Case Law Database
GroundWork Trust & Others v Minister of Environmental Affairs & Others (#DeadlyAir)
| Date of Application: | Mon, 17 Jun 2019 |
|---|---|
| Date of Decision: | Fri, 18 Mar 2022 |
| Decision Making Body: | High Court of South Africa |
| Law Applied: | Constitution of South Africa National Environmental Management Act Paris Agreement |
| Keywords: | The right to a healthy environment, air quality, child rights, proactive governmental action, duty to future generations |
Trustees for the time being of Groundwork Trust and Another v Minister of Environmental Affairs and Others (39724/2019) [2022] ZAGPPHC 208 (18 March 2022).
At Issue: Whether a Minister can be ordered to promulgate regulations toward limiting carbon emissions and pollution in an area where children’s health is at risk. Whether a state holds a special duty to children.
Summary: In 2019, groundWork and the Vukani Environmental Movement, represented by the Centre for Environmental Rights, launched Constitutional litigation to request the Court to acknowledge that the poor ambient air quality in the Highveld Priority Area (HPA) constitutes a violation of the right to an environment not harmful to health and well-being, and to order the government to promulgate regulations to give effect to the Highveld Air Quality Management Plan.
The heavily polluted HPA had been declared a priority area in 2007, being home to 12 of Eskom’s coal-fired power stations, Sasol’s refinery and numerous coal mines. The Minister responsible for Environmental Affairs acknowledged that the ambient air pollution in the HPA exceeded the National Ambient Air Quality Standards and had an adverse impact on the health and wellbeing of residents and the environment.
In 2012 an Air Quality Management Plan (AQMP) was published which aimed to reduce air pollution in the HPA to acceptable standards by 2020. No Regulations aimed at implementing the AQPM were gazetted. The air quality in the HPA continued to exceed pollution standards.
In the case, the Minister argued that the ongoing high levels of pollution in the HPA were not a breach of the right to a healthy environment contained in section 24 of the Constitution, and rejected the argument that there was a legal duty on her to publish implementation regulations.
The court considered whether the high levels of pollution were a breach of section 24(a) of the Constitution which provides that:
Everyone has the right to an environment that is not harmful to their health or well-being.
The court looked at other court cases which had considered the nature of the Constitutional environmental right, as well as other rights contained in the Bill of Rights such as the right to education. The Constitutional Courts had previously described the right to basic education as contained in the Constitution as ‘unqualified’ and ‘immediately realisable’ and Judge Collis in this judgment agreed with the Applicants that section 24(a) of the Constitution was similarly not subject to the qualifications of reasonableness or progressive realisation. Judge Collis went on to say that “residents of the HPA have a right to a safe and healthy environment, here and now...”
The Minister denied any causal link between air pollution and the health impacts experienced by residents of the HPA, despite overwhelming evidence of this link contained in her department’s own assessments and studies. The court held that the delictual standard of causation (the “but for” test) was inappropriate in this case which was concerned with public (and not private) law remedies.
The court held that the Minister’s failure to promulgate regulations for the HPA constituted a breach of section 24(a) of the Constitution.
The High Court papers in this matter are available at https://cer.org.za/programmes/pollution-climate-change/litigation/legal-challenges-in-relation-to-the-air-pollution-and-the-minimum-emission-standards/litigation-in-relation-to-the-highveld-priority-area-hpa
Appeal
Note that in 2022, the Minister of Forestry, Fisheries and the Environment applied for leave to appeal limited aspects of the High Court judgment. In particular, the Minister applied for leave to appeal the High Court’s interpretation of section 20 of the National Environmental Management: Air Quality Act, specifically whether the regulation-making power in section 20 vested the Minister with a discretion to prescribe regulations or imposed a duty on her to do so.
Leave to appeal to the Supreme Court of Appeal (on this narrow issue) was granted in a judgment handed down by Collis J on 20 March 2023.
Amicus curiae
The UN Special Rapporteur on Human Rights and the Environment; and the Centre for Child Law have been admitted to enter the case as friends of the court (amicus curiae) to assist the court on specific aspects.
Summary provided courtesy of Centre for Environmental Rights
Court documents:
UN SR Amicus Heads of Argument
Centre for Child Law Written Submissions in the Supreme Court of Appeal
Related CRC articles
- 3. Right to have child’s/children’s best interests taken as primary consideration in all matters affecting them (CRC Article 3)
- 4. States will take measures for the implementation of the CRC (CRC Article 4)
- 6. Right to life, survival and development (CRC Article 6)
- 24. Right to health, healthcare, and a healthy environment (CRC Article 24)
- 27. Right to an adequate standard of living (CRC Article 27)
- 30. Right to minority culture, language, religion (CRC Article 30)
The founding affidavit (FA) makes various specific references to health impacts on children and the fact that they are particularly vulnerable: Paras 7, 105, 117, 176, 177 FA.
