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

In December 2019, the Chief Director: Integrated Environmental Authorisations granted Eskom an environmental authorisation to construct and operate a 3000MW combined cycle gas power plant in Richards Bay. The appellants, two environmental non-governmental organisations, appealed the decision. The Minister dismissed the appeal in October 2020. The appellants then launched review proceedings in the Gauteng Division of the High Court, Pretoria, which were dismissed. The High Court found that the Minister had acted within her discretion and that certain defects in the environmental impact assessment process could be cured in future linked applications. The appellants appealed to the Supreme Court of Appeal with leave. The core complaints related to: (1) an inadequate public participation process, conducted only in English and Afrikaans despite 79% of the affected community speaking isiZulu; (2) the failure to adequately assess climate change impacts and consider renewable energy alternatives; (3) the failure to assess cumulative environmental impacts, including upstream gas extraction and transportation; and (4) the failure to properly assess the need and desirability of the plant, particularly in light of a government determination allocating 3000MW of new gas generation to independent power producers.

• Whether the Minister's dismissal of the appeal constituted reviewable administrative action under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and the National Environmental Management Act 107 of 1998 (NEMA)
• Whether the competent authority is obliged to mandatorily consider the factors listed in s 24O(1)(b) of NEMA when deciding an environmental authorisation application
• Whether the public participation process complied with the requirements of NEMA, the EIA Regulations and the Public Participation Guideline
• Whether the decision-maker was required to consider the climate change impacts and reasonable and feasible alternatives to the proposed gas plant, including renewable energy
• Whether the cumulative environmental impacts of the project and its associated infrastructure were required to be considered
• Whether the need and desirability of the project, including the allocation of generation capacity to independent power producers under a s 34 determination, was a relevant consideration
• Whether the court, on review, should remit the matter or substitute the Minister's decision under s 8(1) of PAJA

The appeal is upheld with costs including the costs of two counsel where employed. The order of the high court is set aside and replaced with an order that: (1) the decision of the Minister (first respondent) dated 13 October 2020 dismissing the applicants' appeal is reviewed and set aside and substituted with an order that the appeal against the Chief Director's decision to issue an environmental authorisation for the Richards Bay Combined Cycle Gas Power Plant (dated 23 December 2019, ref no 14/12/16/3/3/2/1123) is upheld and that decision is set aside; and (2) the respondents are ordered to pay the applicants' costs jointly and severally, one or more paying the other(s) to be absolved, including the costs of two counsel where employed.

The principles established in s 2 of NEMA apply to the interpretation and implementation of all environmental laws and policies, and to all exercises of public power that may significantly affect the environment. When considering an application for an environmental authorisation, the competent authority must comply with NEMA and take into account all relevant factors, including those listed in s 24O(1)(b); the use of the word 'may' accommodates only factors that are not applicable, but if a factor is relevant it must be considered. Public participation in environmental decision-making must be meaningful and effective, conducted in good faith through culturally appropriate measures and in languages understood by affected parties. The potential environmental impacts of a project, its cumulative impacts, reasonable and feasible alternatives (including renewable energy), and the project's need and desirability are relevant factors that must be considered. Where an administrative decision is so flawed that remittal would be futile, and the court is in as good a position as the administrator to make the decision, substitution of the decision is appropriate under s 8(1) of PAJA.

The court observed that whether an activity undertaken in South Africa requires consideration under NEMA of environmental impacts occurring abroad (such as upstream gas extraction and transportation in a foreign country) is a matter of considerable complexity that it did not need to determine in this appeal, particularly as the source of the gas had not been ascertained. The court also noted that, although it had articulated the relevant legal principles governing environmental authorisations and the obligations of decision-makers, it was unnecessary to grant the declarator sought by the appellants as those principles were already established in the judgment.

This judgment reaffirms that the principles in s 2 of NEMA are overarching and apply to all spheres of government and all environmental decision-making. It clarifies that the factors listed in s 24O(1)(b) of NEMA are mandatory when relevant, and that environmental authorisations cannot be granted solely on macro-energy policy grounds without rigorous, project-specific compliance with NEMA. The case establishes strong procedural requirements for public participation, including the use of accessible languages and culturally appropriate consultation with affected communities. It also confirms that climate change impacts, renewable energy alternatives, and cumulative effects are compulsory considerations in environmental impact assessments. Finally, it illustrates the exceptional circumstances in which a court may substitute, rather than remit, an administrative decision under PAJA.