The case launched by two environmental rights organisations in July last year, demanding that the government take steps to improve the air quality on the Mpumalanga highveld, will finally be heard in May next year.
The government’s response to the case has been slow – it only filed its intention to oppose the application in September this year.
The respondents are the president, the minister of environmental affairs, the Gauteng MEC for agriculture and rural development and Mpumalanga MEC for agriculture, rural development, land and environmental affairs.
An expert study published in 2017 showed that Eskom’s 12 coal-fired power stations and a Sasol plant are responsible for the lion’s share of the air pollution in the Highveld Priority Area, a 31,000km2 area cutting across Gauteng and Mpumalanga.
This area was declared a priority area by then environmental minister Marthinus van Schalkwyk in 2007 in an effort to reduce the chronic ambient air pollution on the highveld.
GroundWork Trust and Vukani Environmental Justice Movement in Action filed the application before the high court in Pretoria in June last year.
They seek an order declaring that poor air quality in the Highveld Priority Area is in breach of the residents’ constitutional right to an environment that is not harmful to their health and wellbeing.
They also want the court to declare that the minister has a duty to prescribe regulations to implement and enforce the Highveld Priority Area Air Quality Management Plan.
They also want the court to declare that the minister’s refusal to prescribe regulations is unconstitutional, unlawful and invalid.
In an affidavit filed bygroundWork Trust director Bobby Peek, he said the application concerned the dangerous levels of ambient air that are harmful to their health and wellbeing.
“The ambient air in the highveld is heavily polluted. Major towns [affected] such as eMalahleni, Middelburg, Secunda, Standerton, Edenvale, Boksburg and Benoni, in particular, are well-known,” Peek said.
He said the poor air quality has significant and direct impacts on human health and wellbeing, causing premature deaths and other illnesses.
“Children and the elderly are particularly vulnerable to the health impacts caused by air pollution,” Peek said in the founding affidavit.
In a supplementary founding affidavit filed in July this year, Peek said since the filing of the application last year, the dangerously high levels of air pollution in the Highveld Priority Area still far exceeded the national standards.
Peek said the first goal of the Highveld Plan – that organisational capacity in government is optimised to enforce compliance with ambient air quality standards – had not been achieved despite a 2015 deadline.
He said little progress had been made in achieving six other goals, all of which are due for completion this year. These include a goal that industrial emissions should be equitably reduced to achieve compliance with ambient air quality standards, and that emissions from waste management are 40% less than the current state.
Despite the application being filed in June last year, it was only on September 23 this year that the government respondents filed a notice to oppose.
The Centre for Environmental Rights, which represents the two organisations, said after a case management meeting between the parties, the registrar of the high court in Pretoria issued directions on November 10, setting down the case for hearing on May 17 to May 19 next year.
Government respondents are required to file their defence to the applicants’ claims by January 29 next year.
The UN Special Rapporteur on Human Rights and the Environment, Prof David Boyd, was admitted as a friend of the court in the case on November 5.
In his application to be admitted as friend of the court, Boyd said he wanted to advance relevant submissions regarding international human rights law obligations of the state to protect and promote the right to an environment not harmful to health and wellbeing.
“The obligations arise from international treaties ratified by SA and other instruments such as declarations, principles and decisions of international treaty bodies regional and international courts,” Boyd said.