South Africa stands at a pivotal moment in defining its energy future. The energy transition presents an extraordinary opportunity for Africa, but it must be a just and sustainable transition.
In South Africa, every proposed energy project must undergo rigorous environmental impact assessment in terms of the National Environmental Management Act,1998, and where relevant other legislation such as the National Water Act, 1998 and the National Environmental Management: Biodiversity Act, 2004 where water and biodiversity may be impacted by the development of an energy project. The adequate assessment of environmental issues is not merely a matter of regulatory compliance but a fundamental prerequisite to the visibility and long-term success of such projects. These assessments are neither perfunctory nor uniform; a single project may trigger multiple, distinct environmental requirements, each demanding its own careful evaluation and independent conclusion.
Developers and operators must ensure that environmental impact assessments are conducted with sufficient rigour and scope addressing issues such as biodiversity and habitat degradation; water (and notably the impact on water resources such as wetlands); heritage and the cumulative impacts on surrounding ecosystems and communities. Where environmental considerations are inadequately assessed or overlooked, the consequences can be severe and multifaced: projects may face legal challenges by way of internal appeals and judicial review (resulting in substantial costs and delays), regulators may impose enforcement action, including the suspension and revocation of licenses; and developers may incur significant financial liability arising from environmental damage. Beyond the immediate legal and financial risks, a failure to conduct robust environmental assessment undermines public confidence in the regulatory framework governing energy and extractive industries and may give rise to reputational harm that jeopardises future project opportunities.
The Environmental Impact Assessment (EIA) regime sets out the requirements for EIA relative to specific listed activities. These assessments are compiled by Environmental Assessment Practitioners (EAPs) as well as the relevant specialists required to supplement the EAP reports (for example, biodiversity, wetland, and heritage specialists, among others). The EIA must be conducted by reputable, independent and qualified specialists with the necessary expertise to evaluate and successfully navigate complex environmental factors specific to the project. The importance of experience, skill and understanding in this regard cannot be overstated.
The reports prepared in respect of a project are subject to scrutiny on many levels: by interested and affected parties during consultation, by the competent authority making the decision on the application, by an appeal authority (should the granted authorisation be appealed) and, in some instances, by our courts should the appeal decision be reviewed. Courts are not only engaged through review proceedings; they may also be approached on an urgent basis where applicants contend that irreparable harm to the environment is at stake.
This underscores the necessity of rigorous, defensible assessments prepared by professionals who understand the legal and scientific standards required in conjunction with the required public participation processes.
The public participation mechanism ensures that the voices of interested and affected parties are heard, fostering transparency and accountability. Effective participation requires more than ticking boxes; it demands ongoing, intentional, and meaningful communication. Consultation must be conducted in appropriate languages, and scientific evidence must be explained in accessible terms. Communities cannot be expected to engage meaningfully if they do not understand the information presented. Experienced EAPs play a crucial role in ensuring that thorough research is done to identify all impacted communities. Proper engagement with these communities not only strengthens the legitimacy of the process but also reduces the risk of future disputes and litigation.
South Africa has witnessed a significant increase in environmental litigation over the past decade. The subject matter of the environmental litigation has varied. Some cases focus on regulating the use of environmental resources, while others seek to protect ecosystems from degradation. What makes environmental litigation unique is its broad standing provisions. South African law allows three categories of litigants to bring environmental matters: parties acting in their own interest, parties acting in the public interest, and parties acting in the interest of protecting the environment itself.
This framework enables non‑governmental organisations to advance the interests of communities that might otherwise lack the resources to litigate. Unlike traditional class actions, which require verification and procedural hurdles, environmental standing provisions allow a single organisation to represent an entire community. In addition, litigants in environmental matters benefit from the Biowatch principle, which generally shields those seeking to enforce environmental and constitutional rights from adverse costs orders. The principle derives its name from Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC). This significantly improves access to justice, ensuring that environmental rights enshrined in the Constitution are not theoretical but enforceable.
Case law in South Africa frequently hinges on defects relating to inadequate consultation and public participation. In this regard, the decisions in Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others, Minister of Mineral Resources and Energy and Others v Sustaining the Wild Coast NPC and Others, and South Durban Community Environmental Alliance and Another v Minister of Forestry, Fisheries and the Environment and Others are particularly instructive.
The Department of Environment, Forestry and Fisheries (DFFE) has recently proposed streamlining the EIA Regulations by replacing the current system of multiple listing notices with a single consolidated notice. Under this approach, the DFFE would hold more discretion in the decision-making process through conducting a screening of each application to determine the assessment required. While critics caution that such simplification may compromise the thoroughness of environmental assessments, the DFFE maintains that the reform is intended to prevent time-consuming and expensive obstacles to development while continuing to safeguard the environment. The outcome of this proposal will be closely monitored, as it may redefine the balance between efficiency and environmental protection.
South Africa’s energy future depends on development that is both ambitious and responsible. Environmental assessments, together with meaningful public participation, remain essential to ensuring that projects proceed in line with constitutional and environmental obligations. As reforms to the EIA Regulations unfold, the challenge will be to balance efficiency with rigor, shaping not only the pace of development but also the country’s long‑term commitment to environmental justice.
By Tina Costas and Natercia Dos Santos Niz*
* Costas is Deneys Environment and Sustainability Director, and Dos Santos Niz, an Associate