Abstract

Keywords

Section 24; progressive realisation; limitation; air pollution.

……………………………………………………….

To the east of Johannesburg and straddling the border between the provinces of Gauteng and Mpumalanga, is an area of the so-called "Highveld" that has some of the worst air pollution levels in the world. 1

* Michael Kidd. BCom LLB LLM PhD (Natal). Professor of Law, University of KwaZulu-Natal, South Africa. Email: kidd@ukzn.ac.za. ORCiD: https://orcid.org/0000-0001-7800-1810. This paper is based on a presentation to the Environmental Law Association conference in September 2022. Some of my analysis is based on comments I made in my analysis of this case in the Juta's Quarterly Review of South African Law (April to June 2022).

1 See, for example, Kings 2014 https://mg.co.za/article/2014-06-19-power-stations-are-deadly-internal-report-reveals/; CER 2017 https://cer.org.za/wp-content/uploads/2017/09/Broken-Promises-full-report_final.pdf (this publication is referred to in Trustees for the Time Being of Groundwork Trust v Minister of Environmental Affairs (39724/2019) [2022] ZAGPPHC 208 (18 March 2022) para 48); Greenpeace Africa 2019 https://www.greenpeace.org/static/planet4-africa-stateless/2019/08/4f7f1afa-sa-briefing_-global-air-pollution-map-so2.pdf; Wernecke et al 2022 Clean Air Journal; and sources referenced in part 1 of the paper below.

1 Factual context

In 2006 Eskom 5

5 Eskom Hld SOC Ltd is a public utility (state-owned enterprise) which is the largest supplier of electricity in Africa.

were predicted to result in 550 deaths per year and ~117 200 respiratory hospital admissions per year". 7

7 Airshed Planning Professionals 2006 https://cer.org.za/programmes/pollution-climate-change/key-information/eskom 6-3.

In 2004, the Trade and Industry Chamber released the 'FRIDGE' (Fund for Research into Industrial Development and Growth and Equity) study, and found that industrial sources, such as coal mining, power generation and the petrochemical industry, were by far the largest contributors of emissions on the Highveld, accounting for 89% of PM10, 90% of NOx, and 99% of SO2, all of which are harmful to human health. The levels of these substances in the air on the Highveld significantly exceed World Health Organisation (WHO) recommended levels. 11

11 CER Zero Hour 5-6 (references omitted), citing the Fund for Research into Industrial Development and Growth and Equity Study, 2004.

The point does not need to be further laboured, 12

12 Also see Altieri and Keen 2019 Science of the Total Environment 610, in which the authors posit that reducing exposure in South Africa to PM2.5 will avoid 28 000 premature deaths in the country.

2 Legal context

Section 18 of the National Environmental Management: Air Quality Act ( the Air Quality Act) 13

13 National Environmental Management: Air Quality Act 39 of 2004 (hereafter the Air Quality Act).

exceeded in the area, or any other situation exists which is causing, or may cause, a significant negative impact on air quality in the area; and (b) the area requires specific air quality management action to rectify the situation. Section 19 provides for the (mandatory) preparation of an air quality management plan for such an area. Section 20 provides that the Minister or MEC may prescribe regulations necessary for implementing and enforcing approved priority area air quality management plans, including (a) funding arrangements; (b) measures to facilitate compliance with such plans; (c) penalties for any contravention of or any failure to comply with such plans; and (d) regular review of such plans. Note that section 20 is couched in seemingly permissive terms. It uses the word "may" rather than the mandatory "must". This is important and will be discussed in relation to the judgment below.

In 2007 the Highveld Priority Area (HPA), straddling the highveld area and including those towns described above, was declared in terms of section 18. 14

14 GN 1123 in GG 30518 of 23 November 2007.

"Ambient air quality standards" are referred to as a trigger for the exercise of the powers in terms of section 18. 16

16 The discussion on ambient air quality standards in this and the following paragraphs is based on the chapter entitled "Pollution Control and Waste Management" in the as-yet unpublished third edition of my book Environmental Law. The current edition is the 2nd edition (Kidd Environmental Law).

robust system of air quality governance is one which:

is transparent and participatory.

