Courts That Cannot Win: Environmental Justice and the Weight of History in South Africa

Environmental Constitutionalism in Context

On 9 June 2026, Justice Nambitha Dambuza delivered a guest lecture exploring South Africa's environmental constitutionalism and the evolving role of courts in adjudicating disputes at the intersection of ecological protection, economic development, and post-apartheid social justice. The presentation critically examined section 24 of the South African Constitution which aims to address the constraints judges navigate when balancing socio-economic aspects  against environmental protection.

The lecture was part of Durham University's JusTN0W Initiative's "New Frontiers in Environmental Adjudication" series, hosted by Dr Katalin Sulyok and Kate Morris. As a PhD candidate at Durham Law School, whose research engages with climate justice and energy justice in the context of investor-state dispute settlement (ISDS) processes, I found the conversation intellectually stimulating.

Justice Dambuza opened by situating South Africa's environmental law in a context inseparable from its history. With high unemployment rates, widening inequality, and an energy system still dependent on ageing coal-fired power stations prone to regular outages, these are conditions against which section 24 must be operationalised. Widely regarded as one of the most expansive codified environmental rights clauses in the world, section 24 guarantees both a negative right (to an environment not harmful to health or well-being) and a positive obligation to protect the environment for present and future generations. The challenge, as Justice Dambuza framed it, is that in virtually every case brought before the courts, sustainability and economic development are presented as opposing paradigms rather than as connected constitutional objectives.

Environmental Justice as Procedural Equity

This observation resonated immediately with debates I encounter in my own research. The tension between decarbonisation imperatives and host states' development needs is not unique to South Africa. Such issues are structurally embedded in international investment law. Particularly striking in Justice Dambuza’s account was her acknowledgement of the institutional asymmetry that shapes litigation outcomes. Private corporations and wealthy litigants engage specialist experts and mount proactive, research-supported cases. In contrast, affected communities rely almost entirely on NGOs and are represented by over-extended state attorneys whose familiarity with environmental law is often limited. This imbalance highlights that environmental justice is not only a question of substantive rights but of procedural and resource equality.

Moving from Consultation to Substantive Environmental Protection

The jurisprudential trajectory Justice Dambuza traced is one of cautious but genuine progress. Earlier Constitutional Court decisions such as Fuel Retailers[1] which established that development must be socially, environmentally, and economically sustainable. In other words, promoting the intergenerational dimension of environmental protection and the link between a healthy environment and the realisation of other constitutional rights.

However, these decisions have been criticised for relying heavily on procedural grounds, particularly meaningful prior consultation, rather than developing the substantive content of the environmental right itself. More recent decisions from the High Court and Supreme Court of Appeal, including South Durban Community Environmental Alliance v Minister of Environment & Ors,[2] suggests a more direct engagement with the cumulative effects of greenhouse gas emissions and the positive obligations of the State in its regulatory capacity. These cases highlights the incremental movement of the jurisprudence from a duty to consider and balance interests towards an enforceable duty to actively prevent and mitigate harm.

Consultation and Voice

During the Q&A session, I asked about the role of communities in environmental adjudication. How do Courts receive and weigh community voices? and whether those voices function primarily as evidence or as the expressions of rights-bearing participants?

Justice Dambuza's answer was illuminating. She described a growing wave of environmental consciousness among traditional communities, driven in part by the arrival of foreign extractive companies and the conflicts, including violence, that have followed. She noted that community awareness is increasing. The legal mechanism through which communities have had the greatest legal traction is the interpretation of meaningful consultation under section 33 of the Constitution, which requires that consultation be conducted in the community's own language, with adequate notice and genuine engagement. Time and again, this is the point at which government authorisations have failed.

Why Courts ‘cannot win’

Her concluding observation stayed with me. Strict procedural requirements around consultation are simultaneously the communities’ strongest legal tool and the basis for one of the frequent criticisms directed at the courts. Essentially, by insisting on meaningful participation, they frustrate development and deepen the poverty they are ostensibly protecting communities from.

“Either way,” she said, “courts don’t win.”

To my mind, this was not a statement of resignation. Rather, it is a sober acknowledgement of the structural position courts occupy in deeply unequal societies. They are compelled to adjudicate between competing legitimate claims without the institutional capacity to resolve the underlying inequalities that produced those claims in the first place.

Concluding Reflections

The lecture was a valuable reminder that the most pressing questions in environmental and climate governance are not primarily technical. They are questions about whose voices count, how institutions are structured to include or exclude those voices, and whether legal frameworks designed in an earlier era of sustainable development optimism are adequate to the accelerating climate emergency we now face.

South African courts are grappling with these questions under conditions of acute social pressure and limited resources. The frankness with which Justice Dambuza described the progress and the shortcomings was itself a form of intellectual generosity upon which broader conversations in international climate law can be constructed. If environmental adjudication is to support justice, it must address environmental harm, the unequal conditions under which such harm is perpetuated, and ultimately challenged.

[1] Fuel Retailers Association of Southern Africa v Director-General, Environmental Management [2007] ZACC 13, available at https://www.saflii.org/za/cases/ZACC/2007/13.html

[2] South Durban Community Environmental Alliance v Minister of Environment & Ors (2021) available at https://www.climatecasechart.com/documents/south-durban-community-environmental-alliance-v-minister-of-environment-and-others-application_372f