The Highveld Priority Area was declared in November 2007 under the Air Quality Act due to dangerous levels of air pollution. The area covers 31,000 km² across Gauteng and Mpumalanga, including heavily polluted areas home to 12 of Eskom's coal-fired power stations and Sasol's Secunda refinery. In March 2012, an Air Quality Management Plan (the Highveld Plan) was published to reduce ambient air pollution to comply with National Standards, setting seven goals with a 2020 deadline. Nine years after the plan's creation, none of the goals were achieved, and air pollution levels remained well above National Standards. The voluntary nature of the plan resulted in low participation (only 8% of heavy polluters submitted implementation plans by 2011). Despite being mandated to review the plan every five years, no such review occurred. The Minister refused to create section 20 implementation regulations to give legal effect to the Highveld Plan. The applicants, environmental organizations representing affected communities, launched this application in June 2019 seeking declaratory and mandatory relief. The Minister's own Department found that over 10,000 premature deaths occur annually due to air pollution in the area, and that implementation regulations were necessary.
The court declared that: (1) poor air quality in the Highveld Priority Area breaches residents' section 24(a) constitutional rights; (2) the Minister has a legal duty to prescribe regulations under section 20 of the Air Quality Act; (3) the Minister unreasonably delayed in preparing regulations. The Minister was directed to prepare, initiate and prescribe implementation regulations within 12 months, paying due regard to 11 specific considerations including enforcement mechanisms, monitoring, reporting, compliance strategies, capacity building, coordination, regular review, addressing postponements of Minimum Emission Standards compliance, dust control, low-income area responses, and adequate resourcing. Provision was made for parties to re-enrol the matter if necessary. Costs were awarded against the first and second respondents, including costs of three counsel.
Section 24(a) of the Constitution creates an unqualified, immediately realisable right to an environment that is not harmful to health or wellbeing, distinct from the qualified right in section 24(b). This interpretation is supported by: (1) the plain wording which contains no internal limitation requiring progressive realisation; (2) the Constitutional Court's interpretation of similarly worded section 29(1)(a) in Juma Musjid as immediately realisable; (3) the textual distinction from qualified socio-economic rights in sections 26(2) and 27(2). Where air quality persistently fails to meet National Ambient Air Quality Standards over extended periods and the state's own evidence shows thousands of preventable deaths, this constitutes a breach of section 24(a). The word 'may' in section 20 of the Air Quality Act must be interpreted as 'must' (imposing a mandatory duty) where: (1) regulations are necessary to implement an approved air quality management plan; (2) existing measures have failed to protect constitutional rights; (3) the state's own assessments conclude regulations are the most effective means to save lives; and (4) such interpretation is required by section 39(2) to promote constitutional rights and by section 7(2) which obliges the state to protect and promote Bill of Rights guarantees. The principle of subsidiarity does not preclude direct reliance on section 24(a) where existing environmental legislation does not provide adequate procedures and remedies for ongoing ambient air pollution violations.
The court made several significant observations: (1) Sustainable development requires appreciation that economic development cannot occur without environmental protection and that unlimited development is detrimental to the environment (citing Fuel Retailers); (2) Air pollution raises particularly urgent questions of intergenerational justice, requiring protection of both current and future generations (citing Vaal Environmental Justice Alliance); (3) The distinction between section 24(a) and 24(b) reflects a conceptual difference - section 24(a) sets the basic minimum (environment not harmful) while section 24(b) goes further, requiring protection even where health is not immediately threatened; (4) National Ambient Air Quality Standards are vital tools to give content to constitutional rights and ensure accountability (citing Mazibuko); (5) The principle of subsidiarity is not a 'hard and fast rule' and its contours are still being developed (citing My Vote Counts and Pretorius); (6) Organs of state have special duties of transparency in constitutional litigation and must provide full and frank accounts of material facts where constitutional rights are at risk; (7) The separation of powers should not cause courts to shirk constitutional responsibility, particularly in cases of executive delay (citing Mwelase); (8) Courts must 'forge new tools' and shape innovative remedies to effectively vindicate constitutional rights, especially where few have means to enforce rights (citing Fose); (9) The role of amicus curiae is particularly valuable in constitutional matters presenting issues with impact beyond direct litigants.
This is a landmark environmental law judgment establishing that: (1) section 24(a) of the Constitution provides an immediate, unqualified right to a safe environment, not subject to progressive realisation; (2) the principle of subsidiarity is not a rigid bar to constitutional environmental rights claims where existing legislation provides inadequate remedies; (3) long-term failures to meet National Ambient Air Quality Standards can constitute ongoing constitutional violations; (4) discretionary regulation-making powers under environmental legislation can become mandatory duties where necessary to protect constitutional rights; (5) courts can issue detailed structural orders directing executive action on environmental protection, including specific considerations to be addressed in regulations; (6) the case reinforces intergenerational justice principles and sustainable development as core to environmental rights; (7) it demonstrates courts' willingness to hold government accountable for environmental protection failures affecting vulnerable communities, particularly where the state's own evidence shows thousands of preventable deaths. The judgment has significant implications for air quality management, enforcement of environmental plans, and the justiciability of environmental rights in South Africa.