The right to breathe: Landmark legal case a fight for South African children harmed by coal’s deadly air

By Zita Hansungule, Rico Euripidou and Promise Mabilo

19 May 2021

The ‘Deadly Air’ court application will be heard in the Pretoria High Court on 17 May 2021. NGOs groundWork and Vukani Environmental Movement, represented by the Centre for Environmental Rights, want the government to properly enforce its 2012 plan to improve air quality in Mpumalanga, including through regulations targeting large polluters such as the coal industry.

Zita Hansungule is the Senior Project Coordinator for the Centre for Child Law’s Research, Monitoring and Evaluation Unit. Rico Euripidou is groundWork’s Environmental Health Campaigner. He trained as an Environmental Epidemiologist. Promise Mabilo is the coordinator for Vukani Environmental Justice Movement in Action.

Cebile Faith Mkhwanazi’s seven-year-old son loves to play football and often spends his afternoons kicking a ball around with friends near their home in eMalahleni, on the Mpumalanga Highveld.

But Mkhwanazi doesn’t allow her son to play outside for long. The exceptionally high concentration of coal power plants and mines in the area means that towns like eMalahleni, which in Zulu means “place of coal”, are reported to have some of the world’s worst air quality.

Mkhwanazi’s son and his five-year-old sister suffer from asthma, which she attributes to pollution from two nearby open-cast coal mines, as well the thick black smoke that billows from a local steel plant. Both Mkhwanazi’s children are frequently too sick to go to school and require oxygen at night to sleep properly.

The Mkhwanazi family’s story is key evidence in the Deadly Air case, a legal challenge brought by South African environmental justice groups groundWork and Vukani Environmental Movement, that is being heard in the Pretoria High Court from 17 to 19 May 2021. The groups argue that the unsafe levels of ambient (outdoor) air pollution experienced by families and children in Mpumalanga are a violation of South Africa’s constitutional right to a healthy environment.

A major contributor to the Mpumalanga Highveld’s reported status as one of the most polluted hotspots in the world is a cluster of 12 coal-fired power stations, along with the many coal mines that supply these stations. The large volume of pollution from these power stations produces pollutants linked to asthma, cancer, heart and lung ailments, and neurological problems, while also accounting for 40% of South Africa’s carbon dioxide emissions.

In 2007, the South African government declared portions of both Mpumalanga and neighbouring Gauteng an air quality “priority area”, and in 2012 published a plan to bring air pollution in line with national air quality standards by 2020. Since then, however, the government has made little progress in forcing coal and other industries to reduce pollution, with the national air quality officer repeatedly allowing coal-fired power plants to delay compliance with national air emission limits.

Unsurprisingly, air quality in the Highveld Priority Area has not meaningfully improved. A 2019 socioeconomic impact assessment by the government found that communities in priority areas remain at “high risk of acute and chronic health effects” and that in Mpumalanga “there is a chance to save thousands of lives” if annual national air quality standards are met. The study also noted that children affected by air pollution, whose still-developing respiratory systems make them especially vulnerable in a polluted environment, struggle to access healthcare, miss school, and seek medical attention only when they are “critically sick”.

In their legal submissions, the environmental justice groups argue that South Africa’s constitutional requirement that the government give “a child’s best interests… paramount importance in every matter concerning the child” means that, by failing to reduce the air pollution, the government is not meeting this legal obligation. The harmful levels of air pollution experienced by children such as Mkhwanazi’s, the groups argue, can never be in a child’s best interests.

The pollution in Mpumalanga is just one example of the devastating impact of air pollution on children, both in underserved South African communities and across the world. Professor David Boyd, the United Nations Special Rapporteur on human rights and the environment, stated in a 2019 report that air pollution globally contributes to seven million premature deaths annually, including the deaths of about 600,000 children.

Boyd has intervened in the Deadly Air case as a friend of the court, warning that a failure to protect children from air pollution violates South Africa’s obligations under international human rights law. He notes that children “have their whole lives ahead of them”, making irreversible health impacts especially devastating.

If the Deadly Air case succeeds, the Pretoria High Court would declare that the poor air quality in the Highveld Priority Area is in breach of residents’ rights to a healthy environment, and it could order Minister of Environment, Forestry and Fisheries Barbara Creecy to properly enforce the 2012 plan to improve air quality in Mpumalanga, including through regulations targeting large polluters such as the coal industry.

The government’s own 2019 socioeconomic impact assessment, while underscoring the urgency of reducing pollution to save lives, recognised the impossibility of reducing harmful emissions without tackling coal dependence.

“The country is held to ransom by the industry because of employment problems,” the assessment stated. “Industries do not [prioritise] environment compliance. They focus on profit.”

The groups bringing the Deadly Air case argue that South Africa, by investing in a “just transition” to low-carbon renewable energy sources, can create sustainable and decent jobs, reduce pollution and fight climate change. Importantly, the 2019 socioeconomic assessment goes on to conclude that women and children in low-income communities will benefit most if air pollution is reduced.

As for Mkhwanazi and her family, a doctor has told her that leaving the air pollution in eMalahleni would improve her children’s health. But Mkhwanazi and her husband have stayed because they worry that they won’t be able to find jobs anywhere else.

“Why should we have to choose between feeding our children and protecting them from pollution?” she said. “There’s got to be a better way.” DM/MC

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