The FA makes reference to the best interests of the child: Paras 178, 181.4, FA.
The following constitutional rights are relied on: Right to dignity, life, bodily integrity, health and the prioritisation of the best interests of the child. Sections 10, 11, 12, 27, and 28 of the Constitution.
The FA also refers to the cultural rights of petitioners from indigenous communities.
Amicus curiae submissions (UN SR):
“The Convention on the Rights of the Child mandates states to take appropriate action to combat disease and malnutrition, and to take into consideration the dangers and risks of environmental pollution (article 24(2)(c)). States are required to take the best interests of children into consideration (article 3(1)). As a result, the WHO has pronounced that children have a basic human right to breathe clean air in their homes, schools and communities.” (Par 46)
Also at par 44, 45, 48, 49, 50, 51, 52, 53, 55, 57.
High court decision:
“This is a further demonstration that the enduring and unsafe levels of air pollution in the Highveld Priority Area are an ongoing violation of the section 24(a) constitutional rights of residents. This violation necessarily violates other constitutional rights, including the rights to dignity, life, bodily integrity and the right to have children’s interests considered paramount in every matter concerning the child.” (par 76).
Also at par 70, 71, 73, 103.
Cited CRC articles
- 3. Right to have child’s/children’s best interests taken as primary consideration in all matters affecting them (CRC Article 3)
- 24. Right to health, healthcare, and a healthy environment (CRC Article 24)
- 43. Procedural CRC provisions (CRC Articles 43-54)
The UN SR amicus curiae refers directly to CRC arts 3 and 24.
CCL refers to General comment 26 (climate change), article 24, and article 3, general comment 14 (best interests)
Involvement of children in hearings
- Written presentation
Children were not involved at the court a quo. The Centre for Child Law will represent their interests at the Supreme Court.
Intergenerational rights
Decision. At paragraph 41 & 42.
“[41] Sustainable development is integrally linked with the principle of “intergenerational justice”. This is a rejection of short-termism as it requires the state to consider the long-term impact of pollution on future generations. [42] The Supreme Court of Appeal in Vaal Environmental Justice Alliance, acknowledged that air pollution raises particularly urgent questions of intergenerational justice, requiring steps to be taken to protect both current and future generations: “As we continue to reset our environmental-sensitivity barometer, we would do well to have regard to what was said about planet Earth by Al Gore, a former vice-president of the United States and an internationally recognised environmental activist engaged in educating the public about the dangers of global warming and those steps to be taken in response to reduce carbon emissions (for which he was a joint recipient of the 2007 Nobel Peace Prize): 'You see that pale, blue dot? That's us. Everything that has ever happened in all of human history, has happened on that pixel. All the triumphs and all the tragedies, all the wars, all the famines, all the major advances . . . . It's our only home. And that is what is at stake, our ability to live on planet Earth, to have a future as a civilization. I believe this is a moral issue, it is your time to seize this issue, it is our time to rise again to secure our future.' On the importance of developing a greater sensitivity in relation to the protection and preservation of the environment for future generations, Gore had the following to say: 'Future generations may well have occasion to ask themselves, what were our parents thinking? Why didn't they wake up when they had a chance? We have to hear that question from them, now.' We would, as a country, do well to heed that warning.”
Future generations
Application. At para 181.3: “the section 24(b) constitutional duty on the state to take reasonable legislative and other measures to protect the environment for the benefit of present and future generations by preventing pollution and environmental degradation;”
Also at para 17, 38, 49.2, 118, 181.3.
Decision at paragraph 29, 41, 42, 82.4, 88.3.3, 95, 122.
Outcome of decision for the applicants
- Relief sought by applicants granted
The court ruled in favour of the applicants and ordered the Minister to promulgate regulations to implement the highveld priority plan to reduce air pollution.
Did outcome of decision develop the law
- Yes
Yes. The court confirms that section 24(1) is an unqualified right and is not subject to the state’s available resources. “Everyone has the right to and environment which is not harmful to their health or well-being”.
The court finds that the state bears a duty to future generations.
The court can order the Minister to promulgate Regulations to ensure that the right is protected.
The High Court finds that the right to a healthy environment is violated, and that such violation necessarily violates other constitutional rights, including the rights to dignity, life, bodily integrity and the right to have children’s interests considered paramount in every matter concerning the child.
The Minister has appealed the decision. The hearing has not been scheduled.
Involvement of NGO/law firm in application
Available information on how children got involved in the litigation
There are no children involved. The Centre for Child Law entered as amicus to make children’s rights arguments and represent the interests of children.
Age range of litigants
- Other (Under 25)