Supreme Court of Appeal of South Africa
Groundwork Trust and Vukani Environmental Justice Movement in Action
Minister of Environmental Affairs
The Highveld Priority Area covers some of the most heavily polluted towns in South Africa due to its concentration of industrial pollution sources. In March 2012, an Air Quality Management Plan (The Highveld Plan) for the Highveld Priority Area was developed to reduce ambient air pollution to a level that complies with the National Standards. Nine years since the creation of the plan and long after its 2020 deadline, none of the plan’s goals had been achieved and only a minority of heavy polluters in the area had submitted implementation plans. In addition, levels of ambient air pollution remained well above the National Standards and pose an ongoing threat to the health and wellbeing of Highveld residents.
Petitioners contended that this was due to a lack of state regulation and that the right to an environment that is not harmful to health or well-being, enshrined in section 24(a) of the Constitution, had been violated. Petitioners also alleged that the Air Quality Act triggered the State’s duty to regulate, therefore obliging the Minister of Environmental Affairs to effectively regulate air quality. The Petitioners therefore sought declaratory relief, stating that their right to a healthy environment (R2HE) had been violated and clarifying the Minister’s obligations, as well as declaring the Minister’s failure to regulate air quality as unconstitutional. Petitioners also sought reviewal of the lack of or the delay in implementing regulations and an order for the Ministry to implement such regulations swiftly.
The High Court of South Africa held for the petitioners. It concluded, “poor air quality falls disproportionately on the shoulders of marginalised and vulnerable communities who bear the burden of disease caused by air pollution.” The Court clarified that while not air pollution violates R2HE, air quality that fails to meet the National Ambient Air Quality Standards violates R2HE on a prima facie basis, or unless otherwise proven. This is especially so when the failure to meet the national standards persist over time, the Court explained.
The Supreme Court of Appeal dismissed the respondents’ appeal. They upheld the High Court’s judgment, and additionally declared that poor air quality in the Highveld Priority Area is in breach of R2HE, and that the Minister of Environmental Affairs must prescribe regulations to implement and enforce the Air Quality Management Plan.