Courts have made section 24 enforce process, but South Africa’s just transition still lacks legal content

Introduction

South Africa has had an environmental right since 1996, a framework statute on sustainable development since 1998, and, from 17 March 2025, a Climate Change Act that is at least partly in force (Climate Change Act 22 of 2024; Proclamation Notice 251 of 2025). On paper that is a fair amount of law. What it has not produced is a just transition that anybody can point to and call a legal entitlement. This paper argues that the courts have made section 24 of the Constitution and the National Environmental Management Act 107 of 1998 (NEMA) work mainly as rules about how environmental decisions get made. Officials must now consider climate change, consult affected communities and issue regulations they had been putting off (Murcott and Vinti, 2024). The harder question, which is what a fair move away from coal actually owes to workers and communities, is still waiting on parts of the Climate Change Act that have not yet commenced.

I do not read this as a failure by the judges. It looks more like what happens when a broad right and a thin statute are handed to courts and they do the one thing courts can do without legislating, which is to police the route to a decision (Murcott and Vinti, 2024). The paper first looks at what section 24 and NEMA promise, then at four lines of litigation on coal power, Highveld air quality, seismic exploration and new coal procurement. After that it turns to the limits of those cases, and finally to the Climate Change Act and the unfinished business of a just transition (Nel et al., 2023).

What section 24 and NEMA actually promise

Section 24 gives everyone a right to an environment that is not harmful to their health or well-being, and a right to have the environment protected for present and future generations through reasonable legislative and other measures. Those measures must prevent pollution and ecological degradation, promote conservation and secure ecologically sustainable development while promoting justifiable economic and social development (Constitution of the Republic of South Africa, 1996). It is a rich provision, but Coggin (2021) calls it underused, arguing that in the urban setting it can tie together other rights such as freedom of movement and safety, and that it points the state towards community justice and away from purely individual remedies. If a right described that way has been underused for a quarter of a century, that already says something about how much of its content was left for later.

NEMA does the next layer of work. Section 2(3) says development must be socially, environmentally and economically sustainable, and section 2(4)(a) adds that sustainable development requires consideration of all relevant factors (National Environmental Management Act 107 of 1998). So the three legs of sustainability are written into the statute, and so is the tension between them. Nothing there tells a decision-maker how to weigh a coal mine’s jobs against its emissions. Murcott and Vinti (2024) make a related point from the other direction, noting that South African environmental legislation does not expressly require the executive to consider climate change at all. That gap is where most of the litigation I discuss below has taken place.

There is a coordination problem as well, and it matters more than it first seems. Lemine (2021) examined the cooperative governance principle in section 2(4)(l) of NEMA through wetland regulation and found fragmentation, duplication and inconsistent processes, because several Acts and several departments deal with the same resource. The study is about wetlands, not climate, so it cannot be stretched too far. Still, it suggests that a framework made up of overlapping sector laws does not deliver joined-up outcomes simply because a principle says it should, and a just transition cuts across mining, energy, labour, water and local government all at once. Nel et al. (2023) see a version of this in Mpumalanga, where national frameworks say little about mine closure and municipal plans barely mention it.

What the courts have done

The starting point is Earthlife Africa Johannesburg v Minister of Environmental Affairs, decided by the Gauteng High Court in Pretoria on 8 March 2017. The Thabametsi coal-fired power station had been authorised on an environmental impact report that gave climate change a single brief paragraph, and the court held that the climate impacts of such a station are relevant factors that must be considered before authorisation (Earthlife Africa Johannesburg v Minister of Environmental Affairs, 2017). Murcott and Vinti (2024) treat this as the first step in a judge-made duty to consider climate change, built through the ordinary review of administrative decisions and the instruction in section 39(2) to read statutes in line with the Constitution. The practical effect was larger than the legal holding. Chamberlain and Fourie (2024) report that the plant was eventually cancelled in 2020, and that the delay bought campaigners time to press banks and investors, commission modelling and wait while renewables got cheaper.

