Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The judgment of the Supreme Court of Appeal (SCA) is available here.

• Date of hearing:  28 August 2024
• Date judgment delivered: 11 April 2025
• Coram: Molemela P and Zondi DP and Dambuza JA and Hendricks and Dolamo AJJA

Outcome in the High Court:

• The court declared that the poor air quality in South Africa’s Highveld Priority Area is in breach of residents’ constitutional right to an environment that is not harmful to their health and well-being.
• The court declared that the Minister of Environmental Affairs has a legal duty to prescribe regulations under section 20 of the National Environmental Management: Air Quality 39 of 2004 (NEM:AQA or Air Quality Act) to implement and enforce the Highveld Priority Area Air Quality Management Plan (Highveld Plan).
• The Minister was directed, within one year, to prepare, initiate, and prescribe regulations in terms of section 20 of NEMAQA to implement and enforce the Highveld Plan. Certain considerations relating to appropriate penalties, atmospheric emission monitoring, reporting, training, participation, review, coordination, financial support and others were prescribed by the court which the Minister must take into account when drafting the Regulations.
• The costs of the application including three counsel were to be paid by the Minister and National Air Quality Officer.

In 2022, the Minister appealed limited aspects of the High Court judgment. In particular, the appeal focused on the court’s interpretation of section 20 of NEM:AQA and 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.

Note that two days before the hearing of the appeal in the SCA, on 26 August 2024, the Minister published Regulations for Implementing and Enforcing Priority Area Air Quality Management Plans. 

Outcome in the Supreme Court of Appeal:

The order of the high court was varied to read as follows:

1. It is declared that the poor air quality in the Highveld Priority Area is in breach of the constitutional right to an environment that is not harmful to health and well-being.
2. It is declared that the Minister of Environmental Affairs has a legal duty to prescribe regulations under section 20 of the National Environmental Management: Air Quality Act 39 of 2004 to implement and enforce the Highveld Priority Area Air Quality Management Plan.
3. It is declared that the Minister has unreasonably delayed to initiate, prepare and prescribe regulations to give effect to the Highveld Priority Area Air Quality Management Plan.
4. The Minister is directed, within 12 months of this order, to prepare, initiate, and prescribe regulations in terms of s 20 of the Air Quality Act to implement and enforce the Highveld Priority Area Air Quality Management Plan.
5. The costs of this application, including the costs of three counsel, are to be paid by the Minister and National Air Quality Officer.

Case Summary:

See the case summary from the High Court judgment for the background facts to the case.

Applicable Law

The court considered the law applicable to the case:

• the duty of the state to respect, protect and fulfil the rights in the Bill of Rights (section 7(2) of the Constitution)
• the duty of the court to promote the spirit, purport and objects of the Bill of Rights when interpreting  law (section 39(2) of the Constitution) and to prefer any reasonable interpretation of legislation that is consistent with international law (section 233 of the Constitution)
• the objectives of the Air Quality Act and the general duty imposed on the state to protect and enhance air quality in South Africa in a manner that achieves progressive realisation of environmental rights (sections 2 and 3 of NEM:AQA)
• the duty imposed on the Minister to prescribe how air quality is to be measured and reported (section 12 of NEM:AQA)
• Sections 18 and 19 of NEM:AQA which provide for the declaration of priority areas and air quality national management plans, and
• Section 20 of NEM:AQA which provides: “The Minister or MEC may prescribe regulations necessary for implementing and enforcing approved priority area air quality management plans, including (a) funding arrangements; (b) measures to facilitate compliance with such plans; (c) penalties for any contravention of or any failure to comply with such plans; and (d) regular review of such plans.”

Mootness

The court considered whether the appeal was rendered moot by the publication of the Regulations for Implementing and Enforcing Priority Area Air Quality Management Plans. A matter is moot if it no longer presents an existing or live controversy. The court used its discretion to still hear the appeal despite the publication of these Regulations due to the matter’s public importance. President of the Supreme Court of Appeal Justice Molemela, writing for the court, held that it was in the interests of justice that the appeal be heard despite the fact that it no longer presented a live controversy between the parties.

The fact that the Regulations were published more than ten years after the publication of the Highveld Plan is a lost opportunity in the quest for an environment that is not harmful to the inhabitants of this country.

Analysis

The crisp issue for determination was whether s 20 of the Air Quality Act imposed an obligation on the Minister to make regulations necessary for the implementation and enforcement of an approved priority area quality management plan. The question stemmed from the permissive word ‘may’ being used in the section of the law, instead of the word ‘must.’

