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Government’s failure to enforce emissions laws ‘a violation of basic human rights’

Landmark case seeks to reduce air pollution in the Highveld Priority Area.

NOMPU SIZIBA: The Centre for Environmental Rights is arguing a landmark case in which environmental activists are seeking to force the government to reduce air pollution in the coal-rich Highveld area. Eskom has a number of coal-fired power plants in the region, and Sasol operates the largest coal-to-liquids plant in Secunda.

If this case does succeed, it will likely have significant cost impacts for the likes of Eskom and Sasol, which will need to work out a plan sooner to become compliant with emission targets, as they’ve been given special privileges to only become compliant by 2025.

Read: Why government is being sued

Well, to speak about the legal action and its aims, I’m joined on the line by Thomas Nguni, a community manager at groundWork, one of the environmental organisations that the Centre for Environmental Rights is representing. Thanks very much for joining us, Thomas. Who are the parties represented by the Centre for Environmental Rights to launch this case, and ultimately what’s the desired end game?

THOMAS NGUNI: Thanks for the opportunity. There are two parties who have filed the application. One is groundWork, which is an environmental justice NGO – and I think we need to say we’ve been following whether government implements the current regulations or not for quite a number of years.

And then the second one is a community-based organisation, which is called Vukani Environmental Justice Movement in Action. They have been trying to engage and interact with all levels of government as well, to say we’ve got a crisis in this area, and we need to attend to this as a matter or urgency.

NOMPU SIZIBA: We understand that the Department of Environmental Affairs, as it was at that time, has tried to put in place plans to clean up the air quality in the Highveld area. Presumably you haven’t seen much movement in this regard, and that’s why you’ve decided to go ahead with this action?

THOMAS NGUNI: There was a prior engagement. But also, the minister, when she exercised her powers then, she declared the area a priority area, and the Highveld Priority Area Air Quality Management Plan was enacted. And until now nothing much has happened.

But what is interesting is that within the plan there is a specific time frame to review the plan – after 2.5 years the plan is supposed to be reviewed. That didn’t happen in time, and when they did their mid-term review, which was almost the time when we were supposed to review the plan completely in 2017, groundWork CR and Highveld Environmental Justice Network also undertook a process to do a similar review to see the outcome of the process. Interestingly enough, both reviews indicate nothing much is happening. Air quality monitoring tools are not working and the situation is getting worse.

So I think what we need to understand is that the continued failure by government to enforce air-quality legislation has a direct impact on people’s health. We cannot let that go, because it’s a clear violation of their constitutional rights.

NOMPU SIZIBA: So, from your research of the Highveld area specifically, and the industries there, what sort of health effects have you guys observed that workers and the people in the surrounding communities are suffering from?

THOMAS NGUNI: We have a high prevalence of people with bronchitis, people with asthma, and people with lung cancer. I think we had in the last report from the Cancer Association was that the rate of lung cancer is increasing. There is a high prevalence of people with sinus [problems]. And I would say the worst-case scenario is that it has become normal in this part of the world to see people with [those diseases]. And even if you go the health institutions, you don’t get the required attention or treatment that could be expected for somebody with such a condition.

NOMPU SIZIBA: Thomas, you’ve made it very clear that this is not about specific companies, it’s not about going after people – it’s just about the principle of ensuring that there is clean air, decent clean-air quality in that environment. But of course we do have big players there, like your Eskom and Sasol as well, and they have been granted permission to only comply with emission standards by around 2025. Presumably you are hoping that, if you are successful with your case, that won’t be the case – they’ll have to be compliant sooner. But of course there’ll be financial implications on their side, because I think it’s quite a process for them to become compliant. I suppose it’s not really your problem, but there are practical challenges involved.

THOMAS NGUNI: Yes, there are challenges. But I think we need to be very clear that when the minimum emission standards were enacted, industry was involved. Sasol and Eskom were heavily involved in the process and there was enough time for transition. If you look into the time frame as to when the standards were enacted, and go up to 2015, where the third minimum emission standard came in for 2015 and 2020 standards, then you will realise that industries are making, I would say, a lame excuse.

But I think we also need to make it clear this is not about cost. This is about people’s lives. Eskom’s own report – not even our report – Eskom’s own report says it is responsible for about 330 deaths per year. But one death is too much. We need to begin to ask ourselves: do we prioritise money over human life? I don’t see why we should keep saying this will cost Eskom a lot of money, because [although] we’ve got more than 300 people dying, we [also] have other people who have to be hospitalised, and some of those people have to pay out of their own pockets to deal with this.

So it’s a clear violation of basic human rights, and we want to compare that with money. I don’t think it’s fair to compare the right to health, the right to life, with capital.

NOMPU SIZIBA: Spot on. I wouldn’t argue with you on that one. How long is the hearing for, and when are you expecting to get a decision on your legal case?

THOMAS NGUNI: Right now we’ve just submitted our founding affidavit, and all the respondents will have until July to file their responding papers or indicate whether they want to oppose the case or not. So, right now the ball is in the respondents’ court, and the president is one of those; the Minister of Environmental Affairs is one of the respondents listed and the relevant MECs from Gauteng and Mpumalanga.

NOMPU SIZIBA: Well, hopefully we’ll speak to you again as the case progresses. Thank you very much for your time, Thomas.

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