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 determined the threshold for public participation required for the coal-mining project. The court noted that there was no litmus test for determining when a court could conclude that there was adequate public participation. However, the court found that it is necessary to consider the bona fides of the public actor, the nature of the subject matter, the length and quality of the engagement and the number of mechanisms used to reach as many people as possible. On consideration of these factors, the court held that the government complied with the requirement for public participation in the project.
Secondly, the court noted that the non-involvement of the Kitui County Government in the Coal mining project was explained by the fact that the County Government was not in existence at the time of the award of the Concessioning Tender.
Thirdly, the court found the apprehension of deprivation of property to be speculative as the Government had indicated that it would compensate and resettle the affected parties.
Fourthly, the court held that the petitioners could not invoke the court’s jurisdiction to question either the procedural propriety or substantive merits of the procurement process since they did not follow the procurement procedures.
Fifthly, the court found it unnecessary to determine the issue on violation of the right to information, since the Government had supplied a copy of the Benefits Sharing Agreement to all the parties. Finally, the court held that the petitioners failed to prove environmental harm.
Accordingly, the petition was dismissed.
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.