‘Cancel Coal’ case victory as high court rules Mantashe’s plans for new coal are unconstitutional

Climate activists and affected Mpumalanga communities demonstrate outside the Pretoria High Court in support of the legal challenge against the South African government’s plans to develop 1500 megawatts of new coal-fired electricity generation, heard for the first in court on October 9, 2024. (Photo: Julia Evans)

By Julia Evans

5 Dec 2024

In a landmark ruling that saw young environmental activists triumph, the high court has overturned the government’s plans to add 1,500MW of new coal-fired power to the national grid, saying they are ‘unlawful and invalid’.

On Wednesday, 4 December, the High Court of South Africa (Gauteng Division) handed down a landmark judgment, declaring the government’s plan to add 1,500 megawatts (MW) of coal-fired power to the national grid to be inconsistent with the Constitution, as well as “unlawful and invalid”.

Judge Cornelius van der Westhuizen found that Minister of Mineral Resources Gwede Mantashe and the National Energy Regulator of South Africa (Nersa) – failed to adequately consider the impact of new coal power on constitutional rights, particularly those of children, when planning for new coal.

The new coal was determined by Mantashe (then the mineral resources minister and now minister of mineral and petroleum resources) in the last finalised Integrated Resource Plan (IRP 2019) and was concurred with by Nersa in 2020.

The case, known as the “Cancel Coal” case, is South Africa’s first youth-led climate change litigation, brought by environmental and climate justice groups, the African Climate Alliance, Vukani Environmental Justice Movement and groundWork, and represented by the Centre for Environmental Rights (CER).

The case was launched in 2021, and heard in the Gauteng Division of the High Court of South Africa, in Pretoria, in October 2024.

Read more: ‘Not without a fight’ — young activists take Mantashe, Nersa to high court over new coal power plans

Daily Maverick reported before that the applicants argued that the government’s plan to develop 1,500MW of new coal-fired power violates constitutional rights, particularly those of children, by threatening health and well-being through harmful emissions and exacerbating climate change.

coal Climate activists and affected Mpumalanga communities across the road from the Pretoria High Court in as the case against the South African government’s plans to develop 1,500MW of new coal-fired electricity generation is heard for the first time on 9 October 2024. (Photo: Julia Evans)

They argued that while the development of new coal would affect everyone, the impacts of the inclusion of new coal-fired power would be experienced disproportionately by children and future generations, who will live with the consequences for decades to come.

A recent collection of papers published in the Journal of Global Health found that children are particularly susceptible to climate-related health issues because of their developing immune systems and greater need for nutrient-rich food and water.

Read more: How climate change will impact your lifespan: Part 2 (children and teens)

Expert reports commissioned by the CER cited increased health risks, mental health issues and disproportionate impacts on children and future generations. An air quality study used in their application found that air pollution from coal-fired power stations killed more than 2,200 South Africans every year, and caused thousands of cases of bronchitis and asthma in adults and children annually.

The applicants also argued that new coal power is unnecessary, more costly than renewable alternatives, and would lead to job losses.

The defence countered that the Integrated Resource Plan is a policy decision not subject to review, arguing that no constitutional violation had occurred since coal procurement had not begun. They also asserted a legitimate purpose for introducing 1,500MW of coal power, emphasised consideration of youth input during public consultations, and stressed that new coal projects would use high-efficiency, low-emission technologies.

The judgment

On 4 December 2024, Judge Van der Westhuizen’s judgment found that the government failed to present any evidence or facts demonstrating that they had considered the human rights impacts of new coal-fired power, especially those of children. The court specifically noted the state’s failure to document its decision-making, as it is legally obligated to do so.

Van der Westhuizen said the documentation before the minister at the time, as well as the respondents’ evidence, “is ominously silent on any considerations given to the effect that the additional 1,500MW new coal-fired power will have on the environment and health of the nation, in particular that of children”.

He added that this is “a clear indication that the first and second respondents did not comply with their constitutional obligations in that regard”.

The judgment also emphasised that the decision-making process lacked transparency and violated sections 24 and 28 of the Constitution, which guarantee the rights to a healthy environment and prioritisation of children’s well-being.

The costs of the application, including the costs of two counsel, were ordered to be paid by Mantashe and Nersa.

Climate activists and affected Mpumalanga residents demonstrate outside the Pretoria High Court in support of the legal challenge against the government’s plans to develop 1,500MW of new coal-fired electricity generation on 9 October 2024. (Photo: Julia Evans)

Setting a legal precedent

The fact that the court declared the government’s decisions to add new coal into our energy mix, specifically that of Mantashe and Nersa, to be inconsistent with the Constitution and “unlawful and invalid” is likely to set a precedent for future legal challenges against environmentally harmful projects.

“This is a profoundly important judgment,” Brandon Abdinor, the acting head of the Pollution and Climate Change Programme at the CER, told Daily Maverick.

“It sends a clear directive that the harms from burning coal for power must be adequately and transparently considered where they impact constitutional rights,” said Abdinor. “It also recognises that climate harms are particularly important in the case of youth and future generations, who will bear the brunt of climate change.”

The Cancel Coal case could reshape the country’s stance on energy mix and legal accountability. It has put a spotlight on the government’s reliance on coal, and disregarded the narrative often peddled by politicians that “clean technologies” could be a viable solution to deal with the emissions from coal power.

“I’m incredibly proud to be part of this historic victory,” said Letago Kgomoeswana, a member of the Cancel Coal Youth Task Force at the African Climate Alliance (ACA). “This judgment is a testament to the tireless work of civil society and a powerful reminder that the youth are more than capable of leading the charge for a sustainable future.”

Masego Mokgwetsi, Cancel Coal Support Facilitator at ACA, said: “The rule of judgment has unleashed the power and strength that [lie] in the perseverance of collective action.

“The people on the ground and civil society at large will continue to combat the injustices of the environment without ceasing.” DM

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The judgment

Setting a legal precedent