The South African government has been stopped in its tracks from procuring an additional 1 500MW of coal-fired power to the national grid.
The North Gauteng High Court in Pretoria on Wednesday reviewed and set aside the decision of the Minister of Minerals and Petroleum Resources, as well as the National Energy Regulator of South Africa (Nersa), to include an additional 1 500MW of coal-fired power in the 2019 Integrated Resource Plan (IRP2019).
Judge Cornelius van der Westhuizen upheld the constitutional challenge to the inclusion of these megawatts to the IRP2019, also declaring the Ministerial Determination, which in 2020 made provisions for the inclusion of 1 500MW as well as the concurrence by Nersa, to be inconsistent with the Constitution, unlawful and invalid.
The case was brought by three youth-based civil society organisations: the African Climate Alliance (ACA), the Vukani Environmental Justice Movement in Action (VEM), and the Groundwork Trust, represented by the Centre for Environmental Rights (CER).
It was launched after the government failed to respond to a letter of demand sent to Minister Gwede Mantashe on 17 September 2021 by CER on behalf of ACA, groundWork and VEM, which demanded that the government abandon its plans to build new coal-fired power.
The applicants argued that the government's decisions violated several sections of the Constitution.
They argued that the burning of coal was the biggest contributor to global climate change, in addition to unacceptable health impacts caused by air and water pollution.
They said the government’s plans to build 1 500MW of new coal-fired power were costly, unnecessary and an unjustified limitation of the Section 24 right to an environment not harmful to health and wellbeing, along with other rights, and should be abandoned.
South Africa is the 7th largest coal producer in the world and relies on coal for about 80% of its electricity.
The court found that the government failed to adequately consider the impact of coal on children's rights, particularly their right to a healthy environment.
Van der Westhuizen specifically noted the State's failure to document its decision-making, as it was legally obligated to do so.
“The Rule 53 record, as well as the first and second respondents’ evidence, is ominously silent on any considerations given to the effect that the additional 1 500MW new coal-fired power will have on the environment and health of the nation, in particular that of children,” the judgement reads.
“A clear indication that the first and second respondents did not comply with their constitutional obligations in that regard.”
The costs of the application, including the costs of two counsel, were ordered to be paid by the minister and Nersa.
Stella Hertantyo, spokesperson for ACA, said the judgment serves as a landmark legal victory for climate activists and reinforces the importance of considering environmental and health impacts in government decision-making
“This ruling that deems the government’s plans to develop new coal-fired power as unconstitutional due to the impact this could have on children’s rights is testament to this. It’s not only young people that will benefit from an end to new coal,” Hertantyo said.
“This is a victory for all South Africans as it writes into law the importance of considering environmental and health impacts in government decision-making.”
Zakhele Madela, a social and energy expert at South African Energy Forum (SAEF), said the courts were biased in favour of environmental organisations as they never make the same rulings when fossil fuel groups oppose technologies such as renewable energy.
“The judgment is not based on rationality. The judgment is not based on doing the right thing. The judgment is not based on what is right, what is wrong. The judgment is based on hearing the evidence advanced by the applicants in the absence of what was supposed to happen,” Madela said.
“So if the court was fair, it would have thrown out the whole IRP2019 outright. It would have said all these technologies have not been through a proper Section 34 Determination. So therefore, the court would have would have sent out a blanket ruling and a blanket statement on this.”
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