Environment Minister granted leave to appeal Deadly Air case
A High Court has granted Environment Minister Barbara Creecy leave to appeal aspects of the Deadly Air judgment that ruled the government must clean up the toxic air in the Highveld Priority Area. The matter was heard on 13th March 2023 at the North Gauteng High Court in Pretoria.
High Court Judge Colleen Collis handed down the landmark judgment in March last year, recognising air pollution as a violation of constitutional rights. The government has the legal obligation to implement and enforce anti-pollution regulations, the court ruled. The decision has significant implications for the region’s major polluters Eskom and Sasol, as well as for national and local government air quality management.
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.”
The ruling was a major victory for environmental justice groups groundWork and Vukani Environmental Justice Movement in Action (Vukani). The groups, represented by the Centre for Environmental Rights (CER), first launched the landmark litigation in June 2019, demanding that the government clean up region’s toxic air.
Creecy subsequently filed an application for leave to appeal certain aspects of the judgment – specifically around the interpretation of the law. GroundWork and Vukani did not oppose the minister’s application. Given the public interest and importance of the constitutional issues raised, the matter should be aired in the Supreme Court of Appeal, they said.
The human cost of fossil fuel air pollution
Eskom is the world’s most polluting power company, and the industrial zone of the Highveld Priority Area is the site of most of its fleet of 14 coal-fired power plants. Furthermore, Sasol’s massive coal-to-liquid refinery in the region alone generates more greenhouse gas emissions than over 100 individual countries. As a result, Mpumalanga province has the most polluted air in the world for nitrogen dioxide and sulphur dioxide, according to NASA satellite data published by Greenpeace.
At the national level, air pollution in South Africa is 4.7 times the World Health Organization’s annual air quality guideline value, according to the Swiss IQ Air Quality Index 2022 Report. The report also found that air pollution remains the world’s most significant environmental health threat.
The International Institute for Sustainable Development (IISD) has calculated the social cost of fossil fuel combustion in South Africa is at least R550 billion annually, due to early deaths, disease and working days lost due to air pollution and emissions. This amount exceeds the government’s revenues from fossil fuel combustion five times over.
Research published in February 2023 found that under Eskom’s planned retirement schedule and emission control retrofits, emissions from the company’s power plants would be responsible for a projected 79,500 air pollution-related deaths from 2025 until end-of-life.
“This untenable situation illustrates why we need to phase out coal as soon as possible”, said Thomas Mnguni, groundWork’s coal campaigner and a Highveld resident. “Not only is Eskom’s coal fleet unable to provide enough reliable electricity, but it is also killing people and making people sick every day.”