Major Court Victory for Communities Fighting Air Pollution in South Africa
Earthjustice celebrates with South African partners the landmark judgment by the High Court recognizing the poor air quality in South Africa’s Mpumalanga Highveld region as a breach of residents’ constitutional right to a healthy environment.
Lerato Balendran, Center for Environmental Rights, (South Africa)
Miranda Fox, Earthjustice, (United States)
The judgment, which recognises air pollution as a violation of Constitutional rights, is a major victory for environmental justice groups groundWork and Mpumalanga community organisation Vukani Environmental Justice Movement in Action (Vukani). The groups, represented by Earthjustice legal partner Centre for Environmental Rights (CER), first launched the landmark #DeadlyAir litigation in 2019, demanding that government clean up the toxic air in the Mpumalanga Highveld.
“I am so happy that we have succeeded with this court case,” says Promise Mabilo, Vukani Coordinator. This is not only a victory for the applicants and affected communities living in the Highveld Priority Area, but it is also a victory for the affected communities fighting for their right to clean air in South Africa’s other priority areas — the Vaal and the Waterberg.”
In her judgment, handed down in the Pretoria High Court today, Judge Colleen Collis found for the applicants — groundWork and Vukani — and ordered government to pass regulations to implement and enforce the Highveld Priority Area Air Quality Management Plan, which is aimed at cleaning up the air on the Highveld to meet health-based air quality standards. Judge Collis found that Environment Minister Barbara Creecy has a legal duty to pass these regulations, and that she has “unreasonably delayed” in preparing and initiating regulations to give effect to the Highveld Plan.
In her judgment, Judge Collis stated: “If air quality fails to meet the National Ambient Air Quality Standards (“National Standards”), it is a prima facie violation of the right. When 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 are being threatened and infringed upon.”
This has important implications for big polluters Eskom and Sasol, as well as for national and local government capacity for air quality management — particularly compliance monitoring and enforcement.
“Today’s judgment is of enormous significance, because it recognizes that the right to healthy air is one that is realizable here and now, not gradually over time, and that the measures taken by government to date to address the dangerous levels of air pollution in the Highveld are not adequate to protect the rights of Highveld communities whose lives are affected by this pollution on a daily basis,” says Bobby Peek, groundWork director.
Speaking after the judgment was handed down, CER attorney Tim Lloyd said: “This victory in the High Court is not only a vindication of the Constitutional environmental rights of the groups who brought this case, but importantly, this landmark judgment also recognises the incredible determination and bravery of the individuals who provided testimony about the dire impact that air pollution has, not only on their daily lives, but also on their young children.”
Please note that CER will release a thorough analysis of the judgement and its implications in the coming days.
Background and chronology of the #DeadlyAir case:
- June 2019: environmental justice group groundWork and Mpumalanga community organisation Vukani Environmental Justice Movement in Action (Vukani) launched landmark litigation demanding that government clean up the air in the Mpumalanga Highveld. groundWork and Vukani, represented by the Centre for Environmental Rights (CER), claimed that government has violated the Constitutional right to a healthy environment for the people living and working in the Highveld Priority Area (HPA), by failing to improve the deadly levels of air pollution in the HPA.
- January 2020: although it was initially due in July 2019, in accordance with the Uniform Rules of Court, the Minister of Environmental Affairs (as it was at the time) only filed a record in January 2020. The record is all the documents and all electronic records behind the decision not to concede that there is a breach of section 24(a) and that no further regulatory steps were required in addition to the tools in place.
- July 2020: the applicants supplemented the court application based on the content of the record.
- September 2020: the State Respondents filed their notice of intention to oppose this application, led by the Minister of Environmental Affairs as the first respondent.
- November 2020: the United Nations Special Rapporteur on Human Rights and the Environment, Prof David Boyd, was admitted as an amicus curiae (friend of the court) in the case by the High Court. Professor Boyd is represented by public interest law organisation Lawyers for Human Rights. His submissions focused on the relationship between a healthy environment and the protection of other basic human rights, as well as the key steps a government should take to address air pollution.
- January 2021: the State Respondents filed their answering affidavit (their response) to the applicant’s case. On behalf of the government respondents, Minister Creecy denied that government has failed in its duty to address the air pollution in the Mpumalanga Highveld, and explains that steps taken by government over the past three decades to reduce the air pollution in the Highveld. The Minister also set out a number of counter arguments, including how the section 24(a) right to a healthy environment should be understood and how it should be progressively realised over time.
- February 2021: the applicants filed their replying affidavit in response to the Minister’s answering affidavit. The applicants maintained that judicial remedies remained necessary and just and equitable to vindicate the rights of residents and confirmed that this application needed to proceed to a hearing in the High Court.
- March to April 2021: all the parties filed their respective heads of argument, based on affidavits previously filed with the court.
- 17-18 May 2021: virtual hearing in the Pretoria High Court before Madam Justice Collis. Justice Collis reserved judgment at the end of the day’s proceedings on 18 May 2021.
- 18 March 2022:the judgment and order are handed down by Justice Collis.
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