A significant judgment of the High Court of South Africa, Gauteng Division, Pretoria (“the Court”), delivered on 4 December 2024 by van der Westhuizen J, addresses the Constitutional validity of decisions related to adding 1500 megawatts (“MW”) of new coal-fired power to South Africa’s electricity grid.
The challenge was brought by three applicants: the African Climate Alliance, Vukani Environmental Justice Movement in Action, and the Trustees for the Time Being of Groundwork Trust, who sought to review and set aside three key government decisions.
The High Court ultimately decided the case on the grounds of Constitutional rights and the principle of legality, finding that the government failed to adequately consider the environmental and health impacts on children and future generations.
Key Takeaways:
- Constitutional Validity: The Court declared the decisions to include 1500 MW of new coal-fired power in the Integrated Resource Plan published on 18 October 2019 (“IRP 2019”) Constitutionally invalid.
- Rights of Children: The Court emphasized that the government failed to adequately consider the impact on children’s Constitutional rights under sections 24 and 28(2).
- Public Participation: The Court found that public consultation processes were inadequate, particularly regarding the material changes between the 2018 and IRP 2019 documents.
- Environmental Impact: The Court held that there was insufficient consideration of environmental and health impacts on current and future generations.
- Legal Framework: The Court clarified that while the IRP decisions made by a Minister (and by implication, Cabinet Minister) when making policy determinations in conjunction with a Regulator, weren’t subject to review in terms of the Promotion of Administrative Justice Act 3 of 2000, as they are not considered decisions made by “organs of state”, but that they were reviewable under Constitutional principles of legality.
The Court’s order reviewed and set aside three key decisions, with costs:
- The IRP 2019, published on 18 October 2019 as GN 1360/2019 in Government Gazette 42784, to the extent that it makes provision for 1500 MW of new coal-fired power;
- The determination published by the Minister of Mineral Resources and Energy on 25 September 2020 in GN 1015 in Government Gazette No 43734, which sought to give effect to the IRP 2019, to the extent that this includes provision for 1500 MW of new coal-fired power;
- 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 in respect of 1500 MW of new coal-fired power.
This ruling significantly impacts how energy policy decisions must be made in South Africa, emphasizing the need to balance energy security with Constitutional rights, particularly those of children and future generations.
This judgment, when viewed in conjunction with the withdrawal in August 2024 of the Ministerial Determination for the procurement of 2 500 MW of nuclear energy announced in December 2023, to “allow for public participation to happen” (noting this withdrawal occurred after court papers had been filed which criticised the lack of public participation), reinforces the principles of public participation and accountability of decision makers to follow the correct processes and procedures.
Importantly however, the respective setting aside and withdrawal of these determinations will, by implication, expand focus and interest into the renewable energy sector, in light of what so far seems to be successful Renewable Energy Independent Power Producers Procurement Program bid windows, and with the recent financial close being reached on the EDF Renewables Oasis plants.