Court says government’s plans for new coal-fired power stations are unconstitutional
In a landmark ruling, the High Court of South Africa has overturned the government’s plans to add 1,500 MW of new coal-fired power to the national grid, saying they are “unlawful and invalid.”
The case was brought by 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). The applicants argued that the government's decisions violated several sections of the constitution.
Judge van der Westhuizen ruled that the respondents could not provide any evidence to show that they considered the effect that coal-fired power will have on the environment and health of the nation, particularly that of children.
The first and second respondents are the Department of Mineral Resources and Energy (DMRE) and the National Energy Regulator of South Africa (Nersa).
Minister Gwede Mantashe and Nersa ordered to pay the applicants’ legal fees.
This case sets a precedent for future legal challenges against environmentally harmful projects and emphasises the need for transparent decision-making processes.
In a landmark ruling, the High Court of South Africa has overturned the government’s plans to add 1,500 MW of new coal-fired power to the national grid. 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.
Judge Cornelius van der Westhuizen, presiding over the case, found that government failed to present any evidence or facts demonstrating that they had considered the human rights impacts of new coal-fired power. The court specifically noted the state's failure to document its decision-making, as it is 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 1,500 MW new coal-fired power will have on the environment and 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,” the judgement reads.
The court declared the government's decisions, specifically that of Minister Gwede Mantashe and Nersa to be inconsistent with the constitution and “unlawful and invalid" to the extent that they provided for 1,500 megawatts of new coal-fired power in the Integrated Resource Plan of 2019.
The costs of the application, including the costs of two counsel, were ordered to be paid by the Minister of Mineral Resources and Energy and the National Energy Regulator of South Africa.
This judgment serves as a landmark legal victory for climate activists and reinforces the importance of considering environmental and health impacts in government decision-making. It underscores the constitutional right to a healthy environment and the government's duty to protect the well-being of its citizens, especially future generations. This case sets a precedent for future legal challenges against environmentally harmful projects and emphasises the need for transparent and participatory decision-making processes.
Quotes
Chulumanco Nkasela, Education Coordinator at ACA, said that the impact of fossil fuels, particularly coal, on the environment is now recognised as a threat. “This judgement means that the South African judicial system realises the importance of considering youth and future generations in every decision. Our government must recognise this and act accordingly. They must care not only about what they do and provide now, but also its impact on our future. We must find sustainable ways to power our homes, country and world.”
Masego Mokgwetsi, Cancel Coal Support Facilitator at ACA. “The rule of judgment has unleashed the power and strength that lies in the perseverance of collective action. The people on the ground and civil society at large will continue to combat the injustices of the environment without ceasing.”
Letago Kgomoeswana, member of the Cancel Coal Youth Task Force at ACA. “I’m incredibly proud to be part of this historic victory with the #CancelCoal campaign. This judgment is a testament to the tireless work of civil society and a powerful reminder that the youth are more than capable of leading the charge for a sustainable future.”
Sibusiso Mazomba, Cancel Coal Campaigner at ACA. “This High Court ruling is a significant legal victory for ensuring the inclusion of South Africa’s children and youth in decisions shaping our future. It is also a testament to the efforts of CER as well as the coalition of organisations (VEM, gW and ACA) who’ve been working hard on this case over the past three years. However, this marks only the first step in securing constitutional rights, particularly Section 24 and related rights, for children and youth who bear the greatest burden of coal's harmful health, social, and environmental impacts. True justice will only be achieved when these rights are fully upheld, ensuring the protection of our lives, environment, and futures. In the meantime, our fight to safeguard our future from environmental destruction while fostering social integrity and resilience continues, and this outcome serves as further inspiration to persist unrelentingly in that effort.”
The court set aside the following
The [electricity procurement] determination published by the Minister of Mineral Resources and Energy on 25 September 2020.
The concurrence published by the National Energy Regulator of South Africa on 10 September 2020.
1,500 MW of coal-fired power included in the Integrated Resource Plan 2019, published on 18 October 2019.
The court ordered that the decisions be reviewed and set aside, emphasising the need for the government to comply with its constitutional obligations when formulating energy policy.
Useful links
According to the Centre for Research on Energy and Clean Air, air pollution from coal-fired power stations kills more than 2,200 South Africans every year and causes thousands of cases of bronchitis and asthma in adults and children annually.
Contact Information
For media coverage, interviews, or press, please contact Stephan Lombard stephan.lombard@gsccnetwork.org +27 84 444 3593
Website: cancelcoal.org.za
