Summary of Judgment

1. Introduction

The proceedings concerned an appeal to the Supreme Court of Appeal of South Africa (SCA) against the dismissal of a judicial review application directed at an environmental decision taken within the national environmental management framework. The dispute arose from the granting of an environmental authorisation to Eskom for the construction and operation of a large-scale, combined cycle gas power plant in Richards Bay.

The appellants were South Durban Community Environmental Alliance (SDCEA) and the Groundwork Trust. The respondents included the Minister of Forestry, Fisheries and the Environment, the departmental decision-maker who had upheld the authorisation on internal appeal, as well as other parties associated with the authorisation process (including Eskom and the relevant departmental functionaries).

Procedurally, the matter progressed through multiple stages. In December 2019, a Chief Director in the Department of Forestry, Fisheries and the Environment granted the environmental authorisation. SDCEA and the Groundwork Trust pursued an internal appeal to the Minister, which was dismissed. They then instituted review proceedings in the High Court, Pretoria, seeking to have both the Minister’s decision and the authorisation set aside; that review application was also dismissed. The present proceedings were an appeal to the SCA against that outcome, culminating in the SCA upholding the appeal and granting substitutionary relief.

The general subject-matter of the dispute was the lawfulness of the environmental authorisation process and outcome, including whether legally required considerations (notably relating to climate change impacts, need and desirability, alternatives, cumulative impacts, and public participation) had been properly addressed under the governing environmental management principles and statutory framework.

2. Material Facts

Eskom proposed to construct a mid-merit, gas- and diesel-fuelled “gas-to-power” station at the Richards Bay Industrial Development Zone, with an installed generation capacity of 3000 MW. The plant was intended to run primarily on gas, with diesel used as a back-up fuel. The gas supply was contemplated to be delivered from a gas terminal at the Richards Bay Port via a new gas pipeline that had not yet been built; it was envisaged that Transnet would construct the pipeline. The proposed gas sources included Mozambique, with a further possibility mentioned of sourcing gas from the Karoo Basin.

The project’s related infrastructure was to be located within the Umhlathuze Local Municipality in the KwaZulu-Natal Province. In anticipation of the project, Eskom appointed Savannah Environmental (Pty) Ltd to conduct the required scoping and environmental impact assessment processes. A first report was published on 21 August 2017, and the final environmental impact report was published in August 2019. On 23 December 2019, the Chief Director approved the environmental authorisation for the project.

The court treated as material the fact that the public participation process connected to the environmental impact report used invitations that were all written in English, notwithstanding that 79% of Umhlathuze residents spoke isiZulu. This feature was central to the SCA’s evaluation of whether the consultation and participation requirements were met.

The appellants’ challenges included contentions that the authorisation was granted without sufficient assessment of climate change impacts, without proper consideration of the project’s need and desirability, without adequate consideration of alternatives, and without proper consideration of cumulative impacts. They also alleged that the public participation process did not satisfy the required standards.

The Minister, the Chief Director and Eskom disputed the appellants’ contentions. In particular, they advanced that renewable energy was not considered as an alternative because the plant’s function was said to be the provision of emergency power for short periods as and when required, which renewables were asserted not to be suitable for. They further contended that the decision formed part of government’s broader integrated energy approach in which gas would function as a “bridge” as coal is phased out, and that judicial interference would trench upon the separation of powers.

3. Legal Issues

The central legal questions the SCA was required to determine were whether the Minister’s dismissal of the internal appeal (and, by consequence, the continued validity of the environmental authorisation) was lawful in light of the statutory and constitutional requirements governing environmental decision-making, including the obligations imposed by the National Environmental Management Act 107 of 1998 (NEMA) and the constitutional environmental right in section 24 of the Constitution.

More specifically, the issues included whether the decision-making process was legally defective due to (a) an inadequate public participation process, and (b) a failure to heed and apply the NEMA principles requiring consideration of environmental impacts, including cumulative effects and need and desirability. The dispute therefore concerned a combination of law (the proper interpretation and application of NEMA and constitutional requirements), application of law to fact (whether the process undertaken met the legal standard), and evaluative judgment in relation to whether the deficiencies were material and warranted setting aside the decisions.

A further issue arose regarding remedy: whether, after setting aside the Minister’s decision, the SCA should remit the matter for reconsideration or whether exceptional circumstances justified substitution (the court replacing the administrative decision with its own outcome).

