/ 22 May 2021

‘We want to breathe fresh air’

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Sick of coal: Protesters from Mpumalanga gather outside the high court in Pretoria, where the Deadly Air case is taking place. (Daylin Paul)

It was 5am, cold and dark when Mbali Mathebula woke up on Monday for the start of a court case that she had been waiting for in the last two years: the landmark Deadly Air lawsuit in which the government is being sued for toxic air pollution in the Mpumalanga Highveld, where she lives.

The unemployed mother-of-two, from the township of Vosman in Emalahleni, travelled two hours by taxi to the high court in Pretoria to join a 100-strong protest. There, holding up her placard denouncing the region’s polluters, she thought of her asthmatic daughters, seven-year-old Princess and Asenahle, three. 

“My hope from this case is that my children will be able to breathe fresh air and not be sick anymore,” Mathebula said this week. “I need the government to help us and to make a plan to reduce this dirty air so that people can have a good life. I don’t like people to get sick like my children are.” 

The Deadly Air case has pitted two environmental justice organisations, groundWork and the Vukani Environmental Justice Movement in Action, against the state, specifically the minister of forestry, fisheries and the environment, Barbara Creecy.

The applicants, represented by the Centre for Environmental Rights, are asking the court to declare the unsafe levels of ambient, or outdoor, air pollution is a violation of section 24a of the constitution, which provides that “everyone has the right to an environment not harmful to their health or wellbeing”. 

They want the court to order the minister to introduce regulations “with teeth” to improve the dirty air that residents of the Mpumalanga Highveld are forced to breathe. 

Eskom’s 12 coal-fired power stations, Sasol’s Secunda plant and the nearby NatRef refinery are responsible for the lion’s share of the pollution in the region, research commissioned by the applicants has found.

Exposure to toxic chemical compounds emitted by the coal plants, such as sulphur dioxide, heavy metals like mercury, and fine particulate matter causes chronic respiratory illnesses such as asthma, bronchitis and lung cancer, and contributes to strokes, heart attacks, birth defects and premature death, according to the applicants. 

Poor and marginalised people disproportionately shoulder the burden of toxic air, according to the submission by David Boyd, the United Nations special rapporteur on human rights and the environment, who intervened as a friend of the court.

This, Boyd said, is clear from the government’s own information as well as from international bodies. “Children are considered especially vulnerable to environmental threats due to their developing organs and immune systems, smaller bodies and airways” and adverse environmental exposures during childhood lead to disease, disability or early death in adulthood. 

“Preventing these exposures during childhood could contribute importantly to reducing the growing worldwide numbers of diabetes, cardiovascular disease and cancer.”

Children have their whole lives ahead of them, “so anything that has irreversible impacts on their development is especially burdensome.”

In 2007, the environmental affairs minister at the time declared the Highveld 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 little has improved, say the applicants.

Studies by the government and independent research estimates that Eskom’s air pollution alone costs South Africa between R18-billion and R35-billion a year in health costs and lost productivity. 

Steven Budlender, senior counsel for the applicants, said it was common cause that dangerous levels of air pollution in the region were among the worst in the world.

He drew from a 2019 report by the environment department, which showed that 10 000 premature deaths annually in the Mpumalanga Highveld could be prevented if national ambient air quality standards are met. “This is a case where the department’s own study says there is a problem.”

The report found how, in all three of South Africa’s declared priority areas, particulate matter pollution is the main problem. 

“It is evident … the levels have been above the standards for several years even after the air quality management plans were developed and implemented,” it said.

Although some of the interventions have been implemented, air quality in those areas remains poor, with numerous exceedances. “This is partly attributed to lack of accountability by major polluters,” the report states, noting there are no punitive measures in place. 

South Africa is held to ransom by the industry because of employment problems. “Industries do not prioritise environment compliance. They focus (on) profit,” because of ineffective implementation of the air quality management plans, it said. 

Exposure to particulate matter has been associated with hospital admissions for respiratory and cardiovascular disease, with the health effects dependent on particle size and chemical composition.

“Air pollution knows no boundaries … children, elderly people and those with asthma are most vulnerable,” the report noted.

In her answering affidavit, Creecy stated how the air quality in the priority area has “improved in general” since the approval of the Highveld plan, but hotspots remain not in compliance with the standards.

Budlender said: “What we now know is that nine years later … none of the goals [in the plan] have been achieved. Levels of air pollution in the area remain well above national standards and pose an ongoing threat to the health and well-being of the Highveld residents.”

Creecy stated she “does not have a free hand to singularly jump in and resolve this problem by simply making regulations at will as if mere regulations will overnight cause the problem to be resolved”.

Budlender said the only solutions that Creecy “vaguely” offered are the same solutions that have been in place “effectively forever”.

“What the minister expects the court and the applicants to do is to fold their hands and say yes, there is a problem, yes 10 000 people die every year, but there is nothing this court, or the applicants or the Constitution should do in this regard.”

Marius Oosthuizen, senior counsel for Creecy, argued there was no forensic evidence to show factual causation between air pollution and the alleged harm suffered by any particular individual. 

“There is no scientific method yet known to man where I can look at the air around me and plug out a portion and say, ‘oh, this portion has been caused by that polluter’. It’s simply scientifically impossible.”

But Budlender countered that the report had found the opposite. “It says that residents of the Highveld are at high risk of acute and chronic health effects due to their exposure to particulate matter, oxides of nitrogen and sulphur dioxide. The 10 000 lives point emerges from it.”

Oosthuizen said the right to a healthy environment was “progressively realisable” in light of the government’s limited resources.

“Where we are born into the Highveld Priority Area, where, for the past 50 years, the environment has been affected, can we now say that the state is under an obligation immediately realisable here and now, when we wake up tomorrow morning the air quality in the Highveld must be clean. Surely that cannot be so.”

There was no need for the regulations because the Highveld plan is a living document that “can be amended from time to time as circumstances require”, Oosthuizen argued. A legislative framework governing air quality is in place, he said.

Meanwhile, Mathebula’s daughter, Princess, was again not able to go to school. 

“I always try to explain to the teacher that it’s this dirty air making her sick with asthma and sinus. That’s why this case is very important. I don’t want to keep telling the teacher why she can’t go to school.”

Judge Colleen Collis has reserved judgment.