The Supreme Court of Appeal (SCA) has invalidated the Department of Forestry, Fisheries and the Environment’s authorisation for Eskom to construct a gas power plant within the Richards Bay Industrial Development Zone.

This decision follows an appeal by the South Durban Community Environmental Alliance (SDCEA) and the Trustees of the Groundwork Trust. 

The authorisation was initially granted by the department’s chief director on December 23, 2019. Before reaching the SCA, SDCEA and the Groundwork Trust appealed the decision to the minister of the department, but this appeal was dismissed. Subsequently, the Gauteng High Court, Pretoria, also ruled against both the SDCEA and Groundwork.

Eskom described the proposed power plant as a mid-merit, gas and diesel-fuelled ‘gas-to-power’ station with an installed capacity of 3000MW. 

The utility stated its primary intention to power the plant with gas, using diesel as a backup. Gas would be supplied from a terminal at the Richards Bay Port via a pipeline, which Transnet is envisioned to construct.

“The gas will be sourced from Mozambique, but it could also be sourced from the Karoo Basin,” Eskom explained. 

All related infrastructure for the power plant would be located within the Umhlathuze Local Municipality.

In their appeal against the chief director, Eskom, and the minister, SDCEA and Groundwork argued that the authorisation was granted without a sufficient assessment of the power plant’s climate change impacts and that public participation was inadequate. 

“These factors should have been central to the consideration of Eskom’s environmental authorisation application,” Groundwork and SDCE argued.

They contended that failure to adequately consider any of the factors should lead to the authorisation’s review and setting aside.

The department argued: “The polycentric nature of environmental authorisation decisions prevents judicial intervention, stating that interference by the court would undermine the principle of separation of powers.”  

It maintained that the power plant aligns with the government’s Integrated Energy Resource Strategy, which envisions natural gas as a bridge before renewable alternatives are fully implemented as coal is phased out. The department also cautioned that a hasty transition to renewables might be unsustainable.

However, the court disagreed with the department’s arguments, finding that the authorisation failed to adhere to the principles outlined in the National Environmental Management (NEMA) Act 107 of 1998, which governs activities that may cause significant environmental damage. 

Judge Nambitha Dambuza said under NEMA, the minister was compelled to consider the environmental impacts of the power plant, its cumulative effects, and its need and desirability. 

The judge found that the public participation process for the environmental impact report was inadequate. She highlighted that invitations were exclusively in English, despite 79% of Umhlathuze residents being IsiZulu speakers.

nomonde.zondi@inl.co.za

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