Landmark South African court ruling could call time on coal

Michelle Sithole is an attorney at the Centre for Environmental Rights and part of the legal team in the Cancel Coal case. Wandisa Phama is an attorney and the executive director of the Centre for Environmental Rights.

A landmark judgment delivered in the South African High Court on Dec. 4. could spell the end of any new fossil fuel power in South Africa.

In the ‘Cancel Coal’ case, a judge ruled that plans to add 1,500 megawatts (MW) of new coal-fired power to the nation’s electricity grid was unlawful because the government failed to consider the potential impact on children’s rights.

The case was brought by the youth-led African Climate Alliance, and environmental justice groups groundWork and Vukani Environmental Justice Movement in Action -  all represented by the Centre for Environmental Rights.

In its judgment, the court held that the inclusion of new coal power in the government’s electricity plan was invalid and unlawful, on the basis that the plan was “ominously silent” on any considerations given to the effect that the additional coal power would have on the environment and health of the nation.  

The court particularly noted the absence of consideration of the impacts of coal power on children’s rights.

This is the first time South African courts have ruled on the specific impacts of coal power generation on the rights of children.

In the words of youth activist Sibusiso Mazoma, the Cancel Coal case “marks only the first step in securing constitutional rights for children and youth who bear the greatest burden of coal’s harmful health, social and environmental impacts”.

Children under the age of 18 make up around a third of South Africa’s total population. More than 60% experience multidimensional poverty, particularly in rural areas. Children are particularly vulnerable to pollution, and to the impacts of climate change.

The U.N. children’s agency UNICEF has described climate change as a threat to children’s ability to survive, grow, and thrive.

“(Children) are hit first and hardest by every type of climate and environmental risk. These include extreme weather events, such as heatwaves, floods, sandstorms, mudslides and landslides, but also slow-onset changes triggered by climate change, such as drought, desertification and water scarcity. Children also face the ever-present challenges of air pollution, lead pollution, pesticide pollution, deteriorating water quality and energy poverty,” UNICEF said in an October report.

Far-reaching implications

Written testimonies from children and young people submitted to the court in the Cancel Coal case document their first-hand experiences of living with the effects of air pollution from coal power and the effects of climate change (droughts and floods) along with their fears for their own futures.

There is now copious evidence on the current and future impacts of coal and climate change on children’s health, including their mental health.

An expert report by Professor Nicholas King, which formed part of the legal submissions in the Cancel Coal case, concludes that: “Today’s youth, and all future generations, are faced with the virtually certain probability of severe harms from a range of increasingly severe impacts caused by climate change … Without every effort possible to mitigate emissions, most specifically through cessation of use of fossil fuels, the lives of today’s youth and future generations will be profoundly negatively impacted by climate change.”

The applicants in the case relied on the 2023 guidance of the U.N. Committee on the Rights of the Child’s General Comment 26, which requires “vigorous children’s rights impact assessments”. 

South Africa is a signatory to the 1989 Convention on the Rights of the Child.

The Dec. 4 judgment said serious consideration must be given to how decisions impact on the environment, and health, of the nation – and particularly on children – and that decisions made without such consideration would not pass constitutional muster.

The court further ruled that technical considerations like “enab[ling] the grid to be stable and its integrity to be sustained”  do not constitute sufficient reason to limit fundamental constitutional rights.

South Africa is currently developing a new electricity plan for 2030 to 2050. While the latest draft has yet to be made available, updated scenarios make provision for substantial gas power, nuclear power and life extensions for the existing coal fleet. Notably all scenarios in the plan envisage South Africa depending on fossil fuels for electricity beyond 2050.

The judgment in the Cancel Coal case has far-reaching implications for this process: not only must the voices of children and youth groups be heard in the planning process, but decision-makers also need to show that the implications for health and children’s rights have been considered, and that where those rights are affected, violations are justifiable “in an open and democratic society based on human dignity, equality and freedom”.  

Given the scientific evidence on the impacts of coal, gas and climate change on fundamental rights, including the rights of the child, it will be extremely difficult for any fossil fuel power to meet this constitutional standard.