High court slams Creecy for deadly air that breaches SA’s Constitution

The poor air quality in the polluted Highveld Priority Area (HPA) in Mpumalanga is in breach of residents’ constitutional right to an environment that is not harmful to their health and wellbeing, the high court in Pretoria has declared.

The court found that the forestry, fisheries and environment minister, Barbara Creecy, has a legal duty to prescribe regulations under section 20 of the National Environmental Management: Air Quality Act to implement and enforce the HPA air quality management plan.

“It is declared that the minister has unreasonably delayed in preparing and initiating regulations to give effect to the Highveld plan,” Judge Colleen Collis stated in her judgment in the landmark Deadly Air case on Friday. 

The court has directed Creecy, within 12 months of the order, to “prepare, initiate, and prescribe” regulations in terms of section 20 to implement and enforce the plan.

“If air quality fails to meet the National Ambient Air Quality Standards (national standards), it is a prima facie violation of the right. When failure to meet air quality standards persists over a long period of time, there is a greater likelihood that the health, wellbeing and human rights of the people subjected to that air are being threatened and infringed upon,” Collis said.

Unsafe levels of pollution

The applicants, environmental justice organisations groundWork and the Vukani Environmental Justice Movement in Action, represented by the Centre for Environmental Rights (CER), successfully asked the court to declare that the unsafe levels of ambient air pollution in the Highveld Priority Area are an ongoing breach of residents’ section 24(a) constitutional right to an environment that is not harmful to their health or wellbeing.

They argued that the minister was obliged to create regulations to implement and enforce the Highveld plan, in terms of section 20 of the Air Quality Act and the Constitution.

“Today’s judgement is of enormous significance because it recognises that the 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 Bobby Peek, the director of groundWork. 

The HPA, which cuts across Gauteng and Mpumalanga, was a declared air pollution hotspot covering some of the most heavily polluted areas in South Africa, including eMalahleni, Middelburg, Secunda, Standerton, Edenvale, Boksburg and Benoni. 

Poor, dangerous air quality

The HPA is home to 12 of Eskom’s coal-fired power stations, and Sasol’s coal-to-liquid fuels refinery, situated in Secunda, all supplied by numerous coal mining operations. 

“Due to its concentration of industrial pollution sources, residents experience particularly poor and dangerous air quality … The poor air quality falls disproportionately on the shoulders of marginalised and vulnerable communities who bear the burden of disease caused by air pollution,” Collis said.

In preparing the regulations, Collis said Creecy should “pay due regard” to the need to give legal effect to the Highveld plan goals, coupled with appropriate penalties for non-compliance; the need for enhanced monitoring of atmospheric emissions in the priority area, including through the urgent improvement, management, and maintenance of the air quality monitoring station network to ensure that verified, reliable data are produced; and that real-time emissions data are publicly available online and on request.

Need for a comprehensive enforcement strategy

Among the needs is a comprehensive air quality compliance monitoring and enforcement strategy. This would include a programme and regular progress reports on the steps taken against non-compliant facilities in the HPA, as well as the need to appoint and train an adequate number of appropriately-qualified officials, “with the right tools and equipment” to implement and enforce the Highveld Plan and the Air Quality Act.

It, too, must include the need to address the postponement and/or suspension of compliance with minimum emission standards (MES) in the priority area “including to ensure that the atmospheric emission licences of all facilities that have not obtained once-off suspension of compliance and that cannot meet new plant MES by April 2025 are withdrawn and that decommissioning and rehabilitation of those facilities is enforced”.

Collis said the delay of almost a decade in preparing implementation regulations meant that Creecy “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 … The minister has not yet initiated any formal public comment process, nor has she committed to any timelines for producing final regulations.”

Premature deaths

Collis said it was commonly accepted that the air pollution in the HPA was responsible for premature deaths, decreased lung function, deterioration of the lungs and heart, and the development of diseases such as asthma, emphysema, bronchitis, TB and cancer, adding: “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 HPA.”

But despite the overwhelming evidence, much of which comes from the department itself, Creecy continued to deny any causal link between air pollution and harm. 

“The minister argues that there is no ‘forensic evidence’ of harm … These arguments are entirely at odds with the established science, the department’s own studies, the Air Quality Act, and the Highveld plan, which all acknowledge the direct link between air pollution and adverse health impacts,” said Collis.

As a consequence of the failure of the levels of air pollution not being achieved to date, 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 HPA, 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) right to an environment that is not harmful to health or wellbeing”.

Collis ordered that the costs of the application, including the costs of three counsel, are to be paid, jointly and severally, by Creecy and the national air quality officer.

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

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