the actions of the respondents to bring criminal charges against the applicants were not unreasonable or irrational. The court therefore declined to issue the declaratory order, arguing that it was in the public interest that the applicants be subjected to the criminal trial. Accordingly, the application was dismissed with costs.
In this case the appellant challenged the first respondent’s decision to grant the second and third respondents an Environmental Impact Assessment (EIA) license for the construction of a church and related facilities. The second and third respondents raised an objection to the tribunal’s right to hear the matter on the ground that the appeal had been filed outside the timelines set out in the Environmental Management and Coordination Act 1999 (EMCA) as well as the National Environmental Tribunal Procedure Rules, 2003
The main issue for the tribunal’s consideration was whether it had jurisdiction to entertain an appeal which had been filed out of time. The tribunal relied on the rule established in Owners of the Motor Vessel “Lilian S” vs. Caltex Oil (Kenya) Limited that jurisdiction must be acquired before judgment is given. It also relied on s129(1) of the EMCA and held that the act was clear that an appeal ought to have been filed within 60 days but the evidence revealed that the appellants had filed their appeal after 78 days.
Accordingly, the tribunal found that it lacked jurisdiction to determine the matter, as the appeal was filed out of time and the appeal was dismissed.
In this case the tribunal considered an appeal against the approval and issuance of a license for the construction of a social hall, on the basis that it was issued without proper public consultation. The appellants sought revocation of the license and demolition of structures already built. The respondents denied the appellants allegations, arguing that all relevant laws and requirements were complied with and prayed that the appeal be dismissed. The first respondent testified that it issued a stop order against the construction for failing to comply with the requisite procedures and that it was only thereafter that the second respondent applied for the license.
The tribunal considered whether the requirement for public participation had been complied with before issuance of the EIA license
The tribunal held that public participation was a constitutional right under Article 10(2)(a) and found that the second respondent acted illegally and contrary to the principle of public participation. In conclusion, the tribunal found that the land was public land and that any developments should have been approved by the National Land Commission (NLC). It found that the NLC letter received by the respondents did not express approval of the project.
Accordingly, the appeal was upheld, the license revoked, and an environmental restoration order issued, with costs to the appellants.
The tribunal considered an appeal against the approval and issuance of a license for the construction of human waste sewage ponds in a residential area. The appellants argued the following: that they, had not been consulted; that the project would cause significant environmental damage; that the project lacked adequate mitigation measures; and that the respondents did not follow the relevant statutory provisions. The appellants sought cancellation of the license; an order to stop construction of the project; restitution, compensation as well as a guarantee of non- repetition; and environmental restoration. The respondents insisted that they had satisfied the relevant provisions and urged the tribunal to dismiss the appeal with costs.
The main issue for the tribunal’s consideration was whether there was effective public participation. It found that the respondents fell short of the requirement to issue two public notices. The tribunal also found that the respondents failed to demonstrate that they held three public meetings and that they made radio-announcements. It concluded therefor that public participation was not carried out effectively.
The tribunal went on to consider whether the project adhered to the Environment Management and Coordination (Water Quality) Regulations 2006; the Environment Management and Coordination (Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulations 2009; and the Environmental Management and Co-Ordination (Air Quality) Regulations 2014. It found that the respondents failed to adhere to any of these. Accordingly, the tribunal upheld the appeal.
In this case the appellants appealed against the first respondent’s decision to issue an environmental impact assessment (EIA) license to the second respondent for the proposed development of offices, staff quarters, and a conference hall. The applicants sought the following: a stop order; cancellation of the license; and an environmental restauration order.
The first respondent filed a notice of preliminary objection contending that the tribunal lacked jurisdiction to entertain the appeal, as the appeal was filed more than 60 days after the issuance of the license and, therefore, out of time.
The appellants argued that they filed the appeal within 60 days of the time they became aware that the license had been issued and urged the court to admit the appeal.
The tribunal considered whether the appeal was one under s129(1) or s129(2) EMCA. It observed that any appeal that sought to challenge matters surrounding the grant or refusal to grant a licence fell within the ambit of s 129(1) whereas s129(2) covered appeals against acts or omissions of the Director General or the committee of the authority or its agents on matters outside the issue of licensing.
The tribunal found that the appeal fell under s129(1) which imposed a strict time limit, incapable of extension. Thus, the tribunal held that the date when the appellants became aware of the decision to issue the license was immaterial in determining whether the appeal was competent or not. Accordingly, the preliminary objection was allowed, and the appeal dismissed.
