SCA reinforces environmental compliance and regulatory accountability
By James Cross and Melissa Grobbelaar
The Supreme Court of Appeal (SCA) has partially upheld an appeal brought by Topigs Norsvin South Africa (Pty) Ltd against Eskom and various government authorities. The judgment confirms that both operators and regulators may be held accountable where environmental obligations are breached and enforcement action is lacking.
The Court declined to grant the structural interdict in the form sought by Topigs, but granted declaratory relief and directed the relevant authorities to consider and exercise their statutory enforcement powers in relation to Eskom’s non-compliance.
Background
Topigs operates a swine genetics facility on a farm neighbouring Eskom’s Kusile Power Station. It alleged that the construction, operation and management of the power station had resulted in ongoing environmental harm, particularly to water resources.
Topigs argued that Eskom had failed to comply with conditions in its environmental authorisations and water use licences, including obligations relating to polluted water management, monitoring and reporting. It also argued that the responsible government authorities had failed to take effective enforcement action.
The matter came before the SCA after the High Court dismissed Topigs’ application. On 14 August 2026, the SCA upheld part of the appeal and replaced the High Court’s order.
Eskom’s environmental obligations are enforceable
The evidence showed that Eskom had failed to comply with several conditions imposed under its environmental authorisations and water use licences. The SCA concluded that these failures amounted to breaches of its statutory duties.
Environmental authorisations and water use licences impose binding obligations on their holders. Non-compliance can lead to enforcement action and litigation by affected parties.
Regulators’ enforcement duties
The SCA found that the Department of Water and Sanitation and the Department of Forestry, Fisheries and the Environment had failed to take reasonable and effective steps within their statutory powers to ensure Eskom’s compliance.
That failure breached their obligations under the National Environmental Management Act 107 of 1998, the National Environmental Management: Waste Act 59 of 2008 and the National Water Act 36 of 1998, as well as the duty imposed on the State by section 7(2) of the Constitution.
Regulators may themselves face legal challenge where they fail to fulfil their enforcement duties.
The relief granted
The SCA granted declaratory relief and an order compelling the responsible authorities to consider and exercise their statutory enforcement powers. Requiring them to fulfil their existing legal duties did not infringe the separation of powers.
The Court declined the structural interdict in the form proposed by Topigs because the highly technical measures sought risked drawing it into a role beyond its judicial function. This limited the form of relief granted without excusing either Eskom’s non-compliance or the authorities’ failure to enforce the law.
Implications for businesses and affected landowners
Gaps between environmental authorisation or licence conditions and day-to-day operations can expose a business to enforcement action and litigation. Boards and management should be asking what monitoring results reveal, whether reporting obligations have been met and whether corrective action has resolved identified failures. Records should show how the business responded to non-compliance, including any issues that have yet to be resolved.
The judgment also confirms that enforcement responsibilities carry legal consequences for regulators. A failure to use their statutory powers to secure compliance may be challenged in court.
Legal action against both the operator and the responsible authorities is one avenue to consider where environmental non-compliance continues and regulators fail to act.
For advice on environmental compliance, regulatory requirements or disputes, contact Tabacks’ environmental law team.