Civil society watchdog groups have scored a resounding legal victory that will put significant new pressure on the government to force Eskom and major industries on the Highveld to reduce air pollution levels in one of the world’s most polluted living spaces, according to environmental writer Tony Carnie in a Daily Maverick report.

In a judgment handed down on Friday, Gauteng High Court (Pretoria) Judge Colleen Collis lambasted Environment Minister Barbara Creecy (and her predecessor Nomvula Mokonyane) for their failures and ‘inordinate delays’ in tackling the harmful and potentially fatal levels of air pollution in the so-called Highveld Priority Area.

This is a region that contains some of the most heavily polluted towns in the country, including eMalahleni (Witbank), Middelburg, Secunda, Standerton, Edenvale, Boksburg and Benoni. The region also hosts 12 of Eskom’s coal-fired power stations, Sasol’s coal-to-liquid fuels refinery in Secunda and numerous coal mining operations.

‘As a consequence of this failure … and the department’s own finding that more than 10 000 premature deaths occur each year which are directly attributable to air pollution in the Highveld Priority Area, the inescapable conclusion that must be reached on the evidence presented, is that the levels of air pollution in this area is not consistent with the section 24(a) (constitutional) right to an environment that is not harmful to health or wellbeing,’ the judge declared.

Collis said Creecy and officials in the Department of Forestry, Fisheries & Environment now had to be ‘put on terms’ to implement tough new draft regulations to tackle harmful air pollution levels on the Highveld – including legally enforceable measures to hold polluters to account.

It remains to be seen, however, whether the ruling will be taken on appeal – and more importantly, opines Carnie, whether legal pressure alone will be sufficient to induce government to take tougher action against Eskom and other powerful industrial players. 

The landmark legal action, dubbed the ‘deadly air case’ was brought by the groundWork and the Vukani Environmental Justice Movement in Action, represented by the Centre for Environmental Rights.

‘Today’s judgment is of enormous significance because it recognises that the constitutional right to healthy air is one that is realisable 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’, the DM quotes groundWork director Bobby Peek as saying.

Collis noted that when the case came before her in May last year, Creecy’s department was still only at the stage of draft regulations.

‘The Minister has provided no indication of a timeline for finalising these regulations, if she intends to do so. This undue delay without an explanation on the side of the Minister cannot be condoned by this court and as such it calls for this court’s intervention. The inordinate delay of almost a decade in preparing implementation regulations means that the Minister must now be put on terms to complete this task as soon as possible. The fact that it has taken the department almost two years to prepare six-page draft regulations is further evidence of the need for expedition and clear timeframes.’ 

Collis stressed that her order did not seek to fetter the Minister’s discretion or bind her to a particular outcome, but instead offers ‘appropriate guidance’.

The DM report notes the judge also rejected arguments by Creecy’s legal counsel, who suggested that the national government should not interfere unduly with the legal powers of local municipalities to regulate air pollution.

‘The Minister’s bald appeals to the separation of powers, without more, carry little weight in the assessment of a just and equitable remedy. The Constitutional Court reminds us 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”.’

Creecy said she had noted the ruling, that her department was studying the implications of the judgment and would obtain legal advice before commenting in due course.

Full Daily Maverick report