The court considered an application for review of the Appellate Court’s decision to decline to grant certification to appeal. The applicant argued that the Appellate Court failed to appreciate that the matters, in respect of which the applicant sought a decision, were substantial points of law which were of general public importance and transcended the circumstances of the particular case.
The court held that an applicant seeking certification “must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case” and if the applicant’s appeal is based on a point of law, he “must demonstrate that such point is a substantial one, the determination of which will have a significant bearing on the public interest.”
In the present case, the court found that the decisions of the lower courts were based on each of those court’s interpretation of the provisions of the private transportation and storage agreement between Triton Petroleum Company Limited (Triton) and the Respondent and the collateral financing agreement between Triton and the applicant. These were not issues of general public importance which transcended the circumstances of the particular case.
Accordingly, the court dismissed the application.
This was a petition brought by various parties challenging the implementation and design of the Lamu Port-South Sudan-Ethiopia Transport Corridor (LAPSSET Project). The court considered whether the implementation of the project violated the rights of the affected communities.
The court observed that the rights of citizens regarding information on environmental matters, public participation, and access to justice were indispensable to foster sustainable development. The court found that the various petitioners’ rights were violated or could potentially be violated by the project, including the rights to fishing and to a clean and healthy environment.
The court ordered the project designers to engage the community as a distinct group and to mitigate on how the project, would affect their rights to culture. Secondly, it ordered the respondents to design a measurable and actionable plan, in consultation with the affected community on how to protect the cultural identity during and after the construction of the project. Thirdly, it ordered the government to draw up a management plan to preserve the Lamu Island as a UNESCO World Heritage Site as directed through UNESCO declarations. Fourthly, it ordered the department responsible for issuing environmental impact assessments to ensure that the rights of the communities were implemented before reconsidering the licence. Accordingly, the petition was upheld.
The court considered an appeal against a judgment dismissing the appellant’s exception.
The appellant was a property development company and sought to develop property in low-lying areas adjacent to the Disa river. In order to develop these properties the appellant began to lift these properties to four meters above sea level by dumping waste matter and filling in on the properties. This resulted in the 2nd respondent issuing directives to the appellant in terms of section 31A of the Environmental Conservation Act 73 of 1989 (“ECA”), which required the appellant, at its own expense, to engage a freshwater ecologist and other environmental impacts of their actions.
The appellant complied with the directive but alleged that the directive had prevented it from undertaking any further development on the properties that were below the 1:100-year flood line, as well as the properties that were within the wetland boundary as surveyed by the ecologist.
The court below held that section 34(1) of the ECA provided a right to claim for compensation where loss suffered by a claimant arose from limitations placed on the purposes for which land may be used.
This court found that when the directives were issued, the constitutional and statutory obligations to prevent harm to the environment were met. Thus, section 34 of the ECA could not have been directed at providing compensation for actions taken under section 31A as those provisions regulate harmful activities against the environment.
The applicant was a holder of a mining right and was conducting open cast mining operations. Due to changes to the applicant’s mine, they submitted an application to have the EMP amended. The 1st respondent directed that the applicant was to submit a revised environmental liability report in order to cover the inherent risk related to the proposed project, thus they need to provide funding to cover a worst-case scenario.
The crux of the issue concerned the powers conferred on the 1st respondent to approve EMP’s and amended EMP’s. The court found that the applicant’s amended EMP would, if implemented successfully, result in the partial backfilling and flooding as part of its mine closure process, thus creating a dam to supply water to the local community and resulting in a practical closure of the mine.
The court found that the conditions imposed were unreasonable and irrational and that the 1st respondent failed to take cognizance of all relevant conditions. In addition, the decision to impose the conditions and require financial provisions as a worst-case scenario, was ultra vires (acting beyond one’s legal power or authority).
The court found that the 1st respondent committed an error of law when making his decision which he was not entitled to make within the powers vested in him.
Review upheld and decision set aside.
The applicant, sought to review and set aside the 5th respondent’s decision on 3 grounds 1) it failed to adhere to the audi alteram partem principle, 2) the decision was unreasonable, and 3) there was a perception of bias.
The applicant was formed to manage the Long Beach development on behalf of individual members, which gave them the powers to make applications for environmental authorizations.
The audi alteram partem principle entitles affected parties to make representations. The applicant contended that it was denied this opportunity when the 5th respondent made its decision.
