Case Law Database
African Climate Alliance et. al., v. Minister of Mineral Resources et al #CancelCoal
| Date of Application: | Thu, 11 Nov 2021 |
|---|---|
| Date of Decision: | Wed, 04 Dec 2024 |
| Decision Making Body: | High Court of South Africa |
| Law Applied: | Constitution of South Africa National Environmental Management Act National Environmental Management Act, South Africa Paris Agreement |
| Keywords: | Best interests of the child;, Rights to life, dignity, and equality;, Participation |
African Climate Alliance & others v. Minister of Mineral Resources & others (#CancelCoal) High Court South Africa (Gauteng Division) Case number 56907/2021
At Issue: Whether the government’s decision to procure new coal-fired power is unconstitutional.
Summary:
The Cancel Coal case was initiated in November 2021 by the African Climate Alliance (a youth-led organization), Vukani Environmental Justice Movement in Action, and Groundwork Trust, represented by the Centre for Environmental Rights. These groups filed proceedings in the High Court of South Africa to challenge the government’s decision to include 1,500 MW of new coal-fired power in the Integrated Resource Plan of 2019. The applicants named the Minister of Mineral Resources and Energy, the National Energy Regulator of South Africa (NERSA), the Minister of Forestry, Fisheries and the Environment, and the President as respondents.
The applicants argued that the government’s decision violated multiple constitutional rights, including the right to a healthy environment (section 24), the best interests of children (section 28), and the rights to life, dignity, and equality. They contended that coal-fired power, a major contributor to climate change and environmental degradation, posed severe risks to public health, particularly for children and future generations. Expert evidence was presented to demonstrate the harmful effects of coal emissions on health, livelihoods, and food security, as well as the feasibility and cost-effectiveness of cleaner, renewable energy alternatives. The applicants also criticized the decision-making process for failing to: (i) conduct specific impact assessments on children’s rights, (ii) consider cleaner coal technologies or renewable energy options, and (iii) ensure public participation, particularly from youth and vulnerable communities. An interlocutory application was filed in 2022 to compel the government to provide complete records of the decision, which the court granted on December 9, 2022. The Minister of Electricity was added as a fifth respondent on April 17, 2024.
In a judgment handed down on December 4, 2024, Judge Cornelius van der Westhuizen ruled that the government’s plan to procure 1,500 MW of new coal-fired power was unconstitutional, unlawful, and invalid. The court found that the government had failed to meet its constitutional and statutory obligations by: (i) omitting any assessment of the decision’s impact on children’s health and well-being, (ii) failing to evaluate the feasibility of high-efficiency, low-emission coal technologies, and (iii) neglecting its obligation to ensure transparent and participatory decision-making processes. The court noted that the government’s Rule 53 record provided no evidence of adequate consideration of the environmental and health impacts of coal power, particularly on children. The respondents’ argument that South Africa’s energy crisis justified the procurement of coal-fired power was dismissed, as the court found no evidence supporting the necessity of coal over renewable alternatives. The judgment ordered the Minister of Mineral Resources and Energy and NERSA to pay the applicants’ legal costs, including the costs of two counsel.
The newly appointed Minister of Electricity is being added to the proceedings as a respondent. The Centre for Child Law has been admitted as Amicus Curiae and will makemade submissions specific to the rights of children as amicus curiae.
The Minister has been granted leave to appeal the judgment to the Supreme Court of Appeal. The Appeal is likely to be heard in 2025.
Summary provided courtesy of the Sabin Centre
Court documents:
Notice of motion and founding affidavit
Amicus Curiae Heads of Argument
High Court decision (4 December 2024)
Related CRC articles
- 2. Right to non-discrimination (CRC Article 2)
- 3. Right to have child’s/children’s best interests taken as primary consideration in all matters affecting them (CRC Article 3)
- 6. Right to life, survival and development (CRC Article 6)
- 12. Right to express views freely and have these taken into account (CRC Article 12)
- 17. Right to access to information (CRC Article 17)
- 24. Right to health, healthcare, and a healthy environment (CRC Article 24)
- 27. Right to an adequate standard of living (CRC Article 27)
- 30. Right to minority culture, language, religion (CRC Article 30)
The applicants’ founding affidavit:
Para 306 alleges discrimination based on age:
“The decision to procure new coal also unfairly discriminates on the basis of age, as it is the young who will disproportionally shoulder the burden of climate change, as the harm intensifies in coming years and the harms of air pollution and water scarcity”.
