African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others (56907/21) [2022] ZAGPPHC 946 (9 December 2022)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE Number: 56907/21

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED: YES/NO

9/12/2022

In the matter between: -

AFRICAN CLIMANTE ALLIANCE First

Applicant

VUKANI ENVIRONMENTAL JUSTICE Second

Applicant

MOVEMENT IN ACTION

THE TRUSTEES FOR THE TIME BEING OF Third

Applicant

GROUNDWORK TRUST

and

THE MINISTER OF MINERAL RESOURCES First

Respondent

AND ENERGY

THE NATIONAL ENERGY REGULATOR

Second Respondent

OF SOUTH AFRICA

THE MINISTER OF FORESTRY, FISHERIES Third

Respondent

AND THE ENVIRONMENT

THE PRESIDENT OF THE REPUBLIC OF Fourth

Respondent

SOUTH AFRICA

JUDGMENT

This Judgment was handed down electronically by circulation to the parties’ and or parties’ representatives by email and by being uploaded to CaseLines. The date and time for the hand down is deemed on 5 December 2022.

1. This is an interlocutory application to compel compliance with rule 53(1)(b) of the uniform rules of court and thus for the production of a complete record.

2. Unhappy with the decision relating to the provision of ‘new coal-fired power’, a group of applicants instituted proceedings against the Minister of Mineral Resources and Energy, the National Energy Regulator of South Africa, the Minister of Forestry, Fisheries and the Environment and the President of the Republic of South Africa to set aside certain decisions ‘to the extent that they make provision for 1500MW of ‘new coal-fired power’.

3. The first two applicants are registered non-profit companies who, broadly speaking have the interests of the environment at heart. The third applicant is a trust which operates, it states, as a non-profit environmental justice service and developmental organisation.

4. The application was launched in November 2021. The Notice of Motion, where relevant for the purposes of this judgment, reads as follows:

‘1. The following decisions (‘the impugned decisions’) are declared to be inconsistent with the Constitution of the Republic of South Africa, 1996 (‘Constitution’), unlawful and invalid:

1.1 The determination published by the Minister of Mineral Resources and Energy (‘Minister’) on 25 September 2020 as GN1015 in Government Gazette No. 43734, to the extent that this includes provision for 1500MW of new coal-fired power.

1.2 The concurrence published by the National Energy Regulator of South Africa (‘NERSA’) on or about 10 September 2020, to the extent that this supported the Minister’s determination in respect of 1500MW of new coal-fired power.

1.3 The Integrated Resource Plan 2019, published on 18 October 2019 as GN1360/2019 in Government Gazette 42784, to the extent that it makes provision for 1500MW of new coal-fired power.

2. The impugned decisions are set aside to the extent that they make provision for 1500MW of new coal-fired power.

3. To the extent necessary, the applicants’ delay in bringing the review application in terms of the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’), alternatively the constitutional principle of legality, is condoned and/or the 180 day time period under PAJA is extended so as to terminate one day after the institution of this application’.

5. The notice of motion then continues in the normal manner and then states:

‘TAKE NOTICE FURTHER that:

(a) In terms of Rule 53(1)(a) of the Uniform Rules of Court, the Minister and NERSA are called upon to show cause why the impugned decisions should not be reviewed[1], declared invalid and set aside.

(b) In terms of Rule 53(1)(b), the Minister and NERSA are called upon, within 15 days of the receipt of this notice of motion, to dispatch to the Registrar the record of all documents and all electronic records that relate to the making of the impugned decisions, together with such reasons as they are by law required or may require to give or make, and to notify the applicants’ attorneys that this has been done.

(c) In terms of Rule 53(4), the applicants may within 10 days of the receipt of the record from the Registrar, amend, add to, or vary the terms of its notice of motion and supplement the founding affidavit, by delivery of a notice and accompanying affidavit’.

6. Dissatisfied with the extent of the record that was produced by the first respondent, the Minister of Mineral Resources and Energy, the applicants in April 2022 brought an application seeking an order in the following terms:

‘1. The first respondent is directed, within 10 days of service of this order, to comply with Rule 53(1)(b) of the Uniform Rules of Court by dispatching to the applicants, and uploading onto CaseLines, a complete record containing all documents and all electronic records (including correspondence, contracts, memoranda, advice, recommendations, evaluations, internal deliberations and the like) that relate to the decisions which are subject to the main review application under case no. 56907/21.

2. In the event that the first respondent fails to comply with paragraph 1 of this order, the applicants may return to Court on the same papers, duly supplemented, for further relief, including an order striking out the first respondent’s opposition to the main application’.

7. There was, as usual, some correspondence between the parties in order to obtain an extension of the deadline within which to file the necessary record. On 20 January 2022, the state attorney, on behalf of the first respondent, it is alleged, ‘electronically filed an index and partial rule 53 record, amounting to 295 pages, the bulk of which comprised of relevant documents that were already attached in support of the applicants’ founding papers in the main application’.

