Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The judgment of the High Court of South Africa, Gauteng Division (Pretoria) is available here.

• Date of hearing: 17 and 18 May 2021
• Date judgment delivered: 18 March 2022
• Judge: Collis J
• Court: High Court of South Africa, Gauteng Division (Pretoria)

Outcome:

• The court declared that the poor air quality in the Highveld Priority Area is in breach of residents’ constitutional right to an environment that is not harmful to their health and well-being.
• The court declared that the Minister of Environmental Affairs has a legal duty to prescribe regulations under section 20 of the National Environmental Management: Air Quality 39 of 2004 (NEMAQA) to implement and enforce the Highveld Priority Area Air Quality Management Plan (Highveld Plan).
• The Minister was directed, within one year, to prepare, initiate, and prescribe regulations in terms of section 20 of NEMAQA to implement and enforce the Highveld Plan. Certain considerations relating to appropriate penalties, atmospheric emission monitoring, reporting, training, participation, review, coordination, financial support and others were prescribed by the court which the Minister must take into account when drafting the Regulations.
• The costs of the application including three counsel were to be paid by the Minister and National Air Quality Officer.

Summary:

In 2019, groundWork and the Vukani Environmental Movement, represented by the Centre for Environmental Rights, launched Constitutional litigation to request the Court to acknowledge that the poor ambient air quality in the Highveld Priority Area (HPA) constitutes a violation of the right to an environment not harmful to health and well-being, and to order the government to promulgate regulations to give effect to the Highveld Air Quality Management Plan.

The heavily polluted HPA had been declared a priority area in 2007, being home to 12 of Eskom’s coal-fired power stations, Sasol’s refinery and numerous coal mines. The Minister responsible for Environmental Affairs acknowledged that the ambient air pollution in the HPA exceeded the National Ambient Air Quality Standards and had an adverse impact on the health and wellbeing of residents and the environment.

In 2012 an Air Quality Management Plan (AQMP) was published which aimed to reduce air pollution in the HPA to acceptable standards by 2020. No Regulations aimed at implementing the AQPM were gazetted. The air quality in the HPA continued to exceed pollution standards.

In the case, the Minister argued that the ongoing high levels of pollution in the HPA were not a breach of the right to a healthy environment contained in section 24 of the Constitution, and rejected the argument that there was a legal duty on her to publish implementation regulations.

The court considered whether the high levels of pollution were a breach of section 24(a) of the Constitution which provides that:

Everyone has the right ­to an environment that is not harmful to their health or well-being.

The court looked at other court cases which had considered the nature of the Constitutional environmental right, as well as other rights contained in the Bill of Rights such as the right to education. The Constitutional Courts had previously described the right to basic education as contained in the Constitution as ‘unqualified’ and ‘immediately realisable’ and Judge Collis in this judgment agreed with the Applicants that section 24(a) of the Constitution was similarly not subject to the qualifications of reasonableness or progressive realisation. Judge Collis went on to say that “residents of the HPA have a right to a safe and healthy environment, here and now...”

The judgment described the lengthy engagement process which the Applicants conducted in order to bring the Minister and her Department’s attention to the dire air quality in the HPA over a number of years through the release of reports and extensive correspondence. It went on to discuss the numerous studies on the impact of the HPA’s toxic air on the health of its residents. The affidavits of three residents of the HPA who suffer adverse health impacts as a result of air pollution starkly demonstrated the violations of their constitutional right to an environment not harmful to health or well being.

The Minister denied any causal link between air pollution and the health impacts experienced by residents of the HPA, despite overwhelming evidence of this link contained in her Department’s own assessments and studies. The court held that the delictual standard of causation (the “but for” test) was inappropriate in this case which was concerned with public (and not private) law remedies.

The court considered the state respondents’ arguments relating to the separation of powers doctrine as well as the principle of subsidiarity.

The court held that the Minister’s failure to promulgate regulations for the HPA constituted a breach of section 24(a) of the Constitution.

