The players in the long drawn out “dirty air” saga that has seen the environment department lock horns with environmental activists in the high court over the issue of Mpumalanga’s air quality, may have a long wait before they can breathe again.
Both sides’ advocates slugged it out in a virtual hearing before judge Colleen Collis on May 17 and 18, during which fresh legal submissions were presented based on affidavits placed before the court over the past two years.
While the judge considers the submissions, the environmental activists said they were relieved to have been able to finally present their case.
“I think there was a sense of relief just to have this case heard in the high court after 14 years of trying to ensure that the Highveld Priority Area is enforced,” said groundWork activist Lerato Balendran.
“Like we have throughout the litigation process, we continue to believe in the merits of this ‘deadly air’ application and that what the court has been asked to order is just and equitable.”
The case is based on an application from activist groups groundWork and Vukani Environmental Justice to compel the environment department to publish regulations to improve air quality in an area famous for smog generated by heavy industry and Eskom’s coal-fired power stations.
The main issue concerns the poor air in what is known as the Highveld Priority Area, a 31,106km² swathe of territory that includes parts of Gauteng and Mpumalanga.
The saga dates back to November 2007, when the then environment minister bowed to demands from civil society to declare a heavily polluted section of the Mpumalanga highveld a priority area in terms of the national air quality act.
Every day, people living and working on the Mpumalanga highveld are breathing toxic, polluted air that is harmful to their health and wellbeing.
— Promise Mabilo, activist with Vukani Environmental Justice
The region, which includes towns such as eMalahleni, Middelburg, Secunda, Boksburg and Benoni, contains 12 coal-fired power stations, Sasol’s petrochemical plant, numerous coal mines and heavy industries in the form of smelters and steelworks.
The environment department agreed that “the people living and working in these areas do not enjoy air quality that is not harmful to their health and wellbeing”, the Centre for Environmental Rights (CER) noted in a 2017 report.
However, it took another four years after 2007 before government published an air quality management plan (AQMP) for the area, the CER said.
The purpose of the plan was for the area to comply with all health-based national ambient air quality standards, the CER report said.
Activists maintain, however, that the regulations have not been published or implemented, and that people continue to suffer with poor air quality as a result.
“Every day, people living and working on the Mpumalanga highveld are breathing toxic, polluted air that is harmful to their health and wellbeing,” said Promise Mabilo, an activist with Vukani Environmental Justice.
“This is the basis of the ‘deadly air’ case,” she said.
Taking government to court was a last-ditch effort to get the state to comply.
Arguing for the applicants, adv Steven Budlender said the case was about “real lives and real people”, adding that there was an ongoing breach into peoples’ constitutional right to health and wellbeing.
Budlender said government had acknowledged in 2007 that the people of the area did not enjoy clean air and that the HPA declaration was supposed to fix that.
The sole objective of the court case was to get the HPA to comply with national standards.
Environment minister Barbara Creecy noted in her affidavit that she was aware of the “unacceptably high levels of ambient air pollution” in the HPA and the potential of that air to have an adverse impact on the health and wellbeing of the people living and working there.
However, she said she had in her capacity as minister taken various steps and actions for the national department to fix the problem.
There were also a number of actions that had been taken long before she became environment minister, starting with gazetting the national framework for air quality management in November 2007.
That had led to a series of meetings with stakeholders which had resulted in the publication of the national ambient air quality standards which were gazetted in December 2009.
I deny that I or any of my predecessors failed in any legal duty or constitutional obligation as far as the air pollution in the Highveld Priority Area is concerned.
— Environment minister Barbara Creecy in her answering affidavit
A strategy to address air pollution in dense low income settlements was also published in May 2019, while the department has conducted a number of air quality-related routine inspections since 2012 at, among others, Eskom power stations, Samancor Ferrometals, Samancor Middelburg, Sasol’s plants at Secunda and ore miner Assmang’s since-closed ferrochrome smelter at Machadodorp.
“In view of the foregoing, I deny that I or any of my predecessors failed in any legal duty or constitutional obligation as far as the air pollution in the Highveld Priority Area is concerned,” said Creecy in her affidavit.
The minister also noted that it was a scientific fact that air quality did not respect geopolitical boundaries and that air quality management required a multidisciplinary approach, not only from a legal perspective but also from various disciplines within the natural sciences.
Creecy also noted that airflow from outside the area carried substances and pollution which affected the region’s air quality.
“We have had instances where dust from the Sahara and pollution from abroad impacted specifically on the air quality of the Highveld Priority Area,” she said.
The implication of this was that while collective emissions from industry had been significantly reduced, the air quality had not improved proportionately. This meant it was likely there was another source of pollution that had not yet been accounted for.
Creecy said she had also noted the “emotive description” by the applicants of Eskom’s dirty, coal-fired power stations.
“Those dirty coal-fired power stations currently provide electricity which enabled the applicants and their attorneys to type and print out the very papers on which they reply in this application,” she said.
Judgment in the matter has been reserved.
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