Automated Summary
Key Facts
In 2007, the Minister of Environmental Affairs declared a 31,106 km² area in Mpumalanga and Gauteng as a High Priority Area (HPA) due to severe coal mine pollution. By 2012, the Highveld Plan was published to reduce air pollution to acceptable levels by 2020, including goals like full compliance with air quality standards in low-income settlements. Despite the Department preparing draft regulations, the Minister failed to publish them for over a decade. In 2019, environmental organizations (GroundWork and Vukani Environmental Movement) filed a lawsuit alleging the Minister's inaction violated s 24(a) of the Constitution (right to a non-harmful environment). A 2019 health study confirmed air pollution disproportionately harms vulnerable groups, estimating 10,000 lives could be saved if standards were met. The high court ruled in 2020 that the Minister had a legal duty to create regulations under s 20 of the Air Quality Act to enforce the Highveld Plan and declared the poor air quality unconstitutional. The Supreme Court of Appeal upheld these findings, except for excising procedural directions, and affirmed the Minister's obligation to act within 12 months.
Issues
- The court addressed whether the Minister's decade-long delay in creating implementation regulations for the Highveld Plan constituted an unreasonable delay, particularly considering the Department of Environmental Affairs had already prepared draft regulations and the health study demonstrated the urgency of air quality improvements to prevent premature deaths.
- A key issue was the interpretation of section 20 of the Air Quality Act, which grants the Minister the power to 'prescribe regulations necessary for implementing and enforcing approved priority area air quality management plans'. The court examined whether this permissive language ('may') in the statute actually creates a binding obligation on the Minister to act given the established necessity for such regulations in the Highveld Priority Area.
- The court determined whether the Minister's failure to address air pollution in the Highveld Priority Area breached residents' constitutional right to an environment that is not harmful to their health and well-being as protected by section 24(a) of the Constitution. This issue centered on the direct impact of ambient air pollution on public health and the state's obligation to protect this constitutional right.
Holdings
- It is declared that the Minister has unreasonably delayed to initiate, prepare and prescribe regulations to give effect to the published Highveld Priority Area Air Quality Management Plan.
- It is declared that the Minister of Environmental Affairs has a legal duty to prescribe regulations under section 20 of the Air Quality Act to implement and enforce the published Highveld Priority Area Air Quality Management Plan.
- The Minister is directed, within 12 months of this order, to prepare, initiate, and prescribe regulations in terms of section 20 of the Air Quality Act to implement and enforce the published Highveld Priority Area Air Quality Management Plan.
- It is declared that the poor air quality in the Highveld Priority Area is in breach of the constitutional right to an environment that is not harmful to health and well-being (as enshrined in s 24(a) of the Constitution).
Remedies
- It is declared that the Minister has unreasonably delayed to initiate, prepare and prescribe regulations to give effect to the published Highveld Priority Area Air Quality Management Plan.
- The Minister is directed, within 12 months of this order, to prepare, initiate, and prescribe regulations in terms of s 20 of the Air Quality Act to implement and enforce the published Highveld Priority Area Air Quality Management Plan.
- It is declared that the Minister of Environmental Affairs has a legal duty to prescribe regulations under section 20 of the National Environmental Management: Air Quality Act 39 of 2004 to implement and enforce the published Highveld Priority Area Air Quality Management Plan.
- The costs of this application, including the costs of three counsel, are to be paid, jointly and severally, by the first and second respondents.
- It is declared that the poor air quality in the Highveld Priority Area is in breach of the constitutional right to an environment that is not harmful to health and well-being.
- Save to the limited extent set out in paragraph 2 below, the appeal is dismissed with costs, including the costs occasioned by the employment of two counsel.
Legal Principles
- The court applied a purposive interpretation to Section 20 of the Air Quality Act, concluding that the word 'may' must be interpreted as 'must' in the context of implementing and enforcing the Highveld Plan due to the necessity established by the facts. This approach emphasized the Act's objects and the constitutional obligation to protect environmental rights under s 24(a).
- The court held that while the high court correctly declared the Minister's legal duty, the detailed directions issued by the high court impinged on the executive's authority and violated the principle of separation of powers. These directions were excised from the final order.
Precedent Name
- Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and Others
- MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd
- Member of the Executive Council for Cooperative Governance and Traditional Affairs, KwaZulu-Natal v Nkandla Local Municipality and Others
- Government of the Republic of South Africa v Grootboom
- Cool Ideas 1186 CC v Hubbard and Another
- Diener NO v Minister of Justice and Correctional Services
- Saidi and Others v Minister of Home Affairs and Others
Cited Statute
- Constitution of the Republic of South Africa, 1996
- Rules Regulating the Conduct of the Proceedings of the Supreme Court of Appeal of South Africa (Rules 8(7) and 11A)
- National Environmental Management: Air Quality Act 39 of 2004
- Uniform Rules of Court (Rule 35(12))
Judge Name
- Dambuza JA
- Hendricks
- Zondi DP
- Dolamo AJJA
- Molemela P
Passage Text
- [54] ... 2.2. It is declared that the Minister of Environmental Affairs has a legal duty to prescribe regulations under section 20 of the National Environmental Management: Air Quality Act 39 of 2004 to implement and enforce the published Highveld Priority Area Air Quality Management Plan.
- [45] ... I conclude that the word 'may' ought to be interpreted as 'must' in the circumstances of this case. As mentioned before, uncontroverted evidence showed that it was necessary for the regulations to be created for purposes of implementing and enforcing the Highveld Plan. In the language of Schwartz, the conditions justifying the exercise of the discretion in s 20 of the Air Quality Act were satisfied.
- [36] ... the correct interpretation of s 20 of the Air Quality Act is that it grants the Minister (or MEC) a discretion but also creates a legal duty. Expressed differently, it does not impose an absolute obligation on the Minister or MEC to make regulations; rather, it confers the power to create regulations once a certain situation arises, namely necessity. In other words, once the jurisdictional fact of necessity has been established, the duty to create regulations arises.