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
The court considered a petition whereby the petitioners averred that they were land owners on which a wind farm was to be developed. The respondents bought the project rights from the initial owners whose application for the construction of the farm had been successful and sought to expand the farm. They obtained permission from the National Environmental Management Authority (NEMA) by renewing the initial project application.
The petitioners alleged that this was against the provisions of the Environmental Management and Coordination Act and the Constitution as the expansion was not implemented in accordance with the law and would violate their constitutional rights to a clean and healthy environment and their rights to own property. The expansion entailed the farm would encroaching onto their surrounding properties.
The issue faced by the court was whether the expansion was legal and whether the rights of the petitioners had been violated or not.
The court held that the expansion could not be logically carried out at the site captured in the original Environmental Impact Assessment and the EIA study report initially filed with NEMA. It could therefore, not be renewed. They had to file a new application and therefore the renewal of the application was contrary to law.
This failure to adhere to the EIA regulations potentially threatened the petitioners’ right to a clean and healthy environment but not their right to own property as the farm did not make use of their land nor did it threaten to use it up.
The court considered a petition against the government’s failure to recognize the petitioner’s right to property and the right to just compensation when it deprived a person of their property. The case involved the construction of a standard gauge railway (SGR) through private land. The petitioner contended that his right to property and just compensation had been violated and that the third respondent had failed to ensure that the appropriate environmental and social impact study of the SGR was undertaken.
The court considered firstly, whether the compulsory land acquisition was carried out in accordance with the Constitution and the law, and secondly, whether the construction of the SGR was in compliance with environmental laws and the Constitution.
The court found that the first respondent had accorded the land owners with the requisite notices and at the enquiry, as required by law, many obliged to the acquisition and were paid. Further, that the petitioner’s reliance on a repealed act was unsupported, and that he had not shown any substantive section of the Land Acquisition Act that was misapplied by the respondents through the process of compulsory acquisition, thus there was no violation of the Constitution.
The court found that an environmental impact assessment had been conducted and that the respondents took into account, all environmental considerations including sustainable development. Accordingly, the petition was dismissed.
The court considered a petition stop the development of flats within a residential area. The property was initially planned as a single dwelling unit but the developer applied for change of user to multiple dwelling units which was approved. The petitioners claimed that the change of user was irregularly granted and claimed that approval from the National Environmental Management Agency was improper because the county government approved the change of user despite multiple objections from the public.
The petitioners sought an order declaring that the decision of the first respondent to change the user was unconstitutional and null and void. Further, that the approval of the re-development amounted to a dereliction of duties.
The court considered 1) whether a proper Environmental Impact Assessment was conducted, 2) whether the process of planning approval was lawfully adhered to and, 3) whether there was a violation of the petitioners' constitutional rights.
It held that the NEMA processes were casually done as objections to the project, were not given a hearing and were not considered before the decision to allow the project was made.
Further, it held that there was no consultation with interested parties as was required by the law. This meant that no proper EIA was carried out and therefore the process of planning approval was legally flawed.
As a result of this, the court held that claims for violations of the right to a clean and healthy environment were breached or at the very least, under threat.
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, 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.
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