- Minister Barbara Creecy has filed leave to appeal certain portions of a judgment on the air quality of the Highveld Priority Area, which includes parts of Gauteng and Mpumalanga.
- The high court had ruled that poor air quality in the area breaches a constitutional right and ordered the minister to set out regulations for clean-up within 12 months.
- But Creecy says the appeal is not intended to delay the drafting of regulations to improve air quality in the area.
Minister of Forestry, Fisheries and Environment Barbara Creecy has filed leave to appeal certain portions of a judgment concerning the poor air quality in the Highveld Priority Area.
The Highveld Priority Area includes parts of Gauteng and Mpumalanga. It is home to 12 of Eskom's coal-fired power stations, Sasol's coal-to-liquid fuels refinery and other coal mining operations.
On 18 March, the North Gauteng High Court in Pretoria ruled that the poor air quality in the area violated the constitutional to an environment that is not harmful to health and well-being.
The application was originally launched by environmental justice groups GroundWork and Vukani Environmental Justice Movement in June 2019.
The judgment highlighted the legal duties of the government - mainly the Department of Forestry, Fisheries and Environment. Judge Colleen Collis ordered the minister to within 12 months set out regulations to enforce the Highveld Priority Area Air Quality Management Plan - which is essentially a plan to clean up the air to meet ambient air quality standards.
The judgment also orders Creecy to consider several factors in drawing up regulations.
Collis said that Creecy has a "legal duty" to prescribe the regulations, in terms of section 20 of the Air Quality Act. But in her application, Creecy indicates that the appeal against certain orders, rests on the interpretation of section 20.
"It will be seen from the application for leave to appeal that the ambit of the appeal is relatively narrow and essentially boils down to a question of law, namely, the proper interpretation of section 20 of the AQA (Air Quality Act)," the application read.
The orders that Creecy is appealing relate to the drafting of regulations. They are all based on the interpretation of section 20 - which indicates the minister is not "merely vested with discretion" to prescribe the regulations but is rather duty-bound to do so.
The proper interpretation of section 20 extends beyond the current case, Creecy explained.
"… There are several statutes within the environmental sphere and for which I am responsible which contain similarly worded regulation-making powers. It is therefore of importance, beyond this case, to determine whether those powers also entail not merely a discretion, but also a duty," the affidavit read.
The minister added that the appeal is not meant to delay the drafting of the regulations, in fact this will continue independently of the appeal process.
However, the environmental justice groups that launched the application are disappointed in the minister's decision to appeal parts of the judgment. They believe the appeal will delay "concrete action" being taken to reduce the harmful air pollution in the area, they said in a statement issued on Tuesday.
"The Department of Forestry, Fisheries and Environment's decision to appeal parts of this judgment risks further delaying any meaningful action being taken to lift the burden of air pollution which residents of the Mpumalanga Highveld experience every day," said groundwork director Bobby Peek. "These are measures that are way overdue, considering that government first recognised this area as an air pollution hotspot 18 years ago," Peek added.
The Centre for Environmental Rights (CER), which represented the applicants in the matter, will wait for a hearing date for the application for leave to appeal. The parties will be able to make their arguments before Judge Collis at the hearing, explained CER deputy director Wandisa Pharma.
"… She will then decide whether another court could reasonably come to a different conclusion, or if there are other compelling reasons in the interests of justice for the disputed parts of the decision to be reconsidered," said Pharma.
*This article was updated at 10:00 on 12 April 2022 to include comment from environmental justice groups.