In the space of five weeks, South Africa’s courts have delivered two rulings, and a third still to be heard, that, on the surface, have little to do with one another. One concerns a piece of public land in one of Cape Town’s most expensive suburbs. Another concerns the ocean floor off the Wild Coast. A third, still to be decided, concerns 1,500 megawatts of coal-fired electricity.
They involve land, sea and power station. Different resources, different ministries, different people bringing the cases. Yet they share something important: each asks what happens when decisions made in the name of development have consequences for people who did not have a seat at the table when those decisions were made. And underneath all three sits the same uncomfortable question: who carries the cost of development, and who gets to decide?
Housing and environmental groups are calling the pattern a vindication of constitutional rights. The African Energy Chamber, an industry lobby, has called it something close to the opposite: a symptom of “lawfare” that will frighten off the capital South Africa badly needs. Both camps are reading the same three cases bur are not reaching the same conclusion.
The woman who travels far to work
The Tafelberg case can sound like an argument about a valuable piece of Cape Town real estate. But it is also about something far more ordinary: the woman who lives far from where she works because she cannot afford to live close to it, and the share of her salary that disappears into transport before she has paid for food, electricity or school costs.
For people living on Cape Town’s margins, distance is not an inconvenience but an economic cost, paid daily, invisible in most accounts of what a city’s growth is doing for its people.
That is why the location of the Tafelberg site, in Sea Point, mattered so much to housing activists. In 2015 the Western Cape government sold the site, previously home to the Tafelberg Remedial School, to a private school for R135m.
Reclaim the City and Ndifuna Ukwazi argued that well-located public land should be weighed for affordable and social housing rather than simply treated as an asset on a balance sheet; more than 5,000 people reportedly made submissions supporting that view.
In July the Constitutional Court agreed, finding that the province had failed to meaningfully engage the public and had not met its constitutional obligations on housing and spatial justice.
The ruling does not build anyone a house but it ensures that government can no longer treat the sale of valuable urban land as a purely fiscal decision, insulated from the question of who gets to live near the city they work in.
The investment argument has been much more prominent in the Wild Coast and coal cases, where the potential consequences for energy supply and resource investment are more direct.
The communities who live from the sea
The Wild Coast case brings the same question into a very different setting, and far higher economic stakes, which is exactly why it has become the most contested of the three.
Shell and its local partner, Impact Africa, held rights to explore for oil and gas off the Wild Coast, first granted in 2014 and twice renewed. When the companies moved to conduct seismic surveys in 2021, coastal communities and environmental organisations sued, arguing they had never been properly consulted.
The dispute was not simply whether a form had been completed or a notice published. For the communities involved, the ocean is not empty space on a map awaiting exploration, it is bound up with fishing, livelihoods and cultural practice that long predate the arrival of an oil company.
On August 14th the Constitutional Court set the exploration right aside for good, rejecting a lower court’s attempt to let a later consultation process retroactively cure the original failure.
Justice Jody Kollapen situated the ruling in the country’s longer history of dispossession, and Delme Cupido of Natural Justice, one of the applicant organisations, said the court had confirmed that public participation was about more than “ticking boxes”: it was about placing communities’ dignity at the centre of decisions that affect them.
That does not mean South Africa should never explore for oil and gas, and Shell said it was disappointed and remained committed to responsible exploration.
The African Energy Chamber went considerably further, condemning the ruling as part of what it called a growing pattern of Western-funded litigation designed to delay or block African resource projects, and warning that this kind of regulatory uncertainty would simply push capital to other continents. It called for legislation setting firm consultation timelines specifically so that projects could not be tied up in litigation indefinitely.
It is an argument South Africa cannot simply dismiss. The country imports much of the petroleum it consumes and wants offshore discoveries that could strengthen energy security and draw in capital. Five years of litigation over a right the companies ultimately lost is a real cost.
Whether that cost is the price of enforceable consultation rights, or a self-inflicted wound that sends projects to jurisdictions with fewer of them, is not a question the judgment answers. It is the policy argument the ruling has now made impossible to avoid.
And then there is coal
The third case is the hardest to resolve, because South Africa’s economic needs here are impossible to ignore, and it is the one where government’s position is hardest to wave away as reflexive defensiveness.
In 2019 government’s electricity plan provided for 1,500MW of new coal-fired generation. The youth-led African Climate Alliance, with two other environmental groups, challenged the decision, arguing government had failed to properly weigh the effects of new coal on health, the environment, children and the climate. The High Court agreed. Government is appealing, and the Supreme Court of Appeal hears the case on August 19th.
Here, the people affected are harder to see than a piece of land or a coastline. They are the children breathing polluted air. They are communities living near coal-fired stations. They are young people arguing that an energy decision made today will follow them for decades.
Their strongest evidence is a government estimate, cited in their own court papers, that roughly 10,000 people die prematurely each year from air pollution linked to Highveld coal generation. This is the fact that turns an abstract planning dispute into a concrete one about who pays for a decision made in a boardroom.
Government has a genuine counter-argument, not merely a convenient one. Kgosientsho Ramokgopa, the electricity and energy minister, argues that renewables could not, in 2019, have met South Africa’s immediate power needs, and that the country has already lived through what unreliable electricity costs an economy in lost production and stalled growth.
South Africa did not build its grid from nothing; it inherited mines, power stations, transmission infrastructure and entire towns whose livelihoods are tied to coal. Unwinding that safely is a genuine economic-policy problem, and those costs are not imaginary, they sit on the other side of the same equation as the pollution deaths.
Government’s own 2025 electricity plan, notably, no longer includes new coal at all, which makes this appeal more about legal precedent than power stations likely never to be built. But precedent is exactly what the African Energy Chamber is watching for: a ruling against government here would sit alongside Wild Coast as a second major energy decision unwound in court.
People are the economy
What isn’t contested is that the rules have changed. Consultation that can be patched up after the fact, once a project is already under way, is no longer a viable strategy. The Wild Coast judgment closed that door specifically. What is contested is who pays for that change, and who benefits from it.
That is the real force behind these three cases.
They keep pulling into view the people who usually disappear behind the language of investment, development and economic growth. The woman spending more than half her salary getting to a job she cannot afford to live near. The Wild Coast communities whose livelihoods depend on the sea and who say they were never properly consulted. The young people asking what it means to build another coal plant when thousands are already dying from the pollution of the plants that exist.
And on the other side of each case are people too: the worker who needs reliable electricity. The person who needs a job. The investor who needs enough certainty to commit capital in the first place.
They are all people.
That is precisely why “people versus the economy” is the wrong frame for any of this. People are the economy.
These three cases, one after another, asks whether growth requires deciding, case by case, that some people carry the cost so that others get the benefit.
Two Constitutional Court judgments have now made clear that those decisions cannot be made without properly hearing the people who will live with their consequences.
A third case, on August 19th, will test how far that principle extends to coal.
* Vivian Warby is Digital Editor of The National. She is a former property editor and former editor of the environmental magazine, Simply Green
** The views expressed do not necessarily reflect the views of the National Media Group.