State ‘dragging its feet’ in watershed Mpumalanga pollution case

The government is “inexplicably dragging its feet” in its response to the landmark Deadly Air court case while harmful levels of pollution continue to affect people living on the Mpumalanga Highveld.

In June last year, environmental justice group groundWork and Mpumalanga organisation Vukani Environmental Justice Movement in Action, represented by the Centre for Environmental Rights (CER), launched the litigation in the high court in Pretoria, demanding that the government clean up the pollution on the Highveld.

The environmental justice groups are asking the court to declare the current levels of air pollution on the Highveld a violation of constitutional rights, and to compel the government to implement and enforce the Highveld Priority Area air quality management plan.

The region — home to 12 Eskom coal-fired power plants, Sasol’s coal-to-liquids plant in Secunda, and the NatRef refinery in Sasolburg — has been plagued by deadly air quality for decades.

The government’s response to the case has been sluggish, says Timothy Lloyd, an attorney at the CER. “It’s frustrating that we are 16 months on from launching the case and although the government respondents are belatedly opposing the application, which was expected, we still do not have their answer to the allegations in the application,” he says. 

“Lockdown restrictions aside, they are inexplicably dragging their feet while the harmful levels of air pollution continue to affect people’s lives on a daily basis.”

The respondents are the minister of environmental affairs, the national air quality officer, the president, the Gauteng MEC for agriculture and rural development and the Mpumalanga MEC for agriculture, rural development, land and environmental affairs.

This week, they asked the applicants to agree to the late filing of their answering affidavit after the court decides whether David Boyd, the United Nations special rapporteur on human rights and the environment, should be admitted as an amicus in the matter. That hearing is scheduled for January next year.

The CER says it will not agree to the delay. “Respectfully, we and our clients are of the view that this is not a reasonable basis to hold the main application in abeyance, especially as the respondents are not even opposing the amicus curiae application,” Lloyd wrote in a letter to the state attorney this week.

“The progression of the main application cannot and should not be hindered by the pending amicus curiae application.”

The case, he notes, is of national importance. “The applicants do not only bring this application in their own interest but also they protect the constitutional rights of the residents in the Highveld Priority Area and the public at large. Given that people living and working in the Highveld Priority Area continue to breathe ambient air that is harmful to their health and well-being, there is an evident degree of urgency. This necessitates a just and equitable conclusion as soon as reasonably possible,” he wrote.

Promise Mabilo, of Vukani, said she believes the government is failing the people most affected by the air pollution. “They are ignoring us and maybe they think the case is not worth it because if it was something important to them, they would have responded long ago.” 

Robby Mokgalaka, groundWork’s coal campaign manager, agrees.

“We were expecting justice to be done as soon as possible because we are dealing here with pollution, with people who are sick every day. This [case] was going to make sure there is some kind of introspection done by the corporates and government to make sure compliance is non-negotiable.”

The delay, he says, shows the “disrespect” for the provision of section 24 of the Constitution, which enshrines environmental rights.

“The lives of the people don’t matter much. This case does have an element of urgency and shouldn’t be taken for granted.”

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Sheree Bega
Sheree Bega is an environment reporter at the Mail & Guardian.

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