Environmental justice organisations win appeal against Eskom's gas project

IN A SIGNIFICANT victory for environmental justice, the Supreme Court of Appeal (SCA) has overturned Eskom's environmental authorisation for a 3 000MW gas power plant in Richards Bay, ruling that public consultation was inadequate and climate impacts were not properly assessed.

In August 2024, the South Durban Community Environmental Alliance (SDCEA) and the trustees of groundWork, supported by Natural Justice and represented by environmental law firm Cullinan and Associates together with a team of advocates, took the matter to the SCA to challenge a Pretoria High Court judgment that had previously declined to set aside the environmental authorisation.

In a landmark judgment, the SCA overturned the decision of the high court, which upheld the authorisation granted to Eskom by the Department of Forestry Fisheries and the Environment (DFFE). 

According to the appeal judgment, the case arose after the chief director of integrated environmental authorisations in the DFFE had granted an environmental authorisation to Eskom in December 2019, allowing the construction of a combined cycle gas power plant. 

This facility, designed to operate with a capacity of 3 000MW, was proposed to primarily utilise gas sourced from Mozambique, with diesel as a backup. 

However, following the chief director’s approval, both the SDCEA and groundWork lodged appeals, which were dismissed by the minister, prompting a further legal challenge.

The SCA's judgment comes after a critical examination of whether the environmental impacts, including climate change considerations, were adequately assessed. 

During the court proceedings, SDCEA and groundWork stressed that the public consultation process was insufficient, primarily due to communications solely in English despite 79% of the local residents speaking isiZulu.

The SCA found that the consultation process fell short of the standards set out under South Africa's National Environmental Management Act, which ensures that public participation is meaningful and accessible. In its ruling, the SCA underscored the importance of considering communities likely to be directly affected by such projects, emphasising the constitutional right to an environment that supports health and well-being.

The SCA also dismissed the arguments presented by the Minister and Eskom, which claimed that the energy crisis necessitated the expedited use of gas-powered solutions over renewable alternatives. 

Instead, the SCA maintained that a thorough assessment of alternatives and an understanding of cumulative impact must be considered in any environmental authorisation process.

Reaction

Desmond D’Sa, an environmental justice activist and co-founder of SDCEA, said this case was a vindication of justice for people and the environment. 

“Eskom for too long, as a state parastatal has gotten away with injustices and people that have lived alongside its facilities will suffer from the high costs of the tariffs, high levels of pollution. We welcome the judgment from the appeal court and we certainly believe that Eskom must now move away from fossil fuels to a just energy transition.”

Siphesihle Mvundla, the climate and energy justice campaigner at groundWork said: “We welcome the decision to uphold our appeal against Eskom’s proposed project in Richards Bay. This victory affirms that communities and the environment cannot be sidelined in the rush to lock South Africa into another generation of fossil fuel dependency. 

“Eskom must now turn its focus to a genuine transition – one that prioritises renewable energy, energy efficiency, and the rights of workers and communities most affected by pollution and climate change. South Africa cannot afford another round of false solutions that deepen inequality, undermine environmental justice, and worsen the climate crisis. This decision is also not just a win for SDCEA and groundWork – it is a win for people and for the planet,” he said.

Alfred Seema, the Eskom’s Group Executive for Strategy Delivery, said the application was made because gas plays a critical role in South Africa’s energy future.

“It acts as a backbone for renewable energy integration due to its flexibility and fast-response capability. As more renewables come online, dispatchable generation is needed to offset their variability, ensuring energy security and sustaining the gains of the Generation Recovery Plan. At this stage, gas is the quickest and most cost-effective solution for backup and load-following. 

“With declining baseload coal, increased variable renewable energy, and more behind-the-meter solar that doesn’t generate at night, having gas available on demand is essential to maintain grid stability,” he said. 

Seema said Eskom remained committed to strengthening South Africa’s energy future in a way that is “inclusive, sustainable, and transparent”.

“While we consider the implications of this judgment, our focus remains to advance the gas strategy as the key enabler of energy security, economic growth, and the transition to cleaner energy.”

He added that Eskom was studying the judgment and considering its next steps.

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