South Africa's Supreme Court to Deliberate on the "Deadly Air" Case for Clean Air Rights

In a major environmental justice showdown, the Supreme Court of Appeal in South Africa will convene on Wednesday to deliberate on the landmark 'Deadly Air' appeal case. A coalition led by environmental groups groundWork and the Vukani Environmental Justice Movement, represented by the Centre for Environmental Rights, contends that the government's lack of enforcement of air quality measures in the Highveld Priority Area violates the constitutional right to an environment that is not harmful to health or wellbeing.

The Highveld Priority Area, spanning parts of Gauteng and Mpumalanga, is a hotspot of air pollution due largely to the concentration of Eskom's coal-fired power stations, Sasol's synthetic fuels refinery, and a plethora of mining and industrial activities. Even though the region was flagged as a priority over fifteen years ago, substantial regulatory interventions have not materialized.

In a significant 2022 ruling, the Pretoria High Court recognized the government's regulatory inaction as a breach of constitutional rights. The nub of the present argument, put forth by the appellants, is whether the word "may" in the Air Quality Act, relating to the power of the minister to make regulations, implies a discretionary power or an obligatory one.

The court had originally found in favor of the necessity for regulations, emphasizing the potential of said rules to prevent thousands of premature deaths annually across the Highveld due to air pollution. Despite this, draft regulations have been stalled since being circulated in 2021. The advocates for clean air argue that without these regulations, which would reinforce the legal weight of the Highveld Plan, developed to combat the pollution crisis, the plan remains ineffectual. The lack of concrete action, the respondents argue, renders residents of the Highveld constantly exposed to dangerous levels of air pollution, with subsequent adverse health effects.

The Department of Forestry, Fisheries and the Environment has, conversely, maintained that the inclusion of "may" in the Air Quality Act signifies a discretionary power held by the minister or Member of the Executive Council (MEC) to decide if and when to enact regulations.

This appeal strikes at the heart of South Africa's constitutional obligations to its citizens' environmental rights and the separation of powers inherent in government's discretionary roles. The case has far-reaching implications, transcending the legal jargon, to the core of how air quality is managed and how the health and welfare of millions are protected or put at risk.

This case, therefore, emerges as a critical test of South Africa's legislative and governmental commitment to safeguarding the environment as well as the health of its people, while balancing this commitment with the government's legislative discretionary powers.