The poor air quality in Mpumalanga’s Highveld has finally been recognised in a landmark court judgement earlier this week.
The Pretoria High Court ruled the region’s polluted air was a violation of residents’ Constitutional right to an environment that is not harmful to their health or wellbeing.
The longstanding issue of substandard air quality in the Mpumalanga Highveld was fought in court by the Vukani Environmental Justice Movement in Action (Vukani) and groundWork, and represented by Centre for Environmental Rights (CER) attorneys.
It was first launched in 2019, with demands that the government clean up the region’s toxic air.
The biggest polluters in the region are Eskom and Sasol, but for years, government has been found wanting in compliance monitoring and enforcement.
Judge Colleen Collis ruled in favour of applicants Vukani and groundWork, and ordered Department of Environment, Forestry and Fisheries Minister Barbara Creecy to pass regulations to implement and enforce the Highveld Priority Area Air Quality Management Plan.
The plan is aimed at improving air quality in the Highveld to meet health-based standards – a duty Judge Collis found Creecy was legally obligated to but had “unreasonably delayed”.
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.”
CER attorney Tim Lloyd said the High Court victory was a vindication of the Constitutional environmental rights of the applicants.
GroundWork director Bobby Peek said the judgement was of “enormous significance”, notably in recognising a person’s right to clean air.
Victorious after three years
In June 2019, the deadly air case first surface, with groundWork and Vukani launching litigation demanding government clean up the air in the Mpumalanga Highveld.
Creecy only filed a record of the litigation in January 2020, which contained all documentation behind the decision not to concede that further regulatory steps were required.
The applicants supplemented the court application in July 2020, and by September that year, the state filed their notice of intention to oppose groundWork and Vukani’s application.
In November 2020, United Nations’ Special Rapporteur on Human Rights and the Environment Professor David Boyd was admitted as an amicus curiae (friend of the court).
Boyd’s submissions focused on the relationship between a healthy environment and the protection of basic human rights, as well as steps government should take to address air pollution.
In January last year, the state filed their answering affidavit, in which Creecy denied the government failed in its duty to address air pollution in the Mpumalanga Highveld.
Creecy said government had over the past 30 years reduced air pollution in the region.
In February 2021, the applicants’ replying affidavit was filed, in which it was maintained that judicial remedies remained necessary, and that the matter needed to proceed to a hearing in the High Court.
Virtual hearings in the Pretoria High Court before Judge Collis began in May 2021, and the judgement and order was handed down on 18 March 2022.
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