Environmental Case Law Index

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. 

The court considered an application for mandamus to compel the government, the first respondent, to disclose agreements relating to the purchase of power, among others. The first respondent and Ethiopia entered into negotiations to develop a power plant. The petitioners argued that by agreeing to purchase electricity from Ethiopia, the respondents were acting in a manner that would deprive members of the affected communities of their livelihood, lifestyle and cultural heritage. 

The court considered the following: whether it had jurisdiction to intervene and address the issues; whether the rights of the petitioners had been infringed; and what the respondents’ obligations were. The court held that the subject matter of the petition was an agreement between two sovereign states and the violations of rights were transboundary, thus giving the court jurisdiction to hear the matter.

It stated that the right to life, dignity, economic and social rights were indivisible and would have an adverse impact on the petitioners’ livelihood should the power plant be developed. However, without concrete evidence, the court could not find that their rights were violated. In terms of the access to environmental information, the court held that the State was obliged to encourage public participation, which was only possible if the public had all the information. The court found that the respondents ought to have conducted an environmental impact assessment to ensure that the project would not harm the public. Thus, their right to information was infringed. Accordingly, the court granted the order of a mandamus.

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 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.

Appeal dismissed.

The applicant was a holder of a mining right and was conducting open cast mining operations. Due to changes to the applicant’s mine, they submitted an application to have the EMP amended. The 1st respondent directed that the applicant was to submit a revised environmental liability report in order to cover the inherent risk related to the proposed project, thus they need to provide funding to cover a worst-case scenario.  

The crux of the issue concerned the powers conferred on the 1st respondent to approve EMP’s and amended EMP’s. The court found that the applicant’s amended EMP would, if implemented successfully, result in the partial backfilling and flooding as part of its mine closure process, thus creating a dam to supply water to the local community and resulting in a practical closure of the mine. 

The court found that the conditions imposed were unreasonable and irrational and that the 1st respondent failed to take cognizance of all relevant conditions. In addition, the decision to impose the conditions and require financial provisions as a worst-case scenario, was ultra vires (acting beyond one’s legal power or authority). 

The court found that the 1st respondent committed an error of law when making his decision which he was not entitled to make within the powers vested in him.
Review upheld and decision set aside. 

This case concerned parties who had competing interests (one being a luxury tourist lodge and the other one was a copper mine) over the same piece of land. They were undergoing litigation, which included a pending action before another court, in which the first and second respondent were seeking the eviction of the applicant from the property which they sold to the applicant in 2002. 

The court considered an application to review and set aside a decision to grant the second respondent an environmental clearance certificate, as well as an interdict restraining them from taking any further action from using the mining rights already granted.

The applicant had earlier stated that they would launch urgent proceedings once they become aware that first and second respondent intend commencing mining activities. However, subsequent communication showed that there were no imminent mining activities. On this basis, the court found that the matter was not inherently urgent, and the application was therefore struck from the roll.  

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. 

Application succeeded.