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PRESS RELEASE: Minister’s #DeadlyAir Appeal Dismissed
15 APRIL 2025
An appeal in the legal battle waged by social and environmental justice groups groundWork and the Vukani Environmental Justice Movement (VEM) for protection from toxic air pollution – also dubbed the Deadly Air case – was heard in the Supreme Court of Appeal in Bloemfontein on 28 August 2024. On Friday, 11 April 2025, the Supreme Court of Appeal handed down judgment dismissing the Minister’s Appeal of the 2022 Landmark High Court judgment.
The #DeadlyAir case was launched in 2019 where groundWork and Vukani Environmental Movement took the then Minister of Environmental Affairs to court for failing to promulgate the necessary regulations to give effect to the objectives of the Highveld Air Quality Management Plan (Highveld Plan). The objective of the Highveld Plan is to put measures in place to improve the extremely poor air quality in the Highveld Priority Area, which is home to multiple polluting coal-fired power stations and coal mines.
The Pretoria High Court main hearing of May 2021 resulted in a victory for the applicants. The 2022 Judgment confirmed that the government’s failure to regulate was indeed a violation of Section 24. The regulations are essential to enforce the Highveld Plan and make it effective in addressing toxic air quality. In the Supreme Court of Appeal (SCA) the Minister of Forestry, Fisheries and the Environment appealed a technical but significant point relating to the wording of a provision of the Air Quality Act which gives the Minister the power and duty to publish the regulations. The issue in the appeal is confined to whether section 20 of the Air Quality Act imposes an obligation on the Minister to make regulations that are deemed necessary for the implementation and enforcement of approved priority area quality management plans.
The current Minister, Dion George, published the necessary regulations just two days before this appeal hearing. However, the SCA found that this did not make the matter moot as the distinct legal point is of public importance and will affect matters in the future. Therefore, it is in the interests of justice that the appeal be adjudicated despite the fact that it no longer presents a live controversy between the parties.
Ntombi Maphosa, an Attorney at the Center for Environmental Rights said :“We are glad that the Supreme Court of Appeal recognises the necessity of taking measures to implement polices that aim to protect human rights. We welcome this decision and appreciate the ventilation of the issue by the Supreme Court of Appeal.”
The SCA held that, based on all the legal authorities and the circumstances of the case, the correct interpretation of section 20 of the Air Quality Act is that it grants the Minister (or MEC) a discretion but also creates a legal duty. The section confers the power to create regulations once a certain situation arises, namely that of “necessity”.
Therefore, once the jurisdictional fact of necessity has been established, the duty to create regulations arises. The SCA further held that, in this case, there is objective evidence which reveals the obstacles the Department faced over a long period of time and a likely failure to achieve the goals of the Highveld Plan, as well as the violation of the rights enshrined in Section 24(a) of the Constitution, all of which demonstrates the necessity for prescribing regulations to ensure that the implementation and enforcement of the Highveld Plan is indisputable.
The SCA also recognised that environmental rights are immediately realisable and therefore not subject to progressive realisation in accordance with reasonable measures which are to be taken within the state’s available resources. “In the face of ongoing high levels of air pollution, the Minister was duty bound to act, and with the passage of time, the creation of the regulations became imperative. By the time the application was heard in the high court, the urgency of the creation and publication of these Regulations was unquestionable. The fact that the Regulations were published more than ten years after the publication of the Highveld Plan is a lost opportunity in the quest for an environment that is not harmful to the inhabitants of this country.”
Welcoming the Judgement on the lengthy court battle Promise Mabilo, Coordinator at Vukani Environmental Justice Movement in Action said:
“Our home has been a sacrifice zone for years and the government has been dragging its feet in taking steps to address this and the human rights violations as a result of the polluted air we breathe. We are glad it recognises that the Department delayed taking measures to protect us from the toxic air pollution.”
Despite this victory, the challenges of the people living on the Highveld are far from over. Minister George granted eight Eskom power stations exemption from compliance with the Minimum Emission standards. Effectively weakening pollution laws. Despite well documented effects of harmful air pollution, Eskom, a major polluter, has repeatedly failed to make efforts that would minimize the levels of various toxic and harmful pollutants such as sulphur dioxide and nitrogen dioxide.
“The Mpumalanga Highveld is home to some of the worst air pollution in the world. It kills people, it makes them sick and it perpetuates decades of suffering for those living in the area. It also costs the economy billions. At this time where we are seeing a renewed assault on the fight for clean air, it is gratifying to see one of the highest courts in the land taking the protection of communities seriously,” said Thomas Mnguni, Coal Campaigner from groundWork, Friends of the Earth South Africa.
VEM and groundWork are represented by the Centre for Environmental Rights
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