Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Environmental justice organisations have taken to the North Gauteng High Court to challenge the exemptions granted to Eskom allowing it to bypass compliance with air pollution laws;, the Minimum Emission Standards (MES) at eight power stations.

The applicants argue that section 59 of the National Environmental Management: Air Quality Act does not allow the Minister of Forestry, Fisheries and the Environment to exempt Eskom from the MES, which sets the legal pollution limits for industries like coal-fired power stations. Section 59 of the Air Quality Act is the general exemption clause which allows the Minister to grant exemptions from certain parts of the Air Quality Act, but only on written  application and with conditions.

The Minister of Forestry, Fisheries and the Environment granted these exemptions upon application by Eskom in terms of section 59 of the Air Quality Act. Act. The Exemptions were granted with conditions on Eskom to mitigate the harmful impacts of the increased pollution, including the provision of mobile clinics, increased air quality monitoring and community health screening.

Vukani Environmental Movement, groundWork and Earthlife Africa, represented by the Centre for Environmental Rights (CER), have filed a review application, calling for, amongst others a declaration that section 59 of Air Quality Act does not permit the first respondent (The Minister) to grant exemptions from the application of the MES. Part of the relief requested is that, in the alternative, Eskom must be ordered to comply with the conditions imposed in the decision and file regular reports. In the alternative, if section 59 does allow exemptions, then the section is unconstitutional because it undermines South Africans’ constitutional right to an environment that is not harmful to health and well-being.

The organisations are asking the court to:

• Confirm that the Minister’s decision of 31 March 2025 to exempt eight Eskom coal-fired power stations from the MES was unlawful and invalid.

• Ensure that Eskom’s power stations — Majuba, Tutuka, Matla, Duvha, Kendal, Lethabo, Matimba, and Medupi — must comply with the legally required MES.

• Require Eskom to report regularly on its steps to achieve compliance.

Why this case matters:

This case comes at a time of a landmark declaration of the G20 adoption on air quality demonstrating that cleaner air is essential for health, prosperity and climate ambition. The declaration puts air quality on the G20 agenda in its own right for the first time.

This case is about protecting public health and environmental rights. Air pollution from Eskom’s coal-fired power stations is already a leading cause of respiratory illnesses, heart disease, and premature death in affected communities. Allowing further exemptions would mean exposing children, the elderly, and those with existing illnesses to even dirtier air for years to come.

Speaking on behalf of the organisations, representatives emphasised the human impact of Eskom’s continued non and the urgent need for accountability: “Communities living near these power stations already carry the heaviest burden of dirty air, and the law and the Constitution are on the side of people’s health. For years, Eskom has avoided complying with our clean air laws — first through repeated postponements from the Minimum Emission Standards, and now, by trying to use section 59 as a back door to keep polluting. Their time is up!

Communities have carried the cost of Eskom’s dirty air for too long, and we will not allow them to escape accountability again. Allowing these exemptions would send a dangerous message that companies can put profit before people’s lives, and that is simply unacceptable.”

The outcome of this case will have significant implications for environmental governance, corporate accountability, and the right to clean air in South Africa. No company should be placed above the law or allowed to compromise public health in the name of operational convenience.

ENDS