One of the most important recent South African judgments on environmental law has delivered by the high court in Gauteng province. The case concerns a region of SA where high levels of air pollution risk the health of all the people living there. This is well-known to the government, but very little has been done about it. Now, environmental organisations have challenged the government’s inertia, and have won a major victory, with the court declaring that constitutional rights were breached by the failure to act. The court has also given the minister of environmental affairs a strict deadline to produce effective regulations for managing the problem of air pollution.
This is a major environmental judgment, about whether air pollution is a violation of constitutional rights, and whether the court is entitled to issue orders to deal with the problem. Answering ‘yes’ to both these key questions, Judge Colleen Collis has written a long (130 pages) and tightly-framed decision.
But the carefully crafted legal findings do not hide the shocking truths that emerge from the legal papers submitted by the parties.
The case focused on the Highveld Priority Area, the part of South Africa where air pollutants are can be seen and felt most intensely, in short, the most heavily polluted towns in the country. As the judge put it, because of the concentration of industrial pollution sources in the region, residents experience particularly poor and dangerous air quality.
In fact, it was common cause between the parties, and admitted by the Minister of Environmental Affairs, Barbara Creecy, that the high levels of ambient air pollution in this region are ‘harmful to human health and wellbeing’.
The minister also admitted that the government has failed to achieve the goals set for the Highveld Priority Area to ensure the air quality there complied with national standards.
It was also common cause that while the Highveld Plan to improve air quality in the region, published in 2012, was meant to be reviewed every five years, it has still not been updated, ten years later. The minister has further admitted that her predecessors in office made no effort to create the necessary regulations to implement the Highveld Plan.
One major problem causing the Highveld Plan to stall, is that the process was entirely voluntary and according to the applicants, two environmental organisations, none of the goals of the plan have been achieved. They also blame the absence of any ‘implementation regulations’ giving legal effect to the Highveld Plan.
The Minister, however, argued that failures in relation to the Highveld Plan do not amount to a breach of constitutional rights, and she also claimed there is no duty to establish implementation regulations.
In fact, she argued that such regulations ‘would serve no purpose, are unnecessary, a waste of state resources, and would somehow be unlawful.’
As far as the applicant environmental organisations were concerned, however, constitutional rights were at stake here. According to the government's own 2019 report on the area’s air management plan, communities in the priority areas were at high risk of acute and chronic health effects because they were exposed to various chemical pollutants in the air, and many thousands of deaths could be avoided if the levels of pollutants were reduced to the limits prescribed in the national standards.
These ‘enduring and unsafe levels of air pollution’ in the area were an ongoing violation of the constitution which says that everyone has the right to an environment that is not detrimental to his or her health or well-being.
This violation in turn infringes other constitutional rights such as the right to life and the right to have children’s interests considered paramount in every matter concerning the child.
‘Despite this overwhelming evidence, much of which comes from the Department itself, the Minister continues to deny any causal link between air pollution and harm.’
‘There can be no doubt that unsafe levels of ambient air pollution directly threaten constitutional rights.’
The minister’s legal team fell back on the separation of powers argument, claiming that the case raised the ‘complex problem’ of whether a court, as a branch of the judicial branch of government, should instruct an organ of state in the executive branch to ‘address the pressing and decades old issue’ of air pollution in ‘certain hot spots’ in the Highveld Priority Area ‘which is the heartland of electricity generation for the whole of South Africa.’
Counsel also argued that the court should refuse to grant a declaratory order in relation to the activities in the Highveld Priority Area, since all these activities were ‘lawfully authorised and it will be irrational to regard their consequences as unlawful.’
Judge Collis said the inescapable conclusion had to be reached that the levels of air pollution in the area was not consistent with the constitutional right to an environment that was not harmful to health or wellbeing. And further, that the minister had failed to justify limitations on that right.
Was the minister obliged to make regulations on improving air quality, or was the law was simply permissive? This was a matter that the court should have had to decide were it not for the fact that the minister had already begun to draft regulations for the area. ‘She has in fact started taking these steps and in my view correctly so.’
However, the question of unreasonable delay remained. Undue delay, without explanation by the minister ‘cannot be condoned by this court’ and called for intervention.
The case called for an appropriate declaration of rights and obligations, while the minister’s ‘repeated and emphatic denials’ that the constitution had been breached and that there was any duty to implement regulations ‘calls out for appropriate correction’.
By making declaratory orders the minister and her successors would be provided with ‘necessary guidance on their legal obligations’.
Her outright refusal ‘to prescribe implementation regulations’ ought to be reviewed and set aside, said the judge, while it would be ‘just and equitable’ to declare the delay in establishing regulations was ‘unreasonable and unlawful’.
The court therefore directed the minister to publish regulations within six months.
As to the delay in preparing implementation regulations – it had been almost a decade and ‘the minister must now be put on terms to complete this task as soon as possible.’ The fact that it had taken her department almost two years to prepare a six-page set of draft regulations was ‘further evidence of the need for expedition and clear time frames.’
As to the minister’s appeal to the separation of power, it carried little weight, particularly in the light of the constitutional court’s comment that ‘the bogeyman of separation of powers concerns should not cause courts to shirk from [their] constitutional responsibility’, particularly in cases of executive foot-dragging and inordinate delay.
Judge Collis therefore declared the poor air quality in the region in breach of the residents’ right to an environment that is not harmful to their health and well-being. She also declared that the minister had a legal duty to prescribe regulations to enforce the air management plan but that she had unreasonably delayed in preparing regulations.
The judge also gave the minister 12 months to ‘prepare, initiate and prescribe regulations’ to implement and enforce the Highveld Plan and laid down a number of issues that the minister had to consider in making these regulations.
Commenting on the outcome, Professor Rebecca Garland of the University of Pretoria said the court’s finding that air quality was a constitutional right ‘underscores the urgency with which SA needs to act.’
‘The hope is that the ruling will help unlock many of the challenges that have hindered improving air quality in this region. …
‘I’m hopeful that this court decision can help improve coordination and dedication across sectors in the development, implementation and enforcement of policies to improve air quality. This is urgently needed as SA tried to forge a path towards a just energy transition, which involves moving away from its heavy dependence on fossil fuels in a way that manages the negative effects on jobs and communities.’