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 an appeal against a judgment of the Gauteng Local Division where the appellants refusal to supply information to the respondent about their industrial activities with possible environmental impacts, was declared invalid and set aside.
Following two requests by the respondent, the appellant refused to give them any information based on a failure to meet the threshold requirements of s 50(1)(a), read with s 53 of the Promotion of Access to Information Act 2 of 2000. Further, that their reliance on s 24 of the Constitution was too broad and in conflict with the principle of subsidiarity. I.e. where legislation giving effect to constitutional rights exists, the provisions of the legislation is where the rights should be located.
The court found that the word ‘required’ in s 50(1)(a) of PAIA should be construed as ‘reasonably required’ in the prevailing circumstances for the exercise or protection of the rights by the requestor. Thus, insofar as the environment is concerned, collaborative governance was a virtue.
The court took into consideration the nature of the appellant’s operations and its consequences. The appellant had a reputation for being a major polluter in the areas in which it conducted operations.
The court found that the information was required to make a decision on future actions and could find no error in the court’s reasoning that led it to an order compelling the appellant to provide the requested information and that there is no room for secrecy.
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.
This case concerned the obligation of public authorities to prevent and remediate damage caused by natural disasters. The applicants argued that the respondents had constitutional and statutory duties to remediate the flooded area and to reasonably prevent future harm. They further contended that the respondents fell short of these duties. This was not contested by the respondents and, in fact, largely confirmed by an internal memo.
The High Court considered whether the application for a mandamus interdict ought to be enforced against the respondents following their alleged failure to remediate significant damage to the applicants as a result of flooding, which led to blocked culverts, exposed them to increased risk of future inundations, as well as increased levels of water pollution.
The court held that the applicants had a constitutional right to a safe environment and that the respondents had legal duties to remediate the flooded area and reasonably prevent future harm. Given that no post-disaster rehabilitative work had been conducted and no explanation for this failure had been provided, the court found that the respondents fell short of their duties. It further held that the constitutional rights of the applicant outweighed any inconvenience for the respondents to fulfill their duties.
Consequently, the court directed the first respondent to immediately remediate the flooded area and to clean the culverts to prevent future damage. The first responded was further ordered to provide the applicants with regular feedback concerning its implementation of the orders.
This case considered an application for an exception to the plaintiffs’ particulars of claim. The plaintiff’s claim was based on the alleged degradation of the environment caused by mining activities conducted over a number of years.
The court considered whether the provisions of s28 of the National Environmental Management Principles (NEMA) were retrospective.
The court applied the common law rebuttable presumption against retrospectivity. In the circumstances, the court considered the nature of the duty; enforcement of the duty; what the legislature intended; when the transactions were completed and other alleged indications of retrospectivity. The court found that the presumption against retrospectivity was not disturbed, and was not applicable in this instance because the legislature could not have intended such.
The court considered whether there was proper or substantial compliance with s 28(12) of NEMA. As with the first claim, the court applied the principle of retrospectivity. Accordingly, the court held that the exception to the first alternative claim that it lacks averments necessary to sustain a cause of action must also be upheld because it avers retrospectivity.
In terms of the second alternative claim, the court held that the exception should be dismissed.
Regarding the third and fourth alternative claims, which were based on regulations that no longer had the force of law, the court found them to lack averments necessary to sustain a cause of action. Accordingly, the court upheld the third and fourth exceptions which related to these claims.