8. On 3 February 2022 the applicants’ attorneys addressed a letter to the state attorney advising them of what they alleged is the incomplete record and referring them to the constitutional authority that a record must contain ‘every scrap of paper throwing light, however indirectly’ on decisions under review. The letter continued at paragraph 6 and stated the following:

‘6. Without limiting the generality of this request for a complete record, the following records appear to be missing. We, therefore, request that you provide all documents, notes, minutes, memoranda, physical and electronic correspondence, recordings, and the like related to the following:

6.1 internal deliberations and the inclusion of new coal generation capacity in the 2019 IRP;[2]

6.2 the ‘policy adjustment’ referred to in the 2018 draft IRP, which led to the introduction of new coal generation capacity in the 2019 IRP;

6.3 the decision to impose ‘build limits’ on renewable energy in the 2019 IRP;

6.4 the basis for the estimation of a ‘minimum four years lead time for coal projects and natural gas infrastructure’ referred to in paragraph 2.1 of the Minister’s reasons letter (see annexure ‘FA38’ to the founding affidavit, p 901);

6.5 the Minister’s consideration of public / stakeholder comments and submissions in preparing the 2019 IRP and the determination;

6.6 all modelling, including datasets and assumptions, conducted in preparing the IRP 2019 and/or the determination i.e. modelling

outputs for the scenario with and without the annual renewable energy constraint, and the CO2 emission constraint scenario provided by the then Department of Environmental Affairs;

6.7 on 2 September 2020 CER sent a further letter to the Department of Mineral Resources and Energy (‘DMRE’), highlighting the significant gaps in the documents provided by (see annexure ‘FA96’ to the founding affidavit, p 1427). These included the absence of any documents reflecting the assumptions used in the modelling process in the IRP 2019 or the draft IRP 2018 such as:

6.7.1 the modelling outputs for the scenario with and without the annual renewable energy constraint as demonstrated in Table 5 of the 2019 IRP, including the capacity factors allocated to each technology;

6.7.2 the water use and greenhouse gas (GHG) data relied on, and the outputs of the full scope of annual GHG emissions (not only carbon dioxide) and water use under all scenarios modelled by the Department of Mineral Resources and Energy;

6.7.3 emission abatement technology costs and the sources for the values incorporated into modelling for the IRP 2019; and

6.7.4 the incremental cost output and tariff increases for all scenarios of the IRP 2019.

6.8 The GHG emission construction scenario provided by the then Department of Environmental Affairs;

6.9 Work performed by service providers and consultants related to the 2019 IRP and the determination, which relate to the inclusion of new coal generation capacity;

6.10 The mandatory socio-economic impact assessment for the 2019 IRP, in terms of the Socio-Economic Impact Assessment System (SEIAS Guidelines, 2015);

6.11 Commissioning of, and/or any feasibility studies undertaken in terms of Regulation 5 of the Electricity Regulations on New Generation Capacity, which are acknowledged in the 2019 IRP as a risk mitigation measure to ‘consider the cost of new capacity, risks (technical, financial and operational) and value for money (economic benefits)’ (see annexure ‘FA24’ to the founding affidavit, pp 692-3 and 737;

6.12 The audit report as referred to in page 8 of NERSA’s reasons letter under item 9.1.2 – ‘DMRE engaged an independent consultant to audit the IRP 2019 model’ (see annexure ‘FA40’ to the founding affidavit, p 919);

6.13 Meetings and/or communications between the Minister, officials of the DMRE, and/or their advisors with coal industry representatives, lobbyists, investors and associated parties related to the 2019 IRP and the determination;

6.14 Studies conducted on the costs and feasibility of the high efficiency low emission (‘HELE’) technology referenced in the 2019 IRP;

6.15 Any assessment of the climate change and other environmental impacts of the procurement of 1500MW of new coal capacity in preparing the 2019 IRP and the determinations; and

6.16 Any efforts to ensure that children and young people were heard and that their interests were considered in allowing the decisions under review.‘

9. The state attorney, on behalf of the first respondent, answered that letter on 1 March 2021. There is no indication in the response that the documents do not exist and the refusal to provide the documents is, in essence, based upon the reasoning that the IRP is a "revised plan for 2010 to 2030" which is not a "reviewable action" and the relief sought in the notice of motion, and in particular that addressed to the 2019 IRP as dealt with in paragraph 1.3 thereof is not a review, either in terms of PAJA or the principle of legality. It is contended that, in essence, it is declaratory relief as set out in section 21 of the Superior Courts Act, 10 of 2013 as read with sections 38 and 172 of the constitution. The letter concludes that:

‘The documents and/or information sought in your above letter are therefore not of the kind as contemplated in terms of rule 53 and the authorities cited above, and are thus hereby refused’.

10. Pursuant to that response, the present application was brought.

11. The thrust of the ground of opposition of the first respondent is set out in the introduction section of the heads of argument filed. They are of course embroidered upon in the balance of the heads of argument. In the main however I understand them to be this:

11.1. It is contended that the relief sought in the main application ‘is patently not a reiview’. This is because, apparently, there is no order sought to review and set aside the impugned decisions. It is further contended in the heads of argument that the grounds for review in the main application are ‘scant’ and in support of this allegation reference is made to paragraphs 416 and 417 of the main application.

11.2. It is further contended that because the 2019 IRP is not ‘founded in legislation’ it is not a decision capable of being reviewed.

12. For the reasons which follow I am not inclined to uphold either one of the grounds of opposition.

13. Just the very wording of the notice of motion which is quoted earlier in this judgment is, in my view, demonstrative of the fact that it is a review and not simply declaratory relief as set in section 21 of the Superior Courts Act.

[1] the emphasis is that of the court

[2] This is a reference to the integrated resource plan referred to in paragraph 1.3 of the notice of motion in the main application

[3] No such finding is made in this judgment