While this paper is not the place to assess whether and to what extent South Africa's air quality legislation meets these criteria, what is clear from the document is that air quality standards are pivotal to robust air quality governance. Air quality standards are provided for in the Air Quality Act as follows. Section 9(1) of the Act provides:

The Minister, by notice in the Gazetteβ€”

(a) must identify substances or mixtures of substances in ambient air which, through ambient concentrations, bioaccumulation, deposition or in any other way, present a threat to health, well-being or the environment or which the Minister reasonably believes present such a threat;

(b) must, in respect of each of those substances or mixtures of substances, establish national standards for ambient air quality, including the permissible amount or concentration of each such substance or mixture of substances in ambient air; and

(c) may, in respect of each of those substances or mixtures of substances, establish national standards for emissions from point, non-point or mobile sources. 18

18 Section 9 of the Air Quality Act deals with national standards. Standards may also be set provincially (s 10) and locally (s 11).

Although the Act does not have provisions that directly implement the emission standards (for example, making it an offence for any person to cause emissions that exceed the standards), the standards are (or are intended to be) used in conjunction with other control mechanisms in the Act, such as priority areas (which is the focus of this paper) and the licensing of activities requiring licences in terms of the Act. 19

19 See ch 5 of the Air Quality Act.

One of the most important roles played by air quality standards in the Air Quality Act is in relation to the licensing of listed activities which result in atmospheric emissions which have or may have significant detrimental effect on the environment, including health, social conditions, economic conditions, ecological conditions or cultural heritage. 22

22 Section 21 and the following sections in the Air Quality Act.

would operate as a layer of regulation in addition to that provided for by the priority area regime. The listing of individual activities is accompanied by the relevant air quality standards for that activity. In the relevant government notice 23

23 GN 893 in GG 37054 of 22 November 2013.

A particularly controversial situation is in respect of Eskom, several of whose applications for postponement for its power stations were rejected in late 2021. Eskom and various other bodies have appealed (some against the few positive decisions that Eskom received). Eskom has alleged that the negative decisions are likely to have a serious negative impact on its generation capacity. 26

26 See Eskom 2021 https://www.gov.za/speeches/eskom-receives-dffe%E2%80%99s-decisions-minimum-emissions-standard-15-dec-2021-0000.

issuance of provisional atmospheric emission licences. 27

27 GN 2076 in GG 46355 of 12 May 2022.

A final aspect relating to air quality standards is the recommendation of the UNEP study mentioned above that "timely progression towards adoption of the WHO air quality guidelines in legislative AAQS [ambient air quality standards] should be considered and planned in all countries where possible, particularly in relation to PM2.5, where protection against unsafe levels of PM2.5 is urgently required for public health". 28

28 UNEP Regulating Air Quality 76. See Altieri and Keen 2019 Science of the Total Environment 610.

The significance of the discussion on air quality standards for this paper and the issue of the delay in relation to the promulgation of the priority area regulations that is the subject of the case under review here is that the Minister and the relevant environmental authorities should be recognised as concurrently engaged in several different but complementary regulatory implementation efforts aimed at addressing air pollution. 29

29 See Groundwork Trust para 59.2.

The object of this Act is-

(a) to protect the environment by providing reasonable measures for-

(i) the protection and enhancement of the quality of air in the Republic;

(ii) the prevention of air pollution and ecological degradation; and

(iii) securing ecologically sustainable development while promoting justifiable economic and social development; and

(b) generally to give effect to section 24 (b) of the Constitution in order to enhance the quality of ambient air for the sake of securing an environment that is not harmful to the health and well-being of people.

Although section 2 speaks of the "prevention" of air pollution, clearly a literal interpretation would be inconsistent with the object of "securing

ecologically sustainable development while promoting justifiable economic and social development" (which is text taken directly from section 24(b) of the Constitution) – the two objects are mutually exclusive – and the reality of the factual situation on the ground in the HPA. The "prevention" of air pollution in South Africa, and in particular in the HPA, would entail the closure of all electricity generating power stations and all other industry in the area that contributes to air pollution, which is clearly not economically feasible. Looking at the context of the Act as a whole, therefore, "prevention" ought to be interpreted as something akin to "minimisation". As Wolf and Stanley suggest, 30

30 Wolf and Stanley Wolf and Stanley on Environmental Law 5.

The primary function of environmental law is not to eliminate pollution, except in the case of a few highly toxic pollutants, but to balance the polluting emissions generated by economic activity against the demands of society for a tolerably healthy environment. Polluting emissions must therefore be set, in most cases, by government (or its regulators) at levels which are acceptable to its two major stakeholders: regulated businesses and the public.