The court found that there is a distinction between reasons advanced in support of a decision and concerns that may relate to matters which are not properly addressed. Held, that an uncertainty suggests a lack of clarity to enable the decision maker to apply his mind. However, if an uncertainty is created, the decision maker should afford the applicant an opportunity to answer, and settle those concerns. The court found that the fifth respondent’s actions, in not allowing the applicant to respond, denied it of its right curtail uncertainties and failed to adhere to the audi alteram partem principle.
On the basis of the applicant’s additional grounds, it was found that the arguments for unreasonableness and bias were not sustainable.
The court set aside the 5th respondent’s decision and referred the matter back, to allow the applicant to respond to any uncertainties.
The court considered whether an interim interdict could be granted to stop short-term remedial measures which were put in place to treat acid mine drainage (AMD).
To determine whether to grant the interim interdict, the date on which the ECL would be reached was critical. The court found that pursuant to the date being determined, the court was to apply the precautionary principle, which requires authorities to insist on adequate measures to safeguard against the contamination of underground water.
The court found that the ECL could not be determined and based on the short-term project, the greater the danger and consequences of untreated AMD is averted.
The court considered an application for review to set aside the decision of the respondent regarding authorisation to develop a filling station on property situated within a commercial area.
The court considered whether the department had acted unfairly by failing to call for further information from the applicant, and subsequently denying the applicant authorisation to develop the filling station. Found, the department was not obliged to request the applicant to amend their report, and as such the applicant was entitled to renew their report at any stage, and thus did not act unfairly.
In order to determine whether the respondent had acted unlawfully and irregularly, environmental legislation and the Constitution, which contain socio-economic considerations, had to be considered.
The court considered whether the department’s policy of protecting the environment met with the guidelines applicable to developing filling stations was reasonable, and reasonably applied. Policy is applicable where (i) it will not preclude the exercise of discretion; (ii) it is compatible with the enabling legislation; and (iii) it is disclosed to the affected person before a decision is reached. The court found that the department met all of the requirements and was lawfully entitled, and duty bound to consider the guidelines.
The court considered whether the respondent’s argument regarding the distance was reasonable. The court found that the department had consulted with stakeholders who agreed with the distance and reduced the distance in the industry’s favour. Accordingly, the court held that the department acted bona fide and reasonably.
The appellant sought leave to appeal the respondent’s refusal to allow access to information concerning the use of a Pebble Bed Modular Reactor (PBMR) for generating electricity.
The court determined the limitations of the right to information in s 32 of the constitution and the Promotion of Access to Information Act of 2000; and whether the respondent was right in relying on the limitations to deny the applicants access to the information.
The court held that the right to information is not absolute since it is limited by the right to privacy as per s 36 of the constitution. The court determined whether the information required by the appellant fell within the exceptions in the act.
The court also noted that this was a technical matter that required expert evidence since experts are better qualified to draw inferences in such matters than the judicial officer. The court observed that only the respondent brought expert evidence.
The court applied s 42(3)(a) of the Information Act that entitles the respondent to refuse a request for access to a record that contains trade secrets. It found that the respondent had proved its case and that the research requested by the appellant was protected from disclosure.
Accordingly, the appeal was dismissed with costs.
The matter concerned an allegation that the accused’s filling stations presented an environmental risk. Having been granted leave, the prosecutor, an environmental advocacy organisation instituted a private prosecution in the Gauteng Division of the High Court against the accused, a fuel supplies company.
The prosecutor claimed that it had complied with all the legislative requirements set out in s33 of the National Environmental Management Act 107 of 1998 to enable it to initiate such a prosecution. Counts 1 to 21 of the indictment alleged that the accused had contravened ss 21(1), 22(1) and 29(4) of the Environmental Conservation Act 73 of 1986 (“ECA”) as read together with other supporting environmental legislation. The said s 22(2) provided that authorisation of activities like construction of a service station would only be issued after consideration of reports concerning their impact on the environment. The accused formally pleaded to the charges divided into two sections. The first was a plea under s 106(1)(h) denying the prosecutor’s entitlement to prosecute and the other was a plea of not guilty under s 106(1)(b).
The court held that the claim under s 106(1)(h) on defence of want of title to prosecute failed. The court concluded that the prosecutor's case was straightforward and that the accused breached a duty relating to the protection of the environment. It held that in terms of s22(1) of the ECA the undertaking of certain identified activities was prohibited without written authorisation. The accused was convicted on 17 counts and acquitted on four.