In a ruling on March 18, Pretoria High Court Judge Colleen Collis lambasted national Environment Minister Barbara Creecy (and her predecessor Nomvula Mokonyane) for their failures, “inordinate delays”, and foot-dragging in tackling the harmful and potentially-fatal levels of air pollution in the so-called Highveld Priority Area.

This is a region that contains some of the most heavily polluted towns in the country, including eMalahleni (Witbank), Middelburg, Secunda, Standerton, Edenvale, Boksburg and Benoni. The region also hosts 12 of Eskom’s coal-fired power stations, Sasol’s coal-to-liquid fuels refinery in Secunda and numerous coal mining operations.

“As a consequence of this failure  … and the department’s own finding that more than 10,000 premature deaths occur each year which are directly attributable to air pollution in the Highveld Priority Area, the inescapable conclusion that must be reached on the evidence presented, is that the levels of air pollution in this area is not consistent with the section 24[a] [constitutional] right to an environment that is not harmful to health or wellbeing,” the judge declared. 

Clean Air Case Judgment 18 March 2022

Collis said minister Creecy and her fellow officials in the Department of Forestry, Fisheries and Environment, now had to be “put on terms” to implement tough new draft regulations to tackle harmful air pollution levels on the Highveld – including legally enforceable measures to hold polluters to account.

It remains to be seen, however, whether the ruling will end up on appeal – and more importantly, whether legal pressure alone will be sufficient to induce the government to take tougher action against Eskom and other powerful industrial players.

The landmark legal action, dubbed the “deadly air case” was brought by the groundWork environmental justice watchdog group and the Vukani Environmental Justice Movement in Action (Vukani), represented by the Centre for Environmental Rights (CER)

“Today’s judgment is of enormous significance because it recognises that the constitutional right to healthy air is one that is realisable here and now [not gradually over time] and that the measures taken by government to date to address the dangerous levels of air pollution in the Highveld are not adequate to protect the rights of Highveld communities whose lives are affected by this pollution on a daily basis”, said groundWork director Bobby Peek.  

Judge Collis noted that when the case came before her in May last year, Creecy’s department was still only at the stage of draft regulations.

“The minister has provided no indication of a timeline for finalising these regulations, if she intends to do so. This undue delay without an explanation on the side of the minister cannot be condoned by this court and as such it calls for this court’s intervention.

“The inordinate delay of almost a decade in preparing implementation regulations means that the minister must now be put on terms to complete this task as soon as possible. The fact that it has taken the department almost two years to prepare six-page draft regulations is further evidence of the need for expedition and clear timeframes.”

Collis stressed that her court order did not seek to fetter the minister’s discretion or bind her to a particular outcome, but instead offers “appropriate guidance”.

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The judge also rejected arguments by Creecy’s legal counsel, who suggested that the national government should not interfere unduly with the legal powers of local municipalities to regulate air pollution.

“The minister’s bald appeals to the separation of powers, without more, carry little weight in the assessment of a just and equitable remedy. The Constitutional Court reminds us that ‘the bogeyman of separation of powers concerns should not cause courts to shirk from [their] constitutional responsibility, particularly in cases of executive foot-dragging and inordinate delay’.”

In a brief statement late on March 18, Creecy said she had noted the ruling, that her department was studying the implications of the judgment and would obtain legal advice before commenting in due course.

Collis has made several orders, including a finding that “it is declared that the poor air quality in the Highveld Priority Area is in breach of residents’ section 24[a] constitutional right to an environment that is not harmful to their health and well-being”.

She further declared that Creecy has a legal duty to prescribe new regulations to implement and enforce the Highveld Priority Area Air Quality Management Plan and that Creecy had “unreasonably delayed” regulations to give effect to the Highveld management plan.

Creecy has now been given 12 months to prepare, initiate, and prescribe regulations to implement and enforce the Highveld Plan, which should also consider the need to give legal effect to the air pollution reduction plan, “coupled with appropriate penalties for noncompliance”; the need for better monitoring of atmospheric emissions including “urgent improvement, management, and maintenance of the air quality monitoring station network to ensure that verified, reliable data are produced”.

These real-time monitoring results should be publicly available online or on request.

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The new measures should also consider the need to appoint and train an adequate number of properly qualified pollution monitoring officials.

The government should also have a rethink about granting exemptions to minimum emission standards for major polluters in the area.

Judge Collis seemed unimpressed by government arguments that the need for economic development and a “vibrant economy” would have an inevitable impact on the safety of the environment.

She said: “The principle of sustainable development further requires that measures put in place to achieve economic development should not sacrifice the environment and human life and wellbeing and it must be that a balance should be struck.

“Before this court, the undisputed evidence is that the present ambient air pollution levels by far exceed the national standards and that the levels recorded poses a threat to a safe environment and human life and their wellbeing. The question that then begs the answer, is what mechanisms should or could have been put in place to date to have the air pollution levels in the Highveld Priority Area reduced? In this regard the erstwhile minister [Mokonyane] held the view that to promulgate regulations is not the only tool available to monitor air pollution in the Highveld Priority Area and opted not to promulgate any regulations in this regard.

“In a complete contrast, the current minister [Creecy] indeed took steps in this direction, albeit belatedly and in a draft form in respect of which public comment is yet to be obtained.”

Collis further chastised Creecy for her “lack of transparency” and her initial failure to disclose her own department’s findings and recommendations on how to deal with the health-threatening pollution problems on the Highveld.

“Organs of state are duty-bound to assist the courts by providing a full and frank account of the material facts where constitutional rights are at risk.”

“In the present instance the minister, however, has had the presence of mind and the need no longer exists to order the minister to start drafting regulations for the Highveld Priority Area. She has, in fact, started taking these steps and in my view correctly so.

“The matter however does (not) end there. The draft regulations came about some nine years after the Highveld Plan was established. Having regard to the Highveld Plan goals set, it is clear that these non-binding set of goals contained in the plan are insufficient to achieve the substantial reductions in atmospheric emissions that are required in the Highveld Priority Area.”

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The department had admitted that there were currently no legal instruments to enforce commitment to the air quality management plan, nor any punitive measures.

Under the proposed new regulations, however, there would be a binding obligation on identified polluters to develop new emission reduction plans that would be reviewed every five years.

Rejecting assertions that the national government should not usurp the powers of local municipalities for air pollution control, Collis noted that Creecy’s department was the “lead agent” for air quality management in the Highveld Priority Area.

“There is nothing that prohibits the minister from passing effective regulations under section 20 of the Air Quality Act to coordinate and support the activities of the many municipalities falling within the Highveld Priority Area… There is nothing in the draft regulations that usurps municipal powers. Far from it, the draft regulations reflect a clear intention to support municipalities in conducting their functions, particularly by making ‘complimentary support’ available to provinces and municipalities”.

She noted that various studies conducted on the health effects of air pollution in South Africa had confirmed the dire impact of the Highveld Priority Area’s toxic air. 

“It is commonly accepted that the air pollution in the Highveld Priority 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. It is also acknowledged that children and the elderly, especially with existing conditions such as asthma, are particularly vulnerable to the high concentrations of air pollution in the Highveld Priority Area.” DM/OBP