As the world observed Clean Air Day on September 7, I paused to reflect on a groundbreaking judgment passed by the Supreme Court of Appeal (SCA) in May, protecting the human right to an environment that is not harmful to health or wellbeing, as enshrined in section 24 of the SA constitution.
The “Deadly Air” case was brought by the Vukani Environmental Justice Movement in Action (VEM), a community-based organisation operating from the Mpumalanga highveld, the groundWork Trust, and represented by the Centre for Environmental Rights (CER). It challenged the environmental affairs minister’s failure to pass regulations as an implementing mechanism for the highveld priority area air quality management plan, released in 2012 to address toxic levels of air pollution in the highveld.
The Mpumalanga highveld is home to 12 Eskom coal-fired power plants, including Sasol’s refinery, which is subject to heavy truck traffic travelling between coal-power plants and the coal mines feeding them. The Deadly Air case was initially filed in 2019 after more than a decade of advocacy and broken promises made by the state to implement the highveld air quality management plan and address the unacceptably high levels of ambient air pollution.
When the matter was heard before the high court in Pretoria in 2022 the court confirmed that the toxic levels of pollution in the highveld region were a violation of the community’s constitutional rights. It confirmed that by failing to pass regulations to implement the priority management plan the minister had unreasonably delayed implementing the plan.
The court subsequently ordered the minister to pass regulations to address the air pollution in the region. When the matter proceeded to the SCA, then environment minister Barbara Creecy appealed the part of the judgment that found she was duty-bound to pass the regulations, claiming that according to the law as it stood there was no legal obligation for her to do so.
For years since the CER launched the matter in 2019, one question has always bothered me.
With the harm caused by the toxic levels of air pollution in the highveld, why do ministers refuse to use laws that empower them to ameliorate the harm to the vulnerable? For decades people have been breathing polluted air, resulting in respiratory illness that leads to premature death and robs children of a normal childhood, with days missed in schooling due to sickness.
The Centre for Child Law submitted evidence through an amicus intervention, revealing how pollution harmed children and emphasising the state’s obligation to fulfill children’s environmental rights. Studies from the department of forestry, fisheries & the environment show that the toxic levels of air pollution in the area disproportionately affect low-income communities, the elderly, women, youth, children and people with disabilities.
— With the harm caused by the toxic levels of air pollution in the highveld, why do ministers refuse to use laws that empower them to ameliorate the harm to the vulnerable?
I have often wondered what are reasonable grounds for the refusal to act when people assume political office, when doing the right thing is staring them in the face. Why would they refuse to listen to people who are on the receiving end of harm they could correct? Why would they ignore even official evidence-based reports from the very departments they are meant to lead?
As a country we are in trouble if public officials are as nonchalant as I have seen in the Deadly Air case, and protecting the basic human rights found in the constitution they have sworn to uphold. The SCA judgment, penned by the president of the court, Justice Mahube Molemela, is groundbreaking as it serves as a reminder to politicians of their constitutional obligations when interpreting the law to be purposeful and use a human rights lens.
The human rights approach underpinning our constitution demands responsiveness from the state when people are suffering from rights violations. It requires government officials to boldly and tangibly care about the lives of the people who put them into power; to care about the plight of the vulnerable and the environment they live in.
I do not underestimate the complexity of the task facing a government in a developing economy to meet the demands of electricity reliability and access. However, part of that complexity is undertaking the task with care and protecting lives and human rights while making polluters pay and comply with the law for their violations of such rights.
The minister’s failures to pass regulations for more than a decade to address the toxic levels of air pollution on the highveld must not be used to mask the bigger culprits in this human health crisis — Eskom and Sasol, whose air pollution is the real cause. The Deadly Air judgment must be read by industries as a warning to polluters to comply with the law and respect human rights, or be sued for the harm that is costing human lives.
• Phama, an attorney, is executive director of the Centre for Environmental Rights.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.