- Last week a high court ruled that poor air quality in the Highveld priority area violated a constitutional right.
- Minister Barbara Creecy is expected to receive legal advice on the decision on Friday.
- The petitioners believe that if the government decided to appeal the decision, it would be “undemocratic”.
It would be “undemocratic” for the government to appeal a landmark ruling that declared poor air quality in the Highveld priority area a violation of people’s constitutional rights.
That was the sentiment at a press conference on the results of the so-called ‘Deadly Air’ case – hosted by the Center for Environmental Rights (CER) on Thursday – where the candidates shared their views on a possible government call. It is not yet clear what the government’s next steps will be, with Forests, Fisheries and Environment Minister Barbara Creecy due to receive legal advice this week.
The case was first filed in 2019 by environmental justice groups groundWork and Vukani Environmental Justice Movement in Action, which CER represented. The case was heard in the North Gauteng High Court in Pretoria in May 2021.
Judge Colleen Collis issued her decision on Friday.
“Poor air quality falls disproportionately on the shoulders of marginalized and vulnerable communities who bear the burden of disease caused by air pollution,” Collis noted.
The judge added that not all air pollution violates the right to a healthy environment. However, if the air quality does not meet national ambient air quality standards, it is a violation of rights.
“When non-compliance with air quality standards persists over a long period of time, there is a greater likelihood that the health, well-being and human rights of those subject to that air will be threatened and violated” , said Collis. .
Collis ordered Creecy – within 12 months – to draft regulations to implement and enforce the Highveld Priority Area Air Quality Management Plan. This plan aims to clean the air to meet the required standards.
The Forestry, Fisheries and Environment Department has received the judgment and is reviewing it. Responding to questions from the National Assembly on Wednesday, Creecy took note of the judgment and said she would receive legal advice on how to proceed by Friday.
READ | Court orders government to clean up polluted air in Mpumalanga, Gauteng
“There is a particular time limit within which the Minister should file an application for leave to appeal,” said CER lawyer Timothy Lloyd.
Lloyd, however, stressed that it was “complete speculation” as to whether the government intended to appeal.
Thomas Mnguni, a community activist at GroundWork, noted that if the government chose to appeal the decision over the violation of a constitutional right, it would be “very undemocratic”.
The court had also set out 11 specific considerations for the Minister to take into account when drafting the regulations. According to Lloyd, these were calls from the plaintiffs. “To see it reflected in the court’s judgment is powerful.”
Lloyd said the court statement could be used as an advocacy tool to ensure an air quality management plan is in place and properly enforced. If this happens, there will be a reduction in outdoor air pollution and a reduction in health effects for residents.
The Minister does not oppose the regulations
Creecy had told Members of Parliament that before the case went to court, she had proposed a settlement to the organisations, which involved drafting regulations. But the organizations had decided to pursue the case. She emphasized that she did not object to the settlement.
In an email response to Fin24, Lloyd said the state’s attorney had written to the applicants about the proposed settlement, but that was four months after the petition was filed. “The proposal for regulation in the letter was that the Minister had initiated the process of developing regulations under Section 20 of the Clean Air Act and therefore the application should be withdrawn,” explained Lloyd.
He said the applicants did not accept the minister’s offer for several reasons. On the one hand, the settlement provided no acknowledgment of the continued violation of relevant constitutional law. Nor did the settlement meet all the requirements that the applicants had set themselves in the case.
Melissa Fourie, executive director of the CER, said the judgment comes as the country charts its just transition. She noted that Eskom is a major contributor to air pollution in the region.
The Highveld priority area includes parts of Gauteng and Mpumalanga. It is home to 12 of Eskom’s coal-fired power stations, Sasol’s liquid fuels coal refinery and other coal mining operations.
The state-owned coal fleet cannot meet minimum emissions standards and, by extension, air quality standards, while being unable to provide the energy security that is evident in persistent load shedding , Fourie said.
“We need to find an optimal path or route for these power plants, which will be a combination of accelerated dismantling and reduced use of various coal-fired plants,” Fourie said. Dismantling these coal-fired power plants will be essential for South Africa to meet its emission reduction targets or Nationally Determined Contribution aligned with its commitments under the Paris Agreement.
Renewables will have to fill the void filled by decommissioned coal-fired power plants, Fourie added. “Obviously what we need is a rapid and radical acceleration in the deployment of renewable energy over the next 10 years, but starting now.”