/ 19 May 2021

Right to clean air ‘progressively realisable’ in polluted Mpumalanga Highveld, court hears

Synthetic Fuels Facility
The toxic air pollution on the Mpumalanga Highveld is a 50-year-old problem that cannot “miraculously” be fixed overnight, argued the advocate for Barbara Creecy, the minister of forestry, fisheries and the environment. (Photo by Per-Anders Pettersson/Getty Images)

The toxic air pollution on the Mpumalanga Highveld is a 50-year-old problem that cannot  “miraculously” be fixed overnight, argued the advocate for Barbara Creecy, the minister of forestry, fisheries and the environment.

Tuesday marked the final day of legal proceedings in the landmark Deadly Air case in the high court in Pretoria, where applicants groundWork and the Vukani Environmental Justice Movement in Action are asking the court to order Creecy to implement and enforce regulations to improve the polluted air that residents of the region are forced to breathe.

The organisations say that the poor air quality on the Mpumalanga Highveld, which is home to 12 of Eskom’s coal-fired power stations, the Natref refinery in Sasolburg and Sasol’s coal-to-liquid Secunda plant, is a violation of Section 24 of the constitution, which declares that “everyone has the right to an environment that is not harmful to their health or well-being.”

However Creecy’s senior counsel, Marius Oosthuizen, stated that the right was “progressively” realisable.

“Where we are born into the Highveld priority area (HPA), where for the past 50 years that air quality has been affected, can we now say that the state is under an obligation immediately realisable here and now? That when we wake up tomorrow morning the air quality in the Highveld must be clean? Surely that cannot be so,” he argued.

In 2007, the then-environmental affairs minister declared the HPA a priority area under the Air Quality Act because it was a pollution hotspot. 

In 2012, the minister published an air quality management plan to clean up the air pollution in the area. But since then, the applicants say, little has changed.

The Highveld plan, Oosthuizen told the court, is a living document. “Remember the applicants want to give it teeth, it must be criminally enforceable, but it is a living document in that it can be amended from time to time as circumstances require.” 

This fact, he said, “destroys” the case for criminal enforcement and specific implementation regulations. “The plan itself does not require these regulations.”

Oosthuizen cited how the Green Scorpions had carried out several inspections since 2012, targeting big polluting industries for non-compliance, including Eskom and Sasol. 

“They were actively doing their job, it isn’t as if they did nothing. From those inspections, they identified certain transgressions and followed it up with compliance notices and directives. 

“The applicants want the criminal law to be engaged. Here are two matters at least where the department has initiated criminal investigations for contraventions of atmospheric emission licence conditions.”

The dockets for Highveld Steel and Eskom’s Kendal power station, he said, are pending before the courts. “There is already a mechanism in place to use the criminal law.”

The idea that Creecy had been “lackadaisical” or had dismally failed in her responsibilities to deal with air quality was simply wrong, Oosthuizen argued. “The minister’s affidavit showed how there had been a noticeable improvement in air quality, but it is not ideal.”

On Monday, the court heard how a 2019 socio-economic assessment by Creecy’s department found that 10 000 people die each year on the Mpumalanga Highveld from air pollution.

To this, Oosthuizen responded: “All the submissions you’ve heard about how bad the air quality is and how many people are dying, and all the asthma influences, we all know that, the minister knows that and has sympathy with all these residents.”

But the question in the case, he argued, was not the scope and ambit of the air pollution problem. “The question is what is the proper response. By law, the government must be rational, not emotional.”

However, advocate Steven Budlender, for the applicants, pointed out that it was not emotive or irrational to speak about death.

“The Constitutional Court has spoken with great force and passion about the need to … make a difference in ordinary people’s lives, and when you speak about 10 000  deaths of predominantly poor people in an area, that’s not emotional, it’s not irrational. It is the fact and the facts give rise to a constitutional violation.”

The department’s own assessment had shown the need for the regulations in the HPA, Budlender argued.

“We know that the national standards designed by this government have not been met in the Highveld area. We know that even though there may have been some improvement by the minister’s version, even the minister doesn’t say this is adequate. 

“There is no suggestion from the minister at all as to when the standards in the Highveld area will be met … if ever, and if ever, when,” Budlender argued.

“And we know that all of this produces, on the department’s own version, 10 000 preventable deaths per year in this area. So when we ask do the people living in this area enjoy the right to a healthy environment, the answer is self-evidently no.”

Judge Colleen Collis reserved judgment.