It is this balancing act that is central to the regulation of air pollution in South Africa. It is required by the Constitution (I will expand upon this below) and it is dictated by the factual realities that exist in the country. It is also not something that can be done overnight (or "immediately"), which is a point that is absolutely crucial in relation to the discussion of the case below.

3 The case

The applicants essentially had two issues for consideration by the court (Collis J). First, they were requesting the court to declare that the "unsafe levels of ambient air pollution in the Highveld Priority area are an ongoing breach of residents' section 24(a) constitutional right to an environment that is not harmful to health or well-being". Second, they were asking the court to order the Minister to make regulations to implement and enforce the HPA Air Quality Management Plan 31

31 GN 144 in GG 35072 of 2 March 2012.

The court characterised as "common cause" that the high levels of ambient air pollution in the HPA are, in general, harmful to human health and wellbeing; 33

33 Groundwork Trust para 12.1. See paras 71 to 75 of the judgment.

The court's conclusion that on the "conspectus of the evidence presented and having regard to the available authorities, I am as a result satisfied that the applicants have established a breach of section 24(a) of the Constitution, as a result of the Ministers' failure to promulgate the regulations for the Highveld Priority Area" 39

39 Groundwork Trust para 183.

applicants' arguments. These were to the effect that, first, section 24(a) provides an "immediate, unqualified right" to a "safe environment here and now" and that the levels of air pollution in the HPA continue to breach the right. 40

40 Groundwork Trust para 32.

The applicants argued that there was a distinction between section 24(a) and 24(b) in that the former "sets the basic minimum for environmental protection: an environment that is not harmful", whereas section 24(b) "goes further, requiring the state to take reasonable steps to protect the environment even where human health and well-being are not immediately threatened". 44

44 Groundwork Trust para 43.

Counsel for the Minister, on the other hand, argued on the basis of the principle of subsidiarity ("where legislation has been enacted to give effect to a fundamental right, a litigant should rely on that legislation in order to give effect to the fundamental right or alternatively challenge the legislation as being inconsistent with the Constitution"), 46

46 Groundwork Trust para 85.

24(a) right "is not an absolute but relative right, which is qualified and limited". 47

47 Groundwork Trust para 121.

In reaching the decision, the court did not directly address the argument relating to the bifurcated right in section 24 or, in other words, that section 24(a) and section 24(b) are separate rights. It may be impliedly regarded as having been accepted due to the court's rather bald finding that, on "the evidence that has been presented before this court, I cannot but conclude that the respondents have failed to justify any limitation to the section 24(a) right by placing reliance on section 36 of the Constitution". 49

49 Groundwork Trust para 176.

It would appear that the essential basis of the court's decision in relation to section 24's applicability and its interpretation – the ratio decidendi, if you will – is the reliance on the "plain wording" of section 24, in that the section as phrased is "entirely unqualified and this is supported by the omission of any reference being made to 'progressive realisation' in the text of the section itself". 50

50 Groundwork Trust para 156. Emphasis in original.

In response to the argument relating to the subsidiarity principle, the court reasoned that the subsidiarity principle generally applied in two circumstances: first, where the Constitution itself required the enactment of specific legislation "to effectively codify rights" (the example given being section 33 – the right to administrative justice); and, second, where legislation "covered the field" by providing "clear procedures, dedicated forums and specific statutory remedies for constitutional rights violations such as labour legislation". 53

53 Groundwork Trust para 168.

pass specific legislation to codify environmental rights" and that the legislation does not provide procedures and remedies for addressing air pollution impacts. Consequently, the principle of subsidiarity does not apply. 54

54 Groundwork Trust para 169.

In relation to the second issue in the case, relating to the interpretation of section 20 (the power to make regulations relating to priority areas), the legal issue for determination was whether, in the circumstances of the HPA, section 20 constitutes a discretionary power on the part of the Minister, or whether it is a duty, in which case the Minister would be required to issue such regulations. 56

56 See above, part 3, for the text of the section, where I observed that s 20 is couched in seemingly permissive terms (use of the word "may" rather than the mandatory "must").

In considering appropriate remedies, the court issued the requested declarators, and held that it was "just and equitable" to require the Minister to publish regulations within six months of the order of the court. 58

58 Groundwork Trust para 235.

4 Analysis

In analysing the decision the following aspects will be considered in turn: first, the splitting of the section 24 right into two rights – section 24(a) and section 24(b); second, whether the right in section 24 is immediately

realisable; third, whether a "mere state of affairs" can constitute a breach of section 24; fourth, whether the right in section 24 is subject to limitations; and, finally, the court's approach to interpreting section 20 of the Air Quality Act.

