Africa Climate Alliance et. al., v. Minister of Mineral Resources & Energy et. al., Case No. 56907/2021 (4 December 2024) (#CancelCoal case)

Children’s rights groups and institutions brought an application against the South African government’s plan to procure an additional 1500 megawatts of new coal-fired power stations. The Gauteng Division of the High Court of South Africa, Pretoria reviewed the application, which was brought by African Climate Alliance, Vukani Environmental Justice Movement in Action, and Trustees of Groundwork Trust, against the respondents Minister of Mineral Resources and Energy, National Energy Regulator of South Africa, Minister of Forestry, Fisheries and the Environment, President of the Republic of South Africa, and the Minister of Electricity.

The application was a constitutional challenge of three decisions: the Integrated Resources Plan (IRP) of 2019, the Minister of Mineral Resources’s determination on exercising his powers under the Electricity Regulations Act, and the decision by the National Energy Regulator to concur on the Minister’s determination. Id. at para. 5.

The Court explained that the IRP “is in essence a document designed to determine a new generation capacity that is required to ensure the continued uninterrupted supply of electricity, and to determine the types of energy sources from which electricity must be generated and the percentages thereof to be generated from such sources.” Id. at para. 12. 

The applicants based their challenges on the Bill of Rights, the Promotion of Administrative Justice Act, and the Constitution. Id. at para. 6. The main concern for petitioners was plans to construct new coal-fired power plants. They argued that the IRP, which included the addition of this new coal-fired power, did not consider the effect of this action on the rights of children under the Constitution. Id. at para. 13.

The Court examined the respondents’ arguments, including the National Energy Regulator’s contention that “environmental considerations were factored into and considered when the IRP was developed.” Id. at para. 11. The Court acknowledged that “no facts or any evidence supporting that contention was collated in the . . . record.” Id.

The applicants submitted, and the respondents conceded, that public participation forums were required as part of the IRP drafting process. Id. at para. 21. The respondents did conduct some public participation forums, but the Court found that “the published 2019 IRP diverted in a material manner from the 2018 document.” Id. In particular, the published IRP differed from previous versions by the addition of 1500 megawatts of new coal-fired power, necessitating the creation of more new coal-fired power stations than previously stated. Id. The Court found:

That decision did not form part of the draft IRP that was advertised, and accordingly no public input thereto could have been obtained. Again, no facts or assessment in respect of the impact upon the environment and the health of the nation, and in particular that of children were contained in the record supplied by the first and second respondents.

Id.

The Court further noted that the respondents had not shown that adequate and appropriate consideration was given to the constitutional rights of children in the IRP or in the evidence provided by the respondents:

The . . .  record, as well as the first and second respondents’ evidence, is ominously silent on any considerations gAiven to the effect that the additional 1500 megawatt 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.

Id. at para. 24-25.

Due to the absence of proof that the respondents had considered the effect of the decision on children, the Court moved on to consider the legality of the decision. Id. at para. 26.

The respondents argued that the Constitution allows for a limitation of rights, and that adding megawatts of coal-fired power, which enables stability and integrity of the grid, warrants such a limitation of rights. Id. at para. 27. The Court determined that the respondents did not show “in the event that there would be limitations of said rights, that such limitations were reasonable and justifiable.” Id. The Court also noted that the decision by the National Energy Regulator to concur with the Minister of Mineral Resources and Energy “did not comply with [the National Energy Regulator’s] obligations under the Constitution in respect of the rights of children to the extent that the pled compliance with public consultations were inadequate under the particular circumstances.” Id. at para. 28.

The Court concluded that both the first and second respondents’ decisions were to be set aside, and that the National Energy Regulator’s decision to concur with the Minister of Mineral Resources and Energy could not be upheld. Id. at para. 29-30. 

The Court upheld the constitutional challenge to the inclusion of new coal-fired power in the 2019 IRP, and declared that all decisions made by the respondents with respect to the 1500 megawatts of new coal-fired power were inconsistent with the Constitution, as well as unlawful and invalid. Id. at para. 3-4 of the order. The Court ordered the respondents to pay the costs of the application.

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