Sasol and Eskom granted leniency for non-compliance with air emissions limits
Sasol has been granted permission by the Department of Forestry, Fisheries and the Environment (DFFE) for an alternative SO2 minimum emission standard (MES) for its Secunda boilers. Sasol had previously been granted a once-off postponement in respect of its Secunda operations. The National Air Quality Officer refused a subsequent application by Sasol to measure its SO2 emissions using a load-based limit, as opposed to the legislated concentration-based limit. Sasol appealed this decision and the DFFE Minister upheld Sasol's appeal. In her decision, the DFFE Minister stipulated that alternative emissions must be granted for a limited period within which to comply with the MES and not be granted in perpetuity.
Eskom has also won an appeal to suspend the MES limits at its Hendrina, Grootvlei, Arnot, Camden and Kriel coal-fired power plants, due to be decommissioned by 2030. In terms of South Africa's air quality laws and regulations, Eskom's coal power stations must meet the limits by a certain time or they would be non-compliant and unable to operate legally. Eskom has previously sought exemptions from the MES and has been granted a once-off suspension of the compliance timeframes with the MES. The Appeal decision allows these power stations (Hendrina, Grootvlei, Arnot, Camden and Kriel) to continue to operate at these existing MES plant limits until 2030. Eskom has also been directed to submit decommissioning plans within 12 months of the decision to facilitate the closure of these stations by March 2030.
Both the Sasol and Eskom appeal decisions were informed by recommendations from an expert panel appointed to advise the DFFE Minister on the appeals. As South Africa faces the significant challenge of transitioning away from coal, amidst an energy crisis plagued by rolling power cuts, decision-makers are tasked with having to strike a balance of competing interests, which include, energy security, the energy crisis facing South Africa, commitments to reducing GHG emissions and adverse socio-economic impacts of coal plants that continue to operate in non-compliance with emission standards.
Environment Minister opens the way for controversial Karpowership Project
In July 2024, the newly appointed Minister of the Department of Forestry, Fisheries and the Environment (DFFE) dismissed an appeal by environmental justice groups against the DFFE's decision to grant an environmental authorisation to Karpowership to moor two powerships in Richards Bay harbour to supply “emergency power" to the Eskom grid. The Karpowership deal has faced pushback from communities and environmental justice groups over the years, mainly due to environmental concerns that the powerships will impact surrounding aquatic ecosystems and emit an enormous amount of greenhouse gas in the form of methane. The Karpowership Deal emerged as a response to South Africa's energy crisis. In April 2021, the Risk Mitigation Independent Power Producer Programme was introduced to procure 2,000 MW of new capacity and Karpowership secured three of the eight bids.
Shell's ongoing court battle over South Africa's Wild Coast exploration
The Supreme Court of Appeal (SCA) recently dismissed an appeal by Shell (and others) against the Makhanda High Court's judgment (which set aside Shell's exploration right and subsequent renewals) but, importantly, the SCA suspended the setting aside of the exploration right until Shell's final renewal application on the right is finalised. The Makhanda High Court's ruling had the effect of prohibiting Shell from conducting seismic survey operations along the Wild Coast of South Africa on the basis that Shell and Impact Africa had failed to engage in a meaningful and fair public participation process and, in doing so, infringed the rights and interests of affected Wild Coast communities. Despite agreement with the findings of the High Court, the SCA declined to set aside the right and renewal decisions in their entirety, favouring what he termed a more “pragmatic" approach “in crafting just and equitable remedies in the exercise of its wide remedial powers." In doing so, the SCA clearly showed its concern with the potential “chilling effect on foreign investment" and what it called the “sterilising effect" of the High Court's ruling. As a result, it held that, while the exploration right was granted unlawfully, a renewal of the unlawfully granted right may yet be granted.
The SCA directed that, in relation to the third renewal application, that “a further public participation process be conducted to cure the identified defects in the process already undertaken, especially as the parties who claim to have an interest in the matter have now been identified…." The ruling is important in its potential to shape the future of energy exploration and community rights in South Africa.
