18 September 2025
The Supreme Court of Appeal has set aside environmental authorisation for Eskom’s planned 3,000MW gas-to-power plant in Richards Bay. Photo: Ben Bezuidenhout via Wikimedia (CC BY-SA 4.0)
The Supreme Court of Appeal (SCA) has put paid to Eskom’s plans to build a 3000MW gas-to-power plant in Richards Bay, for now.
In a unanimous ruling, the court lamented the lack of public participation in the environmental approval process.
The court set aside the environmental authorisation issued in December 2019 by the chief director of integrated environmental authorisations in the Department of Forestry, Fisheries and Environment.
Justice Nambitha Dambuza, writing for the court, said “a large portion of the public was deprived of the right to participate in and influence a decision that relates to their fundamental rights”.
This, on its own, meant that the authorisation had to be set aside.
Justice Dambuza was clear that this did not mean that the matter could be remitted to the chief director, but that Eskom would have to make a fresh application for authorisation once the required public participation has taken place “and the fruits thereof have been considered”.
“The authorisation is a nullity. Eskom is at liberty to renew its application for an authorisation once the various requirements which had not been complied with, have been attended to,” she said.
The matter was taken to court by the South Durban Community Environmental Alliance and the groundWork Trust, supported by Natural Justice, after an internal appeal to the minister failed.
It was initially heard in the Pretoria High Court, where Judge Anthony Millar — while finding there were flaws in the consultation process — said these were not fatal and that the environmental authorisation was the first in a chain of authorisations that would be required in relation to the power plant development.
This included one relating to the construction of the gas pipeline from the port terminal to the power plant, which would also be subject to public participation.
Judge Millar dismissed the review application and ordered that the respondents (Eskom, the minister, and the department) publish a copy of the environmental authorisations and conditions in Zulu in at least two newspapers circulating in Richards Bay area and ensure that all subsequent linked and ancillary applications be similarly published.
The environmental organisations took this ruling on appeal to the SCA.
In the ruling handed down this week, Justice Dambuza said it was common cause that renewable sources of power were never considered when contemplating the new power station. The cumulative environmental impacts were not examined. The explanation from the respondents was that none of the existing sources of renewable power would be suitable.
While Eskom acknowledged the need to transition from fossil-fuel energy generation to renewable energy-based power sources, it contended that this did not mean that every application for authorisation must be for a renewable power source.
In this case, renewable energy sources were not considered because what was needed was the provision of emergency power for short periods of time, when required.
Justice Dambuza said the high court had been satisfied with this explanation. It had also been satisfied with the explanation that the anticipated greenhouse effects of the gas facility would be the subject of a separate authorisation application relating to the transportation of the gas to the plant.
Regarding the issue of public participation, the judge said the call for public comment had only been advertised in English and Afrikaans newspapers and not in local Zulu newspapers, in spite of the fact that in the final environmental report, it was stated that the most commonly spoken language in the area was Zulu.
“There is no evidence of consultation with vulnerable people or even an investigation of their existence in the relevant area.
“The purported public participation process fell short of the purpose for which it was created,” she said.
“And for that reason alone, the environmental authorisation decisions must be reviewed and set aside.”
She said, however, that other grounds of appeal had to be determined because the minister and the chief director, who seemed to be unaware of some of the provisions in the National Environmental Management Act, would no doubt have to deal with similar matters in future.
Their responses, that there was no requirement under the Environmental Impact Assessment Regulations (EIA) to assess the impacts of renewable power, were incorrect.
“They mandate an assessment of reasonable and feasible alternatives to a proposed project, importantly sustainable development remains the goal.”
The regulations also required an evaluation of how the impacts of a proposed project, when added to similar existing and foreseeable developments, can lead to significant changes.
“The argument that the minister failed to consider the cumulative effect of the extraction and transportation of the gas must be upheld.”
Judge Dambuza said the greenhouse gas emissions associated with the extraction and transportation of the gas from its source (possibly Mozambique) to Richards Bay and to the power plant were not assessed or indicated in the final EIA report.
The alliance and groundWork hailed the judgment as an “outright victory” for communities in Richards Bay, describing it as a “firm shove in the right direction” towards a just energy transition.