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Amid growing waves of litigation and rising interest in human rights approaches to keeping fossil fuels in the ground, Melanie Jean Murcott, Associate Professor at the University of Cape Town and Director of the Socio-Ecological Justice Lab, reflects on a landmark case in South Africa on future coal extraction.

What role can courts legitimately play in the face of government’s stated intention to “aggressively pursue” coal? The #CancelCoal case in South Africa wrestled with that key question. The , brought about a judgment that has “unleashed the power and strength that lies in the perseverance of collective action” in keeping fossil fuels in the ground. The African Climate Alliance in collaboration with , and , represented by the , secured a significant judgment on 4 December 2024 in the landmark decision (better known as the #CancelCoal case).

But not everyone is happy about it. The Minister of Mineral Resources reiterated on 19 March 2025 that the government still plans to “aggressively pursue” coal, alongside oil and gas as well as renewables. Coal remains dominant in South Africa’s energy mix despite its production for electricity and heating contributing around 87% of the country’s greenhouse gas emissions. The reliance on coal is driving and with , especially for those living in poverty, and particularly vulnerable groups such as children.

So, what did the African Climate Alliance and other litigants in the #CancelCoal case ask the court to do? The case challenged a very specific action taken by the Minister of Mineral Resources and the National Energy Regulator in relation to the country’s Integrated Resource Plan 2019. Combined, the action of the Minister and the Regulator, together with the publication of the Integrated Resource Plan, had authorized procurement of 1500 MW of new coal fired power in South Africa. Thus, the case was not about existing coal fired power. Instead, it concerned the human rights implications of further locking South Africa into a carbon intensive economic pathway by authorizing new coalfired power.

The Alliance and other applicants produced evidence running to thousands of pages in support of the adverse impacts of coal on an increasingly volatile climate system, human health and water use. For instance, their experts’ evidence revealed that the authorized new coalfired power would increase cumulative greenhouse gas emissions causing climate change by 289 Mt CO₂-equivalent by 2030. This would cause South Africa to exceed its fair share contribution to achieving the global temperature goal set by the Paris Agreement. The applicants’ evidence was supported by friend of the court interventions by the and the .

Confronted with a constitutional challenge to government action, a judge must uphold the value of the rule of law and act as guardian of the human rights entrenched in the Bill of Rights of the Constitution of the Republic of South Africa. Because the Constitution is the supreme law of the country, all law and conduct must be consistent with the Constitution to be valid. The Constitution further imposes an obligation on the state to protect, promote, and fulfil the human rights in the Bill of Rights. Decisions (even those amounting to executive action) that are inconsistent with the Constitution, including because they violate human rights, fall foul of the foundational value of the rule of law provided for in section 1 of the Constitution and may be set aside.

In #CancelCoal the applicants argued that new coalfired power would violate human rights, including the rights to life, human dignity, equality, access to food and water, rights of the child, and the right to an environment not harmful to health or wellbeing. While, regrettably, the court did not endorse every human rights argument put forward, it found that the decisions in question amounted to executive action that violated rights of the child and the right to have the environment protected for the benefit of present and future generations. In the face of compelling evidence, the judgment noted that the relevant government officials “were hard pressed to show that adequate and appropriate consideration was given to [the environmental right and the rights of the child enshrined in the Constitution]”. The judgment concluded that “in the absence of proof of the consideration of the effect of the decision to permit an additional 1500 megawatts of new coal-fired power to the grid on children” the decisions were inconsistent with the foundational value the rule of law. In short, the evidence before the court showed that the government officials involved had failed to conduct the necessary “due diligence” rendering their decision unlawful. When a violation of constitutionally entrenched human rights is established, the government has a duty to show that the violations occurred in terms of a law of general application and were “reasonable and justifiable” as required by Section 36 of the Constitution. However, the government officials had not met these legal requirements.

What the #CancelCoal case does, therefore, is hold the executive branch of government to environmental rule of law standards set by the Constitution, the country’s supreme law. Holding government accountable to these standards offers a valuable pathway to use the law to limit fossil fuel production, since it is judges’ legitimate, constitutionally ordained role to uphold these standards in South Africa. When judges play this role, they act as an appropriate check and balance on unconstitutional exercises of power. In this case, doing so meant weighing up evidence of the harms caused by coalfired power, both to human rights and the climate system. This case showed that legal mobilization against the burning of fossil fuels can protect a climate system that is crucial to human flourishing and aligned with the social justice imperative of the South African Constitution.

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