Category: South Africa

Categories
2026 Business responsibility / corporate cases Domestic court Fossil fuel extraction Indigenous peoples rights Indigenous peoples' rights Just transition litigation Participation rights Participation rights Right to a healthy environment Right to culture South Africa

Sustaining the Wild Coast v. Minister of Mineral Resources and Energy, South Africa

Summary:
On 14 August 2026, the Constitutional Court of South Africa issued a ruling concerning climate change, human rights, environmental protection, cultural rights, economic development, and sustainable development in the Sustaining the Wild Coast case.

The immediate question before the Constitutional Court concerned the appropriate remedy following unlawful administrative action. However, the judgment has broader constitutional significance. At issue is the Wild Coast, a roughly 250-kilometre stretch of coastline in the Eastern Cape province of South Africa with exceptional ecological, cultural, and economic importance. The area supports customary fishing practices, spiritual practices, and the livelihoods of coastal communities, while also providing habitat for endangered marine and bird species. The area enjoys protection as a recognised protected area in terms of South African national environmental management laws.

In 2013, Impact Africa applied for and was granted an exploration right to undertake seismic exploration for oil and gas. This right was renewed in 2017 and 2021. In 2021, Shell acquired a 50% participating interest in the exploration right. Shell then announced its intention to undertake a 3D seismic survey along the Wild Coast. The seismic survey involved the use of airguns to generate soundwaves directed towards the seabed in order to identify possible oil and gas deposits.

The applicants in this case, who are both non-governmental organizations and individuals, approached the High Court to prevent the respondents from conducting the seismic survey and set aside the decisions granting the exploration. The matter was heard in the High Court, which ordered an interdict preventing the seismic survey from proceeding pending review proceedings. The respondents then appealed to the Supreme Court of Appeal, which set aside the High Court’s order pending the application for the renewal of the exploration right. The applicants then appealed to the apex Constitutional Court.

The Constitutional Court situated the dispute within the interconnected relationship between people, the environment, and socio-economic development. In doing so, it considered the constitutional environmental right in section 24 of the Constitution of the Republic of South Africa, 1996; the rights of affected communities to participate in decisions affecting them; cultural and spiritual rights; dignity; livelihoods; intergenerational equity; and the state’s responsibilities in the context of climate change.

The environmental right in section 24 requires decision-makers to look beyond immediate consequences and consider future environmental conditions: it ‘requires an educated peek into the future with all the attendant uncertainties to safeguard the environment for those who will come after us’. The Court rejected an understanding of environmental protection and economic development as mutually exclusive, and warned against reducing cultural, spiritual, and environmental interests to interests that simply compete with economic development on equal terms. The Court stressed that economic development cannot be pursued without having regard to environmental consequences, while environmental protection cannot automatically prevent all forms of economic activity.

The Court clarified that this approach is relevant to climate change in that fossil-fuel development presents an obvious tension between economic development and environmental protection. This is because extraction may provide economic opportunities while contributing to greenhouse-gas emissions and potentially increasing long-term climate risks. In this regard, it noted that

In the context of extractive industries, the enquiry cannot be reduced to a formal balancing exercise that treats cultural, religious, spiritual and environmental concerns as merely competing interests against economic development. It is also ahistorical to place these interests on equal footing, given the long history of dispossession and marginalisation of coastal communities whose relationships with land and sea have often been subordinated to commercial extraction. Although job creation is a legitimate consideration, it cannot be assumed to be inherently beneficial without asking who receives those jobs, how secure they are and what social, ecological and cultural costs the affected communities are expected to bear. In this context, the communities’ constitutionally enshrined and protected rights are given practical force through procedural duties of meaningful consultation, participation and respect for their cultural and spiritual relationship with the environment. A just and equitable remedy should therefore not allow speculative or corporation-centred economic benefits to outweigh procedural justice where communities’ livelihoods, cultural identity and environmental interests are directly at stake (para. 132).

The judgment does not establish an absolute constitutional prohibition on fossil-fuel development. Instead, it requires these development decisions to be made within a lawful framework that properly considers environmental and climate consequences. The Court therefore understood environmental degradation, often caused by climate change, as potentially producing a cascade of human rights consequences. To this end, the Court permanently terminated Shell’s exploration rights and closed any renewal routes.

This case establishes a broader constitutional vision in which environmental decision-making must account for climate change, scientific uncertainty, community rights, cultural identity, dignity, and the interests of future generations. In this respect, the case strengthens the foundation for a rights-based approach to climate change action in South Africa. This case reaffirms that sustainable development requires genuine integration of environmental protection, human rights and socio-economic interests rather than the prioritisation of one at the expense of others.

Full text of the judgment:
The full text of the judgment is available for download below.

