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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This appeal arose from a rule nisi application that required the appellant to justify why an interdict should not be issued against him for the unlawful use of the respondent’s property.
The respondent instituted interdict proceedings when the appellant continued to use the disputed property after a default judgment that reinstated a previous judgment in his favor.
The court noted that interdict applications require proof of a clear right, an injury and the absence of any other satisfactory remedy.
The appellant submitted that the respondent had alternative remedies in contempt proceedings and a writ of execution. The court noted that the real issue was whether the alternative remedies would afford adequate protection from the continuing mischief. The court held that contempt proceedings are entirely unsatisfactory, where the injury has already started and is continuing. It was also held that a writ of execution was unsatisfactory for immovable property such as land.
The appellant claimed that service by postal service did not constitute proper service of summons as per rule 44 of Central and Local Courts (Practice and Procedure) Rules; and that this affected the validity of the default judgment. However, the court noted that the service was properly effected. It was also held that the validity of a default judgment was not affected by service of summons so, it was valid unless set aside lawfully.
Accordingly, the appeal was dismissed with costs.
This was an appeal against the decision of the High Court to dismiss an application by the appellant for a stay of execution of the judgment given by the trial court.
The trial judge gave judgment in favour of the respondent having found that the appellant was unable to prove ownership of the land. The trial judge declared that the appellants were customary tenants of the respondent and lacked authority to put tenants on the respondent’s property; the judge also ordered for payment of damages and issued an injunction. Thereafter, the appellant filed an appeal against this judgment and a motion in the High Court seeking a stay of execution of the judgment pending the time the determination of the appeal. This appeal and the appeal to the Court of appeal on the same issue was dismissed.
The court noted that a stay of execution was a discretionary order that should be exercised judicially, by taking into account the competing rights of the parties to justice. The court held that a stay application required proof of exceptional circumstances. It observed that a stay would only be granted if its refusal would deprive the appellant of the means of prosecuting the appeal. In dismissing the appeal, the court relied on the finding of the trial court that the land did not belong to the appellants and the fact that the appellant failed to prove exceptional circumstances. Accordingly, the appeal was dimissed.