The Highveld case moved from climate to air. The Highveld was declared an air quality priority area in 2007, a management plan followed in 2012 and implementation stalled, and the Deadly Air case followed in 2019 (Kamolane-Kgadima and Kathi, 2024). The High Court found in 2022 that the pollution breached the section 24 right and that the Minister had a duty to make regulations under section 20 of the Air Quality Act. On 11 April 2025 the Supreme Court of Appeal dismissed the Minister’s appeal, varied the order so the regulations had to be made within twelve months, and said that environmental rights are not subject to progressive realisation (Minister of Environmental Affairs v Trustees for the time being of Groundwork Trust, 2025). The Minister had in fact published the regulations on 26 August 2024, just before the hearing, so the dispute was close to moot, but the court heard it anyway because the point mattered.

The Wild Coast litigation is the one most obviously about communities. In 2022 the Makhanda High Court set aside the exploration right granted to Shell and Impact Africa, after finding that the decision-makers had not properly considered the rights and interests of the coastal communities (Rankin, 2023; Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy, 2022). Interim interdicts against Shell and Searcher off the east and west coasts had turned on the same weakness, namely poor consultation (Glazewski and du Toit, 2022). On appeal the Supreme Court of Appeal described the consultation as “more illusory than real” (Minister of Mineral Resources and Energy v Sustaining the Wild Coast NPC, 2024, para 24). Surbun and Swanepoel (2024) read both decisions through the lens of maritime cultural heritage, and du Toit et al. (2024) add that the West Coast cases were won by communities relying on Indigenous rights and knowledge, which is something earlier climate cases had not done.

The newest line is #CancelCoal. On 4 December 2024 the Pretoria High Court declared unconstitutional, unlawful and invalid the decisions to include 1,500 MW of new coal-fired capacity in the 2019 Integrated Resource Plan, finding no evidence that the effects on children’s rights, health and the environment had been considered and that public consultation was inadequate (Africa Climate Alliance v Minister of Mineral Resources and Energy, 2024). The government appealed, and the appeal was set down in the Supreme Court of Appeal for 19 August 2026. I could find no appeal ruling as at 18 October 2026, so what the High Court said stands, subject to that pending process. Murcott and Vinti (2024) stress that the duty to consider is case-specific, and #CancelCoal shows how far it can stretch once children’s rights are added to the mix.

Process is what the cases deliver

Lined up, the four sets of cases look alike. Thabametsi demanded consideration of climate impacts, the Wild Coast cases demanded real consultation, #CancelCoal demanded consideration of children’s health and a proper participation process, and Highveld demanded that a Minister do what the statute already empowered her to do (Minister of Environmental Affairs v Trustees for the time being of Groundwork Trust, 2025). Every one of those is a requirement about how to decide. Murcott and Vinti (2024) are candid that requiring climate to be considered does not guarantee any harm is averted, and they criticise several of the cases for doing little to develop what the section 24 right actually contains. That criticism seems right to me. A right that is applied only through the review grounds of ordinary administrative law has not really been given a content of its own.

The clearest moment is also the least comfortable one for supporters of strong climate adjudication. The High Court in the Wild Coast matter had said that authorising new oil and gas exploration was not consistent with South Africa meeting its international climate commitments. The Supreme Court of Appeal rejected that holding, saying such a finding “cannot be endorsed” (Minister of Mineral Resources and Energy v Sustaining the Wild Coast NPC, 2024, para 26). It then upheld the result on consultation and cultural grounds. So when a court did reach for a substantive climate conclusion, the appeal court stepped back, and the case survived on the procedural footing (Rankin, 2023; Surbun and Swanepoel, 2024).

The remedy tells the same story. The Supreme Court of Appeal suspended the order setting aside Shell’s right pending the outcome of a third renewal application lodged on 21 July 2023, and directed further public participation, weighing about eight years of delay and roughly R1.1 billion already spent (Minister of Mineral Resources and Energy v Sustaining the Wild Coast NPC, 2024). A procedural defect can be cured by doing the procedure again, which means communities can win the argument and still face the same project at the end of a better process. In the Highveld appeal the court also struck out the High Court’s detailed supervisory directions on separation of powers grounds (Minister of Environmental Affairs v Trustees for the time being of Groundwork Trust, 2025), and Kamolane-Kgadima and Kathi (2024) conclude that the relief courts gave was partial and that enforcement alone cannot repair the harm, which is why they argue for reparations.

