- On 28 August, the ongoing legal battle for clean air in South Africa, led by social and environmental justice groups groundWork and the Vukani Environmental Justice Movement (VEM), will reach a critical juncture as the “Deadly Air” case is heard by the Supreme Court of Appeal in Bloemfontein.
The case, originally launched in 2019, challenges the South African government’s failure to enforce regulations that would protect communities from toxic air pollution in the Highveld Priority Area (HPA). This area was declared a priority in 2007 due to dangerously high levels of air pollution, yet the government’s inaction has continued to jeopardise the health and wellbeing of millions living nearby.
The High Court in Pretoria delivered a landmark ruling in March 2022, affirming that the government’s failure to regulate air quality in the HPA was a violation of section 24 of the South African Constitution, which guarantees the right to an environment not harmful to health or wellbeing. The judgment declared that this right is immediately realisable, not merely a progressive aspiration.
Despite this victory, the Minister of the Environment is appealing a critical technical point: whether the Air Quality Act’s provision that the Minister “may” make regulations should be interpreted as “must” in this context. This argument will now be presented before the judges of the Supreme Court of Appeal.
WHY IT MATTERS
This case arrives at a time when legal protections against air pollution are under severe threat. Recent decisions by former Minister Creecy and current Minister George have granted significant exemptions to major polluters like Eskom, Sasol, and ArcelorMittal, allowing them to bypass compliance with the Minimum Emissions Standards. These standards are vital for controlling levels of toxic pollutants such as sulfur dioxide, nitrogen dioxide, and particulate matter.
The implications of this case are profound, as ongoing pollution has been linked to severe health impacts, including lung cancer, ischaemic heart disease, chronic obstructive pulmonary disease, strokes, lower respiratory infections, and asthma. The outcome of this appeal will be crucial in determining whether the state will be compelled to take stronger action to protect the health and lives of millions of South Africans.
Author: Bryan Groenendaal
