The High Court of South Africa unequivocally holds that the Minister of Environmental Affairs was acting unconstitutionally by failing to implement effective and timely regulations to protect citizens from air pollution.
South African environmental groups sued the government for failing to address severe air pollution in the Highveld Priority Area. They argued that the government’s inaction violated constitutional and statutory obligations to protect the environment and public health. The case underscored the need for effective enforcement of environmental laws to ensure cleaner air and safeguard community well-being.
The court mandated that the Minister of Environmental Affairs develop, implement, and enforce regulations to mitigate air pollution effectively. This ruling emphasized the government’s duty to ensure clean air and highlighted the need for robust environmental governance and accountability in safeguarding citizens’ health and the environment.
The Highveld Priority Area covers some of the most heavily polluted towns in South Africa, particularly due to its concentration of industrial pollution sources, like coal. In March 2012, an Air Quality Management Plan (The Highveld Plan) for the Highveld Priority Area was published. Its sole objective – with a deadline of 2020 – was to reduce ambient air pollution to a level that complies with the National Standards. This Highveld Plan envisaged that stakeholders, including heavy polluters, would voluntarily submit emission reduction plans, setting out how they intended to reduce emissions to achieve the goals set out in the plan.
Nine years since the creation of the plan and long after the 2020 deadline, none of the plan’s goals had been achieved and only a minority of heavy polluters in the area had submitted implementation plans. In addition, levels of ambient air pollution remained well above the National Standards and pose an ongoing threat to the health and wellbeing of Highveld residents.
Plaintiffs contended that this was due to a lack of state regulation and that the right to an environment that is not harmful to health or well-being, enshrined in section 24(a) of the Constitution, had been violated. Plaintiffs also alleged that the Air Quality Act triggered the State’s duty to regulate, therefore obliging the Minister of Environmental Affairs to effectively regulate air quality. The plaintiffs therefore sought declaratory relief, stating that their right to a healthy environment (R2HE) had been violated and clarifying the Minister’s obligations, as well as declaring the Minister’s failure to regulate air quality as unconstitutional. Plaintiffs also sought reviewal of the lack of or the delay in implementing regulations and an order for the Ministry to implement such regulations swiftly.
The High Court of South Africa held for plaintiffs. It concluded, “poor air quality falls disproportionately on the shoulders of marginalised and vulnerable communities who bear the burden of disease caused by air pollution.” The Court clarified that while not air pollution violates R2HE, air quality that fails to meet the National Ambient Air Quality Standards violates R2HE on a prima facie basis, or unless otherwise proven. This is especially so when the failure to meet the national standards persist over time, the Court explained.
Plaintiffs based their analysis on R2HE, enshrined in section 24(a) of the Constitution, and the Court followed suit. In a detailed exercise of textual interpretation of the Constitution and of judicial precedent, the Court concluded that R2HE is “a right to a safe environment here and now. Section 24(a) of the Constitution provides an immediate, unqualified right to an environment that is not harmful to health and well-being.” Agreeing with plaintiffs, the Court determined that, due to the similarities in the framing of R2HE and the the constitutional right to education, R2HE could not be subject of any qualifications, including that of progressive realization. In other words, “this means that residents of the Highveld Priority Area have a right to a safe and healthy environment, here and now and the state cannot claim that it is taking reasonable steps, over time, to gradually address these threats.”
The Court also emphasized that the R2HE was inextricably intertwined with the well-established concepts of sustainable development and intergenerational justice. On the former, the Court concluded that sustainable development required that measures put in place to achieve economic development should not sacrifice the environment and human life and wellbeing and it must be that a balance should be struck. Where one trumps the other, it cannot be said R2HE has been achieved. On the latter, the Court emphasized children’s and the elderly’s vulnerability to air pollution.
Similarly, the Court held that a violation of R2HE also led to a violation of other related constitutional rights, including the rights to dignity, life, bodily integrity and children.
Acknowledging the role of amicus briefs in drawing attention to particularly important issues that have impacts beyond the litigants in question, the Court admitted an amicus brief by Special Rapporteur on the right to a healthy environment. In this case, the Court pointed to the Special Rapporteur’s highlight of comparative foreign jurisprudence on the right to a healthy environment and on issues of pollution. The Court also used the Rapporteur’s amicus brief as support for its interpretation of the domestic Constitution, particularly the point that R2HE is not a progressive right, as other socioeconomic rights are.
