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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Kamuzu (Administrator of Deceased Estate) v Attorney General (Civil Cause No. 1839 (A) of 1997) (of) [2004] MWHC 3 (10 January 2004); 
EL Index Declaratory Relief Civil Remedies Injunction Injuctions and interdicts Civil Remedies Locus standi in environmental litigation Litigation of environmental issues Environmental law Land use Human exploitation of the environment Environmental law African customary law and rights of indigenous peoples Human and environmental rights Environmental lawKabaghe and Others v Registered Trustees of the Seventh Day Adventist Church and Another (44 of 2013) [2016] MWHC 460 (08 February 2016); Declaratory Relief Civil Remedies Injunction Injuctions and interdicts Civil Remedies Indigenous knowledge and intellectual property Actors in environmental law Environmental law African customary law and rights of indigenous peoples Human and environmental rights Environmental law Land use Human exploitation of the environment Environmental law EL Index
Tekwatekwa v Butao (Civil Appeal No. 50 of 2013) [2017] MWHC 75 (01 June 2017); Private prosecutions Criminal offences in environmental law Environmental law Cultural and heritage values in the environment Environmental decision-making Environmental law African customary law and rights of indigenous peoples Human and environmental rights Environmental law EL IndexThis was an appeal to the High Court against the decision of a magistrate to dismiss the appellant’s claim which concerned a dispute over a customary piece of land. While the appellant stated that the part of the land in dispute was his, the respondent maintained otherwise.
The issue for determination was whether the land belonged to the respondent or the appellant. The court held that in civil cases, the evidence was on a balance of probability. As such, the respondent’s evidence that he was the one given the land by the chief carried more weight and was therefore convincing. The court further held that customary lands were owned communally, which meant that the chief did not own the land as his belonging. Therefore, the court stated that the chief did not have the power to deprive one person of land and give it to another. In conclusion, the court upheld the decision of the court below and accordingly dismissed the appeal.
Mbughi v Ghambi (Civil Appeal Cause No 34 of 2014) [2017] MWHC 143 (24 October 2017); Injunction Injuctions and interdicts Civil Remedies African customary law and rights of indigenous peoples Human and environmental rights Environmental law EL IndexThis was an appeal against the decision of a magistrate to order the appellant to vacate a disputed piece of customary land. The appellant applied for a stay of execution of judgment pending appeal.
The two issues for the court’s determination were, whether the appellant was duly allocated the piece of land according to customary law, and whether he had the right of usage and occupation. The court applied the burden and standard of proof based on a balance of probabilities, and ss 2, 25 and 26 of the Land Act which regarding title and ownership of customary land.
The court found out that the respondent had left the land unattended for a period of 13 years and, although this did not remove his right of usage and occupation, the status quo could not be maintained. The court observed that, the land was lying idle when it was allocated by the Group village Headman to the appellant who in turn redeveloped it by building a house, a grocery store and planted trees and fruits. The court held that the respondent sat on his rights and allowed the appellant to develop the land. The court also found that respondent’s conduct had been unreasonable during the time that the appellant developed the land.
In conclusion, the judge held that the appellant was duly allocated the piece of customary land according to law and that he then had permanent rights of usage and occupation. Accordingly, the appeal succeeded with costs.
Mkandawire & Anor. v Tropha Estate Limited & Anor. (Mediator's Report) (Civil Cause No. 142 of 2017) [2017] MWHC 819 (11 September 2017); Role of state in relation to environment Actors in environmental law Environmental law Private prosecutions Criminal offences in environmental law Environmental law Public interest in environment Environmental decision-making Environmental law African customary law and rights of indigenous peoples Human and environmental rights Environmental law Defective Goods Condition and treatment of property Property Law EL IndexThis was a mediation report regarding an action commenced by the plaintiffs against the installation of a water pump and other construction works on what was believed to be customary land. The plaintiffs sought to restrain the defendant from interfering with their customary rights on the land. They contended that the water pump installation plan violated their right to the use and enjoyment of their customary land. The matter was set for mediation.
The issue for resolution was whether the project interfered with the customary land held by the plaintiffs.
An agreement was reached by the parties to the effect that the project was located in an intersection of the road reserve which was public land pursuant to the Waterworks Act and that the defendants had obtained the requisite authority to install the water pump and related works. The proposed construction of the water pump was therefore not in violation of any customary rights for as long as it was restricted within the road reserve. Accordingly, the matter was resolved.
Gausi v A.G. (Order) (Civil Cause No. 123 of 2015) [2018] MWHC 970 (20 July 2018); Attribution of Costs Costs Civil Remedies African customary law and rights of indigenous peoples Human and environmental rights Environmental law EL IndexThis was an application by the plaintiff claiming compensation for the land which was compulsorily acquired by the defendant. The plaintiff made a further claim for compensation for the destruction of 390 banana plants. The court had to decide on the quantum of damages payable for the loss of use and occupation of land and the loss of the 390 banana plants.
The court first dealt with the general principles guiding compensation and considered the applicable legal provisions. The court held that the main principle underpinning damages was restitution. In addition, the court listed several grounds under which compensation can be calculated. These grounds included a calculation of compensation based on the market value of the land; compensation based on the depreciation of value, if only a part of the land was expropriated; disturbance compensation among other guiding principles.
In awarding judgment for the plaintiff, the court considered the nature of the deprivation and concluded that such deprivation was permanent. The plaintiff was awarded MK3, 812, 000.00 as compensation and the respondent was ordered to pay the costs.
Kapiye v Lapken & Anor. (Civil Appeal Cause No. 102 of 2017) [2018] MWHC 1101 (23 July 2018); Judicial Review Appeals and reviews Civil Procedure Injunction Injuctions and interdicts Civil Remedies Cultural and heritage values in the environment Environmental decision-making Environmental law African customary law and rights of indigenous peoples Human and environmental rights Environmental law Land use Human exploitation of the environment Environmental law EL IndexThis was an appeal against a decision of a magistrate to dismiss the appellant’s claim over a piece of customary land which he claimed was unlawfully in the possession of the second respondent, his son. The appellant had left the village for a long time and upon returning found that the first respondent had constructed a home on his land. The appellant instructed the first respondent to vacate land but he refused and proceeded to sell the land to the second respondent. The appellant told the court below that he inherited the piece of land from his father. The lower court found that the appellant had failed to adduce enough evidence to show that the land belonged to him.
The court had to determine the following: which party had the right of occupation of the land; whether the land was lawfully transferred to the second respondent and whether a permanent injunction could be granted restraining the appellant or the respondents from interfering with the land in question.
The court held that although the land had been given to the first respondent customarily, chiefs must be guided by the law specifically, the Constitution and it was against the law to deprive any person the right to use and occupy customary land without any justification at law. It held that indefinite individual usage and occupation of customary land was therefore permissible under the laws of Malawi and the subsequent transfer was legal. Accordingly, the court upheld the lower court ruling.
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