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 plaintiff’s claim against the defendant in this case was that the defendant’s negligent and faulty roofing resulted in a flood that consequently damaged the plaintiff’s restaurant. The parties’ properties were located on a steep hill and shared a boundary. It was alleged that, on account of the defendant’s failure maintain a proper gutter, water was discharged from its roof onto the plaintiff’s property resulting in a flood. The defendant’s only defense was that there was no proof that the water that flowed towards the plaintiff’s restaurant came from the defendant’s restaurant.
The court held that since the onus of proof was on a balance of probability, the plaintiff’s case was clear. The evidence showed that a significant amount of water was discharged from the defendant’s roof due to its ill-fitted gutter towards the plaintiff’s house, which would have otherwise been channeled into a catch pit. The court reasoned that the presumption that the defendant’s poorly fixed gutter led to the flood was proved when soon after the defendant repaired its gutters the floods did not reoccur despite heavy rainfalls in following seasons. The court thus concluded that the defendant’s poorly fitted roofing contributed to the floods. Accordingly, the plaintiff’s claim succeeded.
This was an appeal against the decision of the Court of Appeal that declared that the respondents were the rightful owners of the land in dispute, issued damages for trespass by the appellant and an injunction preventing the appellant from entering the land and harvesting therefrom.
The facts revealed that the appellant's forefather granted the respondent's forefather a portion of land for farming purposes and reserved the right to reap the fruits of trees in the farm. In exchange, the respondent’s forefather was also required to pay Ishakole( land rent) as and when due.
The court determined the rights of the appellant as a customary tenant. The court noted that the appellant’s rights were subject to the respondent’s (landlord) right to reversion in case of any breach of the grant. However, it noted that a landlord is still required to approach the court to forfeit the interest of the tenant.
The court also determined the rights of the parties in a customary tenancy after the Land Use Act 1978 came into operation. The court found that act took away the freehold title vested in individuals or communities but not the customary right of use and control of the land. It was thus held that a customary tenant remained a tenant subject to the conditions attached to the customary tenancy. Further, the court held that the appellant was entitled to harvest fruits and trees and could not be liable for trespassing.
Accordingly, the appeal was allowed.