South African Environment Minister Appeals #DeadlyAir Case

• Environmental justice groups behind recent landmark High Court victory in the #DeadlyAir case are disappointed to learn of Minister Creecy’s decision to appeal parts of the judgment.
• The Minister’s decision to apply for leave to appeal risks further delaying concrete action being taken to reduce harmful air pollution on the Mpumalanga Highveld. 
• The landmark ruling recognises that air pollution is a violation of Constitutional Rights. Read more 

Environmental justice group groundWork and Mpumalanga community organisation Vukani Environmental Justice Movement in Action (Vukani), represented by the Centre for Environmental Rights (CER), note with disappointment Minister for the Environment, Barbara Creecy’s decision to apply for leave to appeal some parts of the #DeadlyAir judgment.

The judgment, handed down on 18 March 2022 in the Pretoria High Court, was a resounding victory for environmental justice in South Africa. In the judgment, Judge Colleen Collis recognised the poor air quality in South Africa’s Mpumalanga Highveld region as a breach of residents’ Constitutional right to an environment that is not harmful to their health and well-being. The judgment also directed government to prepare and implement regulations to reduce air pollution – according to section 20 of the National Environmental Management: Air Quality Act (AQA) – within 12 months of the order.

In her affidavit, the minister states that leave to appeals is being sought on a limited basis and cognisant of her statutory and Constitutional duties. She adds that it is not her intention to use the appeal process to delay the drafting of regulations and that the process will continue independently of any appeal.

The application for leave to appeal is against four orders that are predicated upon an interpretation of section 20 of the Air Quality Act, which holds that the minister is merely vested with a discretion to prescribe regulations, but is under a duty to do so.

Her affidavit states that the proper interpretation of section 20 of the Air Quality Act is of wider significance. This is because there are several statutes within the environmental sphere and for which the minister is responsible which contain similarly worded regulation-making powers. It is therefore important, beyond this case, to determine whether these powers also entail not merely a discretion, but also a duty.

Importantly, the declaration of residents’ guaranteed right to a healthy environment still stands and groundWork and Vukani will proceed to take action on this basis through their various community-based activities.

“The Department of Forestry, Fisheries and Environment’s (DFFE) decision to appeal parts of this judgment risks further delaying any meaningful action being taken to lift the burden of air pollution which residents of the Mpumalanga Highveld experience every day. These are measures that are way overdue, considering that government first recognised this area as an air pollution hotspot 18 years ago,” says groundWork director Bobby Peek.

A significant portion of Mpumalanga Highveld region was declared a High Priority Area in 2004. Since then repeated studies – and the recent High Court judgment – found that air pollution in the area is responsible for premature deaths, decreased lung function, deterioration of the lungs and heart, and the development of diseases such as asthma, emphysema, bronchitis, tuberculosis and cancer, and that these ongoing harms particularly affect the lives of the elderly and children.

Regarding next steps, CER Deputy Director Wandisa Phama said: “We will wait for a hearing date for this application for leave to appeal. At this time all parties will be able to make arguments before Justice Collis and she will then decide whether another court could reasonably come to a different conclusion, or if there are other compelling reasons in the interests of justice for the disputed parts of the decision to be reconsidered.”

Read more about the background and chronology of the #DeadlyAir case, the landmark 18 March High Court judgement, expert analysisfinding Eskom to be the world’s worst polluting power company, the health impacts of air pollution on the Mpumalanga Highveld HPA and the history of the area as a High Priority Area. 

Author: Bryan Groenendaal