Like millions of South Africans, when Cebile Faith Mkhwanazi was in her late teens she had to leave the place where she was born to look for work.
In Mkhwanazi’s case, the place she left was Nelspruit, the Mpumalanga town with its steep granite koppies and verdant botanical gardens and fresh Lowveld air. The place to which she moved was Witbank, the town on the Highveld that would undergo a name change three years after Mkhwanazi arrived. The name change was a direct reflection of her reason for relocating: Emalahleni, “place of coal”.
Today, while the work has dried up, the coal is still there.
“We are surrounded by two open-cast coal mines,” notes Mkhwanazi in the affidavit lodged with the Pretoria High Court on Friday 7 June 2019. “There is a lot of dust from these mines and they blast all the time without even informing us. There is also a steel plant nearby. There is black smoke coming from the steel plant every day around 4-5 pm. It gives off a chemical smell like they are burning cables. I think the air pollution is getting worse in the area where I live.”
In 2016, when her daughter was a year old, Mkhwanazi noticed that the girl was struggling to breathe. The same thing had happened to her son at that age, but her daughter was diagnosed with asthma. The girl “coughs each and every day” and Mkhwanazi fears she could “lose her”.
There is no public clinic in the area and obtaining the money for medication is a constant concern because the family must rely on the “piece-meal jobs” of Mkhwanazi’s husband.
“On the 27th of August 2018,” her testimony continues, “when I took my daughter to the doctor, the doctor confirmed that our area is highly polluted and that’s why she won’t get a better life. The other problem is that she sometimes has to be picked up from the day care centre because of asthma complications. At the moment, my daughter is not going to school because of her asthma and I don’t have money to take her to the hospital for medication. It is too hard for us.”
Mkhwanazi is now a client of the Centre for Environmental Rights (CER), and her affidavit forms part of what is known as the Deadly Air case. The applicants in the potentially ground-breaking matter are the non-government organisations groundWork and the Vukani Environmental Justice Movement in Action.
Four of the five respondents are who they would normally be in such cases: The Environment, Forestry and Fisheries Minister Barbara Creecy, the national air quality officer Dr Thuli Khumalo and the relevant MECs from Gauteng and Mpumalanga. The fifth respondent — or the third in order of appearance — is someone we don’t typically see in court papers of this nature.
The president of the Republic of South Africa is being sued, it states in paragraph 32 of the founding affidavit because the “application involves a constitutional breach and has far-reaching impacts.”
The paragraph then continues: “The urgent reduction of air pollution in the Highveld Priority Area requires co-operative governance across a range of government departments and levels of government. This is a matter of national importance.”
The last statement is not hyperbole. As far back as 2007, the South African government admitted that the air pollution in the expressly designated Highveld Priority Area (HPA), which extends from just before the Swazi border in the east to the Ekurhuleni Metropolitan Municipality in the west — that is, to the doorstep of Johannesburg and Pretoria — dangerously exceeded levels defined in the Air Quality Act of 2004.
As the court papers point out, the source of the lethal air in this region is unmistakable: It is here that 12 of Eskom’s coal-fired power stations are located, as well as Sasol’s coal-to-liquid refinery in Secunda.
Almost five years after the designation of the HPA, in March 2012, the then-minister of environmental affairs Edna Molewa published an air quality management plan to deal with the emissions of carbon monoxide, lead, benzene, nitrogen dioxide, ozone, particulate matter and sulphur dioxide from these industrial plants. Since then, with an international expert calculating an early death toll in the HPA as high as 650 a year (see below), the South African government appears to have done next to nothing.
“It is difficult to assess directly whether key industries have reduced emissions, given that neither government nor industries make key data and documents publicly available for review.”
If any statement in CER’s Broken Promises report, published in 2017 and attached to the Deadly Air court papers, speaks to the reasons behind the fact that the South African government’s response has so far amounted to the publication of two official documents and apparently zero real-world interventions, it is the one above.
As Daily Maverick has recently reported, the government’s ongoing commitment to coal as the country’s primary energy source can be traced back to the $3.75-billion loan it took from the World Bank in 2010 to complete Medupi, one of the planet’s largest coal-fired power stations — a project that began in tender fraud and looks set to end in a cost overrun of 200% or more.
Another thing about Medupi is that thanks to former World Bank chief Jim Yong Kim, who used the phrase on a publicity tour of South Africa in 2012, it taught our senior Cabinet ministers — most notably mining and energy minister Gwede Mantashe — to speak in terms of “clean coal”.
The Deadly Air court papers may contain the strongest evidence yet that clean coal is at best a PR stunt. Annexed to the papers is a report commissioned by CER from US expert Dr Andrew Gray, who drew up an air-pollution dispersion model and health risk assessment for 14 industrial facilities on the Highveld, including the dozen Eskom coal-fired power stations, the Sasol Synfuels chemical facility and the NatRef refinery.
“Ambient [particulate matter] pollution from the 14 facilities caused between 305 and 650 early deaths in the area in 2016,” notes Dr Gray’s report.
