Pig farm vs power station: South African court tells state-owned Eskom to clean up its pollution

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About 74% of South Africa's electricity is generated by coal-fired power stations owned by the state-owned electricity provider, Eskom.

These power stations produce greenhouse gas and air pollution and can also pollute nearby streams and rivers. South African environmental law says that all power stations must have environmental authorisations and often water-use and atmospheric emission licences, which set out what the power stations must do to manage pollution risks.

How effective these controls are in practice was at the centre of a recent court case. Topigs Norsvin, a pig-breeding company, said polluted water from the Kusile power station had entered groundwater, a wetland and nearby streams, putting local water sources and its farming operations at risk.

Kusile power station is in Mpumalanga, South Africa's coal heartland. It began operating in 2017 and generates enough electricity to power over three million homes.

On 14 August 2026, South Africa's Supreme Court of Appeal ruled in favour of Topigs Norsvin. It found that Eskom had broken the environmental and water-use rules that applied to Kusile. The court also found that government officials had failed to make Eskom follow the rules.

As a specialist in environmental and climate change law, I argue that the judgment answers three important questions: which environmental rules still apply after a major project is approved; who must make sure they are followed; and what courts can do when both companies and government regulators fail to act.

The court found that:

• Eskom had broken legally binding environmental and water rules and had not taken reasonable steps to reduce the pollution or repair the damage.

• The senior government officials responsible for water and environmental affairs had acted unlawfully by failing to make Eskom follow these rules.

It ruled that Eskom and the government officials must take specific steps to address the problems and report back within deadlines set by the court.

In my view, the ruling sends two important messages: environmental rules still apply after a project has been approved; and both the company causing the pollution and the government authorities must make sure those rules are followed.

How a pig farm took Eskom to court

Before Eskom could start building Kusile, it had to obtain environmental approval and licences to use water. These came with rules requiring Eskom to keep polluted water contained, prevent dirty water from running into the surrounding environment, test water quality and remain within its water-use limits.

Topigs Norsvin, which has a farm downstream of Kusile, became concerned after it found that Kusile was polluting nearby water sources. The company joined Kusile's environmental monitoring committee, which was responsible for checking whether Eskom was following the environmental rules, but the pollution continued.

In 2023, Topigs went to the High Court, asking it to order Eskom to follow the environmental rules and require the government's water and environmental authorities to act. The High Court dismissed the application in June 2024, and Topigs appealed to the Supreme Court of Appeal.

The Supreme Court of Appeal came to a very different conclusion.

Court holds Eskom and government regulators responsible

The Supreme Court found against Eskom on a number of grounds.

Firstly, it had failed to comply with several conditions in its environmental authorisations and water-use licences. These were legally binding requirements, not administrative formalities.

Secondly, the judgment records a lengthy history of problems. Some monitoring information was submitted late or not at all, while other reports had serious gaps or scientific errors. Eskom also failed to carry out some of the steps it had promised to take to fix the problems.

Thirdly, water tests repeatedly found pollution levels above the permitted limits. Eskom did not deny that Kusile had harmed water sources downstream. The court made it clear that environmental approval is not a free pass: permission to build does not allow a developer to ignore the rules attached to that permission.

The court found that Eskom had broken environmental laws by failing to reduce the pollution and repair the damage. Its failure to follow the conditions of its environmental approvals and water-use licences violated the right to a healthy environment protected by section 24 of the constitution.

Responsibility did not stop with Eskom. The court also found that senior officials at the Department of Water and Sanitation and the Department of Forestry, Fisheries and the Environment had acted unlawfully by failing to enforce the rules at Kusile. Environmental laws such as the National Environmental Management Act and National Water Act give regulators powers to respond when environmental requirements are breached.

Courts can order regulators to do their jobs

The court judgment means that government regulators cannot ignore environmental violations once they know about them. They are allowed to choose different actions to stop pollution but they aren't allowed to choose to do nothing.

The case is therefore not only about Eskom's failure to comply with environmental law. It is also about whether regulators are doing enough to enforce it.

Eskom and the state argued that the court would be interfering in the work of government officials if it ordered stronger action.

The Supreme Court of Appeal agreed that courts should not take over the work of environmental and water authorities. But it said this did not protect those authorities from being held responsible: a court can order them to use the powers of enforcement they already have, without deciding exactly what action they must take.

The court has started an accountability clock

The most practically significant part of the judgment is its remedy. Rather than simply declaring the conduct unlawful, the court set clear deadlines to fix the problem.

Eskom must submit a sworn plan to fix the problems within 30 days and report on its progress within 60 days. The senior officials responsible for water and environmental affairs must report within 75 days on what action should be taken against Eskom.

Eskom can apply to the Constitutional Court for leave to appeal this judgment if they can show that the case breaches their constitutional rights. But an appeal is not automatic: the Constitutional Court must first agree to hear it.

The real test is what happens next

The ruling is important, but a court judgment cannot clean polluted water on its own. Its value will depend on whether Eskom's action plan tackles the causes of the pollution, whether it carries out the work on time and whether government regulators act if violations continue.

Success will be measured by whether pollution falls and water quality downstream of Kusile improves.

Angela van der Berg does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

By Angela van der Berg, Director of the Global Environmental Law Centre; Associate Professor Department of Public Law & Jurisprudence, University of the Western Cape