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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Mukakama and Others v Engil and Others (Civil Cause No. 268 of 2015) [2018] MWHC 34 (23 April 2018); 
Attribution of Costs Costs Civil Remedies Environmental impact and risk assessment Environmental decision-making Environmental law Land use Human exploitation of the environment Environmental law EL IndexThis was a claim for negligence and damages caused to the plaintiffs’ houses by road construction works that were carried out by the first defendant with the authority of the second defendant. The second defendant argued that the action was statute barred and that it could not be held liable for the first defendant’s negligence since they were independent contractors.
The court noted that the plaintiffs accepted that the action against the second defendant was statute barred but argued that the second defendant waived its right to a remedy under the act. The court held that the joinder of the second defendant to the proceedings was improper. It was further held that the waiver which was not pleaded lacked merit.
Secondly, the court determined whether the first defendant was negligent. The court noted that an action of negligence required the plaintiffs to prove that there was a duty of care owed to them, a breach of the duty and damages suffered thereof. The court held that the first defendant owed the plaintiffs a duty of care not to subject their houses to a risk of damage. However, the court found that the plaintiffs failed to prove a breach of the duty, since there was no evidence that the construction was done without risk assessment and the plaintiffs had been compensated for the damages.
The issue of the second defendant’s liability was found to be redundant, since the action was already dismissed on the basis of the first and second issues.
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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