By Mikaella Bodeux

Reflecting on judgments handed down during the past year, certain trends have become manifest in litigation concerning environmental law issues in South Africa. One such trend is the growing recognition by our courts of the importance of the public participation process and consultation in the context of project developments, specifically applications for environmental authorisations, water use licenses, and rights and permits under the Mineral and Petroleum Resources Development Act (28 of 2002).  

The most recent judgment dealing with the requirement to conduct proper public participation is that of the SDCEA v Minister of Forestry, Fisheries and the Environment,^[1] which was handed down on September 17, 2025. This was a review application against a decision to grant State-owned utility Eskom an environmental authorisation (EA) for the construction and operation of a combined cycle gas power plant in Richards Bay as well as the decision by the Minister of Forestry, Fisheries and the Environment to uphold the EA on appeal.

One of the issues raised in this matter was whether interested and affected parties (I&APs) were provided with a reasonable opportunity to participate in the environmental impact investigation process. In particular, the applicants challenged the fact that the availability of the Scoping and Environmental Impact Assessment Report (EIAR) for commenting purposes was advertised in English and Afrikaans newspapers only, despite the fact that the final EIAR itself had noted that the most commonly spoken language in the area of the proposed project is isiZulu. The Court found that this approach was wholly insufficient and inconsistent with the requirement that environmental management place people and their needs at the forefront of concern, and serve their physical, psychological, developmental, cultural and social interests equitably. The Court concluded that the EA ought to be set aside on this basis.

The judgment in the matter of The Green Connection NPC and Natural Justice v Minister of Forestry, Fisheries and the Environment & Others,^[2] which was handed down on August 13, 2025, also dealt with the requirement to conduct public participation, specifically in relation to the documents that must be made available for public comment. This matter was concerned with the decision granting an EA to energy company Total Energies to conduct exploratory drilling off the south-western coast of South Africa as well as the decision by the Minister of Forestry, Fisheries and the Environment to uphold the EA on appeal.

In respect of the fifth ground of review, it was argued that the Oil Spill Contingency Plan (OSCP) and Blowout Contingency Plans (BOCP) ought to have been included in the Environmental Management Plan for the project and made available for public comment. Of note, the OSCP and BOCP are both documents which would be key to Total Energies’ proposed management and mitigation of well blowouts and oil spills. To the extent that the final OSCP And BOCP were not subjected to public participation, the Court found that I&APs had been deprived of an opportunity to participate in the assessment of the mitigation measures, thereby rendering the public participation process flawed. The Court found that the decisions under review accordingly stood to be set aside.

The matter of Sustaining the Wild Coast & Others v Minister of Mineral Resources and Energy & Others^[3] was also heard on appeal in the Constitutional Court in 2025. This seminal matter was initially heard in the High Court Makhanda in 2022 and is concerned with the decision taken by the Minister of Mineral Resources and Energy to grant an exploration right to Impact Africa which would enable the latter to conduct seismic surveys off the Wild Coast, South Africa. The High Court’s judgment in this matter includes important pronouncements on the content of the requirement to conduct meaningful consultation with I&APs, setting the standard to ensure broader and more stringent consultation processes are conducted.

The High Court ultimately concluded that the consultation process at issue had been inadequate. This was also confirmed by the Supreme Court on appeal. The Supreme Court, however, amended the High Court’s order which set aside the exploration right, instead implementing a suspension order to delay the setting aside of the exploration right and directing that a further consultation process be conducted to cure the defects in the process already undertaken.

It is anticipated that judgment in this matter will be handed down by the Constitutional Court this year. While the Court has not been called upon to make a determination on the merits, this judgment will be important insofar as it may provide clarity on whether a further consultation process, as has been ordered by the Supreme Court, would be capable of effectively curing the defects in the initial consultation process.

Going forward into 2026, it will be interesting to see if this uptick in cases dealing with public participation and consultation requirements will continue. In the interim, it will be crucial for project proponents and environmental assessment practitioners to take heed of these judgments and ensure that they comply with the relevant requirements for public participation and consultation. It is clear that to ignore these requirements will carry a high risk of litigation and the potential for having authorisations and permits granted on the basis of inadequate public participation and consultation processes being set aside.

_{[1] (479/2023) [2025] ZASCA 134 (17 September 2025).}

_{[2] (5676/2024) [2025] ZAWCHC 349 (13 August 2025).}

_{[3] CCT 196/24.}