Africa Climate Alliance et. al v Minister of Mineral Resources and Energy et. al 2024 (#CancelCoal case)
Case name: Africa Climate Alliance et. al v Minister of Mineral Resources and Energy et. al 2024 (#CancelCoal case)
Jurisdiction: South Africa
Type of claim: Challenge against Minister’s plan to procure new coal-fired power stations
Summary of result: Declaration of unconstitutionality
Judgment final: No, appeal in process
Court instance:
| Court | Type of decision | Summary of decision |
| High Court of South Africa Judgment of 04 December 2024 |
Decision on constitutionality | Declaration of invalidity (claim was successful) |
Source of claims:
The Bill of Rights, the Promotion of Administrative Justice Act, [No. 3 of 2000] (PAJA) and constitutional principles of legality grounded in section 1(c) of the Constitution should PAJA not apply[1]
Summary of Judgement
1. Introduction
The application was brought forward by the African Climate Alliance (a youth-led organization), Vukani Environmental Justice Movement in Action, and Groundwork Trust, represented by the Centre for Environmental Rights. These groups filed proceedings in the High Court of South Africa to challenge the South African government’s plan to include an additional 1,500 MW of new coal-fired power in the Integrated Resource Plan (IRP) of 2019.[1] The applicants argued a violation of multiple rights set out by the Constitution of South Africa including the right to a healthy environment (section 24), the best interests of children (section 28), and the rights to life, dignity, and equality (sections 11, 10, 9).[2] Overall, they argued that coal-fire power was recognized as a major contributor to climate change and environmental degradation which posed severe risks to public health. Expressing specific concerns for children, the applicants emphasized the potential for increases in coal-fired power to create lasting impacts on future generations.[3]
They alleged that the main perpetrators of transgressing those rights are the following respondents (though others were also named): The Minister of Mineral Resources (later replaced by the President after a shuffling of ministerial responsibilities) and the National Energy Regulator of South Africa.[4]
Integrated Resource Plan (IRP)
The Integrated Resource Plan (IRP) is a document designed to explain how much new electricity generation South Africa needs to keep the power supply reliable and uninterrupted. It describes which energy sources, such as coal, renewable energy, or gas, will be used and how much percentage of electricity should come from each of these sources.[6]
The applicants put forward a constitutional challenge and review of three decisions concerning the IRP 2019:
- The addition of 1500 MW of new coal-fired power to the grid;
- The determination published by the Minister in 2020 exercising his powers under section 34 of the Electricity Regulations Act, 4 of 2006 (ERA) which attempted to give effect to the addition of coal-fired power expressed in the IRP; and
- The National Energy Regulator of South Africa’s (NERSA) decision to concur with the Minister’s determination described above.[7]
The applicants requested relief by a declaration of invalidity for the three decisions.[8] The main issue for the court to determine was whether the decisions above were reviewable by the judiciary and, if so, whether they were reviewable under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) or whether they were reviewable on the basis of the Constitutional principle of legality.[9] The respondents disagreed with the constitutional challenges of the decisions, contending that “no limitation of rights occurred” and that “none of the impugned decisions affected or have the potential to affect the rights to life and human dignity, health or food.”[10] In addition, they argued that environmental considerations were factored into and considered when the IRP 2019 was developed.[11]
For the reasons outlined below, the Court disagreed with a review under PAJA and instead, agreed with the applicants’ arguments for review under the Constitutional principle of legality.
2. Claims by the parties
The applicants’ challenges to the decisions relied on the Bill of Rights, signed into South Africa’s Constitution in 1996, the Promotion of Administrative Justice Act (PAJA), a document giving effect to the right to lawful administrative action enacted in 2000, and constitutional principles of legality.[12] The applicants argued that the Minister’s decisions involving the IRP 2019 constituted administrative action, and thus, the decisions were required to uphold constitutional rights.[13] The constitutional rights that were brought forward to support the assertion that additional amounts of coal-fired power would present even more risks to public health, especially children and future generations, included sections 9, 10, 11, 24 and 28.[14]
Applicable constitutional provisions
Section 9 of the Constitution reads as follows: “Everyone is equal before the law and has the right to equal protection and benefit of the law.”
Section 10 of the Constitution reads as follows: “Everyone has the inherent dignity and the rights to have their dignity respected and protected.”
Section 11 of the Constitution reads as follows: “Everyone has the right to life.”
Section 24 of the Constitution reads as follows: “Everyone has the right to an environment that is not harmful to their health or wellbeing; and to have the environment protected, for the benefit of present and future generations through reasonable legislation and other measures.”
Section 28 of the Constitution reads as follows: “Every child has the right to…(c) basic nutrition, shelter, basic health care services…[and] (2) A child’s best interests are of paramount importance in every matter concerning the child.”
