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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The matter required the Supreme Court’s advisory opinion in line with art 163(6) of the constitution. The reference concerned land administration and management powers of the National Land Commission versus those of the Ministry of Land, Housing and Urban Development.
The main issue for determination was whether the Supreme Court had the jurisdiction to render an advisory opinion- on the powers and functions of the National Land Commission namely, those of the Ministry of Lands, Housing & Urban Development.
The court noted that it proceeded on a case by case basis in determining whether to exercise its advisory opinion jurisdiction. It was held that the instant reference met the admissibility requirement as set out in art 163(6) of the constitution but on condition that the court shall adopt a re-framed set of issues for consideration. However, the court found it premature to render the opinion at that moment and ordered the parties to undertake a constructive engagement towards reconciliation and a harmonious division of responsibility.
Judge Njoki SCJ dissented and held that the majority ruling was against the spirit of art 163 of the Constitution. Mainly because the questions posed were not subject of the court’s advisory opinion since they had no direct correlation with county government.
The court considered a petition whereby the petitioner sought an order of certiorari to quash a Gazette Notice declaring his land to be forest land. The petitioner had entered into a sale agreement with the original owner of the land by which the parties agreed to a down payment upon successful application to the land control board. The Petitioner took immediate possession and contracted to pay the balance of the purchase price after the maize season. The application was made and rejected due to the Ministry of Natural Resource’s interest in the land. Subsequently, the land control board met and the petitioner’s application was granted, however, the land was transferred to the government and marked a forest.
The petitioner argued that during the dispute, its members were harassed and evicted from their farms, with their houses being torched.
The court found that there was no doubt that the petitioner had entered into a sale agreement. Further, the control board acted in a manner to deny the petitioner the land. The court found that based on a letter received from the Commissioner of Land, there was a clear acknowledgment of foul play in the manner in which the government came to buy the land. Further, the government had deprived the petitioner of its right to land and subjected its members to poverty. In conclusion, the court held that the land was to be placed in the name of the petitioner as it was the rightful and lawful owner.
This was a petition sought on the grounds that the petitioner’s rights to the protection of property and to fair administrative action under the Constitution had been violated. The case concerned a contractual agreement involving the petitioner and the state over a leasehold property which expired before the conclusion of the contract. The petitioner had, prior to the expiry filed an application for renewal of the lease. The court considered whether the state had demonstrated its intention to renew the lease and whether a legitimate expectation was created.
Secondly, the court considered whether the failure by the commissioner of lands to exercise its statutory duty to renew was a violation of the petitioner’s rights.
The court observed that by entering a contractual relationship, the state had demonstrated its intention to renew the lease and created a legitimate expectation on which the petitioner had relied. Furthermore, the court held that in terms of the Land Act, the lessee had the right of first refusal, and was therefore entitled to the extension of the lease.
The court held however, that it would be inappropriate for it to grant a lease renewal of 99 years as prayed, since the renewal term was discretionary. The court further noted that the fact that people had already settled on the land would create challenges in the future. In conclusion, the court ordered the parties to enter further negotiations to resolve the matter within 90 days failing which the court would then pronounce the final reliefs.
The court considered an application by which the applicants sought an order declaring that their right to life had been contravened by forcible eviction and by settlement of other persons on their land. The applicants were members of the Ogiek community who had been living in East Mau Forest for decades, as food gatherers and hunters. Upon the introduction of colonial rule, the land was declared a forest, however, no land was set aside for the applicants.
The court set out the issues as follows: whether the members of the community had recognizable rights arising from their occupation of the forest; whether in the circumstances of the case, their rights had been infringed by their eviction and allocation of other persons; and whether the settlement was ultra vires.
The court found that the right to a livelihood did not have a definition and could be included in the right to life. Thus, their livelihood was directly dependent on forest resources to sustain their way of life. Further, the court held that the applicants were a minority group who had lost their access to land and their right to live in the forests which was key to their livelihood, thus their rights had been infringed.Finally, the court found that there were significant irregularities made during the allocation of land, thus the settlement scheme was ultra vires and the applicants were therefore entitled to the relief sought.
Accordingly, the application was upheld.
The appellants appealed against the decision of the High Court to dismiss an application for judicial review. The appellants sought orders of certiorari and prohibition against the County council to set apart a portion of land for the purposes of a boat landing base and the subsequent granting of a lease to the third respondents. The court had to consider several issues including: whether judicial review was the proper avenue for nullifying a title which was granted by law; whether a person other than the ministry in charge of forest could challenge an allocation of land; and what the correct status of the land in question was.
