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Deadly Air Case Update: Pollution-trapped Highveld communities “need more than sympathy”

07 March 2021 at 11:16 am

Toxic air pollution pumps unabated from the stacks at Eskom's Kendal coal power station outside Emalahleni, March 2019
Toxic air pollution pumps unabated from the stacks at Eskom's Kendal coal power station outside Emalahleni, March 2019

Environmental justice groups groundWork and the Vukani Environmental Justice Movement in Action (VEJMA) have responded to papers filed by the Minister of Environment Forestry and Fisheries in the “Deadly Air” court case against government about the toxic and unsafe levels of air pollution that people living and working on the Mpumalanga Highveld are exposed to daily.

In her affidavit filed on behalf of all the government respondents, Minister Creecy denies that government is failing in its obligations to address the air pollution in the Mpumalanga Highveld, where 12 of Eskom’s coal-fired power stations, Sasol’s Secunda coal-to-liquids plant, significant coal mining operations, and other heavy industries are based. The mining, transport and burning of coal are responsible for the overwhelming majority of outdoor ambient air pollution in the Highveld.

Responding to Minister Creecy in her affidavit expressing sympathy for people living and working in the Highveld Priority Area, groundWork’s Thomas Mnguni, also a Highveld resident and a concerned parent, says in his affidavit: “It is not the Minister’s sympathy that we need, but rather the urgent and proper implementation and enforcement of air quality laws in a manner that protects our health. It does not help for government officials to tell pollution-trapped communities that they care, they need to show us through their actions. Responsible government officials must be accountable.

groundWork and VEJMA are asking the court to declare that the poor ambient air quality in the Highveld Priority Area constitutes a violation of the Constitutional right to an environment not harmful to health or well-being, as clearly outlined in Section 24 of the Constitution. They are also asking the court to order the government to take further steps to improve the air quality in the area. The applicants are represented by attorneys at the Centre for Environmental Rights.

In her affidavit, Minister Creecy admits that high levels of ambient air pollution in the Highveld Priority Area are, in general, harmful to human health and wellbeing. She says: “I am aware of the unacceptably high levels of ambient air pollution in the Highveld Priority Area and the potential for that polluted ambient air to adversely impact on the health and well-being of the people living and working in the area.” The Minister adds that draft regulations are being developed to enforce the Highveld Plan.

groundWork and VEJMA argue that the measures taken by government to date are not enough, and that the people of the Highveld continue to be exposed, on a daily basis, to unacceptable levels of air pollution, in violation of their Constitutional rights. “Judicial remedies remain necessary and just and equitable to vindicate the rights of residents,” says groundWork director Bobby Peek in the replying affidavit on behalf of the applicants. “The applicants do not ask this Court to micromanage state resources, contrary to what the Minister claims. This application concerns the need for accountability and effective mechanisms to ensure that the Highveld Plan is properly implemented and enforced… the applicants are merely asking government to honour its own plan which was adopted by government, more than a decade ago.”

The parties to this litigation will now prepare and file their final legal arguments ahead of the hearing starting on 17 May 2021 in the Pretoria High Court. This includes legal argument on behalf of the United Nations Special Rapporteur on Human Rights and the Environment, Prof David Boyd, who was admitted as an amicus curiae (friend of the court) in the case by the High Court on 5 November 2020. Professor Boyd is represented by public interest law organisation Lawyers for Human Rights.

We will provide further information and updates on the Deadly Air webpage as we count down to 17 May 2021.

In a related matter, the criminal prosecution of major polluter and state-owned entity Eskom for criminal violations of air pollution laws at its Kendal coal power station will be back in the Emalahleni Regional Court on 11 June 2021.

END

Notes to Editor

Download:

Replying Affidavit Thomas Mnguni

Replying Affidavit final Bobby Peek

All the court papers

Visit the Deadly Air page

Life After Coal/Impilo Ngaphandle Kwamalahle is a joint campaign by Earthlife Africa JohannesburggroundWork, and the Centre for Environmental Rights.

Media queries:

Lerato Letebele Balendran, Head of Communications, lbalendran@cer.org.za

Tsepang Molefe, Media, Information and Publications Campaign Manager at groundWork media@groundwork.org.za