Leave to appeal granted in SCA case against the Richard Bay gas power plant

Share this post:


Richards Bay, 16 May 2023: Civil society organisations, the South Durban Community Environmental Alliance (SDCEA) and groundWork, have been granted leave to appeal to the Supreme Court of Appeal, in respect of their challenge to the decision to authorise a 3000MW gas-to-power plant to be built in Richards Bay by state-owned enterprise, Eskom.

In the appeal, the organisations will argue as to why the Pretoria High Court erred in the judgment handed down on the 6 October 2022, in which it dismissed the review application brought by the organisations against the environmental authorisation of the power plant, which was obtained in December 2019.

The court challenge is being supported by Natural Justice, represented by environmental law firm, Cullinan & Associates.

The organisations first sought leave to appeal from the Pretoria High Court. The arguments were heard on 17 January 2023 and the judgment handed down the very next day, 18 January 2023, which dismissed the leave to appeal. The organisations then petitioned the SCA directly.

In granting the leave to appeal application, the court also overturned the costs order given by the High Court in respect of their application for leave to appeal.

“This is an important ruling as it sends a strong message that flawed public participation processes that exclude impacted communities should not be overlooked. It is unjust and unfair practice that violates people’s right as public trustees to the environment and their role in maintaining a healthy and vibrant democracy. People have the right to be notified and informed early, adequately and in their language of preference. They have the right to choose cleaner technologies that will benefit future generations, and not negatively impact their lives and livelihoods. Equally important is the acknowledgement that climate change impacts have no borders, and that increases in methane emissions from Eskom’s proposed gas plant and fugitive emissions along its supply chain will be far more detrimental than coal.” – Avena Jacklin (groundWork)

Loadshedding is at the worst it’s ever been and gas-to-power plants are not the answer. Renewable energy is the way forward to ensure a just transition for all. Communities in and around Richards Bay will be greatly impacted if yet another non-renewable plant is approved. Another gas-to-power plant poses even more risks to health, water, air and land in Richards Bay. Environmental impacts need to be considered by the applicants and all parties involved in the decision-making process. Richards Bay is already plagued with polluting industries and we do not need more. It is time for the right decisions to be made in order to ensure the success of our natural environment for generations to come.” – Tanica Naidoo (Project officer, SDCEA)

“One of the crucial issues at stake in this appeal is whether or not South African decision makers and courts must consider environmental impacts which occur outside South Africa. Climate change is a global issue. We and our clients believe that it is both dangerous and unlawful not to consider all the environmental impacts of South African projects, including those which occur beyond our borders.” – Cormac Cullinan (Director, Cullinan & Associates).

We are relieved that SDCEA and groundWork have been granted this opportunity to challenge the judgment of Judge Millar, who dismissed the application for review despite finding that the public participation process had been fundamentally flawed.  We are confident that the Supreme Court of Appeal should also find merit in the other review grounds, particularly that the climate change implications of the gas power plant have not been properly assessed.  A gas power plant has the potential to have worse climate change implications than a coal-fired power station when considering the full lifecycle of the power generation process. Whilst we have an electricity crisis on our hands, this power plant is not the answer. The climate crisis is real and will cripple our livelihoods in time to come.” – Melissa Groenink-Groves (Programme Manager, Natural Justice)