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ANALYSIS: Why the #DeadlyAir High Court judgment matters

13 April 2022 at 1:44 pm

17 May 2021: NGO's, civil society and concerned citizens from affected areas protest outside the Pretoria High Court at the commencement of the Deadly Air hearings regarding the poor air quality in the Highveld Priority Area.  Photograph by Daylin Paul
17 May 2021: NGO's, civil society and concerned citizens from affected areas protest outside the Pretoria High Court at the commencement of the Deadly Air hearings regarding the poor air quality in the Highveld Priority Area. Photograph by Daylin Paul

The recent “Deadly Air” High Court judgment, which declared that chronic air pollution is a violation of Constitutional rights, has important implications for communities forced to live with the debilitating effects of air pollution on the Mpumalanga Highveld, and more broadly for constitutional jurisprudence and government accountability. Here we unpack parts of the judgment and the potential it holds for other air pollution hotspots and environmental justice in South Africa. 

We note that the state has filed an application for leave to appeal parts of the Deadly Air High Court judgment. More about this appeal in due course. 

Landmark recognition of the scope and application of Section 24 of the Constitution 

To our knowledge, the 18 March 2022 #DeadlyAir judgment was the first time a domestic court has found an African state in breach of constitutional rights due to harmful levels of air pollution.  

While the judgment has a number of nuances when it comes to its precedent-setting value and future impacts, three key aspects of this landmark recognition are immediately apparent and of notable importance. 

Firstly, the judgment found that the poor air quality in the Highveld Priority Area is in breach of residents’ section 24(a) Constitutional right to an environment that is not harmful to their health and well-being. In her judgment, Justice Colleen Collis found that, while not all air pollution violates the right to a healthy environment, “if air quality fails to meet the National Ambient Air Quality Standards (“National Standards”), it is a prima facie violation of the right.” 

The judgment continues: “When the failure to meet air quality standards persists over a long period of time, there is a greater likelihood that the health, well-being, and human rights of the people subjected to that air is being threatened and infringed upon.” 

It was on this basis, along with comparative jurisprudence on the right to basic education, that the High Court determined that section 24(a) of the Constitution is immediately realisable, in this present matter. The High Court did not only conclude that the levels of air pollution in the Highveld Priority Area is not consistent with the section 24(a) right to an environment that is not harmful to health or wellbeing, but went further to conclude that there can be no doubt that unsafe levels of ambient air pollution directly threaten Constitutional rights, in general.  

CER Attorney, Tim Lloyd, notes: “This is a monumental development in our law. Not only is it the first time that a court has applied section 24(a) of the South African constitution as a basic human right that is capable of immediate realisation here and now, but the judgment also confirms the value that the protection of this environmental right holds for other interdependent rights such as life, dignity, and the best interests of children.” 

Secondly, regarding the relationship between the National Standards, mentioned above, and section 24(a), the High Court also found that it was unsustainable for government to claim that these National Standards have no legal significance for this case, since they reflect the government’s own assessment of the content of section 24(a) of the Constitution and there must be accountability for failures to achieve these standards. The judgment highlights that the undisputed evidence demonstrating that the levels of air pollution in the Highveld Priority Area remain far in excess of the National Standards and show no meaningful improvement. The court also duly noted that this is  13 years after the Highveld Priority Area was declared and nine years after the Highveld Plan was established.  

According to Thomas Mnguni, a Community Campaigner for groundWork in the Highveld area, a father to two young children, and resident in the heavily polluted town of Middelburg: “A key theme at the heart of this court case has been the need for accountability from government departments and polluters, alike, and the effective mechanisms to ensure that the Highveld Plan is properly enforced. It is not acceptable for government officials to tell pollution-trapped communities that they care; this judgment tells us that government needs to rather lead through their actions and, where there is failure, such as this case, government officials must be held responsible”.  

Thirdly, despite the government’s arguments that the separation of powers doctrine should prevent the High Court from intervening in this matter, the judgment is clear that this case called for an appropriate declaration of rights and obligations. Evidently, the circumstances of this case warranted such a far-reaching, yet necessary, declaration from the High Court. This is one of the more prominent court interventions in the protection of section 24(a), since the inception of South Africa’s constitutional democracy.  