Chemical spill class action
During July 2021 (at the same time that riots were taking place in KwaZulu-Natal and other parts of the country), a leased warehouse was torched and the products that were being stored inside the warehouse seeped into the environment. The incident had disastrous consequences for nearby residents and the environment. Following this, a multi-departmental team investigated the incident and recommended further investigations into the incident, finding various instances of non-compliance by UPL South Africa (Pty) Ltd (UPL) in relation to the warehouse and the products stored therein. Later, an application for certification of a class was served on UPL as the first procedural step in bringing class action proceedings against UPL.
The class action was instituted by the South Durban Community Environmental Alliance and 13 Durban representative residents and seeks the recovery of damages as a result of the incident described above. The class action envisages different classes of plaintiffs including those who suffered economic harm as a result of the spill hampering their ability to harvest marine resources and residents of local communities who lost their ability to grow and sell vegetables, over and above those who suffered physical harm as a result of the spill. UPL have publicly expressed their intention to oppose the application for certification. The certification proceedings are at a very early stage and will likely take months (if not years) to be heard.
Using South African courts to enforce judgments that potentially run afoul of international sanctions
A Russian media outlet was granted permission to attach Google shares and trademarks in South Africa ahead of litigation in a dispute between it and Google LLC over Google's shutdown of its YouTube channel. The media outlet, No Fond Pravoslavnogo Televideniya (The Foundation for Orthodox Television), has been sanctioned in the US and in the EU over its use of religious messaging to spread propaganda about Russia's invasion of Ukraine. A Russian Court ruling from 2023 found that Google's shutdown of the channel was illegal and imposed a monetary penalty for failure to reinstate the channel. The media outlet now seeks to enforce this judgment through South African courts. The case is important as it seeks to use domestic courts to enforce judgments which potentially run afoul of international sanctions.
Human Rights Commission probes mining activities in Limpopo
In late June 2024, the South African Human Rights Commission (SAHRC) conducted an inquiry into the impact of mining activities on human rights in communities in South Africa's Limpopo province. The inquiry aimed to address ongoing complaints about human rights violations, particularly concerning environmental and socioeconomic rights. The issues raised included damages caused by blasting, air pollution, water pollution and food security, given that mining can impact the community's ability to plough its fields. Those identified to give evidence at the inquiry included mining companies, complainants, government departments and municipalities. The SAHRC has not yet released its findings or published a report on this matter, but it has indicated that "the outcome of the inquiry is expected to facilitate the formulation of findings and recommendations towards achieving redress for human rights concerns". The SAHRC also reported in a media briefing that the Office of the Premier in Limpopo "has committed to holding departments that oversee mining activities accountable for human rights violations in mining communities".
Advertising Regulatory Board (ARB) "Greenwashing" Ruling
A network of South Africans calling for divestment from fossil fuel lodged what it called South Africa's first 'greenwashing' claim against TotalEnergies with the ARB, objecting to an advert on TotalEnergies' website, which asserted:
“We're committed to sustainable development and environmental protection. That's why we've partnered with SANParks for over 60 years so that South Africans can appreciate our country's natural heritage and pass on a love for the environment to their children." The complainant argued that these statements were misleading the public with respect to TotalEnergies' environmental impact. On 14 August 2024, the ARB ruled that TotalEnergies' partnership with SANParks was indicative of a commitment to environmental protection and was therefore not misleading. However, with respect to the question of whether TotalEnergies' support of SANParks amounted to a commitment to sustainable development, the ARB held that there was "no evidence that there is a link between the support of SANParks and any definition of sustainable development." Given this, the claim of "sustainable development" in the context of SANParks support was misleading and a contravention of the Code of Advertising Practice. The ARB instructed its members not to accept any advertising from TotalEnergies with the wording "committed to sustainable development", relating only to its support of SANParks.