4.1 Section 24 – two rights or one?

It is clearly evident from the applicants' list of issues for determination by the court, 60

60 Groundwork Trust para 11 of the judgment. This is set out above under section 3 of this article, at 8-9.

The first problem with this approach is that it ignores prior academic and judicial interpretation. Feris, for example, stated in 2008 61

61 Feris 2008 SAJHR 36. See also Feris 2008 SAPL 194.

In essence the section [s 24] has two general aims. Paragraph (a) guarantees a healthy environment to everyone in general, while paragraph (b) mandates the state to take certain measures in order to realise the guarantee proclaimed in the first part of the section.

Glazewski does not expressly deal with this aspect, but he does not argue that section 24 consists of two separate rights, which one would expect if this were so. 62

62 See Glazewski Environmental Law. The author deals with the Bill of Rights and environmental law in ch 5.

The positive obligations inherent in section 24 must be executed through 'reasonable legislative and other measures.' The legislature must enact and adopt laws towards the fulfilment of the entitlements in section 24. Unlike what we see in any of the other socio-economic rights, section 24(b)(i)–(iii) guides the legislature in 'how to' implement it by including a list of explicit objectives that the legislative and other measures of the state should be aimed at.

In 2016 Humby argued emphatically for the "integrated" nature of the right, although in a more nuanced way than the approaches mentioned above: 64

64 Humby 2016 SAJHR.

an integrated and multi-dimensional right to development-in-environment with the associated obligation of balancing the complex set of variables that sustain and advance development, with maintaining the integrity and functioning of complex and adaptive natural systems. 65

65 Humby 2016 SAJHR 226.

In my earlier discussion of section 24 I have observed that section 24(b) clearly envisages that the "legislative branch of government (at whatever level, provided it has the necessary Constitutional competence) is required to enact appropriate legislation in order to give effect to the substantive right". 66

66 Kidd "Transformative Constitutionalism" 119.

In the courts, Claassen J in the BP Southern Africa case in 2004 observed that

[Government departments] are required to carry out [the duty imposed by 24(a) of the Constitution] by means of adequate legislation and other programmes. Section 24(b) expressly obliges the State to take reasonable legislative and other measures to protect the environment. 69

69 BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs 2004 5 SA 124 (W) 142E-F.

In HTF Developers, Murphy J stated that

Section 24(a) entrenches the fundamental right to an environment not harmful to health or well-being, whereas s 24(b) is more in the nature of a directive principle, having the character of a so-called second-generation right imposing a constitutional imperative on the State to secure the environmental rights by reasonable legislation and other measures. Despite its aspirational form, or perhaps because of it, section 24(b) gives content to the entrenched right envisaged by specifically identifying the objects of regulation, namely: the prevention of pollution and environmental degradation; the promotion of conservation; and the securing of ecologically sustainable development and use of natural resources while promoting justifiable economic and social development. 70

70 HTF Developers (Pty) Ltd v Minister of Environmental Affairs 2006 5 SA 512 (T) para 17, emphasis added.

Even though there may be some criticism of the characterisation of section 24(b) as a directive principle that is "aspirational", 71

71 Feris 2008 SAPL 194.

The second problem with the Groundwork Trust court's approach is that, even if one were to regard the two subsections as self-standing rights, they are clearly not alternative rights, or rights that can be applied in specific situations independently of each other – such as the right in section 33 to reasons vis-Γ -vis the right to administrative action that is

lawful, reasonable and procedurally fair. If one were to accept that the rights in section 24(a) and 24(b) are separate rights, it would nevertheless not be constitutionally valid to regard them as alternative rights. I am unable to think of an example of a situation where both sections would not invariably apply simultaneously – it would not be open for a court (or anyone else) to choose whether to apply section 24(a) or 24(b). If both of them apply, then the only way in which one can make sense of their simultaneous application is to regard subsection (b) as relating to the fulfilment of subsection (a). This means that the measures adopted (primarily by the state) would have to be reasonable and would have to ensure that the measures "secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development". It is difficult to fathom how this requirement is not a qualification of the right in subsection (a).

Moreover, if one were to regard the two subsections as separate, intergenerational rights would be relevant only in relation to subsection (b). It appears to me to be amply clear that part of the purpose of subsection (b) is to emphasise that the right in section 24 is applicable not only to "everyone" who is alive today, but also to future generations.

