/ 15 December 2022

Court orders Mantashe to release key planning records about new coal power

South Africa's Mineral Resources And Energy Minister Gwede Mantashe Looks On During A News Conference In Pretoria
The high court in Pretoria has ordered Minister of mineral resources and energy Gwede Mantashe to release key planning records for new coal power. (Siphiwe Sibeko/Reuters)

The high court in Pretoria has ordered Minister of mineral resources and energy Gwede Mantashe to release key planning records for new coal power, after he refused to make them available. 

Mantashe did not release them believing that they were based on an electricity plan that could not be changed and those wanting the documents had no right to them.

The records relate to the decision to include new coal power in the 2019 Integrated Resource Plan (National Electricity Plan) and to the 2020 ministerial determination for new coal, which was issued under the plan.   

The applicants in the matter are three civil society organisations: African Climate Alliance, Vukani Environmental Justice Movement in Action and groundWork.

Last year, they launched constitutional litigation in their youth-led #CancelCoal case against Mantashe, the National Energy Regulator of South Africa, Minister of forestry, fisheries and the environment Barbara Creecy and President Cyril Ramaphosa.

The litigation wants to set aside decisions that make provision for 1 500 megawatts of new coal power. This is on the grounds that it poses unjustifiable threats to constitutional rights and to a safe climate. The Centre for Environmental Rights (CER) is representing the applicants. 

Applicants not entitled to records

On 16 November, the court heard their application to compel Mantashe to release the documents after he refused to make these available, as is required to do under court rules. 

On the outstanding documents and the information that the applicants sought, Mantashe had argued, among other reasons, that the applicants were not entitled to those documents.

In his judgment delivered on 9 December, Reinard Michau, acting judge of the North Gauteng high court, noted that the argument put forward by Mantashe’s counsel – that because the 2019 IRP is not a decision capable of being reviewed, the documents are to be refused – was not a sustainable ground of opposition to the application.

“It might well be held by the court hearing the main application that the 2019 IRP is not a reviewable decision, but that is not for this court to decide,” he said. “A decision by this court that the 2019 IRP is not a reviewable decision and that the records are not to be provided on that basis would mean that it is a final decision on the reviewability of the 2019 IRP.” 

That could lead to an appeal and result in a part heard matter. “In any event, the documents sought by the applicants may well shed light on the reviewability of the IRP 2019.

Michau said the document, “may well also be relevant to those decisions which are sought to be set aside”.

Mantashe must release the documents

The court ordered that Mantashe release the documents by the close of business on 28 February 2023. This is a “complete record containing all documents and all electronic records, (including correspondence, contracts, memoranda, advice, recommendations, evaluations, internal deliberations and the like”, that relate to the decisions, which are subject to the main review application.

Should the minister fail to do so, the applicants can return to court to seek to strike out the government’s opposition to the main case. This means they will be entitled to proceed with the case against the minister, without his opposition. The court ordered, too, that the government must pay the applicants costs for the application. 

Michelle Sithole, an attorney at the CER, said: “As soon as we receive the records from the minister, we will be in a position to consider and determine what informed the minister’s decision to develop new coal power. The applicants will then have an opportunity to supplement their court papers in the constitutional challenge and review of the plans to develop new coal power.” 

This story will be updated if comment from the department of mineral resources and energy is received.