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.
This was an appeal against a decision of the High Court to hold the appellants in contempt of an order of the Minister of Water Affairs and Forestry, issued to the mining companies concerned under s 19(3) of the National Water Act 36 of 1998.
The appellants contended the directives were incapable of implementation because they were so vague. Consequently, the respondent obtained orders from court a quo, compelling the appellant to provide an amount of money as contribution to execute the ministerial order. Following the order, the appellant failed to pay the money. As a result, the appellants applied to have the appellants for contempt.
The main issue for the court’s consideration was whether an order of the court ordering money to be paid could raise a question of contempt. In overruling the decision of court below, the supreme court stated that it was only where performance of an act was ordered – ad factum praestandum – that conviction for contempt of court was permitted as a means of enforcing performance. It held that contempt proceedings were therefore inappropriate in the circumstances. In conclusion, the court stated that an order that a person was in contempt of court, which carries with it criminal sanctions, should be made only where the court order allegedly flouted was clear and capable of enforcement. Accordingly, the appeal was upheld.
The matter dealt with a dispute among the parties in connection with the breaching of the uMfolozi River mouth which affected sugar cane farming in the area around the iSimangaliso Wetland Park, a World Heritage site. The applicants asserted the following: their entitlement to breach the uMfolozi river mouth to alleviate back-flooding by virtue of a Water Use Certificate issued to them by the second respondent in 2012; the failure of the first respondent to comply with constitutional principles of co-operative governance, and the norm of artificially breaching the uMfolozi river mouth.
The court observed that the relief sought was declaratory in nature and not dependent on an established right. This, it held was contrary to the legal principle that when declaratory relief is sought, it is incumbent upon the applicant to demonstrate that it has legal interest in the relief and set out the facts to sustain the legal interest asserted. The court observed that interested parties, not joined in the application, were going to have their rights affected by the relief sought, so the water use entitlement claimed by applicants was flawed and unenforceable. Although applicants may have established a water use right, this right was limited by territorial limits regulated in the water use certificate therefore, it could not be enforced against first respondent. The court held further that the first respondent had not breached the principles of co-operative governance as an inter-governmental task team had been put in place. Accordingly, the application was dismissed with costs.
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.
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.