Overall, then, the approach to regarding section 24 as comprising two separate rights has no academic or judicial support, and it is not supportable from the perspective of logic. It also excludes the application of intergenerational equity from section 24(a).

4.2 Is section 24 immediately realisable?

In deciding that the section 24 right is immediately realisable the court focussed only on the "plain wording" of the text (and the comparative text in section 29 of the Constitution), and the absence of words referring to progressive realisation without considering the context in which the right operates. As Currie and De Waal have argued, constitutional interpretation is often "about establishing the context within which a particular constitutional provision must be given meaning". 72

72 Currie and De Waal "Interpretation of the Bill of Rights" 134.

repaired within a matter of hours. In other circumstances, however, the factual circumstances affecting people's section 24 right would not be that quick to repair. The example raised by the Groundwork Trust case is a good example. People living in the HPA are exposed to unacceptably high levels of pollution that are a significant health risk. That fact is uncontroverted, according to the judgment. This is clearly a situation (from a factual perspective) where those people are living in an environment that is harmful to health and well-being. In other words, from a factual perspective the right in section 24 is being infringed. If the right in section 24 is unqualified and immediately realisable (as the court found it is), the pollution must be halted or at least significantly reduced to acceptable levels immediately. A significant amount of that pollution emanates from electricity generation, which means that realising the right immediately would significantly reduce South Africa's electricity-generation capacity with probable extremely adverse consequences, not just to the economy, but also to people's health and well-being. Many environmental impacts that are harmful to human health and the environment are produced by activities that have a social and economic benefit, which means that regarding the section 24 right as immediately realisable and unqualified is not factually realistic. That is why section 24(b) is there – it operates as an internal modifier to section 24(a), setting out how section 24(a) is to be achieved – through reasonable legislative and other measures that meet the objectives set out in that part of the right. Not only is section 24(a) qualified by section 24(b), but it is also subject to the limitations clause in section 36. Is the limitation of the right in section 24(a) by electricity generation "reasonable and justifiable" as envisaged by section 36? While it may not be over time, because electricity can be produced through non-polluting (or, at least, less harmful) means, it surely is now. It would not be reasonable and justifiable to shut down South Africa's electricity generation capacity immediately because the alternatives will take time to come on board. So, the court's conclusion that it "cannot but conclude that the respondents have failed to justify any limitation to the section 24(a) right by placing reliance on section 36 of the Constitution" is misguided.

In the Groundwork Trust judgment the court observed that a violation of section 24(a) "necessarily violates other constitutional rights, including the rights to dignity, life, bodily integrity and the right to have children's interests considered paramount in every matter concerning the child". 73

73 Groundwork Trust para 76.

suggest that section 24(a) is a separate right requiring immediate realisation? This argument would be based on the notion that the progressive realisation of section 24 would necessarily involve the progressive realisation of rights such as equality and dignity involved in the circumstances, which require immediate realisation. In my view this argument does not hold water, since it could be equally argued that the progressively realisable rights to housing and access to water (for example) also invariably encompass other rights such as dignity, equality and children's rights, not to mention the right to life. Progressive realisation is an idea that is based ultimately on practicalities, not principle, and the same approach would apply in relation to section 24.

In short, section 24 is a "package deal" – one cannot consider section 24(a) as a standalone right, since section 24(b) indicates how section 24(a) is to be fulfilled by government (which seems to be quite clear from the "plain wording" of the section). It does not use the term "progressively realisable" because in some cases the right may be fulfilled immediately and may not require progressive realisation (as in the sewage example mentioned above). In many other cases, however, if one considers factual context, the section 24 right must be realisable over time (not necessarily progressively realisable in the socio-economic rights sense). 74

74 See the essentially same argument made by Pejan, Du Toit and Pollard "Using Progressive Realization" 316.

This is why I have argued that the approach taken in the Grootboom case is relevant to section 24. 75

75 Kidd "Environment" 522.

The State is required to take reasonable legislative and other measures. Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The State is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well-directed policies and programs implemented by the Executive. These policies and programs must be reasonable both in their conception and their implementation. The formulation of a program is only the first stage in meeting the State's obligations. The program must also be reasonably implemented. An otherwise reasonable program that is not implemented reasonably will not constitute compliance with the State's obligations. 76

76 Grootboom para 42. See the discussion of Grootboom in the context of s 24 of the Constitution in BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs 2004 5 SA 124 (W) 142 per CJ Claassen J.

