26. HUMAN-RIGHTS-BASED CLIMATE-ENERGY CLAIMS

1. Introduction

Human-rights-based climate-energy claims arise when individuals, communities or public-interest organisations argue that climate change, fossil-fuel projects, electricity policies or energy infrastructure affect constitutionally protected rights. In South Africa, these claims can connect climate protection, environmental rights, health, dignity, life, food, water, housing and intergenerational justice.

The constitutional foundation is particularly strong under section 24, which guarantees everyone the right to an environment that is not harmful to health or well-being and requires reasonable measures protecting the environment for present and future generations. Climate litigation therefore increasingly examines whether energy decisions properly account for their environmental and human-rights consequences.

2. Constitutional Framework

A human-rights-based climate claim may rely upon several constitutional provisions. Section 24 provides the central environmental foundation, while sections 10 and 11 protect dignity and life. Sections 27 and 29 protect access to healthcare, food, water and basic education. Climate change can potentially interfere with these rights through heat, drought, flooding, pollution and disruption of essential infrastructure.

However, a claimant generally must connect the alleged climate or energy harm to a recognised constitutional or statutory duty. Courts do not automatically convert every climate concern into a directly enforceable individual right.

3. Earthlife Africa Johannesburg v Minister of Environmental Affairs

Case Name/Citation: Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others [2017] ZAGPPHC 58

Facts: Earthlife challenged environmental authorisation for the proposed Thabametsi coal-fired power station, arguing that decision-makers had failed to properly consider the project's climate-change impacts.

Legal Issue: Whether climate-change impacts constituted legally relevant considerations that had to be assessed before environmental authorisation.

Judgment: The High Court held that climate-change impacts were relevant considerations under the environmental-authorisation framework and set aside the decision for reconsideration.

Legal Principle/Ratio Decidendi: Environmental decision-makers must consider relevant climate impacts when exercising statutory powers. The court connected climate change with section 24's environmental right, sustainable development and intergenerational considerations.

Significance: The judgment established an important foundation for rights-based climate-energy litigation in South Africa by requiring climate considerations to be integrated into decisions concerning carbon-intensive electricity infrastructure.

4. Sustaining the Wild Coast v Minister of Mineral Resources and Energy

Case Name/Citation: Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others [2022] ZAECMKHC 55

Facts: Coastal communities and environmental organisations challenged an exploration right associated with Shell's proposed seismic survey along South Africa's eastern coastline. They raised concerns involving environmental protection, consultation, livelihoods and climate consequences.

Legal Issue: Whether the authorisation process adequately considered relevant environmental and community interests, including climate-change implications.

Judgment: The High Court set aside the relevant exploration-right decisions. The court emphasised the importance of meaningful consultation and recognised that climate impacts could be relevant to decisions concerning fossil-fuel development.

Legal Principle/Ratio Decidendi: Decision-makers cannot artificially separate connected stages of an energy project where the environmental and climate consequences are legally relevant to the decision under consideration.

Significance: The case demonstrates how environmental rights, community participation, livelihoods and climate considerations can operate together in energy litigation.

5. Energy Supply and Human Rights

Human-rights-based energy claims are not limited to fossil-fuel development. They can also concern electricity shortages, pollution from power stations, electricity affordability and energy infrastructure.

In United Democratic Movement v Eskom Holdings SOC Ltd, the High Court considered claims concerning prolonged load-shedding and its alleged effects on constitutional rights including dignity, life, health, food, water, education and the environment. The court issued relief concerning electricity supply to specified essential institutions.

This illustrates the two-sided nature of climate-energy litigation: constitutional claims may demand both reduced environmental harm and reliable access to electricity.

6. Subsidiarity and Statutory Frameworks

A major legal issue is the constitutional principle of subsidiarity. Where legislation has been enacted to give effect to a constitutional right, litigants ordinarily rely on that legislation rather than bypassing it and relying directly on the Constitution.

Accordingly, climate-energy claims frequently operate through statutes such as the National Environmental Management Act 107 of 1998 (NEMA), environmental-impact assessment regulations, the Electricity Regulation Act and other sector-specific legislation. Courts can then review administrative decisions for lawfulness, rationality, relevant considerations and procedural fairness.

7. Intergenerational Justice

Climate litigation also raises intergenerational justice because section 24 expressly refers to environmental protection for present and future generations. In Earthlife Africa, the court recognised the relationship between climate change, sustainable development and intergenerational considerations.

This principle means that energy decisions can require consideration of long-term consequences rather than focusing exclusively on immediate electricity or economic benefits.

8. Conclusion

Human-rights-based climate-energy claims have developed into an important form of constitutional and administrative accountability. Earthlife Africa established the importance of climate considerations in environmental authorisation, while Sustaining the Wild Coast demonstrated the interaction between climate concerns, environmental protection, community interests and lawful consultation. Load-shedding litigation further shows that constitutional energy claims may concern the positive provision of reliable electricity as well as protection against environmental harm. The emerging framework therefore requires energy governance to reconcile human rights, environmental sustainability, electricity security, public participation and intergenerational justice within the constitutional order.