In consideration of whether the ‘discretion’ afforded to the Minister in Section 20 of NEMAQA to make regulations, Collis J referred to precedent where the word ‘may’ had been interpreted by courts to mean ‘must’ in other legislation (for example in the Refugees Act). The duties contained in sections 7(2) and  39(2) of the Constitution also gave weight to the court finding a mandatory duty on the Minister to publish implementation regulations for the AQPM existed. The court considered many of the Department’s own reports which acknowledged that it was supposed to develop regulations for the enforcement and implementation of the AQMP for the HPA and noted the Department’s belated efforts to produce draft implementation Regulations for the HPA’s AQMP, more than 18 months after taking office.

In a resounding success for the Applicants, after her extensive judgment of over 100 pages, Judge Collis for the court ordered the following:

• It is declared 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.
• It is declared that the Minister of Environmental Affairs (“Minister”) has a legal duty to prescribe regulations under section 20 of the National Environmental Management: Air Quality Act 39 of 2004 to implement and enforce the Highveld Priority Area Air Quality Management Plan (“Highveld Plan”).
• It is declared that the Minister has unreasonably delayed in preparing and initiating regulations to give effect to the Highveld Plan.
• The Minister is directed, within 12 months of this order, to prepare, initiate, and prescribe regulations in terms of section 20 of the Air Quality Act to implement and enforce the Highveld Plan.
• In preparing regulations, the Minister is directed to pay due regard to the following considerations:
  • the need to give legal effect to the Highveld Plan goals, coupled with appropriate penalties for noncompliance;
  • 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;
  • the need for enhanced reporting of emissions by industry in the area, including the requirement that: atmospheric emission licences, monthly, and annual emission reports, real-time emission data, and real-time ambient monitoring data from all licence-holders should be publicly available online and on request;
  • the need for a comprehensive air quality compliance monitoring and enforcement strategy; including a programme and regular progress reports on the steps taken against non-compliant facilities in the Highveld Priority Area;
  • the need to appoint and train an adequate number of appropriately-qualified officials, with the right tools and equipment in order to implement and enforce the Highveld Plan and the Air Quality Act;
  • the need for all relevant national departments, municipalities, provincial departments and MECs to participate in the Highveld Priority Area process and co-operate in the implementation and enforcement of the Highveld Plan; demonstrated by published, written commitments signed by the relevant Ministers;
  • the need for regular review of the Highveld plan; including reporting on implementation and enforcement progress to all stakeholders as required by the Highveld Plan;
  • the need to address the postponement and/or suspension of compliance with 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 decommissioning and rehabilitation of those facilities is enforced;
  • the need for further or more stringent dust-control measures in the area; including to ensure adequate monitoring, measurement, and reduction of dust emissions, and penalties for non-compliance;
  • the need for a coordinated response to address air pollution in low-income, densely populated areas; and
  • the need for adequate financial support and resources, and adequate human resource capacity to ensure that all of these issues can be addressed.
• It is further ordered that any of the parties may re-enrol this matter for hearing at any stage, if necessary, on duly supplemented papers, to address the need for further orders arising from the orders set out above.
• The costs of this application, including the costs of three counsel, are to be paid, jointly and severally, by the first and second respondents.

The High Court papers in this matter are available at https://cer.org.za/programmes/pollution-climate-change/litigation/legal-challenges-in-relation-to-the-air-pollution-and-the-minimum-emission-standards/litigation-in-relation-to-the-highveld-priority-area-hpa

Appeal

Note that in 2022, the Minister of Forestry, Fisheries and the Environment applied for leave to appeal limited aspects of the High Court judgment. In particular, the Minister applied for leave to appeal the High Court’s interpretation of section 20 of the National Environmental Management: Air Quality Act, specifically whether the regulation-making power in section 20 vested the Minister with a discretion to prescribe regulations or imposed a duty on her to do so.

Leave to appeal to the Supreme Court of Appeal (on this narrow issue) was granted in a judgment handed down by Collis J on 20 March 2023.