Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Known as #CancelCoal, this court case is a constitutional challenge against the South African government’s plans to develop 1500 megawatts of new coal-fired electricity generation.

• The judgment of the High Court of South Africa, Gauteng Division, Pretoria can be found here.
• Neutral citation: African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others (56907/2021) [2024] ZAGPPHC 1271 
• Case number: 56907/2021
• Judgment: Judge van der Westhuizen
• Date delivered:  4 December 2024
• Amicus curiae: Centre for Child Law and Vaal Environmental Justice Alliance (VEJA)
• Relief sought: a declaration of invalidity of three decisions relating to coal-fired electricity, and additional relief.
• Outcome: The Applicants’ constitutional challenge to the decisions of the Minister and NERSA to include an additional 1500 megawatts new coal-fired power in the 2019 integrated resource plan was upheld. The decisions were declared unlawful and invalid and set aside. The Minister and NERSA were ordered to pay costs.

All pleadings in this litigation are available at:

https://cer.org.za/programmes/pollution-climate-change/litigation/cancel-coal-legal-challenge-of-governments-plan-for-new-coal-fired-power-capacity

Case summary

Judge van der Westerhuizen characterised the heart of the case as a challenge to “the South African  Government’s plan to procure an additional 1500 megawatts of new coal-fired power stations, thus impacting upon the rights of current and future generations” noting that “although the application was pointedly in respect of the health rights of children, the general effect of the intended procurement equally impacted on the health rights of the nation as a whole.”

Facts

In 2019, following a public participation process, the Minister of Mineral Resources and Energy published a document called the Integrated Resource Plan (IRP). This document set out how South Africa intends to generate sufficient electricity, and the various sources for generating this power including wind, solar, nuclear, gas and coal-generated electricity.  As required under law regulating energy in South Africa, the Minister in consultation with the National Energy Regulator of South Africa (NERSA), then published a determination under the IRP indicating that as part of the country’s energy mix, 1500 megawatts of power was to be generated through the burning of coal.

The Applicants, including a youth-led environmental and climate justice organisation, objected to the inclusion of new coal power.  They argued that it threatened the constitutional right to an environment not harmful to the health or well-being of present and future generations in South Africa, and also the rights to life, dignity, equality, as well as the best interests of the child. They asserted that the carbon dioxide emissions and pollution from coal-fired power pose unjustifiable harms and risks to human health, the environment, and the climate. They introduced expert evidence in the case demonstrating that South Africa did not need the additional coal power to meet the country’s electricity needs, and that it added significant costs and emissions to the country’s electricity system. The Applicants argued that South Africa’s electricity needs could be met by less harmful renewable energy alternatives, which are also cheaper than the proposed new coal-fired power.

In this litigation, the Applicants challenged three decisions:

1. the publication of the 2019 IRP relating to the addition of 1500 megawatts of new coal-fired power to be added to the grid between 2023 and 2027;
2. the Minister’s determination exercising his powers under section 34 of the Electricity Regulations Act, 4 of 2006 (ERA) which sought to give effect to the IRP;
3. NERSA’s decision to concur in the Minister’s determination.

These decisions were challenged on three different grounds:

1. The Bill of Rights;
2. The Promotion of Administrative Justice Act 3 of 2000 (PAJA);
3. Constitutional principles of legality in terms section 1(c) of the Constitution, should PAJA not apply.

Issue to be determined

The court was asked to determine whether the impugned decisions were reviewable and, if so, whether in terms of PAJA or in terms of the constitutional principle of legality.

Analysis

In response to the  Applicants’ challenge, the Minister argued that these decisions did not constitute administrative action and were policy decisions made under executive authority. The Minister argued that therefore the decisions were not reviewable under PAJA. In response to the constitutional challenge, the Minister argued that no breach or limitation of rights had occurred as a result of these decisions, and that they did not affect, or have the potential to affect, the rights to life and human dignity, health or food as advanced by the Applicants.

NERSA argued that the Department had considered environmental and health impacts during the public participation process conducted as part of the development of the IRP and that its concurrence with the Minister was to be seen within this context.

The court considered the Constitution, PAJA and the laws regulating electricity in South Africa. Van der Westhuizen J considered what constitutes policy under the ERA, how PAJA defines administrative actions which are subject to judicial review, and who has authority to make such decisions.

The court found that the Minister’s decisions did not constitute administrative action and were therefore not subject to review under PAJA. Van der Westerhuizen J held that “the IRP is not a decision by an organ of state and hence not subject to a review under PAJA.”

The court then considered the Applicants’ alternative ground for review, holding:

When giving effect to Ministerial conduct, the important issue to be determined is whether the impugned conduct was inconsistent with the Constitution and the Rule of Law. If it is so found, this court may determine whether the impugned conduct was in conflict with the principle of legality.

The judge considered the process leading up to the publication of the final IRP and the public participation process involved. He noted that a draft IRP had been published upon which public comment had been sought. However, the final IRP included 1500MW of additional coal power compared to the draft version, a material difference which received no public input. The court found that the Minister had not conducted any assessments on the environmental or health impacts of the additional coal-fired power.

The judge held:

The Rule 53 record, as well as [the Minister and NERSA’s] evidence, is ominously silent on any considerations given to the effect that the additional 1500 megawatt new coal-fired power will have on the environment and the health of the nation, in particular that of children.

A clear indication that the first and second respondents did not comply with their constitutional obligations in that regard. It follows that, in the absence of proof of the consideration of the effect of the decision to permit an additional 1500 megawatts of new coal-fired power to the grid on children, it stands to be reviewed on the principle of legality.

There has been no compliance with the [the Minister’s] obligations under the Constitution.

The court held that the Minister had failed to demonstrate that any limitations on rights were reasonable and justifiable. The judge found that the impugned decisions  “would impact negatively on the rights of children under section 24 and 28 of the Constitution” and that the Minister had failed to provide any cogent evidence disputing this.

Conclusion

The court granted the following order:

1. The Centre for Child Law and the Vaal Environmental Justice Group were joined to this application as amici curiae;
2. To the extent necessary, the Applicants’ delay in bringing the review application was condoned;
3. The constitutional challenge to the decisions of the Minister and NERSA to include in the 2019 IRP an additional 1500 megawatts new coal-fired power is upheld;
4. The following decisions are declared to be inconsistent with the Constitution of the Republic of South Africa, 1996, and unlawful and invalid: (a) The determination published by the Minister  on 25 September 2020 in GN 1015 in GG No 43734, to the extent that this includes provision for  1500 MW of new coal-fired power;  (b) The concurrence published by the National Energy Regulator of South Africa on or about 10 September 2020, to the extent that this supported the Minister’s determination; and (c) The Integrated Resource Plan 2019, published on 18 October 2019 as GN 1360/2019 in the GG 42784, to the extent that it makes provision for 1500 Megawatts of new coal-fired power.
5. The decisions are reviewed and set aside to the extent that they make provision for 1500 megawatts of new coal-fired power;
6. The costs of this application are to be paid, jointly and severally, by the Minister and NERSA, which include the costs of two counsel where so employed.