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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Drift Supersand (Pty) Limited v Mogale City Local Municipality and Another 
EL Index Locus standi in environmental litigation Litigation of environmental issues Environmental law Public interest in environment Environmental decision-making Environmental law Judicial Review Appeals and reviews Civil Procedure Procedural Fairness Justice and fairness Civil Procedure Sustainable development Concepts and principles Environmental law Public participation Human and environmental rights Environmental law
Tekwatekwa v Butao (Civil Appeal No. 50 of 2013) [2017] MWHC 75 (01 June 2017); Private prosecutions Criminal offences in environmental law Environmental law 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 EL IndexThis was an appeal to the High Court against the decision of a magistrate to dismiss the appellant’s claim which concerned a dispute over a customary piece of land. While the appellant stated that the part of the land in dispute was his, the respondent maintained otherwise.
The issue for determination was whether the land belonged to the respondent or the appellant. The court held that in civil cases, the evidence was on a balance of probability. As such, the respondent’s evidence that he was the one given the land by the chief carried more weight and was therefore convincing. The court further held that customary lands were owned communally, which meant that the chief did not own the land as his belonging. Therefore, the court stated that the chief did not have the power to deprive one person of land and give it to another. In conclusion, the court upheld the decision of the court below and accordingly dismissed the appeal.
Mbughi v Ghambi (Civil Appeal Cause No 34 of 2014) [2017] MWHC 143 (24 October 2017); Injunction Injuctions and interdicts Civil Remedies African customary law and rights of indigenous peoples Human and environmental rights Environmental law EL IndexThis was an appeal against the decision of a magistrate to order the appellant to vacate a disputed piece of customary land. The appellant applied for a stay of execution of judgment pending appeal.
The two issues for the court’s determination were, whether the appellant was duly allocated the piece of land according to customary law, and whether he had the right of usage and occupation. The court applied the burden and standard of proof based on a balance of probabilities, and ss 2, 25 and 26 of the Land Act which regarding title and ownership of customary land.
The court found out that the respondent had left the land unattended for a period of 13 years and, although this did not remove his right of usage and occupation, the status quo could not be maintained. The court observed that, the land was lying idle when it was allocated by the Group village Headman to the appellant who in turn redeveloped it by building a house, a grocery store and planted trees and fruits. The court held that the respondent sat on his rights and allowed the appellant to develop the land. The court also found that respondent’s conduct had been unreasonable during the time that the appellant developed the land.
In conclusion, the judge held that the appellant was duly allocated the piece of customary land according to law and that he then had permanent rights of usage and occupation. Accordingly, the appeal succeeded with costs.
Mkandawire & Anor. v Tropha Estate Limited & Anor. (Mediator's Report) (Civil Cause No. 142 of 2017) [2017] MWHC 819 (11 September 2017); Role of state in relation to environment Actors in environmental law Environmental law Private prosecutions Criminal offences in environmental law Environmental law Public interest in environment Environmental decision-making Environmental law African customary law and rights of indigenous peoples Human and environmental rights Environmental law Defective Goods Condition and treatment of property Property Law EL IndexThis was a mediation report regarding an action commenced by the plaintiffs against the installation of a water pump and other construction works on what was believed to be customary land. The plaintiffs sought to restrain the defendant from interfering with their customary rights on the land. They contended that the water pump installation plan violated their right to the use and enjoyment of their customary land. The matter was set for mediation.
The issue for resolution was whether the project interfered with the customary land held by the plaintiffs.
An agreement was reached by the parties to the effect that the project was located in an intersection of the road reserve which was public land pursuant to the Waterworks Act and that the defendants had obtained the requisite authority to install the water pump and related works. The proposed construction of the water pump was therefore not in violation of any customary rights for as long as it was restricted within the road reserve. Accordingly, the matter was resolved.
Kashela v Katima Mulilo Town Council and Others (I 1157/2012) [2017] NAHCMD 49 (01 March 2017); EL Index Constitutional Interpretation Constitutional Law African customary law and rights of indigenous peoples Human and environmental rights Environmental lawThe plaintiff’s claim was for judgment against the defendants for rental money received from the 3rd to 8th defendant from leasing part of plaintiff's land. The plaintiff also claimed compensation for loss of land as per art. 16(2) of the Namibian Constitution.
The applicant argued that she acquired a customary land right in respect of riparian land that was designated as communal land by a representative of the Mafwe Traditional Authority, after her father’s death in 2001.
The land became state land after it was declared a township in 1995 and was thus transferred to the Katima Mulilo Town Council.
The defendants argued that the local authority owned the land and the plaintiff had no right thereof. The court held that ownership of the land vested in the local authority as per the Local Authorities Act of 1992. The court applied s. 15(2) of the Communal Land Reform Act of 2002 as read with Section 3 of the Local Authorities Act of 1992 and held that the land ceased to be customary land when the town council became the owner in 1995.
The court noted as an obiter (by the way), that the claim for compensation should have been made against the state for taking possession of the community land not the Local Authority.
Accordingly, the claim was dismissed with costs.
Uazengisa and Another v Mukuambi and 4 Others (A 298/2015) NAHCMD 353 (06 December 2017); EL Index 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 Judicial Review Appeals and reviews Civil ProcedureIn this case, the applicants sought to enforce the decision of the Royal House of Chief Kambazembi (a traditional authority), that allocated communal land to them.
Following the continued occupation of the three square kilometres of the land by the first and second respondents, the applicants decided to enforce the decision by the traditional authority in the court.
The court analysing s. 24-26 of the Communal Land Reform Act, Act 5 of 2002 held that the traditional authority had the power to allocate customary land rights. However, upon the allocation of a customary land right, the applicant was required to notify the land board for registration of the land. The court observed that the applicant failed to do so and thus failed to establish a right that was capable of enforcement by the court.
Accordingly, the application was dismissed, and the applicants were directed to pay costs of the first and second respondents jointly and severally.
Malinga v Malinga (264/2012) [2017] SZHC 72 (18 April 2017); EL Index Private prosecutions Criminal offences in environmental law Environmental law Declaratory Relief Civil Remedies Permanent Employment Wages, pensions and benefits Labour and Employment Law African customary law and rights of indigenous peoples Human and environmental rights Environmental law Defective Goods Condition and treatment of property Property LawIn this High Court case, the applicant had an agreement with the respondent aimed at selling a herd of cattle to the applicant. Based on this agreement, the respondent proceeded to take the herd of cattle presented in the contract without paying for them. An attempt to charge the respondent for theft through the police did not work as the police hesitated to prosecute the respondent because they contended that they would have a weak case.
Then, the applicant decided to prosecute the case privately charging the respondent for spoliation. The applicant demanded that the court should declare that the herd of cattle that were taken by the respondent, in fact belonged to him.
Thus, the issue for determination by the court was to show cause why a declaration should not be made against the respondent to the effect that the herd of cattle be restored to the applicant.
On perusal of the given evidence, the High Court held that the respondent failed to show that the applicant allowed him to take the herd of cattle in dispute. Subsequently, the applicant was despoiled of the herd of cattle, that is, possession should be restored to the applicant. The respondent was also ordered to hand over to the applicant the progeny of the cattle forming the subject matter of the proceedings.
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