Sustaining the Wild Coast CaseDownload

Date of Decision:
14 August 2026.

Status:
Decided.

Suggested Citation:
Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others; Natural Justice and Another v Minister of Mineral Resources and Energy and Others [2026] ZACC 33.

Credits:
This database entry was contributed by Michaela O’Donoghue, LLD Candidate in the Urban Law and Sustainability Governance Chair, Stellenbosch University, South Africa.

Categories
2025 Business responsibility / corporate cases Domestic court Fossil fuel extraction Indigenous peoples' rights Right to a healthy environment Right to culture Right to development and work Right to health Sea-level rise South Africa

Green Connection NPC and Another v. Minister of Forestry, Fisheries and the Environment and Others

Summary:
On 13 August 2025, the Western Cape High Court (South Afria) delivered a judgment in a successful judicial review application that was brought by two public interest organisations, Green Connection NPC and Natural Justice, against the decisions to grant environmental authorisation to TotalEnergies and Shell for offshore oil and gas exploration drilling in Block 5/6/7, an area which is approximately 10,000km² off South Africa’s South-West coast between Cape Town and Cape Agulhas. The court upheld five of the six grounds of review and declared the decisions unlawful, remitting the matter to the Director-General (“the DG”) of the South African Department of Mineral Resources and Energy,  for reconsideration.

The review application concerned the granting of an environmental authorisation (“the EA”) to TotalEnergies and Shell in terms of the National Environmental Management Act 107 of 1998 (“NEMA”), for the purpose of conducting exploration drilling to determine whether geological structures contain oil or gas – fossil fuels – in potentially extractable amounts. The application for an EA was lodged with the Department of Mineral Resources and Energy and it was granted by its DG on 17 April 2023. On 24 September 2023, the Minister of Forestry, Fisheries and the Environment dismissed the applicants’ internal joint appeal against the DG’s decision.

More details on the challenge:
Total and its co-venture partners, Shell and PetroSA, are co-holders of Exploration Right 12/3/224, granted under the Mineral and Petroleum Resources Development Act 28 of 2002 for Block 5/6/7. The block is situated 60-170km offshore at water depths of 700 and 3,200m. Following seismic surveys, Total sought to drill one exploration well and up to four additional wells.

The EA application triggered listed activities under the Environmental Impact Assessment Regulations of 2014. Total commissioned technical modelling (drilling discharges, oil spill, underwater noise) and specialist studies (marine ecology, fisheries, socio-economic, cultural heritage, climate change). The Petroleum Agency SA reviewed the studies and recommended an approval. The DG granted the EA on 17 April 2023. The Minister dismissed an internal appeal on 24 September 2023, prompting the review application.

Rights at Stake:

  • Section 24(a) of the Constitution, the right to an environment not harmful to health or well-being.
  • Section 24(b) of the Constitution, the right to have the environment protected through reasonable measures preventing pollution and ecological degradation, promoting conservation, and securing ecologically sustainable development.
  • Interests of the whole community in coastal public property, including future generations and other living organisms dependent on the National Environmental Management: Integrated Coastal Management Act 24 of 2008 (“ICMA”).
  • Rights of small-scale fishers and coastal communities to livelihood and cultural practices.

Claim:
The applicants’ review challenged the final environmental and social impact assessment report (“Final EIR”) prepared on behalf of TotalEnergies and the review grounds may be summarised as follows:

(a) Firstly, the Final EIR failed to properly assess and the state respondents failed to properly consider the socio-economic impact of the proposed project because it did not assess the socio-economic impact which a well blowout and consequent oil spill may cause on the fishing industry and small-scale fishers.

(b) Secondly, the decision-makers failed to consider the factors prescribed by ICMA.

(c) Thirdly, the Final EIR failed to assess and the state respondents failed properly to consider the need and desirability of the proposed project because no consideration was given to the climate change impacts which will be caused by burning any gas discovered by the proposed project.

(d) Fourthly, the Final EIR failed to assess and the state respondents failed to consider the transboundary impacts of the proposed project, both on Namibia and on international waters.

(e) Fifthly, neither the Final EIR nor the Environmental Management Programme Report included TotalEnergies’ Oil Spill Contingency Plan or Blow Out Contingency Plan.

(f) Sixthly, PASA delivered an appeal response report which at face value was submitted on behalf of the DG and was treated as such by the Minister.

Judgment:
On 13 August 2025, Judge Mangcu-Lockwood delivered judgment in favour of the applicants on the first five grounds of review and dismissed the sixth.

First Ground: The court held that once the Final EIR identified a potential blowout and oil spill as a potentially significant impact or risk, it was obliged to assess the consequences and probability of the impact or risk including those with a low degree of probability. The court rejected TotalEnergies’ distinction between a “risk” and an “impact” stating this was “against the spirit and purport of these Regulations. Both are required to be assessed in terms of the legislation, in equal measure.”

