South Africa court ruling expands environmental enforcement risks for businesses

Sarah Burford, an environmental law expert at Pinsent Masons, was commenting as the SCA handed down a highly anticipated judgment concerning alleged pollution linked to Eskom's Kusile Power Station, located in Mpumalanga province.

The dispute arose when Topigs, a local pig-breeding company, launched an application before the High Court in 2023 alleging that Eskom was liable for leaching pollutants into local groundwater.

Topigs alleged that Eskom had breached its obligations under the National Environmental Management Act 107 of 1998 (NEMA), National Environmental Management: Waste Act 59 of 2008 (NEMWA), the National Water Act 36 of 1998 (the NWA), as well as its environmental permit and its water-use licence. The company also argued that senior government officials were aware of the pollution at the time but failed to act.

The High Court dismissed the application, but Topigs appealed to the SCA.

On 14 August, the SCA handed down its judgment, which overturned the High Court’s decision. It found that Eskom had failed to comply with its environmental and water-use obligations at the power station and that government regulators failed in their obligations to enforce the relevant environmental authorities and water-use licences at the site.

The SCA set aside the High Court’s decision and ruled that Topigs was entitled to declaratory and mandatory relief, requiring Eskom and the relevant regulators to take specified steps to address non-compliance and environmental harm. The court also confirmed that affected private parties may seek relief where environmental obligations are not being adequately enforced. 

Commenting on the judgment, Burford said the SCA’s decision sent “a clear message” that environmental authorisations, water-use licences and environmental management programmes “create legally enforceable obligations that may be enforced not only by regulators, but also by affected private parties.” The judgment also makes it clear that amendments to, or the issuance of permits and licences cannot be used to circumvent environmental obligations originally imposed on the permit holder, she said.

Christopher Majuru, a mining dispute resolution specialist of Pinsent Masons, said the decision undoubtedly would have wider implications beyond Eskom and South Africa’s power sector and underscores that environmental compliance should not be an afterthought for the industry. “For businesses operating in regulated sectors, particularly mining, energy and infrastructure, the judgment reiterates the importance of proactive environmental compliance and governance,” he said. “Ongoing non-compliance with permit conditions, licence obligations and environmental auditing requirements remains a significant area of risk exposure for businesses and operators, particularly as affected stakeholders increasingly turn to the courts to compel compliance.”

Burford said the judgment highlighted the consequences for environmental non-compliance. “Environmental risks can no longer be viewed solely through the lens of regulatory inspections or enforcement action,” she said. “Companies may also face litigation from neighbouring landowners, communities and other stakeholders who can demonstrate an impact on their interests.”