South Africa’s other air pollution hot spots 

This High Court judgment and order also have important implications for the proper implementation and enforcement of the other two priority air-shed areas that currently exist in South Africa – the Vaal Airshed Priority Area declared in 2006, and the Waterberg-Bojanala Priority Area declared in 2012.  

These areas were also designated as priority areas in terms of section 18 of the Air Quality Act, due to the fact that government “reasonably believes that ambient air quality standards are being, or may be, exceeded in the area, or any other situation exists which is causing, or may cause, a significant negative impact on air quality in the area; and the area requires specific air quality management action to rectify the situation.” More than a decade after the declaration of these priority areas, the government’s latest 2020 State of the Air Report reveals an ongoing failure to meet some National Standards in air pollution hotspots across the Vaal and the Waterberg. Accordingly, the State of the Air Report concludes that “Many South Africans may be breathing air that is harmful to their health and well-being especially in the priority areas”.   

Source: National Framework for Air Quality Management, 2017:50

Beyond these specific air pollution hotspots situated in priority areas, many other places around the country exist where providing an environment that is not harmful to people’s health or well-being is a concern. This is demonstrated by the Department’s ‘Municipal Air Quality Rating Map’ showing inland and coastal communities that are exposed to ‘poor air quality’ i.e where National Standards are regularly exceeded. Where this reality persists over a long period of time, there is a greater likelihood that the health, well-being, and human rights of the people subjected to that air is being threatened and infringed upon. 

According to CER Programme Head: Pollution and Climate Change, Nicole Loser, the confirmation that the right to an environment not harmful to health and wellbeing is immediately realisable, applies in other contexts too, such as the harmful effects of water pollution and the far-reaching effects of climate change. 

“These harms, too are being exacerbated by coal-fired power, despite the availability of cleaner alternatives and despite government’s own acknowledgment of the risks posed by climate change to the people of South Africa”. This is a central argument in the #Cancel Coal case, which seeks to have declared invalid and set aside, government’s plans to develop 1500MW of new coal-fired power. 

 Intervention of UN Special Rapporteur on Human Rights 

The #DeadlyAir case also marked the first time that the UN Special Rapporteur on Human Rights & the Environment – Professor David Boyd – was admitted as an amicus curiae (friend of the court) in South Africa. This intervention was considered by the High Court to be in the interests of justice, and relevant to the main application and given the public importance of this matter.  

Reflecting on the value in Professor David Boyd’s intervention in this case, CER attorney Robin Lenahan says “Professor Boyd’s mandate includes promoting global best practices relating to the use of human rights in environmental policy making. His submissions in this matter were seriously considered and valued by the Court and provide an important precedent for possible UN rights expert interventions in the future, both in South Africa and on the rest of the continent. This is particularly exciting following the HRC’s appointment of a Special Rapporteur on the protection of human rights in the context of climate change last year. 

 #DeadlyAir win in the context of a just transition for South Africa 

As it stands, this judgment does not only determine how section 24(a) of the Constitution must be applied in the context of the adverse impacts of air pollution and health-based standards, it also provides a vitally important Constitutional parameter and directive principle toward the achieving South Africa’s just transition vision.  

“This judgment underscores the reality that we face in South Africa right now: we cannot continue to operate coal-fired power stations that violate people’s Contitutional rights,” says CER Executive Director Melissa Fourie. 

“This is particularly important in light of the fact that several old coal-fired power stations have and will reach their end of lives within four years. Government should recognise this judgment as further proof that the pace of coal-phase out needs to quicken and that we have the opportunity to create a more equitable low-carbon future as part of South Africa’s just transition. In short: for too long we have callously sacrificed the health, lives and development prospects of people living on the Highveld and other pollution hotspots in the interest of our outdated reliance on fossil fuels. That era is now coming to an end.” 

17 May 2021: NGO’s, civil society and concerned citizens from affected areas protest outside the Pretoria High Court at the commencement of the Deadly Air hearings regarding the poor air quality in the Highveld Priority Area. Photograph by Daylin Paul

Read more about the background and chronology of the #DeadlyAir case, the landmark 18 March High Court judgement, expert analysis finding Eskom to be the world’s worst polluting power company, the health impacts of air pollution on the Mpumalanga Highveld HPA and the history of the area as a High Priority Area. 

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