The Pretoria high court has overturned the government’s plans to add 1 500 megawatts of new coal-fired power to the national grid.
(Guillem Sartorio/AFP)
The Pretoria high court has overturned the government’s plans to add 1 500 megawatts of new coal-fired power to the national grid.
In its landmark ruling delivered on Wednesday, the court found that the government had failed to adequately consider the impact of coal on children’s rights, particularly their right to a healthy environment.
Judge Cornelius van der Westhuizen, who presided over the case, declared the government’s 2020 decision to procure the new coal-fired power unlawful and invalid.
This was on the basis that there was insufficient consideration of the harms and the limitation of rights of present and future generations that could follow from building new coal-fired electricity generation.
The Cancel Coal case was brought by the African Climate Alliance, the Vukani Environmental Justice Movement in Action, groundWork and Friends of the Earth SA, who were represented by the Centre for Environmental Rights, against the former minister of mineral resources and energy and the National Energy Regulator of South Africa (Nersa).
Brandon Abdinor, the acting programme head for pollution and climate change at the Centre for Environmental Rights, said the judgment was important.
“It sends a clear directive that the harms from burning coal for power must be adequately and transparently considered in the case where environmental and health impacts could limit constitutional rights,” he said, adding that the principle could be applied to similar harms from other sources.
“It also recognises that climate harms are particularly important to consider in the case of youth and future generations, as they will be bearing the brunt of climate change impacts.”
The future of coal, he emphasised, “is looking ever bleaker and the protection of rights ever more promising”.
The court held that the portion of the 2019 Integrated Resource Plan (IRP), which provides for this new coal generation is unlawful and invalid. This is because this section of the IRP does not pass the test of legality as there was evidence that the minister adequately considered the limitation of the rights of children because of the health and environmental harms of coal combustion for electricity.
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 500MW new coal-fired power will have on the environment and health of the nation, in particular that of children,” the judgment said.
“A clear indication that the first and second respondents did not comply with their constitutional obligations in that regard. It follows that in the absence of proof of the consideration of the effect of the decision to permit an additional 1500MW of new coal-fired power to the grid on children, it stands to be reviewed in the principle of legality.
“There has been no compliance with the first respondent’s [the minister’s] obligations under the Constitution.”
In his judgment, Van der Westhuizen emphasised that it was clear that the “said impugned decisions would impact negatively on the rights of children under section 24 and 28 of the Constitution in the absence of cogent facts to the contrary”.
“In that regard, the first [minister] and second respondents [Nersa] who bore the onus, did not discharge the obligation to show that, in the event that there would be limitations of the said rights, that such limitations were reasonable and justifiable.”
The court also ruled that the concurrence published by Nersa in September 2020, to the extent that this supported the minister’s determination in respect of 1 500MW of new coal fired power, was unlawful and invalid.
The ruling is a significant legal victory for “ensuring the inclusion of South Africa’s children and youth in decisions shaping our future”, said Sibusiso Mazomba of the African Climate Alliance.
It was also a testament to the efforts of the Centre for Environmental Rights, as well as the coalition of organisations who had worked hard on the 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 youths who bear the greatest burden of coal’s harmful health, social and environmental impacts,” Mazomba said.
“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.”
South Africa has the opportunity to move away from its reliance on polluting fossil fuels and to protect constitutional rights, said Thomas Mnguni, a groundWork coal campaigner from Middelburg.
The minister and Nersa were ordered to pay the costs of the application, including the costs of two counsel.