Young campaigners landmark victory for children’s rights as new coal-fired power generation deemed unconstitutional in South Africa
African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others (56907/2021) [2024] ZAGPPHC 1271 (4 December 2024)
Summary
In African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others (56907/2021) [2024] ZAGPPHC 1271 (4 December 2024) (Cancel Coal case), the High Court of South Africa ruled that the government’s plans to add 1,500 megawatts of new coal-fired power stations were “unlawful and invalid”.
In a youth-driven petition brought by three civil society organisations, the Court found that the plans failed to adequately consider the impacts of coal-fired power on children’s rights, particularly their constitutional right to a healthy environment.
Facts
In 2021, African Climate Alliance, Vukani Environmental Justice Movement and The Trustees for the time being of GroundWork Trust (applicants), represented by the Centre for Environmental Rights, instituted a constitutional challenge in the High Court of South Africa against the former Minister of Mineral Resources and Energy (Minister), the National Energy Regulator of South Africa (NERSA), the Minister of Forestry, Fisheries and the Environment, the President of the Republic of South Africa and the Minister of Electricity. The Centre for Child Law and Vaal Environmental Justice Alliance were granted leave to join as amici curiae.
The applicants contended that the following government decisions were invalid, in so far as they allowed for the procurement of 1500 megawatts of new coal-fired power stations:
the publication of the Integrated Resources Plan 2019 (2019 IRP) by the Minister on 18 October 2019, relating to the addition of new coal-fired power to be added to the grid between 2023 and 2027;
the Minister’s determination of 25 September 2020 (Minister’s determination) exercising his powers under section 34 of Electricity Regulations Act 2006 (ERA) which sought to give effect to the 2019 IRP; and
NERSA’s decision to concur in the Minister’s decision, made public on 10 September 2020 (NERSA’s concurrence).
The applicants brought a constitutional challenge to the decisions alleging they unjustifiably limited human rights provided for in Chapter 2 of the Bill of Rights. Additionally, the applicants sought a review of the decisions based on the Promotion of Administrative Justice Act, 3 of 2000 (PAJA) and/or the principle of legality under section 1(c) of the Constitution.
Judge Van der Westhuizen was to determine firstly, whether the decisions were reviewable and, if so, whether in terms of the PAJA or in terms of the principle of legality.
Reviewability
The applicants asserted that the decisions failed to consider rights enshrined in the Bill of Rights including:
section 28(2), prioritising the best interests of the child in all matters affecting them; and
section 24, ensuring the right to an environment that does not harm children’s health or well-being and requires preservation for present and future generations through reasonable measures.
The applicants also contended that the provisions of section 7(2) of the Bill of Rights obliged the government to take positive, reasonable and effective measures to protect the rights. They argued that the Minister and NERSA’s failures were evidenced by inadequate public consultation and the inadequacy of records and evidence provided.
The Minister and NERSA claimed that public participation occurred to the extent permitted by COVID-19 restrictions. However, the applicants argued that the public consultation did not meet the requisite standard because the 2019 IRP departed materially from a previous 2018 draft. Relevantly, the 2019 IRP referenced an increased coal-fire requirement of an additional 1500 megawatts, requiring more coal power stations than previously proposed. Furthermore, the applicants stated that the records and evidence provided by the Minister and NERSA lacked particulars and did not reflect consideration of the harmful effects that the proposed coal-fired power stations would have on the environment and health of the nation, especially children.
PAJA or principle of legality
The applicants alleged that the decisions constituted ‘administrative actions’ which could be challenged under PAJA. The Minister denied that his powers to compile and publish the IRP were administrative actions under the ERA and stated they were policy making powers.
With respect to the principle of legality, there is a duty under section 36 of the Constitution to show that in cases where there would be a limitation of rights, those limitations are reasonable and justifiable. The Minister and NERSA argued that there was no limitation of rights from the decisions, nor evidence that the decisions affected, or could affect, the rights of children. Regardless, the need for energy grid stability allowed for a justifiable limitation of rights under the Constitution. The applicants countered that there was no reasonable or justifiable basis for the limitation of rights caused by the government’s plans for new coal. As such, the decisions were constitutionally invalid and should be set aside.
Decision
The Court declared the decisions were inconsistent with the Constitution and “unlawful and invalid”. Consistent with the principle of legality, the decisions were to be reviewed and set aside to the extent they made provisions for 1500 megawatts of new coal-fired power.
In summary, Judge van der Westhuizen:
found it was clear that the decisions would have a negative impact on the rights of children under sections 24 and 28 of the Constitution;
found that no public consultation on that aspect could have been obtained in respect of the 2019 IRP. When assessing compliance with public consultation requirements, the Court noted a “mere lip service was paid”;
noted that the Minister and NERSA’s evidence was “ominously silent” on any consideration given to the impact the new coal-fired power stations would have on the environment and health of the nation, especially children;
noted that records submitted to the Court did not show adequate or any deliberations regarding the effects on the rights of children, indicating a failure to comply with constitutional obligations;
criticised the government for failing to document its decision-making, as required by law;
found both the Minister and NERSA failed to discharge the obligation to prove, in the event there would be a limitation of rights, that such limitations were reasonable and justifiable; and
found that the decisions were not reviewable under the PAJA as the 2019 IRP encompassed a policy determination in respect of the supply of electricity and was not made by an organ of state.
Commentary
The Cancel Coal case sets an important precedent for future legal challenges against environmentally damaging projects, reinforcing the need for transparency and public participation in decision-making processes. As South Africa’s first youth-led climate litigation, the case highlights the pivotal role of young activists in holding governments accountable and advancing environmental protection.
This case note was prepared by Chris Owen, Mary-Frances Murphy and Sophie Sanderson at Norton Rose Fulbright.