The Supreme Court of Appeal ("SCA") delivered a landmark judgement on April 11 2025, in Minister of Environmental Affairs v Trustees for the Time Being of GroundWork Trust and Others (549/2023) [2025] ZASCA 43. The case involved the long-standing and dangerous air pollution in the Highveld Priority Area ("HPA"), which is a major industrial region incorporating Mpumalanga and Gauteng provinces and housing Eskom coal-fired power plants, Sasol petrochemical facilities, and many coal mines.
The SCA affirmed the state's constitutional mandate to protect citizens from environmental harm, especially when the health of citizens is endangered. The SCA's decision establishes vital implications beyond environmental legislation for social equity and governmental responsibility in South Africa.
The background: A decade of empty promises
The government designated the HPA as a "priority area" in 2007 due to dangerously high levels of air pollution. The Department of Environmental Affairs published the Highveld Priority Area Air Quality Management Plan ("the Highveld Plan") in 2012, which aimed to achieve air quality targets by 2020. It included goals like decreasing industrial emissions and improving air quality in poverty-stricken areas, as well as establishing vehicle emission standards and dust control measures.
However, more than a decade later, the air in the HPA remained toxic. Studies demonstrated that the air quality exceeded legal limits, contributing to chronic illnesses, respiratory conditions, and premature death. A government-led research project concluded that 10,000 lives could be saved if national air quality standards were met. Despite this, the Minister of Environmental Affairs had not published the regulations for enforcing the Highveld Plan.
The legal challenge
Environmental justice organisations GroundWork and Vukani Environmental Justice Movement took the Minister to court in 2019. They argued that the government's failure to publish regulations for enforcing the Highveld Plan violated citizens' constitutional right to live in a safe environment (section 24(a) of the Constitution).
The High Court agreed and ordered the Minister to create and implement regulations within 12 months. The Minister filed an appeal against this decision because she maintained that section 20 of the National Environmental Management: Air Quality Act, 2004 ("Air Quality Act") gave her discretion to issue regulations, not a legal duty.
The Supreme Court's decision
The SCA supported the High Court decision by establishing that the Minister had a legal obligation rather than a mere discretion to publish regulations under section 20 of the Air Quality Act in this particular case. The SCA found that:
- The Minister did not challenge the section 24(a) part of the High Court's judgment and thus conceded that the government had breached Constitutional rights.
- Despite internal studies, public pressure, and draft regulations which were availed shortly before the appeal was lodged, the Minister unreasonably delayed action for over a decade.
- The regulations were vital, as socio-economic impact assessments and health data clearly demonstrated that binding rules were required. The absence of such regulations prevents polluters from being held responsible for their actions.
The SCA also clarified that in cases of necessity, section 20 of the Air Quality Act requires the interpretation of the word "may" to mean "must" which creates a compulsory obligation. This principle prevents the government from circumventing its duties by using discretion when health and environmental rights are at stake.
Why this case matters
This judgment represents a major triumph for affected communities and a crucial step forward for environmental justice in South Africa. It reinforces three essential principles which include public official accountability for implementing laws that protect health and the environment, that access to clean air is a basic human right. Importantly, the SCA recognised that low-income communities along with children and women and people with disabilities bear the greatest burden of air pollution which demonstrates the strong link between environmental damage and social inequality.
What's next?
During the twelve-month period starting from April 2025 the Minister was directed to develop, introduce, and publish regulations under section 20 of the Air Quality Act to give effect to and enforce the Highveld Priority Area Air Quality Management Plan. Civil society now has a precedent to challenge government actions when rights are under threat.
How can we help?
The second generation Highveld Priority Area Air Quality Management Plan was published on 26 March 2025 with a specific goal to decrease HPA emissions by 40% before 2030. This development demonstrates an intensified effort to address ongoing air quality problems within the HPA.
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