Environmental Case Law Index

This was a judicial review on the administrative decision of the Department of Agriculture, Forestry and Fisheries (“DAFF”) to refuse a permit for the removal of 10 protected trees (white Milkwood trees) to build a new residence.

The court considered whether it was proper for the applicant to seek an order to compel the DAFF to make a decision it had not taken during a review. The court applied the rule that requires the court to exercise its judicial discretion to set aside an administrative decision only when considering the consequences of a decision that was already taken.

The court also considered whether the decision was made by an authorised person. The court applied the provisions of s15 of the Natural Forest Act which prohibits the disturbance (removal) of protected trees without a license or exemption from the minister. It also considered s7 of the that allowed the minister to delegate exercise of his powers. The court found that the decision was made by a forester who was not authorised to make the decision. The court found that alone to be decisive of the matter and set aside the decision by the DAFF.

The court also made an order as to costs to be paid on a joint and several bases by the respondents.

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.

Application dismissed.

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 dealt with an urgent application for an order declaring the first to the fifth respondents, who were the directors of the first respondent, to be in contempt of an order of the court. 

The first respondent had failed to comply with an order directing it to continue pumping and extracting underground water from its mine shafts. The first respondent also failed to comply with an order to obey directives from the Director General.

The court considered whether the directives were unintelligible and therefore not capable of being complied with. The court affirmed the principle that one cannot be held in contempt of an order of court, where the order is unclear, ambiguous or incomplete. In the circumstances, if all three directives, which called for information which the applicant needed and an interim contribution towards the funding of pumping operations at affected shafts, were read together then the meaning of the directives were plain. Thus, the court found that the directives could be complied with.

The court considered whether the nature of the previous order was such that contempt proceedings were inappropriate. The approach of our courts has been that civil contempt can only be committed in terms of ad factum praestandum (obligation to fulfil or perform an act). In the circumstances, the directives constituted a statutory injunction and so were an ad factum praestandum. Accordingly, the court held that contempt proceedings were appropriate as the directives could be understood and complied with.

Application upheld. 

The court considered a final appeal against a decision by the Court of Appeal to dismiss the plaintiff’s first appeal against the judgement of the Trial Court. 

The origin of this matter was a writ of summons issued to the respondent for payment of money that was deposited as compensation by a third party for their mining operations. The respondent then filed a cross-action seeking a declaration that he was entitled to the compensation and an injunction restraining the appellant’s from claiming the money. 

The suits were consolidated and the trial judge gave judgement in favor of the respondent after having found that land used for the third party’s mining operations belonged to him, not the appellant. The appellant then filed an appeal which was dismissed by the Court of Appeal. Still dissatisfied, the appellant filed this final appeal calling upon the Supreme Court to review the lower court’s decision and to finally determine the matter.

The court found that the lower court adequately considered all the relevant issues. It further found that the High Court of Imo State had requisite jurisdiction to hear the case. The court noted that the appellant stretched the meaning of s 7(1)(p) of Decree No. 60 of 199, beyond reasonable limit by purporting that it ousted the High Court’s jurisdiction in matters of compensating land owners.  

The court concluded that the appeal was without merit and deserving of punitive costs. The appeal was dismissed.

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.

This was an application for review of the respondent’s decision to authorise the construction of a lodge in a protected area. The lodge was built prior to obtaining the necessary environmental authorisation but this was obtained ex post facto. The applicant had at the time of filing this application alos filed an application for an interdict to stop the construction of the lodge, which application was dismissed.
The main legal issue to be resolved was whether under the National Environmental Management Act No 107 of 1998 (NEMA) a permit to build a house in the Protected Environment (MPE) could be issued ex post facto as was given to the third respondent by the first and second respondents.
The court held that section 24 G of NEMA provided for the rectification of the unlawful commencement of the activity by applying to the Minister or MEC for an ex post facto environmental authorisation. In conclusion, the court held that since the application was done and approved ex post facto the respondents had acted within the confines of the law and therefore the application lacked merit. The court observed further that the was aware, or ought to have been aware that when it was unsuccessful in the urgent application to have the development of the Lodge suspended, the consequences were that the respondent would continue with the construction and finalisation of its building project and the review would be rendered academic. Accordingly, the application was dismissed.