Second Ground: The court found that the DG’s decision made no specific mention of ICMA. Even based on a generous reading of the record, the court was unable to conclude that the Final EIR, and by extension the DG, considered ICMA factors. The court held:

“As the applicants point out, ICMA introduces concepts which are not present in NEMA or other aspects of environmental law, by conferring a special legal status on coastal public property, which afforded the environment a particularly high level of protection. It expressly provides that the State holds the coastal public property in trust for current and future generations. It creates the concept of the interests of the whole community, which specifically recognises the need to take into account the interests of other living organisms which are dependent on the coastal environment. As such the ICMA’s requirements cannot be satisfied by generic consideration of NEMA.”

The court found that the DG then failed to consider the ICMA factors and that his decision stood to be reviewed and set aside. The Minister’s decision was described as “woefully deficient” as it did not explicitly identify the ICMA factors to be considered and failed to set out any findings in respect thereof.

Third Ground: The court held there is “no doubt that climate change impact assessment must form part of the assessment to be conducted and considered before the grant of an environmental authorisation.” Regarding the distinction between exploration and production phases, the court stated: “Whilst it is correct that the specific activity for which the EA in this case is granted is exploration and not production… the two processes are intertwined. There would be no point in conducting an exploration activity unless an entity hoped to proceed to the next phase of production.”

Fourth Ground: Applying sections 232 and 233 of the Constitution, which require consideration of customary and international law, the court held:

“There is accordingly an obligation arising from customary international law and international law upon South Africa to not allow its territory to be used in a manner which causes transboundary harm. The duty includes a requirement for an environmental impact assessment to be conducted where an activity such as the present exploration activity, which poses a risk of transboundary harm, is to be conducted.”

Fifth Ground: The court found that given more focused information would be provided in the Oil Spill Contingency Plan and Blow Out Contingency Plan in another round of submissions it was “difficult to conclude that there had been a full assessment.” Even more problematic was the lack of public participation regarding these plans.

Sixth Ground: The court dismissed this ground and found that PASA as an organ of state designated under section 70 of the MPRDA to perform public functions was entitled to submit an appeal response.

Remedy:
The court made the following order:

  1. Shell Exploration and Production South Africa BV was joined as the fifth respondent. There were no costs in relation to the joinder application.
  2. The applicants’ late service of the review application was condoned.
  3. The decision taken by the third respondent on 17 April 2023 to grant an environmental authorisation to TotalEnergies to conduct exploratory operations in Block 5/6/7 was reviewed and set aside.
  4. The decision taken by the first respondent on 24 September 2023 dismissing the appeal of the first and second applicants was reviewed and set aside.
  5. The decision of granting an environmental authorisation to TotalEnergies was remitted to the third respondent for reconsideration, which process must provide for the following:
  6. TotalEnergies must be afforded the opportunity to submit new or amended assessments to cure the deficiencies identified in the first to fifth grounds of review.
  7. Public participation must be conducted in regard to the new and/or amended assessments submitted by TotalEnergies before decision is made by the third respondent.
  8. The first to third respondents were ordered to pay the costs of this application, jointly and severally, on a scale C, including the costs of three counsel.

Status of the case:
The High Court judgment has set aside the environmental authorisation and the matter remitted for reconsideration. The State and Shell have filed applications for leave to appeal, either before the Supreme Court of Appeal or a full bench of the High Court of South Africa.

Case Documents:
Judgment of the High Court of South Africa can be found here.

Commentary:

Academic and professional commentary on the cases is available here, here, and here.

Related case:
For related case-law, see:

Suggested Citation:
High Court of South Africa, Western Cape (Cape Town), Division Green Connection NPC and Another v Minister of Forestry, Fisheries and the Environment and Others, case no. 5676/2024, 13 August 2025, Judge Mangcu Lockwood.

Last updated:
3 August 2026.

Credits:
This database entry was contributed by Camagu Luvo, LLD Candidate in the Urban Law and Sustainability Governance Chair, Stellenbosch University, South Africa.

Categories
2025 Children and young people Children's rights/best interests Domestic court Right to a healthy environment Right to health South Africa

African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others

Summary:

In African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others, the High Court of South Africa considered a landmark challenge to the government’s continued reliance on coal energy in its national electricity plan. The applicants (a coalition of youth-led and community-based environmental justice organisations) opposed the inclusion of 1,500 megawatts (MW) of new coal-fired power in the 2019 Integrated Resource Plan (IRP 2019). They argued that this decision was unconstitutional, irrational, and disregarded both the worsening climate crisis and the rights of the most vulnerable – especially children and future generations.

