SOUTH AFRICA: ESG IN DECISION MAKING – ELOFF LANDGOED (PTY) LTD V MINISTER OF FORESTRY, FISHERIES AND THE ENVIRONMENT AND OTHERS (GDP) (JUNE, 2023)
This matter is an important indicator of the difficulties that ‘fossil-fuel’ projects may face in future.
Eloff Landgoed, the applicant in the case, runs a large commercial farm. It applied to court to review and set aside the Minister’s decision to grant an environmental authorisation to Eloff Mining, which allowed Eloff Mining to run an open-cast coal mine on land bordering its farm. The applicant primarily reviewed the decision as it related to the fundamental irrationality of the decisions to grant the authorisation.
The issue before the Court was whether the Regional Manager’s decision to authorise the development of the coal mine, and the Minister’s decision to approve it on appeal, constituted a lawful and rational assessment of the likely impact of Eloff Mining’s proposed activities.
The Court stated that the environmental authorities must integrate environmental, social and economic consideration when deliberating on an application. This, crucially, occurs under the aegis of the risk-averse and cautious approach.
The factors militating against granting the authorisation were many. The local community was against the project, the economic impacts were, on balance, negative, as agricultural land would be irreparably harmed, and the Social Impact Report reflected on the development negatively. The decision-makers’ decisions were accordingly reviewed, set aside, and referred back to the competent authorities for reconsideration with due regard to the decision.
The appeal status of the matter is unknown at this stage, but this is an important space to keep an eye on into 2024.
For more information and to keep up to date with the latest developments, please contact Claire Tucker or Wandisile Mandlana in our Environment, Sustainability and Climate Change Practice.