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The landmark case of African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others (GP) (unreported case no 56907/2021, 4-12-2024) (van der Westhuizen J) marks a significant moment in South Africa’s environmental and socio-economic legal landscape. However, a crucial question arises: Does this legal development genuinely align with the principles of sustainable development or is it mere greenwashing?
This case was launched by three applicants including the African Climate Alliance against the South African Government, challenging the government’s plan to procure an additional 1 500 megawatts of new coal-fired power stations, thus impacting upon the rights of current and future generations (African Climate Alliance at para 1). The applicants argued that these approvals violated South Africa’s commitments under the Paris Agreement and the principles enshrined in the National Environmental Management Act 107 of 1998 (NEMA). They further contended that the government’s failure to mitigate greenhouse gas emissions infringed upon the constitutional right to a healthy environment, as enshrined in s 24 of the Constitution.
The South African Government defended its actions by citing the need to balance environmental protection with economic growth and social development. Key arguments included:
The court was tasked, among other things, with determining whether the government’s actions amounted to a failure to fulfil its constitutional obligations to protect the environment while fostering economic and social development.
The case presented several critical issues:
The Constitution establishes a framework for balancing environmental protection with socio-economic rights. Section 24 of the Constitution guarantees the right to an environment that is not harmful to health or well-being and mandates sustainable development. ‘Sustainable development’ is defined in s 1(1) of NEMA as ‘the integration of social, economic, and environmental factors into planning, implementation, and decision-making so as to ensure that development serves present and future generations.’
Sections 26 and 27 of the Constitution also emphasise the government’s obligation to ensure access to adequate housing, healthcare, food, water, and social security. This framework inevitably creates tensions where the balancing of rights is required, as the pursuit of socio-economic development often leads to environmental degradation, necessitating careful regulation to minimise harm while upholding socio-economic rights. As Prof Michael Kidd notes in 2ed Environmental Law (Cape Town: Juta 2011) at 142, ‘pollution is an inevitable side-effect of life,’ and the challenge lies in mitigating its impact without compromising essential economic and social rights provided by the Constitution. This highlights the necessity of sustainable development, not merely as an ideal, but as an urgent requirement. Section 24(b) of the Constitution explicitly states that the environment must be protected ‘for the benefit of present and future generations, through reasonable legislative and other measures.’
This provision underscores the dual obligation: Present generations must have their socio-economic rights realised – such as access to food, housing, security, and a healthy environment – while future generations must not be deprived of these same rights due to environmental degradation. It is important to note that the Constitution places the onus of realising such rights on the state. Therefore, sustainable development, which integrates social, economic, and environmental considerations, is essential to fostering economic growth, creating jobs, and ensuring environmental preservation for generations to come. However, the challenges of sustainable development lie in striking a delicate balance between economic growth, social equity, and environmental protection.
The African Climate Alliance case exemplifies these tensions, as the government’s approval of the coal-fired power stations was challenged on the grounds that it undermined South Africa’s environmental commitments while being justified as necessary for economic stability and energy security. Section 24 of the Constitution mandates sustainability, yet the case revealed the complexities of implementing this principle in practice. While economic development is crucial for addressing poverty and unemployment in South Africa, unchecked environmental degradation threatens the rights of future generations. This calls for a need for the integration of socio-economic and environmental factors.
The African Climate Alliance case highlights the difficulty of achieving an equilibrium between three fundamental elements of sustainable development, namely:
The case highlights the challenges of integrating socio-economic progress with environmental preservation, and the difficulty of ensuring that development today does not compromise the well-being of tomorrow. A key concern is whether policies driven primarily by environmental concerns will result in energy shortages and economic stagnation. The case raises critical questions that need to be considered, such as:
Achieving sustainable development requires a nuanced approach. The balancing act may require the courts to have a role in holding the government accountable but factoring that excessive judicial intervention in policy matters could lead to a governance imbalance. While coal-fired power station projects pose long-term environmental and health risks, they also create immediate economic benefits. A balance must be maintained, ensuring that no single factor is prioritised over another. As defined in NEMA, sustainable development requires the integration of social, environmental and economic factors. This case appears to have overlooked the socio-economic considerations that the South African Government is constitutionally obligated to uphold.
Legal scholar Prof Michael Kidd, in his article ‘Greening the Judiciary’ (2006) 9 PER, argues that courts must play an active role in ensuring environmental sustainability by interpreting laws in a manner that prioritises long-term ecological health. He critiques judicial reluctance to fully embrace eco-centric legal interpretations, suggesting that the judiciary should be more assertive in holding governments accountable for environmental degradation.
However, a key counterargument is that overly stringent environmental measures could hinder socio-economic development. South Africa’s high unemployment and poverty rates necessitate policies that balance environmental protection with economic progress. If environmental policies are too restrictive, they may deter investment, hinder job creation, and perpetuate economic hardship.
The African Climate Alliance case presents an opportunity for South Africa to set a global precedent in harmonising economic growth, environmental sustainability, and social welfare. However, unless policymakers and the judiciary adopt a balanced approach that does not disproportionately favour one element over the others, the vision of sustainable development may remain unattainable.
It is recommended that there be an increased investment in renewable energy. A greater effort should be made towards transitioning to green energy, while also providing economic support for industries and workers who may be affected by this shift. This approach ensures that the economic impact of such a transition is mitigated, allowing for a sustainable and balanced move towards cleaner energy sources.
Furthermore, promoting green innovation should be a priority. Encouraging research and investment in sustainable technologies can create new job opportunities while reducing dependence on coal-fired power stations. By fostering innovation in green technologies, we can reduce environmental impacts and create a more sustainable future for both businesses and communities.
Lastly, when courts are deciding on environmental matters, the issue of sustainable development should be at the forefront of all decision-making processes. It is crucial that no single factor, whether economic, social, or environmental, outweighs the others. A balanced approach to sustainable development ensures that long-term environmental preservation, economic growth, and social equity are all considered equally in legal decisions.
Sinethemba Cele LLB (UKZN) is a Legal Advisor: Legal, Risk & Compliance at Transnet Port Terminals in Durban.
This article was first published in De Rebus in 2025 (May) DR 31.
