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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This was an appeal against the decision of the High Court to dismiss an application for review of an application for the setting aside of a decision made by the second respondent, the Member of the Executive Committee of the Department of Agriculture, Conservation and Environment, Mpumalanga (the MEC), and upheld on appeal by the first respondent, the Director General, Environmental Management, Mpumalanga, (the DG). The decision in question was to permit the construction of a filling station in White River. The appellant contended that the permission was given contrary to the provisions of the law.
The court observed that all environmental precautions had been taken into account by the scoping report. It found that the land had been rezoned by the local authority from special area to a business area, based on need and desirability. The court held that that the key factors’ in deciding to grant the application in the circumstance were: firstly, that the property had been rezoned from “special” to “business”; secondly, that no potential threatened plant and animal species were recorded during the site investigation; and, that all identified and perceived impacts were satisfactorily dealt with in the scoping report and the recommendations proposed were sufficient to minimize any negative impacts. Since all this were observed. The appellant case was dismissed with cost.
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 court considered an appeal against a judgment dismissing the appellant’s exception.
The appellant was a property development company and sought to develop property in low-lying areas adjacent to the Disa river. In order to develop these properties the appellant began to lift these properties to four meters above sea level by dumping waste matter and filling in on the properties. This resulted in the 2nd respondent issuing directives to the appellant in terms of section 31A of the Environmental Conservation Act 73 of 1989 (“ECA”), which required the appellant, at its own expense, to engage a freshwater ecologist and other environmental impacts of their actions.
The appellant complied with the directive but alleged that the directive had prevented it from undertaking any further development on the properties that were below the 1:100-year flood line, as well as the properties that were within the wetland boundary as surveyed by the ecologist.
The court below held that section 34(1) of the ECA provided a right to claim for compensation where loss suffered by a claimant arose from limitations placed on the purposes for which land may be used.
This court found that when the directives were issued, the constitutional and statutory obligations to prevent harm to the environment were met. Thus, section 34 of the ECA could not have been directed at providing compensation for actions taken under section 31A as those provisions regulate harmful activities against the environment.
The applicant was a holder of a mining right and was conducting open cast mining operations. Due to changes to the applicant’s mine, they submitted an application to have the EMP amended. The 1st respondent directed that the applicant was to submit a revised environmental liability report in order to cover the inherent risk related to the proposed project, thus they need to provide funding to cover a worst-case scenario.
The crux of the issue concerned the powers conferred on the 1st respondent to approve EMP’s and amended EMP’s. The court found that the applicant’s amended EMP would, if implemented successfully, result in the partial backfilling and flooding as part of its mine closure process, thus creating a dam to supply water to the local community and resulting in a practical closure of the mine.
The court found that the conditions imposed were unreasonable and irrational and that the 1st respondent failed to take cognizance of all relevant conditions. In addition, the decision to impose the conditions and require financial provisions as a worst-case scenario, was ultra vires (acting beyond one’s legal power or authority).
The court found that the 1st respondent committed an error of law when making his decision which he was not entitled to make within the powers vested in him.
Review upheld and decision set aside.
The applicant, sought to review and set aside the 5th respondent’s decision on 3 grounds 1) it failed to adhere to the audi alteram partem principle, 2) the decision was unreasonable, and 3) there was a perception of bias.
The applicant was formed to manage the Long Beach development on behalf of individual members, which gave them the powers to make applications for environmental authorizations.
The audi alteram partem principle entitles affected parties to make representations. The applicant contended that it was denied this opportunity when the 5th respondent made its decision.
The court found that there is a distinction between reasons advanced in support of a decision and concerns that may relate to matters which are not properly addressed. Held, that an uncertainty suggests a lack of clarity to enable the decision maker to apply his mind. However, if an uncertainty is created, the decision maker should afford the applicant an opportunity to answer, and settle those concerns. The court found that the fifth respondent’s actions, in not allowing the applicant to respond, denied it of its right curtail uncertainties and failed to adhere to the audi alteram partem principle.
On the basis of the applicant’s additional grounds, it was found that the arguments for unreasonableness and bias were not sustainable.
The court set aside the 5th respondent’s decision and referred the matter back, to allow the applicant to respond to any uncertainties.
The court considered whether an interim interdict could be granted to stop short-term remedial measures which were put in place to treat acid mine drainage (AMD).
To determine whether to grant the interim interdict, the date on which the ECL would be reached was critical. The court found that pursuant to the date being determined, the court was to apply the precautionary principle, which requires authorities to insist on adequate measures to safeguard against the contamination of underground water.
The court found that the ECL could not be determined and based on the short-term project, the greater the danger and consequences of untreated AMD is averted.
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.
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 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.
The matter dealt with coal mining operations occurring adjacent to a public park in northern KwaZulu-Natal. The first and second applicants were a registered trust pursuing environmental causes and an association of members of communities affected by open-cast mining in the area respectively. The applicants, in the public interest or alternatively affected parties, sought an interdict to shut the mine down completely for being in contravention of s 24 and s 38 of the South African Constitution. The relief sought was subsequently altered to an application to prevent illegal mining. Of the nine respondents cited, the first respondent, a mining company opposed the grant of any relief against it.
The court considered whether the first respondent complied with various national, provincial and local government legislative instruments. The court noted that the applicants were not entirely sure if the interdict they sought was final or interim. The court concluded that the applicants failed to make out a proper case for the relief as claimed, since they failed to put up convincing evidence to support their contentions that the first respondent was mining unlawfully and without the requisite authorisations. The court found that the applicants had not afforded the concerned authorities the opportunity to fully investigate their complaints before deciding to institute proceedings. The court cited various statutes that created regulatory authorities which were empowered to enforce compliance with the statutes they administered. Accordingly, the application was dismissed with costs.
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.
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 application for leave to appeal against the decision of the Supreme Court to allow the first respondent to acquire a prospecting licence in terms of the Mineral and Petroleum Resources Development Act over the applicant’s land.
Appeals to the High Court, and later to the Supreme Court were dismissed on the ground that the community had failed to file for review timeously in terms of the provisions of the Promotion of Administrative Justice Act. The merits of the case were not heard in both matters.
In determining the application, the Constitutional Court considered the following: whether there were internal remedies; whether there was proper consultation and whether consideration was given to the environmental requirements.
It found that an internal appeal was available to the applicants, but the respondents’ failure to deal with the appeal frustrated the process, although the review application had been brought in time. Further, the court held that the granting of prospecting rights was an invasion of a property owner’s rights and that the purpose of consultation with landowners, was to provide them with the information necessary to make an informed decision on how to respond to the application.
The court concluded that the decision-maker had not given the community a hearing or complied with the fairness requirements of the Act, and that the environmental requirements in terms of the Act had not been satisfied. Accordingly, leave to appeal was granted and the prospecting rights on the community’s land were set aside.