Using scientific studies, the Court acknowledged that children and the elderly, especially with existing conditions such as asthma, are particularly vulnerable to the high concentrations of air pollution in the Highveld Priority Area. The State’s violation of R2HE, it explained, also violated the right to have children’s interests considered paramount in every matter concerning the child.
While plaintiffs did not make youth or future generations a central emphasis of the case, the Court further highlighted R2HE’s interrelationship with sustainable development and intergenerational justice. According to its own precedent, it explained that air pollution raises particularly urgent questions of intergenerational justice, requiring the State to take steps to protect both current and future generations. “This is a rejection of short-termism as it requires the state to consider the long-term impact of pollution on future generations,” it explained.
The Court emphasized the importance that constitutionally mandated regulations have in fulfilling R2HE. “Standards such as these are a vital tool to give content to constitutional rights and to ensure accountability,” the Court emphasized. In light of this, the Court interpreted the Air Quality Act, which read that the State “may” implement air quality regulations to mean that the State “must” do so. In other words, the Constitution obliged the Ministry to implement regulations to safeguard R2HE, and documents from the Ministry itself had determined that regulations were the most appropriate and affordable accountability mechanism in question.
The Court was therefore taken aback by the former Minister’s claim that national standards had no legal significance – i.e. that they were purely discretionary – or that they were unlawful, as they would usurp the power of municipal bodies. The latter, the Court explained, was a misunderstanding of the principle of separations of power, as the Ministry was expected to support municipalities in functions such as air quality control. This determination by the former Minister, the Court concluded, reflected the government’s own mistaken assessment of the importance of R2HE.
Respondent argued that the basis for the plaintiffs’ claims was a state of affairs – i.e. a polluted environment – as opposed to a specific action or omission by the State. The plaintiffs, respondent argued, could therefore not bring this case. The Court disagreed, clearly stating that the lack of or lethargy in implementing regulations on behalf of the Ministry was a clear omission by the State.
In addition, respondent evoked the principle of subsidiarity – that holds that where legislation has been enacted to give effect to a fundamental right, a litigant should rely solely on that legislation and not the Constitution to give effect to the right – to argue that plaintiffs’ constitutional arguments were precluded. Once again, the Court rejected this attempt by respondent, explaining that the principle of subsidiarity applicable only in a narrow set of cases, not including this one.
Challenging the causal link between pollution and harm, respondent argued that plaintiffs had to prove harm on a strict “but for” test. In other words, the burden of proof fell upon the plaintiffs to show a direct causal link between pollution and harm. The Court held that this was mistaken. Because the case concerned public law remedies for threats to constitutional rights, citizens were entitled to approach the court for relief if rights “are infringed or threatened.” Because “there can be no doubt that unsafe levels of ambient air pollution directly threaten constitutional rights,” no such test needed to be passed by plaintiffs. The Court also added that such rejection of causation contradicted established science and the State’s own studies and laws.
Plaintiffs argued, and the Court agreed, that R2HE set the basic minimum standard for environmental protection – i.e. an environment that is not harmful. State regulations to further the Highveld Plan, the Court explained, were meant to operationalize the right and ensure that citizens’ fundamental rights were met.
The Court made clear that it possessed wide remedial powers to grant any just and equitable remedy and that “the Minister’s repeated and emphatic denials of any breach of section 24(a) of the Constitution and any corresponding duty to establish implementation regulations calls out for appropriate correction. The declaratory orders would provide the Minister and her successors with necessary guidance on their legal obligations going forward.” The Court therefore declared section 24 to have been violated and the Ministry’s failure, refusal or delays to prescribe regulations as unconstitutional, unlawful and invalid.
The Court, while providing a margin of discretion regarding the details of the regulations, ordered the Ministry to publish regulations to effectuate the Highveld Plan within six months.
As mentioned above, plaintiffs argued and the Court concluded that section 24(a) of the Constitution, enshrining R2HE, set the basic minimum standard for environmental protection – i.e. an environment that is not harmful. Section 24(b), which bestowed the State the power to regulate the R2HE, was therefore “added with the clear purpose of enhancing the scope and content of the environmental rights, beyond merely protecting human beings against harmful conditions.” As such, section 24(b) was meant to serve as an addition to the protection of the R2HE.
