Summary

African Climate Alliance
Vukani Environmental Justice Movement In Action
The Trustees for the Time Being of Groundwork Trust
v
The Minister of Mineral Resources and Energy
The National Energy Regulator of South Africa
Minister of Forestry, Fisheries and Environment
The President of the Republic of South Africa
The Minister of Electricity.

An application in respect of a contentious issue relating, inter alia, to harm to the environment and the resulting health issues, was launched by the three applicants in this matter. At heart was the South African Government's plan to procure an additional 1500 megawatts of new coal-fired power stations, thus impacting upon the rights of current and future generations. Although the application was pointedly in respect of the health rights of children, the general effect of the intended procurement equally impacted on the health rights of the nation as a whole.

The applicants are institutions or rights group that advance the best interests of children, and who take up the cudgels for the youth on various issues that impact, or may impact negatively, on the constitutional rights of children.

The alleged main perpetrators of transgressing those rights are the respondents, in particular the first and second respondents: The Minister of Mineral Resources; and the National Energy Regulator of South Africa. After the launch of the application, the first respondent was replaced by the President, subsequent to the National Elections taking place earlier this year, when a new ministry was tasked with dealing with the issue of electricity in the stead of the first respondent, namely, the fifth respondent, the Minister of Electricity. The first and second respondents opposed the application. A notice to abide was filed by the fourth respondent. At the hearing of the matter, the fifth respondent gave notice of his intention to abide the decision of the court and did not further participate in the proceedings.

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I grant the following order:

1. The Centre for Child Law and the Vaal Environmental Justice Group are joined to this application as amici curiae;

2. To the extent necessary, the applicants' delay in bringing the review application in terms of the Promotion of Administrative Justice Act, 3 of 2000, alternatively the constitutional principle of legality, is condoned and/or the 180-day time period under PAJA is extended so as to terminate one day after the institution of this application;

3. The constitutional challenge to the decisions of the first and second respondents to include in the 2019 IRP an additional 1500 megawatts new coal-fired power is upheld;

4. The following decisions are declared to be inconsistent with the Constitution of the Republic of South Africa, 1996, and unlawful and invalid:

(a) The determination published by the Minister of Mineral Resources and Energy on 25 September 2020 in GN 1015 in Government Gazette No 43734, to the extent that this includes provision for 1500 megawatts of new coal-fired power;

(b) The concurrence published by the National Energy Regulator of South Africa on or about 10 September 2020, to the extent that this supported the Minister's determination in respect of 1500 Megawatts of new coal-fired power;

(c) The Integrated Resource Plan 2019, published on 18 October 2019 as GN 1360/2019 in the Government Gazette 42784, to the extent that it makes provision for 1500 Megawatts of new coal-fired power.

5. The decisions referred to in 2 above are reviewed and set aside to the extent that they make provision for 1500 megawatts of new coal-fired power;

6. The costs of this application are to be paid, jointly and severally, by the first and second respondents, such costs to include the costs of two counsel where so employed.

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