Deadly air pollution case back in court

On Monday, 13 March 2023 the Pretoria High Court heard the state’s application for leave to appeal the landmark Deadly Air court judgment about air pollution in the Mpumalanga Highveld.

The Deadly Air court judgment was handed down by the Pretoria High Court in March 2022. It found that the poor air quality in the Highveld Priority Area (which extends from eastern Gauteng across the Mpumalanga Highveld), is in breach of residents’ section 24(a) Constitutional right to an environment that is not harmful to their health and well-being.

The judgment declared that section 24 of the Constitution is immediately realisable in the here and now. The judgment also ordered the government to pass regulations to implement and enforce the Highveld Priority Area Air Quality Management Plan (Highveld Plan), which aims to clean up the air in the Highveld to meet health-based air quality standards.

Judge Collis found that the Minister of Forestry, Fisheries and the Environment has a legal duty to pass these regulations, and that she had “unreasonably delayed” in preparing and initiating regulations to give effect to the Highveld Plan.

The case was launched in June 2019 by the Emalahleni-based Vukani Environmental Justice Movement in Action (VEM) and environmental justice group groundWork, represented by the Centre for Environmental Rights (CER).

On behalf of the state, the Minister of Forestry, Fisheries and the Environment has applied to the High Court for leave to appeal the part of the order relating to the interpretation of section 20 of the National Environmental Management: Air Quality Act (AQA). This is the legal provision relating to the passing of regulations to implement and enforce Air Quality Management Plans in Priority Areas. The state is not appealing the first part of the order that relates to the immediate realisation of Section 24 of the Constitution.

VEM and groundWork do not oppose the application for leave to appeal to the Supreme Court of Appeal. While they do not believe that the Minister has reasonable prospects of success on appeal, they accept that there are compelling reasons for leave to appeal to be granted in terms of section 17(1)(a)(ii) of the Superior Courts Act 10 of 2013. This is due to the novelty and importance of the constitutional issues raised in this matter and the broader public interest. These compelling reasons also justify that the appeal be heard by the Supreme Court of Appeal, in terms of section 17(6) of the Superior Courts Act.