The lawsuit challenges the government's failure to enforce regulations to protect people from air pollution in the Highveld priority area. (Per Anders Pettersson/Getty Images)
TSouth Africa's ongoing legal battle for clean air will reach a critical moment on Wednesday when the Supreme Court hears the “Deadly Air” case.
The lawsuit, led by Groundwork and the Bucany Environmental Justice Campaign, represented by the Environmental Rights Centre, accuses the government of failing to enforce regulations to protect people from air pollution in the Highveld priority area.
The region includes parts of Gauteng and Mpumalanga provinces and is home to 12 Eskom coal-fired power plants, Sasol's coal-to-liquids refinery, various coal mining operations and other industries.
It was declared a priority in 2007 because air pollution was dangerously high, but “government inaction continues to put the health and well-being of millions of people living nearby at risk,” the Environmental Rights Centre said.
In March 2022, the Pretoria High Court handed down a landmark judgment confirming that the government's failure to regulate air quality in the region violated section 24 of the Constitution, which guarantees the right to an environment free from harm to health and well-being.
Former Minister for Forestry, Fisheries and the Environment, Barbara Creecy, has appealed on a key technical point: whether the provision in the Air Quality Act which says the Minister “may make regulations” should be interpreted in this context as “must”. This is the argument that will now be put to the judge.
The defendants argued that residents of the Highveld Priority Area are exposed to air pollution that is harmful to their health, which the Department estimates is responsible for around 10,000 premature deaths each year.
Respondents pointed out that Mr Creasy's predecessor, Edna Molewa, produced the Highveld Plan to address the environmental and public health crisis in 2012, but the plan “has no legal effect” without regulations.
“The Minister has the power under Section 20 of the Air Pollution Act to enact targeted regulations to implement and enforce this plan. His own ministry has concluded that these regulations are necessary and have the potential to save lives. Yet the Minister has failed to promulgate them, without any explanation, nearly 12 years later,” the respondent said.
The proposed regulations were finally circulated in 2021, long after the case was filed, but have yet to be finalised. “In the face of this crisis and the department's own conclusions about its regulatory needs, is it lawful for the minister to fail to or refuse to exercise his section 20 regulation-making power?”
The Supreme Court “answered no” for three reasons, the defendants said: “Firstly, section 20 is a power which carries with it obligations where the conditions for its exercise are met, namely that the regulations are necessary to implement and enforce the approved Priority Area Air Quality Management Plan in the Highveld Priority Area.”
Given the undisputed facts and the authority's internal assessment, restrictions are necessary, they said. “Secondly, this interpretation of section 20 is reinforced by section 7(2) of the Constitution, which requires reasonable and effective measures to protect and promote the constitutional rights of Highveld residents exposed to harmful air pollution.”
“Third, even if the Minister is given some discretionary power, improper exercise of that discretion or undue delay in preparing regulations may be subject to review under the Promotion of Administrative Integrity Act.”
Ntombi Maphosa, a lawyer at the Environmental Rights Centre, said the department was challenging “very narrow legal points”, “but I think it's important to know in the sense that the department has known for decades the extent of air pollution, particularly in the Highveld. They were doing impact assessment studies going back to 2019 and were basically trying to decide whether to put these regulations in place or not.”
The impact assessment clearly states the risks to Highveld residents and the failure of the Highveld Plan. The report highlights that a key reason the plan failed was that there was no regulation to enforce it, and that implementing regulations are needed.
“Despite having carried out their research, they still try to argue that regulations are not necessary to implement key air pollution measures,” Maphosa said. “The crux of our argument is that regulations are necessary in this case because the Supreme Court has found that constitutional rights are being violated by air pollution.”
“Even if departments and ministers have not challenged the Constitutional Declaration, the fact that they are now seeking to challenge its interpretation impacts the health message that we want to continue to highlight. The key is that these regulations are essentially necessary to save the lives of people on the Highveld,” Maphosa said.
The appellant's argument was that, properly interpreted, section 20 is clearly permissive and “confers discretion on the Minister or MEC but does not oblige him to act”.
“The Minister has the power to prepare, initiate and pass regulations. This power is a discretionary power and a 'prerogative'. The Minister retains the discretion to decide when it is appropriate or necessary to initiate and pass regulations. Furthermore, if the Minister or the MEC decides to exercise the discretion to promulgate regulations, section 20 allows the Minister to determine the content of the regulations and the timing of their promulgation,” the appellant pointed out.
The thrust of the Minister's argument was that if the word “may” in Article 20 was interpreted as creating a duty, “the principle of separation of powers would be undermined”. If it was interpreted as giving the Minister or the MEC the power and latitude to exercise discretion, the principle would be upheld. “The latter interpretation should prevail.”
The second interpretation may have implications in support of constitutional principles: “Article 20 begins with an empowering section, giving the Minister or MEC the power to pass regulations. This provision is clearly permissive. This means that the Minister or MEC has discretion on when to prescribe the regulations under consideration.”
There are also cases where “may” is interpreted as mandatory:
In this case, the Minister or MEC is obliged to fulfil the obligation.
“But the starting point for all legislative interpretation is the actual language used. So, first of all, it is clear that 'can' does not mean 'must.'”
Regulation is clearly a form of law making.
To facilitate the implementation of the law, the Minister or MEC may:
Whether the courts should pass regulations permitted by the Clean Air Act.
You decide when you need to do that.”
Ministers have “already adopted an air quality management tool” to address air pollution in the Highveld priority areas, and this tool already promotes and supports the Highveld Plan's objectives because it “gives legal effect to the Highveld Plan's targets and is accompanied by appropriate penalties for non-compliance”.