Then there is the question of who gets to litigate. Chamberlain and Fourie (2024) describe Life After Coal as a rare success and say plainly that litigation is never a silver bullet, because it worked only alongside financier pressure, research and a shifting energy market. The Highveld case ran from 2019 to an appeal ruling in 2025. A just transition that depends on that kind of campaign will be delivered unevenly, mostly where a well-organised civil society group has the money, lawyers and patience, and a coal town in Mpumalanga without one is basically on its own. Nel et al. (2023) show how exposed those towns are, which brings us to the statute that was meant to help.

The Climate Change Act and the unfinished just transition

The Climate Change Act 22 of 2024 was assented to on 18 July 2024 and published on 23 July 2024 (Climate Change Act 22 of 2024). It commenced on 17 March 2025 under Proclamation Notice 251 of 2025, but not in full. The proclamation left out a list of provisions, among them section 18 on the finance mechanism, section 26(2) to (6) on listed greenhouse gases and activities, and section 27 on carbon budgets (Proclamation Notice 251 of 2025). Sectoral emissions targets under section 25 are largely in force, apart from subsection (4)(c). The sources I could access show no later proclamation, so as at 18 October 2026 the machinery for allocating carbon budgets and funding the response appears still to be switched off. That is a fairly large hole, because carbon budgets are the tool that would put numbers on who has to cut what (Climate Change Act 22 of 2024).

The Act does mention a just transition. It lists one among its objects and its guiding principles and gives the Presidential Climate Commission an advisory role on socio-economic matters connected to it (Climate Change Act 22 of 2024). I found nothing in the provisions I could read that gives a worker or a municipality a claim to anything. That matters when set against the facts. Nel et al. (2023) describe Mpumalanga as a virtual mono-economy built on coal, in a country that gets about 89% of its electricity from it. They cite estimates of around 85,000 jobs at risk in the province against about 72,000 projected new jobs in renewables and hydrogen, and a funding need of roughly US$35 billion over fifteen years set against US$8.5 billion offered under the Just Energy Transition Partnership. They also say municipal planning gives mine closure only brief attention and that local government lacks the capacity to plan for it.

So what should happen next? The first step is the obvious one, which is for the executive to bring the remaining provisions into force, in particular the finance mechanism and the carbon budget provisions. The second is to make the just transition operational inside those instruments, for instance by requiring mitigation plans and budget allocations to say what they mean for affected workers and communities. Without something like that, courts will go on filling the gap the way they have, by insisting on consultation and consideration. They might do more once the Act is fully in operation, since the Thabametsi reasoning shows how a consideration the statute never named can become a relevant factor that decision-makers cannot ignore (Murcott and Vinti, 2024). Lemine’s (2021) warning about fragmented coordination under NEMA suggests the Act’s forums will need real attention too, otherwise the same duplication will turn up in climate governance.

Conclusion

The courts have given section 24 and NEMA more bite than their drafting promised. Climate change must be considered, communities must be consulted properly, and a Minister cannot sit on a statutory power while people breathe poor air (Murcott and Vinti, 2024; Kamolane-Kgadima and Kathi, 2024). That is real, and campaigners have used it well. But almost every victory is a victory about process, and the one time a court said something broader about climate commitments, the Supreme Court of Appeal declined to follow (Minister of Mineral Resources and Energy v Sustaining the Wild Coast NPC, 2024).

A just transition needs more than that. It needs rules on who pays, who is retrained, which towns get new industry and what happens to those who cannot move (Nel et al., 2023). The Climate Change Act points in that direction, yet the provisions on carbon budgets and finance were still not in force when I last checked the record, and the Act treats the just transition as an object and an advisory task more than a right (Climate Change Act 22 of 2024). Until Parliament and the executive supply that content, the law will keep telling decision-makers how to decide without telling them what a fair outcome looks like. The judges cannot write that part for them.

