While the South African government has been stopped in its tracks from procuring an additional 1,500MW of coal-fired power to the national grid, the Centre for Child Law (CCL) welcomed the recognition of children’s rights to have their views and interests considered when environmental decisions that impact their well-being are made.
The Gauteng High Court, Pretoria, last week reviewed and set aside the decision of the Minister of Minerals and Petroleum Resources, as well as the National Energy Regulator of South Africa (Nersa), to include an additional 1,500MW of coal-fired power in the 2019 Integrated Resource Plan (IRP2019).
The landmark child and youth-led case was brought by three youth-based civil society organisations: the African Climate Alliance (ACA), the Vukani Environmental Justice Movement in Action (VEM), and the Groundwork Trust, represented by the Centre for Environmental Rights (CER).
The CCL was an amicus curiae (friend of the court) in the case and made submissions on children’s environmental rights and the duty of the state to uphold these rights when deciding to approve a new coal-fired power station.
Judge Cornelius Van der Westhuizen summarised the crux of the application by saying in his judgment: “At heart was the South African 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.” He added that although the application was pointedly in respect of the health rights of children, the general effect of the intended procurement equally impacted on the health rights of the nation as a whole.
The case arose in October 2019 when the Minister of Mineral Resources and Energy published the final revised Integrated Resource Plan (“2019 IRP”), which set out plans for 1,500MW of new coal-fired power capacity. NERSA concurred with the minister’s determination for new generation capacity, including 1,500MW of coal power capacity.
In 2021, the African Climate Alliance, Vukani Environmental Justice Movement, and GroundWork Trust, represented by the Centre for Environmental Rights, brought a combined constitutional challenge against the minister's and NERSA's decisions.
The applicants provided scientific evidence on the effects of climate change on children’s lives and rights. Eight young members of the African Climate Alliance, aged between 13 and 25 years, shared their personal experiences with the court, detailing how they and other children have been personally affected by climate change.
These children and youth acted on their own behalf but also on behalf of all children and future generations, claiming their right to participate in democracy and act in the interest of their communities. The minister and NERSA sought to defend their decisions, arguing in particular that there is no evidence that the IRP and the determination have affected or have the potential to affect the rights of children.
Implications for Children's Rights
The CCL, drawing from local and foreign case law and international children’s rights, made arguments on the state’s constitutional duty to children, including the duty to facilitate ongoing participation of children in climate-related decision-making processes and the duty to conduct specific impact assessments regarding potential harms to children.
Judge Van der Westhuizen stated in his judgment: “It is clear that the said impugned decisions would impact negatively on the rights of children…”. He found that the government failed to adequately consider the impact of coal on children's rights, particularly their right to a healthy environment.
The CCL expressed hope that the duty-bearers will now act in accordance with their obligations.
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Pretoria News