The three applicants (African Climate Alliance, Vukani Environmental Justice Movement, and the Trustees for the Time Being of Groundwork Trust) challenged the South African Government's plan to procure an additional 1500 megawatts of new coal-fired power stations. The applicants are institutions and rights groups advancing the best interests of children. Three specific decisions were challenged: (a) the Integrated Resources Plan 2019 (IRP 2019) published on 18 October 2019 relating to the addition of 1500 megawatts of new coal-fired power to be added to the grid between 2023 and 2027; (b) the Minister's determination published on 25 September 2020 under section 34 of the Electricity Regulations Act, 4 of 2006 giving effect to the IRP decision; and (c) NERSA's concurrence with the Minister's determination made public on 10 September 2020. The applicants contended that these decisions would negatively impact the environment and health rights of current and future generations, particularly children, without adequate consideration of constitutional obligations. The first and second respondents opposed the application, contending that the decisions constituted policy-making powers, that no limitation of rights occurred, and that environmental considerations were factored into the IRP development. However, the Rule 53 record provided by the respondents contained no facts or evidence supporting adequate consideration of environmental and health impacts, particularly on children.
1. The Centre for Child Law and the Vaal Environmental Justice Group were joined as amici curiae; 2. Condonation granted for delay in bringing the review application and/or the 180-day PAJA time period extended; 3. The constitutional challenge to the decisions to include 1500 megawatts of new coal-fired power in the 2019 IRP was upheld; 4. The following decisions were declared inconsistent with the Constitution and unlawful and invalid to the extent they provided for 1500 megawatts of new coal-fired power: (a) the Minister's determination of 25 September 2020; (b) NERSA's concurrence of 10 September 2020; (c) the IRP 2019 published on 18 October 2019; 5. These decisions were reviewed and set aside to the extent they made provision for 1500 megawatts of new coal-fired power; 6. Costs awarded against the first and second respondents jointly and severally, including costs of two counsel where employed.
1. The Minister's decisions in developing and publishing the IRP constitute policy determinations by a Cabinet Minister and therefore do not constitute administrative action reviewable under PAJA, but are subject to review under the constitutional principle of legality (section 1(c) read with section 172 of the Constitution). 2. When exercising policy-making powers that may impact constitutional rights, the Minister must demonstrably consider the effect of such decisions on constitutional rights, particularly those of children under sections 24 and 28 of the Constitution. 3. The obligation to conduct public participation requires meaningful engagement, particularly where material changes are made to draft policies that differ from what was previously consulted upon. 4. Decision-makers bear the onus of demonstrating compliance with constitutional obligations through factual evidence and proper assessment, not through bald allegations. 5. Where decisions may limit constitutional rights, decision-makers must demonstrate that such limitations are reasonable and justifiable; failure to do so renders the decisions unconstitutional. 6. The rights of children under section 28(2) of the Constitution are of paramount interest and require specific consideration in government decision-making that may impact those rights. 7. NERSA's decision to concur with the Minister's determination, to the extent it flows from the Minister's obligations under the ERA, stands or falls with the Minister's decision; if reviewable as administrative action under PAJA, it must similarly comply with constitutional obligations.
The court observed that sections 9 (equality), 11 (life), and 27 (access to healthcare, food, water and social security) of the Constitution, while raised by the applicants, did not find application in the present instance as the rights contained in these sections relate to specific issues not relevant to this application. The court noted that section 10 (human dignity) may find application to a limited extent. The court noted the helpful participation of the two amici curiae (Centre for Child Law and Vaal Environmental Justice Alliance) in the proceedings. The court observed that the respondents were "at a loss and hard pressed to show that adequate and appropriate consideration was given" to sections 24 and 28 of the Constitution, making only "bald allegations" without evidentiary value. The court commented that the Rule 53 record was "ominously silent" on considerations of environmental and health impacts, particularly on children, indicating a "clear indication that the first and second respondents did not comply with their constitutional obligations." The court noted that public participation was limited due to COVID-19 restrictions at the time, but this did not excuse the failure to consult on material changes to the draft IRP.
This case represents a significant development in South African environmental and constitutional law, affirming that government energy policy decisions must comply with constitutional obligations to protect children's rights and environmental rights. The judgment demonstrates the courts' willingness to review executive policy decisions under the principle of legality where constitutional rights are at stake, even when PAJA does not apply. It reinforces that sections 24 (environmental rights) and 28 (children's rights) of the Constitution impose substantive obligations on government decision-makers, requiring demonstrable consideration of environmental and health impacts, particularly on children and future generations. The case establishes that energy policy cannot be made in a vacuum without proper assessment of constitutional implications. It also affirms the importance of meaningful public participation in policy development, particularly where material changes are made to draft policies. The judgment has significant implications for South Africa's energy transition and climate change mitigation efforts, potentially accelerating the shift away from coal-fired power generation. It demonstrates judicial recognition of the interconnection between environmental degradation, climate change, and the rights of current and future generations, particularly children.