“The three worst offenders were Lethabo power station (57 to 122 early deaths), Kendal power station (46 to 99 early deaths), and Kriel power station (34 to 76 early deaths). If the 14 facilities were required to comply with the minimum emissions standards that will go into effect in 2020 (2020 MES), this would reduce early deaths by 60%, preventing between 182 and 388 early deaths in and around the HPA every year.”
While Dr Gray’s report was specifically contracted for the Deadly Air application, also annexed to the court papers is a 2017 report commissioned by groundWork from UK-based air quality and health expert Dr Mike Holland.
Taking in all of the country’s coal-fired power stations — in other words, not just those in the HPA — Dr Holland determined that air pollution from these plants kills more than 2,200 South Africans every year, with thousands of cases of asthma and bronchitis in adults and children also directly attributable. The costs to the country, in lost working days and hospital admissions, amounts in Dr Holland’s estimation to more than R30-billion a year.
As CER reminds us on its website, Dr Holland presented his findings to the Department of Environmental Affairs on 6 September 2017 and to members of the environmental affairs and health portfolio committees on 8 September 2017.
Meaning, if the South African government takes Dr Holland seriously — and given his work for the European Commission and the US Department of Energy, it has no reason not to — it knows that the burning of coal in the country results in 157 deaths a year from lung cancer, 1,110 from heart disease, 73 from chronic obstructive pulmonary disease, 719 from strokes and 180 from lower respiratory infection.
It also knows that Medupi is the biggest culprit, at 364 deaths a year. Above which, this flagship coal-fired project of Pravin Gordhan, Tito Mboweni and others is also responsible, according to Dr Holland, for 453 cases of chronic bronchitis, 1,552 cases of bronchitis in children aged 6-19 and 15,412 asthma symptom days a year. The annual cost of all of this, according to Dr Holland, comes in at $386-million.
As Daily Maverick readers will remember, in April 2019 Finance Minister Mboweni celebrated as “a resounding success” the announcement that the New Development Bank (the BRICS bank) had agreed to lend South Africa $480-million for the completion of Medupi — specifically, the loan was earmarked for retrofitting Medupi with flue gas desulphurisation units, which would reduce the sulphur dioxide emissions of the power plant from 3,500 milligrams a cubic metre to below 500 milligrams a cubic metre.
This is no doubt welcome news for the South Africans who live in the shadow of Medupi. But, aside from upping the climate-destroying carbon emissions of Medupi — which, at 32 million tons a year, beats the emission totals of 143 entire countries as measured by the Global Carbon Atlas — the so-called “clean technology” does not come close to addressing the many other noxious gases that have been killing and harming these citizens.
Neither does it address the concerns of the residents of the Mpumalanga coalfields, who live not in Limpopo, but in the HPA.
The central touchstone of the Deadly Air case is, of course, Section 24 of the Constitution, which enshrines the right of every South African to an environment “that is not harmful to their health or well-being” as well as to one that is free of “pollution and ecological degradation”.
On 9 May 2019, more than 18 months after CER had published its abovementioned Broken Promises report outlining the failure of government to achieve the HPA’s goals, the then minister of Environmental Affairs, Nomvula Mokonyane, finally responded.
“The reality is that the desired improvements will not happen over a short period of time but rather progressively over time,” the minister wrote. “Experience from countries such as the United Kingdom and the United States of America indicates that the path to reaching [the] desired air quality level takes time and effort, which can be in excess of 20 years, as has been the case in the USA.”
What Mokonyane neglected to mention, however, was that 12 years had already passed since Marthinus van Schalkwyk, the erstwhile minister of environmental affairs and tourism, had officially acknowledged the seriousness of the situation by demarcating the boundaries of the HPA.
In this context, perhaps the most shocking line from the Broken Promises report is the following:
“Without adequately functioning, accredited monitoring stations, we do not know whether the air quality is actually far worse than it appears.”
The brave testimony of South Africans such as Cebile Faith Mkhwanazi suggests that it may well be worse. It’s not an easy thing to sue a president, and so Mkhwanazi’s is one of only three witness testimonies attached to CER’s founding affidavit. Another is from Mapule Granny Mdhuli, a 23-year-old resident of Empumelelweni, Extension 7, Emalahleni, who states under oath:
“My best friend passed away in early 2018 due to asthma. The clinic would just send her home with an inhaler and pills. She wasn’t able to breathe so we took her to the clinic and they put her on oxygen, but because they didn’t attend to her immediately it wasn’t enough to save her.”
According to CER, if the respondents in the Deadly Air matter intend to oppose the litigation, they are required to file their notice of opposition by early July 2019.
How will President Cyril Ramaphosa deal with this landmark court challenge that asks him to recognise and uphold the tenets of Section 24 of the Constitution?
Given the early deaths in the Highveld Priority Area, the national commitment to coal as an energy source and the global context of climate and ecosystem collapse, the answer to this question may turn out to be a defining moment of his presidency. DM