4. Court’s Reasoning

The SCA’s reasoning placed significant emphasis on the role of public participation in environmental governance. It linked effective public participation directly to the constitutional protection in section 24—the right to an environment that is not harmful to health and well-being. The court’s approach treated participation not as a procedural formality but as a pivotal mechanism through which affected persons can meaningfully influence environmental decision-making on projects that may affect them.

The court held that for consultation to be effective, it must be undertaken in good faith and through culturally appropriate measures and procedures. Applying that standard to the facts, the SCA concluded that the public participation process was inadequate because invitations to participate were provided only in English despite the demographic reality that a substantial majority of residents in the relevant municipality spoke isiZulu. This linguistic mismatch was treated as a substantive deficiency undermining the accessibility and inclusiveness of the participatory process.

In addition to the participation finding, the SCA reasoned that the Minister and Eskom did not heed the principles prescribed under NEMA for the management of activities that may significantly damage the environment. The court emphasised that organs of state are bound by NEMA, and that sectoral environmental laws and policies must be interpreted consistently with NEMA’s framework. It described NEMA as establishing a comprehensive environmental management framework that guides the implementation of environmental laws and policies, and it held that, when considering environmental authorisations, the Minister must satisfy herself that the statutory requirements are met.

A distinct aspect of the court’s reasoning was its rejection of the contention that the Minister’s decision should be insulated from review on the basis that it involved executive policy. The SCA held that, when making evaluations prescribed under NEMA, the Minister is not engaged in a “multifaceted policy formulation process”. Instead, the Minister is required to apply the NEMA framework and principles to the authorisation decision, including being compelled to consider environmental impacts, cumulative effects, and need and desirability. The court stated that this approach is required not only of the Minister but of all competent authorities and organs of state acting under NEMA.

Having found reviewable defects, the SCA proceeded beyond mere setting aside. It held that exceptional circumstances existed justifying substitution, and it accordingly replaced the Minister’s dismissal of the internal appeal with an order that upheld the internal appeal and set aside the authorisation. The summary provided indicates that the court both reviewed and set aside the Minister’s decision and then substituted its own decision to finally dispose of the matter.

5. Outcome and Relief

The SCA upheld the appeal against the dismissal of the review.

It set aside the Minister’s decision dismissing the internal appeal, and it further substituted that decision with its own. The substituted outcome was that the internal appeal was upheld and the environmental authorisation was set aside.

The provided text does not specify any separate or additional relief beyond substitution and the setting aside of the authorisation, and it does not record any explicit costs order in the summary provided.

Cases Cited

No other cases are mentioned in the provided text.

Legislation Cited

The Constitution of the Republic of South Africa, 1996, section 24.

National Environmental Management Act 107 of 1998.

Rules of Court Cited

No rules of court are mentioned in the provided text.

Held

The Supreme Court of Appeal held that the public participation process relating to the environmental impact report was inadequate because participation invitations were issued only in English despite the linguistic profile of the affected local community, undermining effective, culturally appropriate consultation required for meaningful participation in environmental decision-making.

The court further held that the Minister and Eskom did not heed the principles under the National Environmental Management Act 107 of 1998. It held that organs of state are bound by NEMA and that the Minister, when considering an environmental authorisation, must apply the NEMA framework and be compelled to consider environmental impacts, cumulative effects, and the need and desirability of the proposed activity. The court rejected the characterisation of the Minister’s task as a broad policy formulation exercise for purposes of insulating the decision from review.

The court held that exceptional circumstances justified substitution, and it substituted the Minister’s decision with one that upheld the internal appeal and set aside the environmental authorisation.

LEGAL PRINCIPLES

Public participation is a pivotal component of environmental governance and is closely connected to the constitutional right in section 24 to an environment not harmful to health and well-being. For public participation to be effective, consultation must be conducted in good faith and through culturally appropriate measures and procedures.

The National Environmental Management Act 107 of 1998 establishes a comprehensive environmental management framework that binds organs of state and guides the interpretation and implementation of sectoral environmental laws and policies. Competent authorities, including the Minister, must ensure that NEMA’s requirements are satisfied when determining applications for environmental authorisations.

In environmental authorisation decisions under NEMA, the decision-maker is compelled to consider environmental impacts, including cumulative impacts, as well as the need and desirability of the activity. In performing this function, the Minister is not engaged in a multifaceted policy formulation process but is required to apply the statutory framework to the authorisation decision.

Where reviewable defects are established and exceptional circumstances exist, a court may substitute its decision for that of the administrative decision-maker, including by upholding an internal appeal and setting aside an environmental authorisation.