On 11 April 2025, the Supreme Court of Appeal (“SCA”) delivered a pivotal judgment in Minister of Environmental Affairs v Trustees for the Time Being of GroundWork Trust and Others [2025] ZASCA 43. The case arose from the State’s protracted failure to implement regulations under the Highveld Priority Area Air Quality Management Plan; a failure which the court confirmed breached constitutional and statutory obligations. The decision marks a critical landmark in South Africa’s approach to air quality enforcement and environmental rights.
THE RIGHT TO A HEALTHY ENVIRONMENT
Section 24 of the Constitution guarantees everyone the right to an environment that is not harmful to their health or well-being, and mandates the State to take reasonable legislative and other measures to fulfil this right. This constitutional provision formed the cornerstone of the matter.
The Highveld Priority Area, spanning parts of Mpumalanga and Gauteng, is home to some of South Africa’s most polluting industries, including 12 Eskom coal-fired power stations, the Sasol Synfuels plant, and numerous mining and heavy industrial operations and has long suffered from hazardous air pollution. In response to mounting concerns over severe air pollution, the Minister declared it a Priority Area in 2007 under section 18 of the Air Quality Act. This was followed in 2012 by the publication of the Highveld Air Quality Management Plan (“Plan”), which aimed to bring emissions within acceptable levels by 2020. The Plan included goals to reduce industrial emissions, improve monitoring, and address pollution in low-income communities.
However, despite repeated internal assessments highlighting implementation failure, health studies warning of premature deaths linked to pollution exposure, and consistent advocacy from civil society organisations like GroundWork and Vukani Environmental Justice Movement, the Plan remained unenforceable for over a decade. No binding regulations were issued to compel compliance or ensure progress; a failure that culminated in constitutional litigation and the landmark 2025 SCA ruling.
FROM DISCRETION TO DUTY: INTERPRETING SECTION 20 OF THE AIR QUALITY ACT
At the heart of the appeal was the interpretation of section 20 of the National Environmental Management: Air Quality Act, 39 of 2004, as amended (“Air Quality Act”), which directs that the Minister “may [our emphasis] prescribe regulations necessary for implementing and enforcing approved priority area air quality management plans.”
The Minister argued this wording created discretion, not obligation. The SCA disagreed. The SCA’s interpretation of “may” as “must” (once the necessity condition is met) was crucial. This directly addressed the Minister’s central argument on appeal. The Court highlighted that necessity had clearly arisen, as evidenced by departmental reports, public health studies, and the ineffectiveness of the Highveld Plan not being considered by major polluters and stakeholders as binding.
Drawing on constitutional principles, international law, and purposive statutory interpretation, the court held that once the condition of necessity is established (as it had been in this case) the Minister has a legal duty to act and implement regulations to enforce the Plan’s implementation.
A HUMAN RIGHTS-BASED APPROACH TO ENVIRONMENTAL ENFORCEMENT
The SCA emphasised that environmental protection is not just a matter of policy; it is a matter of human rights. Echoing decisions such as Grootboom and Mazibuko, the court reiterated that legislative measures must be effective, not merely symbolic. Regulations, unlike plans, offer enforceability, monitoring, and consequences for non-compliance; all essential in addressing the entrenched pollution in the Highveld.
THE ROLE OF THE 2024 REGULATIONS
In response to the litigation pressure, the Minister published the long-overdue Regulations for Implementing and Enforcing Priority Area Air Quality Management Plans on 26 August 2024.
The 2024 regulations give enforceable weight to the Plan by clearly identifying the responsible stakeholders and imposing mandatory planning and reporting duties. For example –
- Regulation 3 confirms that the regulations apply to stakeholders assigned responsibilities in a Priority Area Plan, including industries conducting listed activities, mining and reclamation operations, and all three spheres of government.
- Regulation 5 compels these stakeholders to submit an emission reduction and management plan within six months of the publication of a priority area air quality management plan, outlining specific measures, reduction targets, and implementation timeframes aligned to the air quality goals of the Priority Area.
- Regulation 7 requires stakeholders to report annually (by 31 March) on their implementation progress, using a prescribed format and incorporating emission inventories where applicable to the National Air Quality Officer.
These regulations respond directly to the enforcement gap criticised in Minister of Environmental Affairs v GroundWork Trust and Others. They translate the Highveld Plan from a policy document into a legally enforceable framework, advancing the right to an environment that is not harmful to health and reinforcing the state’s duty to act without unreasonable delay.
LOOKING AHEAD
This judgment and the ensuing regulations signify another landmark in the shift from aspirational environmental governance to concrete, enforceable obligations. For environmental justice groups, it validates years of advocacy. For government, it clarifies the imperative to act decisively when constitutional rights are at stake.
Most importantly, the ruling sets a constitutional standard; the right to a healthy environment is not a policy preference, it is a legal promise. The courts, it seems, will ensure it is kept.
However, going forward, the real test will be implementation; whether the new framework can compel timely, coordinated, and transparent state and stakeholder action to meet constitutional guarantees.
