Minister of Environmental Affairs v The Trustees for the time being of Groundwork Trust and Others

In 2007, the Minister of Environmental Affairs declared a 31,106 square km area in Mpumalanga and Gauteng as a High Priority Area (HPA) due to severe air pollution from coal-fired power stations, Sasol's refinery, and coal mines. In 2012, the Minister published the Highveld Priority Area Air Quality Management Plan (Highveld Plan) to reduce air pollution to acceptable standards by 2020. Despite the plan, no regulations were published to implement it. By 2017, a report showed the HPA had not achieved its air quality goals. In June 2019, GroundWork and Vukani Environmental Movement launched an application against the Minister, alleging that poor air quality breached residents' constitutional right to an environment not harmful to health and well-being (section 24(a) of the Constitution). They sought an order compelling the Minister to prescribe regulations under section 20 of the National Environmental Management: Air Quality Act 39 of 2004 (Air Quality Act). The Department's own Impact Assessment Report concluded that regulations were necessary and could save approximately 10,000 lives. The Minister opposed the application, arguing that section 20 conferred a discretion, not a duty, to make regulations, and that regulations were unnecessary.

• Whether the word 'may' in section 20 of the Air Quality Act vests the Minister with a discretion to prescribe regulations or imposes a duty to do so when certain conditions are met
• Whether the poor air quality in the Highveld Priority Area breached section 24(a) of the Constitution (the right to an environment not harmful to health and well-being)
• Whether the Minister unreasonably delayed in prescribing regulations to implement and enforce the Highveld Plan
• What constitutes a 'just and equitable remedy' in the context of environmental rights enforcement
• Whether the principle of progressive realisation applies to environmental rights under section 24(a) of the Constitution
• The proper interpretation of statutory provisions conferring discretionary powers in light of constitutional obligations

The appeal was dismissed with costs, including costs for two counsel. The high court's order was varied to remove all the detailed directions regarding the content of the regulations. The final order declared: (1) that poor air quality in the Highveld Priority Area breached the constitutional right to an environment not harmful to health and well-being; (2) that the Minister has a legal duty to prescribe regulations under section 20 of the Air Quality Act to implement and enforce the Highveld Plan; (3) that the Minister unreasonably delayed in initiating, preparing, and prescribing such regulations; (4) that the Minister must, within 12 months, prepare, initiate, and prescribe regulations to implement and enforce the Highveld Plan; and (5) that costs of the application, including costs of three counsel, are to be paid jointly and severally by the first and second respondents (meaning the Minister, as the losing party in the appeal).

The binding legal principles established by this judgment are: (1) Section 20 of the National Environmental Management: Air Quality Act 39 of 2004, properly interpreted in its textual, contextual, and purposive framework, confers on the Minister both a power and a duty to prescribe regulations necessary for implementing and enforcing approved priority area air quality management plans. (2) The word 'may' in section 20 does not confer an unfettered discretion but imposes a duty once the jurisdictional fact of 'necessity' is objectively established. (3) In determining whether regulations are 'necessary' for implementing and enforcing an air quality management plan, an objective test must be applied that does not depend on the subjective beliefs of the Minister. (4) Where objective evidence establishes that: (a) ambient air pollution exceeds national standards and causes harm to health; (b) a published air quality management plan has failed to achieve compliance due to stakeholders treating it as non-binding; (c) the responsible department's own assessments conclude that regulations are necessary and could save lives; and (d) a significant period has elapsed without improvement, then the jurisdictional fact of necessity is established and the Minister has a legal duty to prescribe implementation regulations. (5) The constitutional right to an environment that is not harmful to health and well-being (section 24(a)) is not subject to progressive realisation within available resources in the same manner as certain socioeconomic rights. (6) Environmental legislation must be interpreted consistently with the Constitution (section 39(2)), international law (section 233), and in a manner that promotes the spirit, purport and objects of the Bill of Rights, including the right to an environment not harmful to health. (7) Failure to exercise a discretion, or unreasonable delay in exercising a discretion when conditions for its exercise are satisfied, constitutes improper exercise of that discretion and is reviewable. (8) Where the state has declared a priority area, published a management plan 'for information and implementation,' and that implementation proves challenging, the state is dutybound to employ the full range of legislative interventions available to ameliorate the situation.

The Court made several non-binding observations: (1) The Court expressed strong displeasure regarding how the appeal record was prepared, noting that core bundles and main appeal records contained incomplete documents scattered across different files, making navigation difficult. The Court noted it would have disentitled the appellant's attorney from claiming fees for record preparation had the appellant not been represented by the State Attorney (against whom such an order would be futile). (2) The Court noted the regrettable delay in finalizing the judgment, which was not attributable to the litigants, and offered an unconditional apology to the parties. (3) The Court emphasized that the only solace for the delay was that by the hearing date, the regulations at issue had already been published (rendering the substantive dispute moot, though the Court proceeded to decide the matter due to its public importance). (4) The Court observed that the high court's detailed directions regarding the content of the regulations (addressing penalties, monitoring, reporting, enforcement strategy, personnel, inter-governmental cooperation, review processes, emissions standards, dust control, responses to low-income areas, and resource allocation) implicated the principle of separation of powers and ought not to have been made, notwithstanding the Minister's delay. This suggests courts should be cautious about prescribing detailed policy content even when ordering executive action to fulfill constitutional rights. (5) The Court made favorable references to the human rights-based approach to environmental protection, noting it focuses on accountability of institutions and integration of human rights standards into policy-making and organizational operations, particularly benefiting marginalized low-income groups. (6) The Court emphasized that pursuant to section 237 of the Constitution, all constitutional obligations must be performed diligently and without delay, and that even if discretionary, delay in addressing dangerously high pollution levels would undermine the purpose of the Air Quality Act. (7) The Court noted that it was significant that the Minister never withdrew the HPA declaration under section 18(5), which would require two years of compliance with air quality standards, thereby casting doubt on any assertion that ambient air was compliant.

This judgment is significant in South African environmental law and constitutional jurisprudence for several reasons: (1) It clarifies that the word 'may' in statutory provisions can impose a duty when the jurisdictional fact triggering the power (in this case, 'necessity') is objectively established, particularly in the context of constitutional rights. (2) It confirms that the right to an environment not harmful to health and well-being (section 24(a)) is not subject to progressive realisation within available resources, distinguishing environmental rights from certain socioeconomic rights. (3) It establishes that environmental rights require a human rights-based approach that goes beyond mere policy-making to include effective implementation, monitoring, and enforcement with appropriate sanctions. (4) It affirms that prolonged governmental inaction in the face of constitutional rights violations, particularly where the state's own evidence confirms the necessity of action, constitutes unreasonable delay and improper exercise of discretion. (5) It demonstrates the courts' willingness to enforce environmental rights substantively while respecting separation of powers by not prescribing the detailed content of regulations. (6) It reinforces that the state has a higher duty to respect the law and fulfill procedural requirements when dealing with constitutional rights (citing MEC for Health, Eastern Cape v Kirland Investments). (7) It integrates international environmental law principles into the interpretation of domestic environmental legislation. The judgment provides important guidance on balancing judicial enforcement of environmental rights with executive discretion in policy implementation.