The Minister of Environmental Affairs was given 12 months by the Supreme Court of Appeal to prescribe regulations in terms of the Air Quality Act and to implement and enforce the published Highveld Priority Area Air Quality Management Plan.
This order followed the “deadly air” legal battle challenging the government’s failure to adequately regulate air pollution in the Highveld Priority Area, where coal-fired power plants are a major source of emissions.
The case started in June 2019 at the behest of the Emalahleni-based Vukani Environmental Justice Movement in Action (VEM) and environmental justice group groundWork, represented by the Centre for Environmental Rights (CER), and it sought for the government to deal with air pollution in Mpumalanga.
In 2022, the Gauteng High Court, Pretoria, found that the poor air quality in this area (which extends from eastern Gauteng across the Mpumalanga Highveld) is in breach of residents’ constitutional right to an environment that is not harmful.
The high court placed the minister on terms to deal with the issue. The minister, however, now unsuccessfully turned to the SCA.
The appeal court on Friday declared that the minister has unreasonably delayed initiating, preparing, and prescribing regulations to give effect to the published Highveld Priority Area Air Quality Management Plan.
In 2007, following a public outcry about the high levels of pollution in an area where several coal mines were situated, the minister declared parts of Mpumalanga and Gauteng as a High Priority Area.
This area is an industrial home to 12 of Eskom’s coal-fired power stations, Sasol’s refinery, and numerous coal mines. As it was acknowledged that the air pollution had an adverse impact on the health and well-being of residents and the environment, the minister published the Highveld Plan.
Its objective was to reduce air pollution in this area to acceptable air quality standards by 2020. Notwithstanding the publishing of the plan, no regulations were published in this regard by the minister. This resulted in the legal battle between the environmental groups and the government, in which the groups asked that the government should be forced to implement the Highveld Plan.
The minister opposed the application, her stance being that there was no causal link between air pollution and the health issues experienced by residents of this particular area.
The minister rejected the argument that there was a legal duty on her to create implementation regulations and maintained that there was no breach of the fundamental environmental rights. She argued that the regulations would serve no purpose, would be a waste of state resources, and were therefore unnecessary.
Health study reports, however, showed that air quality has a negative impact on the health of the people, and it was said that the department must prioritise the management of air quality, including the implementation of the Highveld Plan.
It was said that the most vulnerable groups that are easily affected by air pollution are women, youth, children, and people with disabilities. This is because most of the time they are found within the same area for a long time; most of them are staying in informal settlements, and their houses have poor insulation.
The SCA concluded that the order of the high court mandating the minister to publish the regulations was justified.
Judge Mahube Molemela, who wrote the SCA judgment, said the minister had the legal duty to create and publish the regulations.
Cape Times