Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The judgment of the High Court of South Africa, Gauteng Division, Pretoria, is available here.

• Citation: South Durban Community Environmental Alliance and Trustees of groundWork Trust v Minister of Forestry, Fisheries and the Environment and Others (17554/2021) [2022] ZAGPPHC 741 (6 October 2022)
• Judge: Millar J
• Date of hearing: 2 August 2022
• Date of judgment: 6 October 2022
• Order: Application for review of environmental authorisation dismissed. State respondents ordered to publish copy of environmental authorisation in isiZulu and ensure future application notices are also published in isiZulu. State respondents ordered to pay the Applicants’ costs.

Summary:

The Applicants, two non-profit environmental justice organisations, sought to review the granting of an environmental authorisation (EA) to Eskom for the construction of combined cycle gas power plant (CCGPP) in Richards Bay. They also sought the review of a subsequent refusal of their appeal to the Minister against that decision. The applicants advanced the following seven grounds on which they argued the decision should be reviewed:

• Inadequate climate change impact assessment;
• Inadequate consideration of need and desirability;
• Failure to consider renewable alternatives;
• Failure to consider cumulative environmental impacts;
• Inadequate public participation;
• Inadequate water resources assessment; and
• Inappropriate wetland offset.

The court divided these grounds into three categories: failure to consider alternative renewable sources of power generation and the climate change impacts of gas, noncompliance with the provisions of NEMA and the regulations and shortcomings in the environmental impact report (EIR) and other reports submitted with the application, and inadequate public participation in the entirety of the process.

The court considered these grounds and dismissed those relating to the consideration of alternatives and compliance with the environmental impact assessment report. The court found only that Eskom had not complied with public participation requirements relating to the publication of notices in isiZulu (the most commonly spoken language in the area).

The court did not set aside the environmental authorisation. Instead it directed Eskom to publish the EA in isiZulu and to ensure that future application notices are also published in isiZulu. Despite dismissing the majority of the Applicants’ grounds of review,  the court ordered the state Respondents to pay the Applicants’ costs.

Update: The South Durban Community Environmental Alliance and the Trustees of the groundWork Trust appealed the judgment of Millar J. On 18 January 2023, Judge Millar dismissed the application for leave to appeal holding that another court would not come to a different conclusion.