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 matter dealt with an appeal against a decision of the High Court dismissing the appellant’s claim for a declaration of rights over land and the setting aside of a directive made by the minister. The appellant had contended in the lower court that the act was only applicable to agricultural land and was not intended to relate to land within a proclaimed township.
The main issues for the court’s consideration were whether the land in question fell within the scope of the minister’s powers under the act and whether these powers were lawfully exercised.
The court established that the wording of the act was clear, and that the extent of the minister’s power did not cover non-agricultural land. The court concluded that the decision of the minister should have been set aside. The court stated further that the powers under s 31A of the Environment Conservation Act 73 of 1989 were not to be applied without the procedure set out in the act. Therefore, in the absence of compliance with these procedures, the minister’s decision was invalid. Accordingly, the court upheld the appeal with costs to the appellant.
Jafta JA in a dissenting judgment held that the procedure set out in the act dealt mainly with procedural fairness and was not a prerequisite for the exercise of the minister’s powers. He concluded that the procedural aspects if applied in this context would defeat the purpose of the powers under s 31A of the act, to protect the environment.
The applicant intended to erect a petrol station and submitted an Environmental Impact Assessment (EIA) report to the respondent for approval. The respondent did not, however, respond to the report within three months, as envisaged in the Environmental Management and Co-ordination Act. The applicant decided to proceed with the project, as permitted by section 58 (9) of the Act.
The respondent stopped the project and handed the applicant a letter to the effect that the proposal for the project had been rejected.
The applicant applied for judicial review orders and submitted that the respondent had failed to conduct public hearings to assess the acceptability of the proposal. Thus, the respondent could not interfere with the applicant’s statutory discretion under section 58 (9) of the Act.
The court had to decide whether the rejection by the respondent was binding and if the respondent had sufficient grounds for the rejection.
The court held that the remedy of judicial review deals with the process, but not the merits of the decision by a tribunal, therefore the respondent’s submission that the applicant should have appealed to the tribunal if aggrieved, was untenable.
Further, that members of the public were denied sufficient opportunity to respond and make their comments. The applicant could not blame the respondents for failing to comply with section 58 (9). The delay in giving the decision was only one month, which in view of the court, was reasonable in the circumstances.
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 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.
This application set out the test for determining the validity of an eviction order.
The applicant opposed an eviction order made under the Farm Dwellers Act of 1983 on grounds that it was unlawful. The respondents disputed the court’s jurisdiction. However, the court held that it had the jurisdiction to hear the matter and noted that its jurisdiction was only ousted as a court of first instance
In granting the order to the applicant, the court cited Hoageys Handicraft (PTY) Ltd and Another/Rose Marshall Vilane where the requirements for a lawful eviction in Swaziland were set out.
First, there must be a judgment of a court with jurisdiction to grant an order for eviction. Secondly, there must be a valid, warrant directing the Sheriff to evict the respondent from the premises. Thirdly, there must be a valid appointment and authorisation of the deputy sheriff, for the express purpose of executing a warrant of ejectment or eviction. Lastly, the execution action must be conducted as authorised in the warrant of ejectment or eviction.
The court granted the application, with an order of costs.