Trustees for the time being of Groundwork Trust and Another v Minister of Environmental Affairs and Others (39724/19) [2022] ZAGPPHC 725 (18 March 2022)

In November 2007, the former Minister of Environmental Affairs (Minister) declared the “Highveld Priority Area” cutting across Gauteng and Mpumalanga. This area covers some of the most heavily polluted towns in the country. Due to its concentration of industrial pollution sources, residents experience particularly poor and dangerous air quality. In March 2012, an Air Quality Management Plan (Highveld Plan) was published, its sole objective being the reduction of ambient air pollution to a level that complies with the National Standards. The Highveld Plan set seven goals, with most of these goals to be achieved by 2020.

It was the applicants’ case that none of the Highveld Plan goals have been achieved and that levels of ambient air pollution remained well above the National Standards.

They argued that the unsafe levels of ambient air pollution in the Highveld Priority area are an ongoing breach of residents’ constitutional right to an environment that is not harmful to health or well-being, and that the Minister has a legal duty to prescribe implementation regulations under s 20 of the Air Quality Act and the Constitution.

As a result of the failure of the Minister to establish any implementation regulations, the applicants proceeded to launch the present litigation.

First, the court had to determine whether the applicants could rely directly on the provisions of section 24(a) of the Constitution for their cause of action. It found that the applicants successfully established a breach of section 24(a) of the Constitution as a result of the Minister’s failure to promulgate the regulations for the Highveld Priority Area. Second, the Court had to determine the proper interpretation of s 20 of the Air Quality Act. The court found that the provisions of s 7(2) of the Constitution, read with s 20 of the Air Quality Act, imposed a duty on the Minister to promulgate regulations under the Air Quality Act.

The court further directed the Minister to prepare, initiate and prescribe, within 12 months of the order, regulations in terms of s 20 of the Air Quality Act to implement and enforce the Highveld Plan.