The court considered precedent and principles of statutory interpretation where the the meaning of ‘may’ and ‘must’ in legislation had been considered. The principles of ordinary grammatical meaning, purposive interpretation, proper context and constitutional consistency were considered in light of clear precedent where discretionary provisions in laws had been found to impose a mandatory duty. As with the High Court’s decision, Molemela P found the Constitutional Court’s judgment interpreting the Minister’s discretion under the Refugees Act instructive.  In that case, the Constitutional Court had considered the purpose of the statute (the Refugees Act) and other provisions of the Constitution and had held that the word ‘may’ should be interpreted as a mandatory duty, because such an interpretation afforded better constitutional protection to refugees awaiting the outcome of judicial review proceedings.

The SCA applied a similar interpretation to the matter at hand. It considered section 24 of the Constitution the foundation of the case, and three other sections relevant for interpreting the provisions of the Air Quality Act. The court held “All these provisions serve as a backdrop in the assessment of whether the state has taken adequate steps for the realisation of the constitutionally protected right. Compliance with the applicable prescripts is key.” It considered the applicable international law landscape, and followed a human rights-based approach cognisant of international law prescripts in interpreting section 20 of the Air Quality Act. It examined the purpose of the Air Quality Act before contexualising section 20 within the broader Act.

The court found that it was self-evident that sections 18, 19 and 20 of NEM:AQA are collectively aimed at rectifying threats to the implementation of the air quality management plan. This, the court held,  was crucial purposive context in which the word ‘may’ in s 20 should be seen. A purposive interpretation of s 20 requires that the steps taken by the Minister to address high levels of air pollution in the HPA be scrutinised to determine whether the range of measures set out in the Air Quality Act were used in pursuit of the objects of the Act.

Invoking established precedent, the court reiterated that the word ‘may’ in a legislative provision may confer a discretion that is coupled with a duty to exercise it when the conditions prescribed as justifying its exercise have been met. In this matter, the court found that jurisdictional fact to be ‘necessity’. Molemela P held “Once the jurisdictional fact of necessity has been objectively established, the duty to create regulations arises.” Explaining this finding further, the court wrote that this interpretation meant that the section did not prescribe an absolute obligation on the Minster to make regulations, but that once necessary circumstances arose, only then was the Minister obliged to publish regulations. Molemela P held that such an interpretation  “would afford better protection to communities who live in places declared as high priority areas” in ensuring effective compliance with the interventions set out in a published plan and sanction any non-compliance therewith.

The court then went on to consider whether circumstances had arisen in this matter which necessitated the Minister to make the regulations for the implementation and enforcement of the Highveld Plan. The court considered the Department’s own plans as well as affidavits from residents of the area detailing the severe impacts of poor air quality on their lives. A Health Impact Assessment Report also provided important context. The court wrote:

The very fact that high levels of pollution continue unabated in the HPA despite the dangers they pose to the community, including children, is a clear attestation that the non-binding set of goals contained in the Highveld Plan are insufficient to achieve the substantial reductions in atmospheric emissions that are required in the HPA.

These factors meant that the court found that it was therefore ‘necessary’ for the Minister to make regulations to enforce the priority area plan in this matter.

The SCA also affirmed that High Court’s finding that that the applicants’ constitutional environmental rights had been breached by the air pollution.

Furthermore, Molemela P for the court affirmed the position held by the Constitutional Court in Eskom v Vaal River Development Association and Others, that “environmental rights are not subject to progressive realisation in accordance with reasonable measures which are to be taken within the state’s available resources” distinguishing them from certain other socioeconomic rights which courts have held to be ‘progressively realisable.’ This means that the Supreme Court of Appeal agreed with the High Court that the Constitution’s environmental rights contained in section 24 should be immediately realisable.

In concluding the judgment, the Supreme Court of Appeal examined the extensive directions and considerations which the High Court mandated the Minister to take when making regulations under section 20 of the Air Quality Act. The Supreme Court of Appeal held that these exhortations offended the separation of powers principle between the judiciary and executive and should not have been made.

Order

The Supreme Court of Appeal varied the High Court’s order to read as follows:

1. It is declared that the poor air quality in the Highveld Priority Area is in breach of the constitutional right to an environment that is not harmful to health and well-being.
2. It is declared that the Minister of Environmental Affairs has a legal duty to prescribe regulations under section 20 of the National Environmental Management: Air Quality Act 39 of 2004 to implement and enforce the published Highveld Priority Area Air Quality Management Plan.
3. It is declared that the Minister has unreasonably delayed to initiate, prepare and prescribe regulations to give effect to the published Highveld Priority Area Air Quality Management Plan.
4. The Minister is directed, within 12 months of this order, to prepare, initiate, and prescribe regulations in terms of s 20 of the Air Quality Act to implement and enforce the published Highveld Priority Area Air Quality Management Plan.
5. The costs of this application, including the costs of three counsel, are to be paid, jointly and severally, by the first and second respondents.

Court papers

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

The judgment of the Supreme Court of Appeal was handed down on 11 April 2025 and is available here.