Summary
The Highveld Priority Area (“HPA”) is a heavily polluted region in South Africa whose residents are predominantly low-income and marginalized. The HPA is home to a dozen of Eskom’s coal-fired power stations, a refinery from Sasol, and numerous coal mines. In 2007, noting that air pollution in the HPA exceeded the National Ambient Air Quality Standards and had adverse impacts on the environment, health and well-being of residents in the HPA, the Minister of Environmental Affairs (“Minister”) declared the HPA a priority area. In 2012, the Highveld Priority Air Quality Management Plan (“Highveld Plan”), designed to address the deadly air in the HPA, was published; however, no regulations designed to implement it were ever passed by the Minister. The narrow issue on appeal concerns whether Section 20 in the National Environmental Management: Air Quality Act (“Air Quality Act”) grants the Minister the discretion or imposes a duty to promulgate regulations to enforce the Highveld Plan.
This case began in 2019, when two non-profit organizations who advocate for environmental justice in South Africa: GroundWork Trust and the Vukani Environmental Movement, represented by the Centre for Environmental Rights, sought: (1) a declaration that the constitutional right to an environment not harmful to health or well-being in Section 24 was being violated; and (2) an order for the government to promulgate regulations to give effect to the Highveld Plan. In March 2022, the High Court in Pretoria ordered: (1) that poor air quality in the HPA violated residents’ Section 24(a) constitutional rights; and (2) that the Minister had a legal duty to prescribe regulations under Section 20 of the Air Quality Act to implement and enforce the Highveld Plan and must pass such regulations within 12 months of the order. In doing so, the court confirmed that Section 24(a) is an unqualified right to an environment not harmful to health or well-being that is not limited by the state’s available resources.
In 2022 the Minister appealed the High Court’s order that she pass regulations to enforce the Highveld Plan pursuant to Section 20 of the Air Quality Act. Notably, the High Court’s finding that Section 24(a) constitutional rights of residents of the HPA were violated was not appealed. Constructed narrowly, the sole issue on appeal was whether Section 20 imposed a duty upon the Minister–or more flexibly, merely empowered her with the discretion–to promulgate enforcement regulations. Analyzing the term “may” in Section 20, the Court looked to South African case law, international human rights norms (including the UN General Assembly’s recognition of the fundamental human right to a clean, healthy, and sustainable environment, as well as a 2021 UN Environment Programme study affirming the importance of monitoring and reviewing air quality standards), and other constitutional provisions to determine that “may” is to be read as “must” when the circumstances of a particular case creates a necessity for such enforcement regulations to be passed. Continuing its analysis, the Court determined that the objective evidence of air pollution in the HPA, the uncontested violation of Section 24(a) constitutional rights, and the failure to achieve goals of the Highveld Plan confirm that a necessity has arisen under the circumstances of the HPA. Having found this necessity, the Court ruled that the “may” in Section 20 of the Air Quality Act is to be read as “must” under these circumstances, thereby obligating the Minister to pass regulations to enforce the Highveld Plan.
The Court found an alternative ground for relief even if Section 20 were to be interpreted to read as “may.” Citing Section 237 of the Constitution, which requires that all constitutional obligations be performed diligently and without delay, the Court confirmed that Chapter 4 of the Air Quality Act–a legislative measure based on Section 24(b) in the Constitution–requires prompt, efficient, and coordinated action to address dangerously high levels of air pollution. The Court found that through Section 237, even if Section 20 of the Air Quality Act were to be read as “may,” the Minister would nonetheless be required to promulgate regulations to give effect to the Highveld Plan.
Though the Court dismissed the Minister’s appeal and ordered her to promulgate regulations under Section 20 of the Air Quality Act to enforce the Highveld Plan within 12 months, the decision is silent on the rights of children, which were central to the arguments made by the Centre for Child Law. A number of the secondary materials, including those by the University College Cork (“UCC”), expand on the implications of this omission.
Groups Involved: groundWork and Vukani Environmental Movement (both represented by the Centre for Environmental Rights); UN Special Rapporteur on Human Rights and the Environment (admitted as amicus curiae in the High Court); Centre for Child Law (admitted as amicus curiae in the Supreme Court of Appeal)