Such programmes must be "balanced and flexible". 77

77 Grootboom para 43.

4.3 Can a mere state of affairs constitute a breach of section 24?

Counsel for the Minister argued that "a mere state of affairs, which is not attributed to the conduct of the Executive or an Organ of State, cannot in logic or law constitute the breach of a fundamental right, as it requires either positive or negative conduct from the duty-bound person in conflict with the correlative duty". 78

78 Groundwork Trust para 106.

4.4 May section 24 be limited?

This analysis is based on regarding section 24 as one right, not separate rights in subsections (a) and (b). The court concluded that there is no limitation in terms of section 36 on the right in section 24. 80

80 Groundwork Trust para 176.

purification, the only transport would be non-fuel burning and, with the current technology used in South Africa, there would be very little electricity". 82

82 Kidd "Transformative Constitutionalism" 119.

The process of determining a balance between emission generated by economic activity and a "tolerably healthy environment" involves limitations at two levels when it comes to section 24. First, the legislative and other measures to be adopted to give effect to section 24(a) must "secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development". 84

84 Section 24(b)(iii) of the Constitution.

The Air Quality Act, if it is to be consistent with section 24, cannot "prevent" air pollution, as it exhorts in section 2. It is inevitable that the Act will allow some air pollution because it must recognise the dictates of "promoting justifiable economic and social development". 86

86 See, for example, Fuel Retailers para 44.

4.5 Interpretation of section 20 of the Air Quality Act

In short, the court found that the apparently discretionary power to make regulations in relation to the HPA was mandatory. In my view, and based on a different approach to that adopted by the applicants in the case, this is an appropriate conclusion. My approach would have been to rely on unreasonable delay in terms of section 6(3) of the Promotion of Administrative Justice Act, 87

87 Promotion of Administrative Justice Act 3 of 2000. Section 6(3) provides –

"If any person relies on the ground of review referred to in subsection (2)(g) [where the administrative action concerned consists of a failure to take a decision], he or she may in respect of a failure to take a decision, whereβ€”

(a) (i) an administrator has a duty to take a decision;

(ii) there is no law that prescribes a period within which the administrator is required to take that decision; and

(iii) the administrator has failed to take that decision,

institute proceedings in a court or tribunal for judicial review of the failure to take the decision on the ground that there has been unreasonable delay in taking the decision; or

(b) (i) an administrator has a duty to take a decision;

(ii) a law prescribes a period within which the administrator is required to take that decision; and

(iii) the administrator has failed to take that decision before the expiration of that period,institute proceedings in a court or tribunal for judicial review of the failure to take the decision within that period on the ground that the administrator has a duty to take the decision notwithstanding the expiration of that period."In the case under discussion in this article, s 6(3)(a) would apply."

The section 24 right is used to support the interpretation of section 20 of the Air Quality Act as imposing a duty in the circumstances. If the right in these circumstances is (in appropriate factual circumstances) realisable over time, as I have already argued, then the exhortation of Yacoob J in the Grootboom case is apposite – that in realising a right, it is insufficient merely to pass legislation and insufficient merely to draw up a programme (or plan) for realising the right. As Yacoob J observed,

The formulation of a program is only the first stage in meeting the State's obligations. The program must also be reasonably implemented. An otherwise reasonable program that is not implemented reasonably will not constitute compliance with the State's obligations.

In this case the declaration of the HPA and publication of the HPA Air Quality Management Plan constitute the "programme" mentioned in the quote above. But it is 10 years since the publication of the Plan, and there has been no implementation of measures to ameliorate the situation. This flies in the face of the Grootboom requirement and justifies the court's

regarding section 20 of the Air Quality Act as a duty rather than a discretionary power.

5 Conclusion

Lest I be misunderstood, I do support the outcome of the Groundwork Trust case. Litigation in order to ensure that the reasonable implementation of environmental law as required by Grootboom is often likely to be necessary in the face of government inertia. While the decision was greeted with widespread approval, 88

88 See, for example, Hugo 2022 https://www.dailymaverick.co.za/opinionista/2022-03-21-if-barbara-creecy-appeals-against-the-deadly-air-judgment-it-will-not-be-a-good-look-for-government/.