The applicants challenged three specific decisions:

  1. The adoption of IRP 2019, which made provision for new coal power.
  2. A subsequent ministerial determination under the Electricity Regulation Act to implement this plan.
  3. The concurrence or approval by the National Energy Regulator of South Africa, which is legally required to agree to such decisions before they can proceed.

The applicants argued that these decisions were unconstitutional, primarily infringing upon the rights to a healthy environment and the well-being of children.

Claim:

The applicants claimed that the government’s decisions to procure 1,500 MW of new coal power violated multiple constitutional rights—primarily Section 24, which guarantees the right to an environment that is not harmful to health or well-being, Section 28(2), which protects the best interests of the child, and the rights to life, dignity, and equality.

They emphasised that coal-based energy generation not only accelerates climate change but also exposes communities—especially poor and historically marginalized ones—to high levels of toxic air pollution. Children, due to their physiological vulnerability, are at greater risk of suffering long-term health consequences. The state, they argued, had a positive duty to consider these human impacts, especially where irreversible environmental harm and intergenerational injustice were at stake.

The applicants further claimed that the process leading to these decisions was procedurally flawed, lacking meaningful public participation, transparency, and adequate consultation with those most affected. They framed their challenge as a matter of environmental justice, climate accountability, and the protection of constitutional rights, particularly for those who bear the brunt of environmental degradation without benefiting from its economic returns.

Judgment:

On 4 December 2024, Judge Cornelius van der Westhuizen ruled in favor of the applicants, declaring the government’s plan to procure 1,500 MW of new coal-fired power unconstitutional, unlawful, and invalid. In a significant affirmation of rights-based climate justice, the court found that the government had failed to consider the harmful impacts of coal on health, the environment, and children’s rights. It highlighted that the best interests of children were not given paramount importance, in breach of Section 28(2). It also criticized the lack of adequate public participation and failure to assess cleaner and less harmful energy alternatives.

The court emphasized that the Constitution demands not only the avoidance of environmental harm, but also active promotion of sustainable development and intergenerational equity. It ordered that the coal provisions in the IRP and associated implementation decisions be set aside, and directed the government to pay the applicants’ legal costs.

This ruling sends a powerful message: government policy cannot be separated from its human rights consequences. It reinforces that climate change is not only an environmental issue, but a profound justice issue, affecting the lives, health, and futures of millions—especially the youngest and most vulnerable South Africans.

Document:

The case documents are available here and here.

Suggested citation:

African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others (56907/2021) [2024] ZAGPPHC 1271 (4 December 2024).

Status of the case:

Decided.

Last updated:

20 March 2025.

Categories
Business responsibility / corporate cases Children and young people Domestic court Emissions reductions/mitigation Evidence Right to a healthy environment Right to health South Africa

South African ‘Deadly Air Case’

Summary:
This case concerns toxic air pollution in the Mpumalanga Highveld, which is home to a dozen coal-fired power plants, a coal-to-liquids plant and a refinery. The case was brought by two environmental organisations – groundWork and Vukani Environmental Justice Movement in Action – represented by the Centre for Environmental Rights.

The applicants have petitioned the court to declare the unsafe levels of air pollution to be a violation of section 24a of the South African Constitution, which provides that “everyone has the right to an environment not harmful to their health or wellbeing”. 

The outcome of the case is currently pending before the Pretoria High Court, and Judge Colleen Collins has reserved judgment.

Claims:
The applicants’ complaints concern exposure to toxic chemicals emitted by the coal plants. This includes sulphur dioxide, heavy metals like mercury, and fine particulate matter. According to the applicants, the coal plants are responsible for the majority of these emissions, which are causing chronic respiratory illnesses such as asthma and lung cancer, and which also increase the risk of strokes, heart attacks, birth defects and premature deaths. 

The area in question has been recognized as a hotspot of pollution in excess of permissible levels. It has been claimed that this pollution is responsible for up to 10,000 excess deaths per year. But the Government has pointed to the existence of clean air regulations, and argued that there is no scientific evidence proving the link between the air pollution and the harms allegedly suffered by any particular individual. It has also highlighted the need to realize the right to a healthy environment progressively.

Amicus curia intervention by the UNSR:
David R. Boyd, the United Nations special rapporteur on human rights and the environment, intervened as an amicus curiae in this case. He argued that poor and marginalised people disproportionately carry the burden of toxic air pollution. It has been reported that Boyd’s arguments include consideration for the vulnerability of children to environmental threats.

Deciding body:
Pretoria High Court

Admissibility:
TBD

Merits:
TBD

Remedies and outcomes:
TBD

Further reading:
For more information from the Centre for Environmental Resources, click here.

Suggested citation:
South African ‘Deadly Air’ case, Pretoria High Court, hearings held on 17-19 May 2021.