- An appeal in the legal battle waged by social and environmental justice groups groundWork and the Vukani Environmental Justice Movement (VEM) for protection from toxic air pollution – also dubbed the Deadly Air case – was heard in the Supreme Court of Appeals in Bloemfontein on 28 August.
- Judgement by the 5-judge bench of appeal court judges has been reserved.
This was the latest step in the court case, launched in 2019, but has its origins trace back to 2007 when the Highveld Priority Area (HPA) was declared. As is described in the 2017 Broken Promises report, the objectives of the HPA in ensuring cleaner air have not been achieved. The applicants in the #DeadlyAir case took the Minister of the Environment to court for failing to implement the necessary regulations to give effect to the objectives of the HPA declaration.
The applicants invoked Section 24 of the Constitution, which guarantees the right to an environment not harmful to health or wellbeing. They argued that this right is immediately realisable – as opposed to a progressive obligation, and that the state’s inaction was infringing upon it. The Pretoria High Court main hearing of May 2021 resulted in a victory for the applicants. The 2022 Judgement confirmed that the government’s failure to regulate was indeed a violation of Section 24.
The regulations are essential to implement and enforce the Highveld Priority Area Air Quality Management plan. Without them the plan has proven for years, to be ineffective in addressing the toxic air quality.
The Minister of Forestry, Fisheries and the Environment is appealing a technical but significant point. The Air Quality Act states that the Minister may make the regulations sought, but the court held that, in the context, the “may” effectively means must. This crucial point was argued before the Appeal Court judges, with the groundWork and VEM maintaining that there is both a legal duty and compelling contextual factors that make the publishing of these regulations obligatory in the circumstances.
groundWork and VEM reminded the court that they were left no choice but to take legal action to ensure that regulations were passed. The Broken Promises report as well as the DFFE’s own assessments underscored the urgent need for these regulations as far back as 2017. However, successive Ministers failed to act on these findings.
The current Minister, Dion George, published the necessary regulations just two days before this appeal hearing. However, all parties agree that this does not render the case moot, or of no consequence, as important considerations of obligations vs discretion still need to be decided on. VEM and groundWork are currently studying these regulations to determine if they are adequate. Should these regulations fall short, they may be vulnerable to legal challenge.
This latest development in the case comes at a critical time where legal air pollution protection is under severe threat. A series of decisions by former Minster Creecy, and her successor Minister George, have resulted in exemptions being granted to Eskom, Sasol and steelmaker Arcelor Mittal. These major polluters sought and were granted suspensions of compliance with the Minimum Emissions Standards which are intended to control, and minimize the levels of various toxic pollutants such as sulphur dioxide, nitrogen dioxide and particulate matter.
These three emitters, along with others, were aware of the progressive need to clean up their act, but failed to do so, and the state is effectively being complicit in the ongoing sacrifice of the lives, health and wellbeing of millions of people who live in the vicinity of the pollution sources.
Health impacts because of this ongoing pollution include lung cancer, ischaemic heart disease, chronic obstructive pulmonary disease, strokes, lower respiratory infections and asthma.
VEM and groundWork are represented by the Centre for Environmental Rights
Author: Bryan Groenendaal
