Highveld deadly air case — Supreme Court rules state’s delay in publishing regulations unconstitutional

Then environment minister Barbara Creecy in Cape Town on 22 May 2024. (Photo: Gallo Images / Die Burger / Theo Jeptha)

By Estelle Ellis

13 Apr 2025

A scathing Supreme Court of Appeal judgment on Friday largely dismissed an appeal by former environment minister Barbara Creecy defending her decision not to publish air quality regulations timeously, saying she was duty bound to act since it was unquestionable that the situation had to be addressed.

In the judgment, written by the president of the Supreme Court, Betty Molemela, the court declared the failure and delays by former minister of environmental affairs Barbara Creecy to publish regulations to address air pollution in parts of the Highveld unconstitutional, saying the government had lost an opportunity to make sure residents in the area were not harmed further.

“In the face of ongoing high levels of air pollution, the Minister was dutybound to act, and with the passage of time, the creation of the regulations became imperative. By the time the application was heard in the high court, the urgency of the creation and publication of these Regulations was unquestionable. The fact that the Regulations were published more than 10 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,” Molemela wrote.

The court was scathing about the long delay in publishing the air pollution control regulations, saying that “against the background of the continued violation of the constitutionally protected human rights as evidenced by the contents of the socioeconomic impact assessment report, a human rights-based approach was necessary”.

Read more: Living near coal-fired power plants increases risk of death, children particularly vulnerable – study

She added that even if the minister had a discretion whether to publish regulations or not it was clear that the Air Quality Act called for “prompt, efficient and coordinated action to address dangerously high levels of air pollution”.

Molemela ruled that the delay in publishing the regulations was unconstitutional.

“Any dragging of feet in addressing the problems would therefore undermine the achievement of this purpose. Under these circumstances, it would be absurd to conclude that the Minister’s delay in publishing the regulations amounted to a proper exercise of her discretion. There can be no doubt that in the context of this matter, the Minister’s failure to make the regulations would have amounted to an improper exercise of that discretion,” she added.

The court further ordered that the poor air quality in the Highveld Priority Area breaches the constitutional right to an environment that is not harmful to health and wellbeing.

Highveld air pollution Creecy Then environment minister Barbara Creecy in Cape Town on 22 May 2024. (Photo: Gallo Images / Die Burger / Theo Jeptha)

In 2007, parts of Gauteng and Mpumalanga were declared a designated region in South Africa because of high levels of pollution, and a management plan was drawn up to address this only five years later.

However, it was not successful and poor air quality persisted 12 years later. The court ruled that the minister of environmental affairs had a legal duty to prescribe regulations to enforce this plan and had “unreasonably delayed to initiate, prepare and prescribe regulations” to do so.

The court set a deadline of 12 months from the date of judgment on 11 April for the regulations to be made and implemented. This is likely to have a huge impact on Eskom’s 12 coal-fired power stations that fall within this area, as well as Sasol’s refinery and several coal mines.

The original plan set a goal to reduce air pollution in the area to acceptable levels by 2020. However, no regulations to implement the plan were published by the environmental affairs minister.

In 2017, the Centre for Environmental Rights, in partnership with GroundWork and the Highveld Environmental Justice Network, released the “Broken Promises report” which showed that the Highveld Priority Area had not attained its goal of improving air quality.

Two years later, with no action taken by the government, on 7 June 2019 GroundWork and the Vukani Environmental Justice Movement in Action launched an application in the Gauteng High Court, asking that the court declare the persistent unsafe levels of air pollution in the designated area an ongoing breach of the right to an environment that is not detrimental to the health and wellbeing of inhabitants and that the minister must make and publish regulations to implement the recovery plan.

The application was opposed by Creecy, the minister at the time, stating in court papers that there was no causal link between air pollution and the health issues experienced by residents of the area. She rejected the argument that there was a legal duty on her to create implementation regulations and maintained that there was no breach of the fundamental environmental rights enshrined in the Constitution. She argued that the regulations would serve no purpose, would be a waste of state resources and therefore unnecessary.

The United Nations Special Rapporteur on Human Rights and the Environment also joined these court proceedings.

The department’s own health study, however, showed that low-income groups, women, young people, children and persons with disabilities were disproportionately affected by air pollution, and that this has a negative influence on their health and wellbeing. The study concluded that if pollution levels could be brought to an acceptable level thousands of lives could be saved.

Molemela continued in her judgment that the health study concluded that regulations were needed to clamp down on air pollution.

In the high court judgment it is noted that regulations had been prepared and circulated but not published.

Creecy appealed this order but published the regulations a few days before the appeal was heard.

Molemela continued in her judgment that an impact assessment report had indicated that the main cause of the challenges related to the implementation of the Highveld Plan was the negative attitudes of major polluters who did not consider the air quality management plans to be binding legal documents, and that stakeholders could not be held accountable as no punitive measures could be applied.

“Its final conclusion was that the best course of action would be to create implementation regulations because that could potentially save lives and yield better health outcomes. The Department, in its Impact Assessment Report, concluded that existing regulatory measures were insufficient to give effect to the Highveld Plan, and that implementation regulations would be a more efficient means of achieving the goals set out in the plan,” she wrote.

Molemela added that all the facts about the ongoing air pollution on the Highveld should have compelled the minister to make these regulations in terms of her legal duty. The minister’s appeal was dismissed save for one area in which the Supreme Court ruled that the judge of the high court had gone too far.

The high court also ruled that the regulations must be published and further issued directions on what must be contained in the regulations, including laying down of penalties for noncompliance, requiring the monitoring and reporting of atmospheric emissions in the Highveld Priority Area, ensuring the participation of all relevant governmental stakeholders in the implementation of the Highveld Plan, creating a coordinated response to address pollution in low-income, densely populated areas; appointing and training support personnel; and allocating adequate financial support for the overall implementation of the Highveld Plan. However, this part of the order, the Supreme Court ruled, went too far and violated the doctrine of the separation of powers. Only this part of the original order was amended. DM

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