Para 71 Founding affidavit - Reference to children as a vulnerable group, likely to suffer disproportionally because of climate change.
Para 212 – Reference to best interests. Also see par 211, 213, 215, and 216.
There is reference to the constitutional rights to dignity, life, health, water, healthcare, food, equality and unfair discrimination, and the prioritisation of the best interests of the child. Sections 9, 10, 11, 24, 27, and 28 of the Constitution.
The children require the record of proceedings leading up to the state’s decision to commission more coal fired power electricity. This is related to the right to information.
Para 421 the applicants rely on the lack of consultation with the public as a ground of review.
Decision
“[22] ... In particular, the record did not reflect any considerations to the effect of the impugned decisions upon the rights, in particular that of children, and future generations. In this regard, the applicants contended that the introduction of the additional 1500 megawatts new coal-fired power into the grid would have a negative effect on the environment and the health of the nation, and in particular that of children and future generations. The assessments of the impact on the environment and the health of the nation were not addressed in the Rule 53 record. It was clearly lacking in particularity.”
“[24]...The Rule 53 record submitted by the respondents do not show adequate evidence, if at all, of their deliberations on any participation by representatives on behalf of the applicants, or at all, in respect of the effect on the constitutional rights of children.”
“[25) The Rule 53 record, as well as the first and second respondents' evidence, is ominously silent on any considerations given to the effect that the additional 1500 megawatt new coal-fired power will have on the environment and the health of the nation, in particular that of children. A clear indication that the first and second respondents did not comply with their constitutional obligations in that regard.”
- It follows that, in the absence of proof of the consideration of the effect of the decision the to permit an additional 1500 megawatts of new coal- fired power to the grid on children, it stands to be reviewed on the principle of legality. There has been no compliance with the first respondent's obligations under the Constitution.
[27] From the foregoing, it is clear that the said impugned decisions would impact negatively on the rights of children under section 24 and 28 of the Constitution in the absence of cogent facts to the contrary. In that regard, the first and second respondents, who bore the onus, did not discharge the obligation to show that, in the event that there would be limitations of the said rights, that such limitations were reasonable and justifiable.’
Section 24 refers to the South African Constitution’s right to an environment which is not harmful to health and wellbeing.
Cited CRC articles
- 3. Right to have child’s/children’s best interests taken as primary consideration in all matters affecting them (CRC Article 3)
The Amicus Curiae refers to the best interests of the child as contained in the UNCRC.
Involvement of children in hearings
- Written presentation
All evidence is presented on affidavit in motion proceedings.
The applicants' personal experiences are recorded in paras 218 - 230 of the founding affidavit.
The children and youth depose to affidavits in their own names which are annexed to the founding affidavit.
Intergenerational rights
Founding affidavit at para 306 alleges discrimination based on age (intergenerational equity rights):
“The decision to procure new coal also unfairly discriminates on the basis of age, as it is the young who will disproportionally shoulder the burden of climate change, as the harm intensifies in coming years and the harms of air pollution and water scarcity”.
Future generations
Para 208 Founding affidavit – “Children, young people and future generations in South Africa are at particular risk.”
Para 211 (children, young people and future generations will bear the brunt); 213 (effects of climate change on future generations specified by projections of effects in the years 2041 - 2100); and 215 (today’s youth and future generations face a virtually certain probability of severe harm).
Para 216 makes reference to the “public trust doctrine”:
“the environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage”. Extract from section 2 of NEMA Act.
Outcome of decision for the applicants
- Relief sought by applicants granted
The court ruled that the government’s plan to procure 1,500 MW of new coal-fired power was unconstitutional, unlawful, and invalid. The court found that the government had failed to meet its constitutional and statutory obligations by omitting any assessment of the decision’s impact on children’s health and well-being.
Did outcome of decision develop the law
- Yes
The court’s decision is made almost entirely on the basis of children’s rights. It relies specifically on the rights of the child to have their best interests considered paramount in every matter concerning them, and the right to be heard.
While South Africa’s case law in relation to climate change has already relied on human rights to find government decisions unconstitutional, it is the first time that children’s rights are directly involved and relied upon. This decision will be important for future cases involving children.
Involvement of NGO/law firm in application
Centre for Environmental Rights
Available information on how children got involved in the litigation
Children / youth are represented by the African Climate Alliance and others. The campaign is widely recorded in the media. Individual children’s stories are recorded in affidavits in the annexures to the founding affidavit.
Age range of litigants
- 13-17
- 18-25
Number of children or youth involved
8