Reference list

Chamberlain, L. and Fourie, M. (2024) Using climate litigation to strengthen advocacy strategies: the Life After Coal campaign in South Africa. Journal of Human Rights Practice, 16(1), pp. 248-257. doi:https://doi.org/10.1093/jhuman/huad021

Coggin, T. (2021) Recalibrating everyday space: using section 24 of the South African Constitution to resolve contestation in the urban and spatial environment. Potchefstroom Electronic Law Journal, 24, pp. 1-31. doi:https://doi.org/10.17159/1727-3781/2021/v24i0a9432

du Toit, L., Soyapi, C. and Kotzé, L.J. (2024) David versus Goliath? Indigenous people, carbon majors and climate litigation in South Africa. Review of European, Comparative and International Environmental Law, 33(2), pp. 326-335. doi:https://doi.org/10.1111/reel.12534

Glazewski, J. and du Toit, L. (2022) Seismic surveys off the South African coastline. The International Journal of Marine and Coastal Law, 37(3), pp. 553-564. doi:https://doi.org/10.1163/15718085-bja10103

Kamolane-Kgadima, B. and Kathi, T. (2024) The Mpumalanga Highveld air pollution crisis: a South African reparations framework for environmental state-corporate harm. International Journal for Crime, Justice and Social Democracy, 13(1), pp. 1-13. doi:https://doi.org/10.5204/ijcjsd.3245

Lemine, B.J. (2021) The efficacy of section 2(4)(l) of the National Environmental Management Act in the context of cooperative environmental governance. Obiter, 42(1), pp. 162-174. doi:https://doi.org/10.17159/obiter.v42i1.11064

Murcott, M. and Vinti, C. (2024) The judge-made ‘duty’ to consider climate change in South Africa. Journal of Human Rights Practice, 16(1), pp. 125-145. doi:https://doi.org/10.1093/jhuman/huad069

Nel, E., Marais, L. and Mqotyana, Z. (2023) The regional implications of just transition in the world’s most coal-dependent economy: the case of Mpumalanga, South Africa. Frontiers in Sustainable Cities, 4, article 1059312. doi:https://doi.org/10.3389/frsc.2022.1059312

Rankin, C. (2023) Defending the rights of local communities against box-ticking exercises: an analysis of Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy. Business and Human Rights Journal, 8(3), pp. 441-447. doi:https://doi.org/10.1017/bhj.2023.26

Surbun, V. and Swanepoel, P. (2024) Seismic surveys in South Africa’s maritime domain: the Sustaining the Wild Coast cases. South African Law Journal, 141(4), pp. 685-702. doi:https://doi.org/10.47348/SALJ/v141/i4a4

Legislation and case law

Africa Climate Alliance and Others v Minister of Mineral Resources and Energy and Others (56907/2021), High Court of South Africa, Gauteng Division, Pretoria, 4 December 2024. Available at: https://elaw.org/resource/za_africaclimatealliance (Accessed: 18 October 2026).

Climate Change Act 22 of 2024. Available at: https://lawlibrary.org.za/akn/za/act/2024/22/eng@2024-07-23 (Accessed: 18 October 2026).

Constitution of the Republic of South Africa, 1996. Available at: https://www.gov.za/documents/constitution/chapter-2-bill-rights (Accessed: 18 October 2026).

Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others [2017] ZAGPPHC 58 (65662/16), High Court of South Africa, Gauteng Division, Pretoria, 8 March 2017. Available at: https://www.saflii.org/za/cases/ZAGPPHC/2017/58.html (Accessed: 18 October 2026).

Minister of Environmental Affairs v Trustees for the time being of Groundwork Trust and Others [2025] ZASCA 43 (549/2023), Supreme Court of Appeal, 11 April 2025. Available at: https://www.saflii.org/za/cases/ZASCA/2025/43.html (Accessed: 18 October 2026).

Minister of Mineral Resources and Energy and Others v Sustaining the Wild Coast NPC and Others [2024] ZASCA 84 (58/2023, 71/2023, 351/2023), Supreme Court of Appeal, 3 June 2024. Available at: https://www.saflii.org/za/cases/ZASCA/2024/84.html (Accessed: 18 October 2026).

National Environmental Management Act 107 of 1998. Available at: https://lawlibrary.org.za/akn/za/act/1998/107 (Accessed: 18 October 2026).

Proclamation Notice 251 of 2025, Government Gazette 52319, 17 March 2025 (commencement of the Climate Change Act 22 of 2024). Available at: https://www.acts.co.za/climate-change-act-2024/proc251_proclamation_notice_25 (Accessed: 18 October 2026).

Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others (3491/2021) [2022] ZAECGHC 45, High Court of South Africa, Eastern Cape Division, Makhanda, 1 September 2022. Available at: https://lawlibrary.org.za/akn/za-ec/judgment/zaecghc/2022/45/eng@2022-09-01 (Accessed: 18 October 2026).