The applicant brought this matter to the Constitutional court as a court of first instance having cited the respondents for their failure to implement legislation aimed at containing pollution and to prosecute state a company alleged to have caused pollution. 

The court first had to decide whether it was necessary for the Constitutional Court to be the court of first instance in this matter.

The court stressed that direct access should be granted only in exceptional circumstances. The court stated that justification for direct access was set out in rule 18(2) of the Uniform Rules of the court on the following grounds: if it is in the interests of justice to do so; where the nature of relief sought and the grounds relied upon justify it; whether the matter can be dealt with by the Court without the hearing of oral evidence; and, if it cannot, how evidence should be adduced and conflicts of fact resolved. The court held that these grounds were not satisfied. Therefore the court could not adjudicate further on the allegations against the respondents and dismissed the application. However, in the alternative the court ordered that the Registrar bring the judgment to the attention of the Law Society of the Northern Provinces, with a request that it consider whether one of its members may provide assistance to the applicant as the issues were not set out clearly but were of importance and deserved the attention of the court.

This was an appeal to the Constitutional Court against the decision of the Supreme Court to uphold the unlawfulness of the water meters under operation “Gcin’amanzi”, a project addressing water losses and non-payment of water services in Soweto. This was done by installing pre-paid meters to charge consumers for use of water in excess of the free 6 kilolitre per household monthly water allowance. With access to water being a constitutionally guaranteed right, the Supreme Court ordered that the applicants supply residents with at least 60litres of water, hence quantifying what “sufficient water” as given in the Constitution.

The court in this matter had to deliberate on what the meaning of “sufficient water” was as required by the Constitution and the lawfulness of the pre-paid water meters.

The Constitutional Court found that it was not appropriate for a court to give a quantified content to what constitutes “sufficient water” because this would be best addressed by the government which pegged it. Further, given that, 80 percent of the households in the City would receive adequate water under the present policy, the Court concluded that it would not have been unreasonable for the City not to have supplied more.

With regard to the pre-paid water meters, the Court held that the national legislation and the City’s own by-laws authorised the local authority to introduce pre-paid water meters as part of Operation Gcin’amanzi. Accordingly, it held that the installation of the meters was neither unfair nor discriminatory.

The matter dealt with an appeal against the decision of the Supreme Court to uphold an interdict against the applicant to stop the applicant from mining until the respective land in contention was re-zoned to permit mining in terms of provincial legislation. The minister had earlier granted mining permits to the appellant to mine areas zoned as public open spaces in terms of the Mineral and Petroleum Resources Development Act. The appellant contended the act was superior to the provincial legislation and Supreme Court had erred in upholding the High Court interdict against it. The appellant had claimed that mining fell under the exclusive competence of national government and that the proposition that provincial legislation regulating municipal planning applied to it would be tantamount to allowing municipal government to intrude into the terrain of the national sphere.

The Constitutional Court in determining whether to grant leave considered whether the provincial legislation that required rezoning did not apply to land used for mining. 

The court, in rejecting the applicant’s argument, held that the provincial law and the national law served different purposes which fall within the competences of the local and the national sphere. Each sphere was exercising power allocated to it by the Constitution and regulated by the relevant legislation. 

The court concluded that the interdicts were invalidly issued and held further that in order to bring clarity to the application of competing laws, leave to appeal ought to be granted in order to deal with the constitutional issues raised. 

The court considered an action, where it was called upon to determine the seaward boundary of the Littoral States within the Federal Republic of Nigeria. The purpose was to calculate the revenue accruing to the Federation account from the natural resources derived. 

The Federal State contended that the southern seaward boundary of each of the defendants’ states would be the low-water mark of the land surface akin to such State, alternatively, the seaward limit of inland waters within the State. The contrary argument was that the territory of each State was beyond the low-water mark and extended into the territorial water. 

The court found that the southern boundaries of the littoral States are the sea. Thus, as a result, it makes them riparian owners. In terms of common law, as riparian owners the extent of their territory would be the low-water mark, alternatively the seaward limit of their internal waters. 

The court found that none of the Territorial Waters Act, Sea Fisheries Act and Exclusive Economic Zone Act had extended the territory beyond southern boundary limit. Therefore, and due to the sea shore and foreshore belonging to the crown, the court held that the low-water mark forms the boundary of the land territory between the littoral States.

Plaintiff’s claim was successful.