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

The Chief Director of Integrated Environmental Authorisations granted Eskom an environmental authorisation on 23 December 2019 to construct and operate a 3000MW combined cycle gas power plant in Richards Bay. The plant would be primarily gas-fuelled with diesel backup, with gas to be delivered via pipeline from Richards Bay Port. The appellants, South Durban Community Environmental Alliance and Groundwork Trust, appealed this authorisation to the Minister on 27 January 2020. The Minister dismissed the appeal on 13 October 2020. The appellants then sought judicial review in the High Court, challenging the authorisation on nine grounds including: inadequate assessment of climate change impacts, inadequate evaluation of need and desirability, failure to consider alternatives (particularly renewable energy), inadequate consideration of cumulative environmental impacts, and inadequate public participation. The High Court dismissed the review application, finding the Minister's decision reasonable despite acknowledging some shortcomings. The appellants appealed to the Supreme Court of Appeal with leave.

• Whether the Minister's decision to uphold the environmental authorisation is reviewable under PAJA s 6
• Whether the Minister was required to comply with NEMA when considering the environmental authorisation appeal
• Whether the public participation process complied with NEMA s 24(4)(a)(v), the EIA Regulations, and the Public Participation Guideline
• Whether the Minister adequately considered climate change impacts as required by NEMA s 24O(1)
• Whether the Minister properly assessed the need and desirability of the power plant
• Whether reasonable and feasible alternatives, including renewable energy sources, were adequately considered
• Whether the cumulative environmental impacts of the entire development (including gas extraction and transportation) were properly assessed
• What the appropriate remedy is where an environmental authorisation is granted in breach of NEMA requirements

The appeal was upheld with costs including two counsel. The High Court order was set aside. The Court substituted an order reviewing and setting aside the Minister's decision of 13 October 2020, and in its place upheld the appeal against the Chief Director's decision and set aside the environmental authorisation issued on 23 December 2019 (reference no 14/12/16/3/3/2/1123). The respondents were ordered to pay costs jointly and severally, including costs of two counsel. The authorisation was rendered a nullity, with Eskom at liberty to submit a fresh application once proper public participation and NEMA compliance requirements are met.

The binding legal principles established are: (1) Environmental authorisation decisions by Ministers under NEMA constitute administrative action reviewable under PAJA, as the statutory scheme of NEMA creates detailed mandatory obligations that frame ministerial discretion. (2) Section 24O(1) of NEMA creates peremptory obligations to consider all relevant factors when deciding environmental authorisation applications; the use of "must" in the opening words controls the interpretation, and "may include" in s 24O(1)(b) accommodates cases where listed factors are not relevant, not make consideration discretionary where factors are relevant. (3) Public participation under NEMA s 24(4)(a)(v) requires meaningful consultation with affected communities in appropriate languages and formats; consultation must comply with EIA Regulations and the Public Participation Guideline, which mandate use of local languages where these are predominantly spoken, and consultation with communities not just leaders. (4) When considering environmental authorisation applications for power generation, decision-makers must assess: climate change impacts including greenhouse gas emissions (s 24O(1)(b)); reasonable and feasible alternatives including renewable energy sources (s 24(4)(b)(i)); cumulative impacts of the entire development and associated activities (s 24(2)(a)); and need and desirability in light of all relevant circumstances including existing capacity allocations. (5) The Integrated Resource Plan provides policy context but does not override or satisfy project-specific environmental assessment requirements under NEMA. (6) Failure to conduct adequate public participation in environmental decision-making constitutes a reviewable procedural defect that vitiates an environmental authorisation. (7) Environmental authorisations cannot be lawfully granted in stages where this approach defeats the requirement for meaningful public participation in relation to the authorised activity.

The Court made several notable obiter observations: (1) On extraterritorial environmental impacts: The Court noted that whether activities requiring authorisation under NEMA necessitate consideration of environmental impacts occurring abroad (such as gas extraction in Mozambique) is "a matter of considerable complexity" and declined to determine the issue as it was unnecessary to the decision (para 59). The Court acknowledged there "may well be circumstances" where authorisation requires consideration of foreign-sourced inputs with environmental impacts in South Africa, but left this question open for future determination. (2) On the nature of public participation as a constitutional right: The Court endorsed the Constitutional Court's description in Doctors for Life of participation as an "open-textured programmatic right" that is flexible and subject to evolution based on national experience (para 29). (3) On sustainable development: The Court quoted extensively from Fuel Retailers Association to emphasize the interconnection between environmental protection and development, noting that "unlimited development is detrimental to the environment and the destruction of the environment is detrimental to development" and that these imperatives are "inexorably linked" (para 47). (4) On remedies: While the Court substituted the decision rather than remitting, it noted this was based on exceptional circumstances per Trencon. The Court indicated that ordinarily matters should be remitted to the administrator, but here remittal would be "senseless" as it would "meet the same fate" on the same facts (para 73). (5) On policy and law: The Court observed that South Africa has "had to struggle with how best to meet its responsibilities to its people and the international world and achieve its socio-economic and environmental goals" (para 47), acknowledging the complexity of balancing development and environmental imperatives.

This judgment is a landmark decision clarifying the application of NEMA to executive and administrative decision-making affecting the environment. It establishes that: (1) ministerial decisions on environmental authorisation appeals constitute reviewable administrative action under PAJA, not unreviewable policy decisions protected by separation of powers; (2) NEMA's principles in s 2 and requirements in ss 24 and 24O create mandatory obligations binding on all organs of state, including Ministers; (3) public participation in environmental matters is a constitutional imperative (flowing from s 24 of the Constitution) requiring meaningful consultation in appropriate languages and with affected communities, not just traditional leaders; (4) the Integrated Resource Plan does not override project-specific environmental impact assessment requirements under NEMA; (5) consideration of climate change impacts, renewable energy alternatives, and cumulative impacts are mandatory, not discretionary, considerations; (6) environmental authorisations cannot be granted in stages where this would defeat meaningful public participation; and (7) courts may substitute decisions in environmental review matters where remittal would be futile. The judgment reinforces South Africa's constitutional commitment to environmental protection and the right to participate in decisions affecting the environment, particularly for vulnerable and marginalized communities.