South Durban Community Environmental Alliance and Another v Minister of Forestry, Fisheries and the Environment and Others

The applicants, two non-profit environmental justice organizations (South Durban Community Environmental Alliance and the Trustees of the Groundwork Trust), sought to review and set aside an environmental authorization (EA) granted by the second respondent on 23 December 2019 to Eskom Holdings SOC Ltd (third respondent) for the construction of a mid-merit combined cycle gas power plant (CCGPP) in Richards Bay. They also challenged the first respondent (Minister's) refusal of their appeal on 13 October 2020. The CCGPP was designed to provide emergency electricity generation for short periods to address fluctuations in demand in the national grid, using natural gas anticipated to be sourced from Mozambique gas fields. The EA was granted subject to 57 conditions, including requirements for proof of gas availability and pipeline infrastructure before construction could commence. The applicants raised seven grounds of review relating to climate change impacts, renewable energy alternatives, cumulative impacts, water resources, wetland offsets, and public participation.

• Whether the environmental authorization should be set aside for failure to consider renewable energy alternatives to the gas power plant
• Whether the climate change impact assessment was adequate, particularly regarding upstream greenhouse gas emissions from gas extraction and transport
• Whether the environmental and social costs of emissions were properly assessed
• Whether cumulative environmental impacts were adequately considered
• Whether the water resources assessment was adequate
• Whether the wetland offset plan was appropriate and complied with public participation requirements
• Whether the public participation process complied with NEMA requirements, particularly regarding language accessibility for isiZulu-speaking communities
• Whether the decisions to grant the EA and dismiss the appeal were rational and procedurally fair under PAJA

1. The application for review of the granting of the EA and dismissal of the appeal is dismissed. 2. The respondents are ordered to: 2.1 Publish a copy of the EA and conditions in isiZulu in at least two newspapers circulating widely in Richards Bay; 2.2 Ensure all subsequent linked and ancillary EA applications for the CCGPP are published in isiZulu and translation facilities are provided at public meetings. 3. The respondents are ordered to pay the applicants' costs jointly and severally on a party-and-party scale, including costs for two counsel.

An applicant for an environmental authorization is entitled to apply for a specific type of facility without considering renewable alternatives where the facility serves a distinct function that alternatives cannot fulfill. Where a complex project requires multiple linked environmental authorizations, decision-makers may lawfully impose conditions requiring upstream and cumulative impacts to be assessed in subsequent linked applications, provided this approach is rational and maintains NEMA oversight. The assessment of climate change impacts must be adequate but need not be exhaustive at the initial authorization stage where conditions ensure comprehensive assessment through successive applications. Public participation under NEMA requires that notices and information be provided in the language(s) spoken by the majority of affected communities; providing information only in English where 79% of affected persons speak isiZulu as their primary language constitutes a procedural deficiency. However, where an environmental authorization is subject to multiple conditions requiring further linked applications before implementation, and deficiencies in public participation can be remedied in those subsequent processes, it may be just and equitable under PAJA section 8(1)(a)(ii) to order remedial measures rather than setting aside the authorization. Courts may award costs to unsuccessful review applicants where they have raised matters of significant public importance that advance environmental justice and participatory rights, even if the main relief is refused.

The Court made several non-binding observations: (1) Too hasty a transition to renewable energy may have catastrophic consequences, referencing power failures in South Australia (2016) and Texas (2021-2022); (2) Natural gas is intended to act as a 'bridge' fuel before renewable alternatives are fully implemented as South Africa phases out coal; (3) The Court expressed concern about the 'cavalier approach' of DEFF and Eskom to language accessibility in public participation, stating this was 'to be deprecated'; (4) The Court noted that participatory democracy is a foundational constitutional value and 'everyone should be encouraged and enabled to participate,' not just 'educated members of society who can read English, or the privileged few who have access to the internet'; (5) The Court observed that making information available only at libraries or on the internet has as a prerequisite 'a certain level of education and ability to access the internet,' which excludes many affected persons; (6) The Court commented that offering to provide documents in isiZulu 'had it been requested' offers no answer, as people who do not know about a process cannot participate in it; and (7) The Court noted that the deficit in public participation was 'an essential element central to the legitimacy of the entire application process,' suggesting that but for the successive linked applications still required, the deficiency might have warranted setting aside the authorization.

This case is significant in South African environmental law for several reasons: (1) It clarifies that applicants for environmental authorizations may apply for specific types of facilities without being required to consider renewable alternatives in every instance, provided the specific facility serves a distinct function; (2) It establishes that where complex projects require multiple linked environmental authorizations, upstream impacts may be assessed in subsequent applications rather than comprehensively at the initial stage, provided appropriate conditions are imposed; (3) It reinforces the critical importance of language accessibility in public participation processes under NEMA, particularly for marginalized communities whose first language is not English; (4) It demonstrates judicial willingness to craft remedial orders rather than setting aside decisions where defects can be cured in ongoing processes; (5) It shows courts may award costs to unsuccessful applicants where they have raised matters of significant public importance, particularly regarding constitutional rights to environmental participation; (6) It provides guidance on the assessment of climate change impacts in the context of transitional energy infrastructure; and (7) It emphasizes that public participation is not merely a procedural formality but a substantive constitutional right central to the legitimacy of environmental decision-making processes.