On 14 August 2026, the Supreme Court of Appeal (SCA) handed down a landmark judgment in Topigs Norsvin South Africa (Pty) Ltd v Eskom Holdings SOC Ltd and Others. The case concerns years of water pollution linked to Eskom’s Kusile Power Station in Mpumalanga.
The SCA ruled that once a breach of environmental obligations has been established, government regulators can no longer treat enforcement as optional. They must act. The judgment also shows that enforcement can reach beyond the polluting company: directors can be drawn into litigation personally and regulators may be compelled to exercise their powers.
For businesses holding environmental permits and communities affected by industrial pollution, the implications are significant.
The dispute
Topigs is a pig genetics company operating on a farm next to the Kusile Power Station. It claimed that water sources supplying its facility had been contaminated over several years by pollutants from the power station.
Despite years of engagement with Eskom and government departments, the pollution continued. Topigs went to the High Court, seeking an order requiring Eskom to stop and remediate the pollution, subject to ongoing court oversight. The High Court dismissed the application and Topigs appealed to the SCA.
Topigs argued that Eskom had breached its obligations under the National Environmental Management Act 107 of 1998 (NEMA), the National Water Act 36 of 1998 (the NWA), its environmental permit and its water use licence. It also argued that the responsible government departments, the Department of Forestry, Fisheries and the Environment (DFFE) and the Department of Water and Sanitation (DWS), had known about the pollution but failed to act.
The SCA largely ruled in Topigs’ favour. It found that Eskom had failed to take adequate steps to prevent and remediate the pollution. The court confirmed that under section 24N(8) of NEMA, directors can be held personally liable for environmental harm caused by their companies, whether deliberate or not. However, it drew a clear line in relation to employees: senior managers cannot be joined under the same provision, regardless of their seniority.
The court rejected the argument that Topigs should have used a more limited enforcement route under NEMA, holding that an affected person can approach a court directly for relief. It also found that the DFFE and DWS had failed to enforce compliance and ordered them to act.
The SCA did not, however, grant the ongoing court oversight Topigs had sought. It reasoned that Eskom had begun taking remedial steps and that the technical complexity made judicial supervision inappropriate. Instead, it ordered Eskom to file an action plan within 30 days and a progress report within 60 days.
When regulators must act: the “may” versus “must” question
Under section 28 of NEMA, anyone who causes or may cause significant pollution must take reasonable measures to prevent, minimise or rectify it. The duty is broad: it covers landowners, occupiers and users of land where pollution occurs and applies even to pollution that predates NEMA. The required measures can range from investigating the damage to containing pollutants, removing the source and undertaking remediation.
The law also gives government officials the power to enforce this duty by issuing directives and gives members of the public the right to approach a court if officials fail to act. Topigs tested the limits of these enforcement mechanisms.
Section 28(4) provides that “may” issue a directive requiring a polluter to stop, investigate or take corrective action. On its face, that word “may” suggests that the decision is discretionary: the official can choose whether to act.
The SCA rejected that interpretation. President Molemela held that “may” in section 28(4) cannot mean officials have a choice about whether to enforce the law once a breach has been established. The court held that enforcement “should be deemed as compulsory where a failure of compliance has been established.”
Put simply, once it is shown that a polluter has failed to meet its environmental obligations, the regulator’s power to issue a directive becomes a duty to do so.
This marks a significant development in circumstances where regulators have sometimes declined to act despite documented pollution, citing resource constraints or competing priorities. Paragraph 9 of the court’s order puts this into concrete terms: it directs the Directors-General of both the DWS and the DFFE to act “lawfully and without undue delay” and states that they “may not decline to act on the basis that enforcement processes are discretionary where a failure of compliance has been established.”
What does this mean in practice?
The broader implications are clear: where a breach of environmental obligations has been established, regulators can no longer treat the word “may” in the statute as a basis for inaction.
For companies, persistent non-compliance now carries growing legal risk, not only for the business but also for its directors personally. Directors can be named in environmental litigation and may face joint and several liability for harm caused by their companies. For regulators, the judgment draws a firm line: where a breach has been established, the discretion to act becomes a duty to act.
