The City of Cape Town made their submissions before High Court Judge Leonie Windell seeking the rights for electricity generation.
The City seeks to develop its own clean electricity capacity without requiring the national energy minister’s permission.
Legal representatives for the City, the National Energy Regulator of South Africa (NERSA) and the Minister of Mineral Resources and Energy, with the Centre for Environmental Rights (CER) as a friend of the court (amicus curiae), made their submissions before High Court Judge Leonie Windell in a virtual hearing on 11 and 12 May 2020.
According to CER, the hearing was not open to the public, but was recorded.
The constitutional obligations of local government, in relation to electricity generation, are a central focus of the case.
The CER sought to assist the court in understanding the important role that local governments can and must play in protecting human health and the environment, by facilitating the transition from harmful fossil fuel-based electricity to renewable electricity.
Fossil-fuel based electricity from coal currently makes up the majority of South Africa’s electricity, and contributes to 40% of the country’s greenhouse gas (GHG) emissions.
In addition to municipalities’ obligations to provide services like affordable and accessible electricity (as the City of Cape Town argues), they have a constitutional duty to provide clean and healthy electricity which does not result in harmful air and water pollution or worsen climate change.
Municipalities should not be impeded in fulfilling those obligations, stated CER.
Transitioning away from coal-based electricity generation
In the hearing, NERSA conceded the harms caused by coal-based electricity generation in South Africa, as raised by CER in its amicus submission, and agreed that the section 24 Constitutional right to an environment not harmful to health or wellbeing is a relevant consideration that must be taken onto account by all organs of state in electricity-related decision-making.
“The need to consider environmental, climate and human health impacts in all levels of government decision-making on electricity is crucial for a just recovery from the COVID-19 pandemic and to strengthen the country’s resilience to the climate crisis, given the impact of South Africa’s electricity system for the health, well-being and survival of the people of South Africa in the face of the climate crisis” said Nicole Loser, attorney at the CER.
Judge Windell’s judgment on the matter has been reserved and is awaited.