Irrespective of the decision in Groundwork Trust, though, the situation in the HPA is exactly the sort of situation for which section 24 was designed, and there must be a way to address the widespread air pollution that constitutes a severe threat to human health. It is clearly inimical to both the spirit and the letter of section 24 that activities necessary for South Africa's economic stability (if not growth) are killing people. This is particularly true when there are alternative methods to producing electricity that do not burn fossil fuels. From a factual perspective it is obvious that section 24 is being infringed, and on an ongoing basis. Although section 24 of the Constitution is qualified, neither the internal modifier in section 24(b) nor the limitations clause in section 36 can lawfully permit the indefinite infringement of section 24 in the HPA context. On the other hand, it is clearly not possible for the immediate realisation of the right in these circumstances, for reasons set out earlier. Although section 24 may not be "progressively realisable" in the same way as the more conventional socio-economic rights, it is realisable over time and the comments in Grootboom are entirely apposite to section 24. In the case of the HPA, the legislative and other measures taken have not been reasonable. There is a legislative framework providing for further legislation (regulations) and thereafter the implementation thereof, neither option having yet been utilised. The fact that the problem has been evident for so long (more than likely for some time before the HPA was declared in 2007) makes it clear that the state has been remiss in its contravention of the right in section 24 through the measures envisaged in the Air Quality Act. The relevant economic and other considerations are complicated and exacerbate the delay that has already been allowed. The urgency of addressing the HPA situation and dealing with the related issues concerning the ongoing issues of polluting fossil fuels cannot be understated. It is clear, however, that one cannot solely rely on the Environment department to change the status quo.

A tribute to Willemien du Plessis

I have been in academia for more than 30 years and have known Willemien du Plessis for most of that time. Not only is she a top scholar, but she has consistently put down the marker for collegiality. She has always been willing to examine dissertations and review articles, a task she inevitably carries out efficiently and well within the deadline. What has been noteworthy for me is that she has always included younger members of the academy and is clearly a good mentor. There are several colleagues today who have made their mark in the South African academy whom I first met accompanied by Willemien at a conference. I could say that her contribution to the field and generosity of spirit will be missed, but I expect that the only change that retirement will bring for Willemien is that she continues to bring all this to the table, only now without earning a salary for it. I offer my very best wishes for Willemien’s retirement and look forward to continuing our friendship and academic collaboration.

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Euripidou R et al "The Minimum Emission Standards (MES) and the Sabotage of Public Health" 2022 Clean Air Journal 1-4 https://doi.org/10.17159/caj/2022/32/1.14026

Feris 2008 SAJHR

Feris L "Constitutional Environmental Rights: An Under-Utilised Resource" 2008 SAJHR 29-49

Feris 2008 SAPL

Feris L "The Socio-Economic Nature of Section 24(b) of the Constitution – Some Thoughts on HTF Developers (Pty) Ltd v Minister of Environmental Affairs and Tourism (HTF)" 2008 SAPL 194-207

Glazewski Environmental Law

Glazewski J Environmental Law in South Africa (LexisNexis Butterworths Durban 2013)

Humby 2016 SAJHR

Humby T "The Right to Development-in-Environment and its Ecological and Developmental Thresholds" 2016 SAJHR 219-247

Kidd "Environment"

Kidd M "Environment" in Currie I and De Waal J The Bill of Rights Handbook 6th ed (Juta Cape Town 2013) ch 24

Kidd Environmental Law

Kidd M Environmental Law 2nd ed (Juta Cape Town 2011)

Kidd "Transformative Constitutionalism"

Kidd M "Transformative Constitutionalism and the Interface between Environmental Justice, Human Rights and Sustainable Development" in Daly E et al (eds) New Frontiers in Environmental Constitutionalism (UNEP Nairobi 2017) 117-125

Pejan, Du Toit and Pollard "Using Progressive Realization"

Pejan R, Du Toit D and Pollard S "Using Progressive Realization and Reasonableness to Evaluate Implementation Lags in the South African Water Management Reform Process" in Kidd M et al (eds) Water and the Law: Towards Sustainability (Edward Elgar Cheltenham 2014) 305-328

UNEP Regulating Air Quality

United Nations Environment Programme Regulating Air Quality: The First Global Assessment of Air Pollution Legislation (UNEP Nairobi 2021)

Wernecke et al 2022 Clean Air Journal

Wernecke B et al "Ambient Air Pollution on the Highveld: An Airshed at a Watershed Moment?" 2022 Clean Air Journal 1-3 http://dx.doi.org/10.17159/caj/2022/32/1.14070

Wolf and Stanley Wolf and Stanley on Environmental Law

Wolf S and Stanley N Wolf and Stanley on Environmental Law 6th ed (Routledge Abingdon 2014)

Case law

BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs 2004 5 SA 124 (W)

Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province 2007 6 SA 4 (CC)

Governing Body of the Juma Musjid Primary School v Essay 2011 8 BCLR 761 (CC)

Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC).

