Publications
- Judgment is reserved on Minister Barbara Creecy's application for leave to appeal certain aspects of a ruling last year regarding poor air quality in the Highveld Priority Area.
- Environmental groups groundWork and Vukani Environmental Justice Movement have not opposed the application as they believe it should be heard at the Supreme Court of Appeal.
- Judgment is expected to be delivered before next Monday.
- For climate change news and analysis, go to News24 Climate Future.
Judgment has been reserved on Forestry, Fisheries and Environment Minister Barbara Creecy's application for leave to appeal aspects of a previous ruling regarding the poor air quality in the Highveld Priority Area.
In March 2022, Judge Colleen Collis at the North Gauteng High Court in Pretoria ruled that the poor air quality in the Highveld Priority Area (which overlaps with parts of Gauteng and Mpumalanga and where the country's biggest greenhouse gas emitters Sasol and Eskom have operations) violated the constitutional right to a safe and healthy environment.
The initial application was brought by environmental justice groups groundWork and Vukani Environmental Justice Movement in Action in June 2019. They are represented by the Centre for Environmental Rights (CER).
The court also ruled that the minister has a legal duty – in terms of section 20 of the National Environmental Management: Air Quality Act - to prescribe regulations necessary to maintain air quality standards or essentially clean up the dirty air in the region.
The minister subsequently filed an application for leave to appeal this aspect of the judgment relating to the interpretation of section 20, which uses the word "may".
READ | Deadly air case: Govt's appeal against ruling to take action against Sasol, Eskom to start
The minister's counsel Jolandie Rust, SC, at the hearing for the application for leave to appeal on Monday explained that the use of the word "may" indicates it is within the minister's "discretionary power" to enforce regulations "when necessary". However, the judgment makes the minister duty-bound to enforce the regulations. The judgment uses the word "must" and not "may", which brings the interpretation of the act into question.
This has implications for other environmental laws which use the word "may" and suggest the minister has discretionary powers. Citing Creecy's affidavit, Rust said: "… There are several statutes within the environmental sphere and for which she (the minister) is responsible which contains similarly worded regulation-making powers. It is therefore of importance… beyond this case, to determine whether those powers entail, not merely a discretion, but also a duty."
Although they do not believe the state has reasonable prospects for success on the appeal, groundWork and Vukani have not opposed the application. They believe the matter should be ventilated in a higher court – the Supreme Court of Appeal – because it is of broader public interest given the "novelty and importance" of the constitutional issues raised, explained Ntombi-Zodwa Maphosa, lead attorney who represents groundWork and Vukani in the matter.
Judge Collis said that a ruling would be handed down by latest next week Monday.
