South Africa’s largest corporate polluters have worked persistently over the past two decades, in public and in private, to derail an effective climate policy response by the government, according to non-profit shareholder activism organisation Just Share.
The supreme court of appeal this week heard the legal battle being waged by two social and environmental justice organisations for protection from toxic air pollution in the Highveld Priority Area (HPA).
It marked the latest step in the Deadly Air court case, which was launched in 2019 by groundWork and the Vukani Environmental Justice Movement, represented by the Centre for Environmental Rights (CER), to challenge the state’s failure to enforce regulations over the dangerous levels of air pollution in the area in terms of the Air Quality Act.
The Highveld Priority Area, spanning eastern Gauteng across the Mpumalanga Highveld, was declared a priority area in 2007. It is home to 12 of Eskom’s coal-fired power stations, Sasol’s coal-to-liquid fuels refinery and an assortment of coal-mining operations and other industries.
The groups said the regulations are essential for the implementation and enforcement of the Highveld Priority Area air quality management plan. The plan has proven ineffective for years in addressing the toxic air quality in the region.
In March 2022, the Pretoria high court delivered a landmark ruling 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.
The judgment declared that section 24 of the Constitution is immediately realisable — as opposed to a progressive obligation — and that the state’s inaction was infringing upon it. It ordered the government to pass regulations to implement and enforce the HPA air quality management plan.
The court found that Barbara Creecy, the former minister of forestry, fisheries and the environment, had a legal duty to pass these regulations, and had “unreasonably delayed” in preparing and initiating regulations to give effect to the Highveld Plan.
In terms of section 20 of the Air Quality Act, the minister or provincial MEC may prescribe regulations necessary for implementing and enforcing approved priority area air quality management plans. But the court held that, in the context, “may” effectively means “must”. Creecy appealed this technical but significant point.
In their oral submissions this week, groundWork and the Vukani Environmental Justice Movement argued that there is both a legal duty and compelling contextual factors that make the publishing of these regulations obligatory, and not a discretion.
The current environment minister, Dion George, argued that there are two possible consequences of “may” becoming “must”.
“If the ‘may’ in section 20 is interpreted as creating an obligation, the result is that the principle of separation of powers will be undermined, but if it is interpreted to be empowering and permissive, affording the minister or MEC a discretion, the principle will be upheld. The latter interpretation should be preferred. The second interpretation is capable of a meaning that upholds a constitutional principle.”
It emerged in Wednesday’s hearing that George published the regulations just two days before the hearing. But all the parties agreed that this does not render the case moot, or of no consequence, because important considerations of obligations versus discretion still need to be decided on.
The Vukani Environmental Justice Movement and groundWork said they are studying these regulations to determine if they are adequate. “Should these regulations fall short, they may be vulnerable to legal challenge.”
According to the department of forestry, fisheries and the environment, the regulations set out the requirements needed for implementing and enforcing any approved priority area air quality management plans. These are plans constituted to bring priority areas into compliance with national ambient air quality standards.
“The regulations provide for mandatory implementation of targeted emission reduction and management interventions; mechanisms for the government to monitor and evaluate the effectiveness of interventions as well as enforcement measures where non-compliance is identified,” it said.
The minister’s appeal is on fairly narrow grounds, said Brandon Abdinor, a climate advocacy lawyer at the CER.
“In similar situations, we would want to see similar decisions being taken or the state taking the same approach where they know they need to do what they are supposed to do. Where if we leave it in the realm of ‘may’, it just leaves a lot of space for inaction.”
A key theme at the heart of this court case has been the need for accountability from government departments and polluters and effective mechanisms to ensure that the Highveld plan is properly enforced, said groundWork’s Thomas Mnguni.
“It is not acceptable for government officials to tell pollution-trapped communities that they care; this judgment tells us that the government needs to rather lead through their actions and, where there is failure, such as this case, government officials must be held responsible,” he said.
This latest development in the case comes at a critical time when legal air pollution protection is under severe threat, the groups said. A series of decisions by Creecy and George have resulted in exemptions being granted to Eskom, Sasol and steelmaker ArcelorMittal.
“These major polluters sought and were granted suspensions of compliance with the minimum emissions standards, which are intended to control and minimise 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,” the groups said.
Ntombi Maphosa, an attorney at the CER, said this matter is being discussed before the supreme court of appeal at a crucial time in South Africa’s air pollution management journey.
“Current minister, Dion George and his predecessor, Barbara Creecy, have recently granted postponements of compliance with the minimum emissions standards to the country’s heaviest polluters.
“This is contrary to the intention of the Air Quality Act and limits a range of constitutional rights,” Maphosa said. “The costs on health, the wellbeing of local communities, and the economy as a whole are devastating. And over and above this, thousands of people die as a result every year.”
Health effects from air pollution include lung cancer, ischaemic heart disease, chronic obstructive pulmonary disease, strokes, lower respiratory infections and asthma.
Abdinor said: “Keeping the overall decision in the Deadly Air case alive can be used by us to motivate why those exemptions should not be granted or there should be stricter conditions.
“The Deadly Air case was a really important one to win just so those rights are in fact recognised via a court, but to make meaningful change on the ground, there’s steps in between so we can use that victory to keep the pressure on.”
Judgment by the five-judge bench of appeal court judges was reserved.