PRESS STATEMENT | SECTION27 to contest cost orders in environmental and climate change litigation, as amicus curiae

SECTION27 has been admitted as amicus curiae in the Constitutional Court, in the matter of Endangered Wildlife Trust and Another v Acting Director General, Department of Water and Sanitation and Another. The matter is set down for hearing on 10 September 2026.

SECTION27 acts in its own interest to assist the court with submissions that environmental litigation is multi-layered and requires litigants in pursuit of environmental justice to take all necessary steps to ensure vindication of their socio-economic rights. Doing so while acting in the public interest is not vexatious. It should not, if unsuccessful, attract a requirement that the public interest litigant pays the legal costs of the other side.

The applicants in the main appeal have been embroiled in various litigation related to the water use licenses of a coal mine run by Atha Africa Ventures (Pty) Ltd. In some cases, the applicants were successful and in others they were not. The Supreme Court of Appeal found that, among others, the various legal steps followed by the applicants were abusive and constituted vexatious litigation. As a result, it was ordered that the applicants pay the legal costs of Atha Africa Ventures (Pty) Ltd.

SECTION27’s submissions consist of three main arguments:

1. The SCA judgment ignores the structure of environmental regulation. A multi-layered regulatory framework governs environmental law. In challenging a project in the interests of environmental justice, many different decisions and processes may need to be challenged simultaneously or in series.  Doing so is in line with the required procedure and does not amount to vexatious litigation.
2. International law reinforces the need for due diligence regarding projects that contribute to climate change. In terms of the International Court of Justice’s Advisory Opinion, 2025, the Court opined that states must adopt rigorous, science-based risk assessments. In the context of the rights of the child, the UN Committee on the Rights of the Child held that rigorous approaches should be adopted to assess risks when dealing with matters of climate change and the rights of children. Finally, the regulatory framework in South Africa heightens the State’s obligation for thorough oversight on matters of environmental law.
3. The SCA’s costs order will have a chilling effect on due diligence. Punitive cost orders will have a deterring effect on communities, and the civil society organisations that represent them, to challenge processes in matters of environmental law. The effect will be to hinder the realisation of socio-economic rights and the right to a safe and sustainable environment.

SECTION27’s intervention seeks to ensure that communities vindicating their right to a safe environment would be able to do so and not be deterred by punitive cost orders.

For media enquiries contact:

Pearl Nicodemus | nicodemus@section27.org.za | 082 298 2636