HTF Developers (Pty) Ltd v Minister of Environmental Affairs 2006 5 SA 512 (T)

Trustees for the Time Being of Groundwork Trust v Minister of Environmental Affairs (39724/2019) [2022] ZAGPPHC 208 (18 March 2022)

Legislation

Constitution of the Republic of South Africa, 1996

National Environmental Management Act 107 of 1998

National Environmental Management: Air Quality Act 39 of 2004

Promotion of Access to Information Act 2 of 2000

Promotion of Administrative Justice Act 3 of 2000

Government publications

GN 1123 in GG 30518 of 23 November 2007

GN 1210 in GG 32816 of 24 December 2009

GN 144 in GG 35072 of 2 March 2012

GN 486 in GG 35463 of 29 June 2012

GN 893 in GG 37054 of 22 November 2013

GN 1207 in GG 42013 of 31 October 2018

GN 2076 in GG 46355 of 12 May 2022

Internet sources

Airshed Planning Professionals 2006 https://cer.org.za/programmes/ pollution-climate-change/key-information/eskom

Airshed Planning Professionals (Pty) Ltd 2006 Eskom Mpumalanga Highveld Cumulative Scenario Planning Study: Air Pollution Compliance Assessment and Health Risk Analysis of Cumulative Operations of Current, RTS and Proposed Eskom Power Station Located within the

Mpumalanga and Gauteng Provinces. Report No: APP/06/ESKOM-05 Rev 1.0 (2006) https://cer.org.za/programmes/pollution-climate-change/key-information/eskom (Eskom Health Studies) accessed 27 September 2023

CER 2017 https://cer.org.za/wp-content/uploads/2017/09/Broken-Promises-full-report_final.pdf

Centre for Environmental Rights 2017 Broken Promises: The Failure of the Highveld Priority Area https://cer.org.za/wp-content/uploads/2017/09/ Broken-Promises-full-report_final.pdf accessed 27 September 2023

Eskom 2021 https://www.gov.za/speeches/eskom-receives-dffe%E2% 80%99s-decisions-minimum-emissions-standard-15-dec-2021-0000

Eskom 2021 Eskom Receives DFFE's Decisions on Minimum Emissions Standard https://www.gov.za/speeches/eskom-receives-dffe%E2%80% 99s-decisions-minimum-emissions-standard-15-dec-2021-0000 accessed 27 September 2023

Greenpeace Africa 2019 https://www.greenpeace.org/static/planet4-africa-stateless/2019/08/4f7f1afa-sa-briefing_-global-air-pollution-map-so2.pdf

Greenpeace Africa 2019 New Greenpeace Analysis Finds Kriel in Mpumalanga is the Second Worst Sulphur Dioxide (SO2) Pollution Hotspot in the World https://www.greenpeace.org/static/planet4-africa-stateless/2019/08/4f7f1afa-sa-briefing_-global-air-pollution-map-so2.pdf accessed 27 September 2023

Holland 2017 https://cer.org.za/wp-content/uploads/2017/04/Annexure-Health-impacts-of-coal-fired-generation-in-South-Africa-310317.pdf

Holland M 2017 Health Impacts of Coal Fired Power Plants in South Africa https://cer.org.za/wp-content/uploads/2017/04/Annexure-Health-impacts-of-coal-fired-generation-in-South-Africa-310317.pdf accessed 27 September 2023

Hugo 2022 https://www.dailymaverick.co.za/opinionista/2022-03-21-if-barbara-creecy-appeals-against-the-deadly-air-judgment-it-will-not-be-a-good-look-for-government/

Hugo R 2022 If Barbara Creecy Appeals Against the "Deadly Air" Judgment, it will not be a Good Look for Government https://www.dailymaverick.co.za/opinionista/2022-03-21-if-barbara-creecy-appeals-against-the-deadly-air-judgment-it-will-not-be-a-good-look-for-government/ accessed 27 September 2023

Kings 2014 https://mg.co.za/article/2014-06-19-power-stations-are-deadly-internal-report-reveals/

Kings S 2014 How Eskom's Coal Kills https://mg.co.za/article/2014-06-19-power-stations-are-deadly-internal-report-reveals/ accessed 27 September 2023

List of Abbreviations