The applicants presented expert evidence to demonstrate the harmful effects of coal emissions on health, livelihoods, and food security, as well as the feasibility and cost-effectiveness of cleaner, renewable energy alternatives.[15]
The applicants criticized the decision-making process for failing to:
- conduct specific impact assessments on children’s rights,
- consider cleaner coal technologies or renewable energy options, and
- ensure public participation, particularly from youth and vulnerable communities.[16]
3. High Court Judgment
The Court defined 3 issues. First, are the aforesaid decisions reviewable by the judiciary and, if so, whether in terms of PAJA or in terms of the principle of legality (the “reviewability” issue)? Second, were the decisions to include a new coal-fired power made in a manner that was inconsistent with the respondents’ constitutional and statutory obligations? Third, are the remedies sought appropriate?
Reviewability
The court explained that PAJA defines an administrative decision and does not include a decision made by a Cabinet Minister. Since it is the Minister’s responsibility to publish the IRP, the decision was not reviewable under PAJA.[17]
Constitutionality
When it comes to a Ministerial decision, the Court will review it under the Constitution and the Rule of Law (expressed under section 1(c) and read with section 172 of the Constitution).[18] More specifically, the Court must determine whether the conduct in question was legal or not, according to the rules laid out in the Constitution.[19]
Applicable constitutional provisions
Section 1(c) of the Constitution reads as follows: “The Republic of South Africa is one, sovereign, democratic state founded on the following values…(c) Supremacy of the constitution and the rule of law.”
Section 172 of the Constitution reads as follows: “When deciding a constitutional matter within its power, a court, (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency.”
To comply with its constitutional obligations, the Minister is expected to conduct public participation forums when developing a new IRP. The respondents submitted that the Minister’s actions were in full compliance and that consultations were held with representatives of the applicants when draft IRPs were in progress. They contended that public participations were carried out, though on a limited level due to the Covid-19 restrictions at the time.[20]
The applicants argued that the Minister did not comply with the constitutional obligation to conduct public participation forums when developing the new IRP. Although the Minister did hold consultations on an earlier draft, that draft did not include the controversial increase in coal-fired power. That increase was only added to the draft at a later point and was thus, not subject to the consultation.[21] The Court agreed with the applicants that the consultation was insufficient, and furthermore noted that the respondents’ records did not include any facts or assessment of the impact on the environment and health of the nation, in particular children.[22]
Further, the applicants contended that the impact upon the rights of children and future generations under s. 24 and section 28(2) of the Constitution was not considered nor adequately addressed. The respondents submitted no supportive evidence to suggest otherwise, giving the Court a clear indication that they did not comply with their constitutional obligations in that regard.[23]
Overall, the Court determined that the respondents clearly failed to comply with the obligations set out by the Constitution for the following reasons:[24]
- omitting assessment of the increase in coal-power’s impact on children’s health and well-being;
- failing to evaluate the feasibility of high-efficiency, low-emission coal technologies; and
- neglecting its obligation to ensure transparent and participatory decision-making processes.
Although the application was focused on the health rights of children, the judge underscored that “the general effect of the intended procurement equally impacted on the health rights of the nation as a whole.”[25]
Remedies
For the reasons discussed above, the Court invalidated the IRP 2019.
Conclusion
The Court ruled that the Minister’s plan to procure 1,500 MW of new coal-fired power was unconstitutional, unlawful, and invalid.
4. Appeal
The respondents have been granted leave to appeal this decision to the Supreme Court of Appeal. At this time, there is no update on whether an appeal has been initiated.
[1] Africa Climate Alliance et. al v. Minister of Mineral Resources and Energy et. al 2021 HCSA at para 6.
[2] Ibid at para 13.
[3] Ibid.
[4] Ibid at para 22.
[5] Ibid at para 3.
[6] Ibid at para 12.
[7] Ibid at para 5.
[8] Ibid at para 7.
[9] Ibid at para 8.
[10] Ibid at para 10.
[11] Ibid at para 11.
[12] South African Government, “Promotion of Administrative Justice Act 3 of 2000”, online: <https://www.gov.za/documents/promotion-administrative-justice-act>.
[13] Ibid at para 9.
[14] Ibid at para 13.
[15] Sabin Center for Climate Change Law, “Africa Climate Alliance et. al v Minister of Mineral Resources and Energy et. al 2024 (#CancelCoal case)”, online: <https://www.climatecasechart.com/document/africa-climate-alliance-et-al-v-minister-of-mineral-resources-energy-et-al-cancelcoal-case_a360>.
[16] Ibid.
[17] Ibid at para 17.
[18] Ibid at para 18.
[19] Ibid at para 19.
[20] Ibid at para 21.
[21] Ibid.
[22] Ibid.
[23] Ibid at para 23-25.
[24] Ibid at para 26.
[25] Ibid at para 2.