Environmental Case Law Index

The matter dealt with an application seeking an order that the defendant be temporarily restrained from erecting, constructing and or use of the public toilet on the beach front near the plaintiff’s resort.

The court considered whether the plaintiff established a prima facie case with a probability of success to warrant the grant of a temporary injunction. The principle of public participation informs the requirement of submission of an Environmental Impact Assessment Report which gives individuals such as the applicant a voice in issues that may bear directly on their health and welfare and entitlement to a clean environment. In the absence of the report for the construction of the toilets approved by the National Environment Management Authority, the court held that the plaintiff established a prima facie case with chances of success.

The court considered whether the construction of the public toilet next to the resort would cause adverse environmental effect thus devaluing the plaintiff's otherwise prime property. The court has the constitutional duty, at Article 70 (2) of the Constitution to prevent, stop or discontinue any act or omissions that is harmful to the environment. Accordingly, the court held that unless the order of injunction was granted as prayed, the plaintiff, and the users of the beach and the ocean were likely to suffer irreparable damage if the toilets were used before proper mechanisms were put in place to mitigate the environmental pollution that may have occurred. 

The application was granted.

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.

Application successful. 

The two applicants were seeking an order for joinder in a substantive appeal by the petitioner. The court considered whether the applicants ought to be joined to the appeal as interested parties. The appeal dealt with the lawfulness of  charges levied against the appellant and the applicants for the use of sea water.

In deciding the case, the court relied on the case of Francis Kariuki Muruatetu and Another v. Republic and Four Others which set out guiding principles when seeking to be joined to proceedings as an interested party. The rule stated that the party seeking to be enjoined must move the court through a formal application and must place sufficient grounds before the court namely: the personal interests that the party has in the matter;  the prejudice that the interested party will suffer; and  the relevance of the submissions the party seeks to rely on in the case.

In dismissing the application for  joinder, the court held that the applicants expressed no interest in the matter during the lower courts. Furthermore, the court held that the applicants could bring their own application since there was no order of stay of proceedings in place. Lastly, it held that the applicants did not stand to suffer or incur any prejudice in the matter. Accordingly, the court dismissed the applications with costs.

This was an application for absolution from the instance by the defendant at the close of the plaintiffÕs case on grounds that there was no need to rebut the plaintiffÕs claims since there was a lack of sufficient evidence.
The plaintiff had instituted a claim for damages following the defendantÕs failure to avail water for irrigation purposes as was previously agreed.
The court determined whether the plaintiff had placed before the court sufficient evidence to warrant the defendant to be placed on its defence.
The court applied test of whether the plaintiff has established a prima facie case against the defendant and whether there is evidence that has been placed before the court upon which a reasonable court might give judgment against the defendant.
The court found that the plaintiff failed to establish a case against the defendant. Firstly, because the plaintiff was prevented by third parties from abstracting water from the dam because of low water levels. Secondly, in terms of the agreement between the parties the defendant did not guarantee the availability of water and was not liable for responsible for damages arising out of any failure to supply the water. Thirdly, the plaintiffÕs claim was wrongly premised since only 50 hectares of the land were under irrigation and not 90 hectares as contended.
Accordingly, the application for absolution from the instance at the close of the plaintiffÕs case was granted in favor of the defendant with costs.

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to water (s 77) – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly

Human rights – right to water – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly

The applicant in this High Court case was seeking interim orders that (1) the first and second respondent be ordered to restore the supply of water from Blanket Dam in Gwanda to the applicant’s mine; (2) the first and the second respondent be interdicted from interfering with the applicant’s possession of his water supply infrastructure without obtaining a court order to that effect. 

The facts were that the first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicants argued that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents, on the other side, argued that the matter was not urgent, and they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending the contract between them.

Thus, the main issue for determination was whether the applicant had satisfied the requirement for an interim order to be issued; 

On the first issue, the Court held that the applicant had satisfied the requirements for an interim order which are, (i) prima facie right; (ii) reasonable apprehension of irreparable injury; (iii) no alternative relief available; (iv) and the balance of convenience favouring the granting of the interdict. 

As a result, the interim order was allowed pending the main trial and the hearing of the interdict.

The applicant in this High Court case moved the court to issue an interdict order against the first and second respondent. The applicant needed the court to compel the respondents to restore the supply of water that they had disconnected to the applicantÕs mine.  The interim relief had been issued in a previous application, but the applicant additionally sought an order interdicting the respondents from terminating the water supply. 

The first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicant argument was that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents argued that they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending their contract.

Thus, the issue for determination was whether the applicant satisfied the requirement for an interdict to be issued.

The court held that in the issue of spoliation, it is established in law that for a party to succeed it must show that the party was in peaceful and undisturbed possession. The court was satisfied that the applicant was constitutionally entitled to water supply, and that interference with this right without a court order was unlawful.

As a result, the interdict was allowed pending the main trial.

The matter dealt with an alleged breach of contract that required the plaintiff to supply large amounts of water to the defendantís wine farm. The contract contained two main clauses namely, that the defendant would reimburse the plaintiff a maximum of N$300000 for obtaining tenders and  would design and construct the bulk water supply scheme in the absence of an alternative agreement.

The plaintiff contended that the agreement was never entered into despite the work being carried out and as a result, they were entitled to reimbursement because the defendant breached the two main clauses of the contract. In response, the defendant alleged that the plaintiff was vicariously guilty of breach of contract as a result of which the defendant says it terminated contract.

The main question before the court was whether the plaintiff was vicariously guilty of breach of contract which resulted in the defendantís termination of the contract and in the alternative. The court also considered whether the respondent would be required to pay for the work done as per the agreement. 

The court found that no such breach existed and that had there been a breach, the defendant, would have been required to communicate termination of the contract which it failed to do. The court concluded that the reliance on an alleged oral agreement had not been proved by facts ëíin the clearest and most satisfactory manneríí. The court found in favour of the applicant.