- The Supreme Court of Appeal in South Africa has dismissed an appeal by former environment minister Barbara Creecy defending her decision not to publish air quality regulations timeously.
- The president of the Supreme Court, Betty Molemela said that through Creecy’s delays, the government had lost an opportunity to make sure residents in the area were not harmed further.
“In the face of ongoing high levels of air pollution, the Minister was dutybound to act, and with the passage of time, the creation of the regulations became imperative. By the time the application was heard in the high court, the urgency of the creation and publication of these Regulations was unquestionable. The fact that the Regulations were published more than 10 years after the publication of the Highveld Plan is a lost opportunity in the quest for an environment that is not harmful to the inhabitants of this country,” Molemela wrote.
The case, launched in 2019 after many years of advocacy, groundWork and the Vukani Environmental Movement, represented by the Centre for Environmental Rights 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.
The Supreme Court of Appeal varied the High Court’s order to read as follows:
- It is declared that the poor air quality in the Highveld Priority Area is in breach of the constitutional right to an environment that is not harmful to health and well-being.
- It is declared that the Minister of Environmental Affairs has a legal duty to prescribe regulations under section 20 of the National Environmental Management: Air Quality Act 39 of 2004 to implement and enforce the published Highveld Priority Area Air Quality Management Plan.
- It is declared that the Minister has unreasonably delayed to initiate, prepare and prescribe regulations to give effect to the published Highveld Priority Area Air Quality Management Plan.
- The Minister is directed, within 12 months of this order, to prepare, initiate, and prescribe regulations in terms of s 20 of the Air Quality Act to implement and enforce the published Highveld Priority Area Air Quality Management Plan.
- The costs of this application, including the costs of three counsel, are to be paid, jointly and severally, by the first and second respondents.\
Court papers
The High Court papers in this matter are available at https://cer.org.za/programmes/pollution-climate-change/litigation/legal-challenges-in-relation-to-the-air-pollution-and-the-minimum-emission-standards/litigation-in-relation-to-the-highveld-priority-area-hpa
The judgment of the Supreme Court of Appeal was handed down on 11 April 2025 and is available here.
Author: Bryan Groenendaal