The court observed that the remedy of judicial review under Kenyan law was not wide enough to accommodate a party who was not just aggrieved by the process but sought to ventilate other issues. The court however concluded that there was no material dispute of fact, and the case could be decided on the papers. The court held that the Commissioner of lands had no power to grant more land than what the statute empowered him to do and that he had no power to set aside public land. On the locus standi of the appellants, the court held that the land which was allocated was a beach in front of the appellants’ pieces of land which tourists and local villagers used. There was therefore substantial interest by the appellants in the matter.
Accordingly, the appeal was allowed and the order of the High court dismissing the appellants’ notice of motion was set aside.
The applicants sought to interdict and restrain the respondent from continuing to refuse access to a parcel of land, based on the respondent refuting an existing and enforceable prospecting right which was held by the applicants.
The court considered whether a prospecting right becomes an enforceable limited real right upon registration in the Mining Titles Office and held, it was universally accepted that mineral rights were real rights. Thus, prospecting rights were limited real rights in respect of the mineral and the land to which such rights related.
The court held that a distinction is drawn between the date the right becomes effective and the date of registration. The right becomes effective from the date of approval and subsequently needs to be registered within 30 days of it becoming effective. Therefore, the prospecting right will become enforceable from the date it is effective. The court found that to interpret the Mineral and Petroleum Development Act to mean that a prospecting right becomes effective but remains unenforceable because it has not been registered, would be impractical.
The court found that the respondent’s refusal was primarily a point of protecting his right as a landowner and to the protecting against being arbitrarily deprived of one’s property. Irrespective of the fact that the applicants renewed their prospecting right, the right remained in force until such time as the renewal had been granted or refused. Thus, the applicants had a valid and existing prospecting right and were entitled to access the land to complete their operations.
This was an appeal from the High Court to the Supreme Court. The case concerned a ministerial notice stating that nuclear energy prospecting licenses regarding certain areas will not be provided. The appellant was allegedly an aspiring applicant. He thus felt aggrieved with the notice.
In the High Court, it was held that the appellant lacked legal capacity to challenge the notice as the notice did not create any triable issue. Aggrieved, the appellant appealed to the Supreme Court.
Thus, the main issue for determination was whether the respondent's notice exempting certain areas from being prospected for nuclear resources was unconstitutional. The appellant’s argument was that the denial of the prospecting license violated his constitutional right to work.
In response, the Supreme Court upheld the High Court decision, but it disagreed with the High Court that the respondent lacked the legal capacity. According to the Supreme Court, the appellant would have been successful if the minister had no statutory powers to issue the notice or if the process was procedural. However, the minister had such powers under section 122(1) of the Mineral (Prospecting and Mining) Act of 1992. Consequently, the Court held that it cannot order the minister to issue the license if the notice is still in existence. Also, the Supreme Court held that the constitutional provision on the right to work does not mean that people can conduct mining activities without being regulated given the environmental challenges.
Following this, the appellant's case was dismissed with costs.
The court considered an application for eviction. The plaintiff averred that the defendants were in unlawful occupation of the property and that there was no agreement, either oral or written, giving them permission to occupy the property. In addition, it was argued that they had no right or title in the property.
The defendants argued that the land in question was concession land and that the deed of transfer was not authentic. The court found that, based on the evidence led, the title deed in question had been prepared and registered by the Deeds Registry and was thus valid.
The court found that although the first defendant alleged that she was born and raised on the property at the time when the land was under a concession, she failed to produce any evidence to support this contention. Thus, without any proof, the court held that her point was moot and could not be accepted.
The court held that based on a balance of probabilities, the property in dispute was a privately held property, validly supported by an authentic title deed in favour of the plaintiff. Accordingly, the defendants could be evicted from the property in question.
This application set out the test for determining the validity of an eviction order.
The applicant opposed an eviction order made under the Farm Dwellers Act of 1983 on grounds that it was unlawful. The respondents disputed the court’s jurisdiction. However, the court held that it had the jurisdiction to hear the matter and noted that its jurisdiction was only ousted as a court of first instance
In granting the order to the applicant, the court cited Hoageys Handicraft (PTY) Ltd and Another/Rose Marshall Vilane where the requirements for a lawful eviction in Swaziland were set out.
First, there must be a judgment of a court with jurisdiction to grant an order for eviction. Secondly, there must be a valid, warrant directing the Sheriff to evict the respondent from the premises. Thirdly, there must be a valid appointment and authorisation of the deputy sheriff, for the express purpose of executing a warrant of ejectment or eviction. Lastly, the execution action must be conducted as authorised in the warrant of ejectment or eviction.
The court granted the application, with an order of costs.