‘We are surely dying slowly’: air pollution victims pin hopes on SCA

A landmark air pollution court case in Bloemfontein this week was a chance for Mbali Mathebula to breathe deeply.

But after returning home to Emalahleni in Mpumalanga she was sick again. “In Bloem I was feeling well, but I came back and started sneezing and my eyes were itching.”

She and her children, who all have breathing difficulties, are among the many thousands of people at risk from the  pollution caused by belching power stations and other factories on the highveld. A government health impact report before the Supreme Court of Appeal in the long-running “deadly air” case acknowledges that more than 10,000 premature deaths attributable to air pollution occur each year in the highveld priority area (HPA).

The HPA, a 31,000km² zone earmarked in 2007 for air improvement measures, incorporates large parts of Gauteng and Mpumalanga.

The government this week published long-awaited regulations aimed at curbing air pollution but only after sustained pressure from environmental watchdog groups — and two days before the SCA hearing. The government is appealing a landmark 2022 ruling by the Pretoria high court that ordered it to address toxic air quality, and implement its own HPA air quality management plan.

Parts of the highveld have some of the most polluted air in the world due to the Eskom power stations in the region. But despite a seven-year court battle, there is still no enforcement of World Health Organisation emission standards.

Watchdog groups are furious that Eskom and other polluters have been issued “emissions exemptions”, allowing them to legally exceed maximum air pollution levels.

Judgment in this week’s appeal hearing was reserved.

Mapule Mdhluli, one of the court case applicants living in the coal-mining centre of Emalahleni (formerly Witbank), has lost faith in the government’s ability to uphold environmental justice.

“Since the case started in 2017 I’ve even had a baby — he’s four now and has the same symptoms as me. He is starting to get sick, and my brother has the same symptoms as me. Asthma and sinuses. You have to buy a lot of medication.

“I hope for justice, I really do because we have to fight for a better future for our grandchildren. The way I see it we are surely dying slowly because of the air pollution happening around us,” she said.

Affected residents and watchdog groups are angry at the way the government has allowed economic considerations, such as keeping ageing coal-fired power stations running, to trump health issues.   A projected 79,500 people could die from pollution-related causes between 2025 and the time the power stations are retired, according to a report authored last year by the Centre for Research on Energy and Clean Air.

“On a cumulative basis until the end-of-life of the power plants, compliance (with MES) would avoid a projected 34,400 deaths from air pollution and economic costs of R620bn. Other avoided health impacts would include 140,000 asthma emergency room visits, 5,900 new cases of asthma in children, 57,000 preterm births, 35-million days of work absence, and 50,000 years lived with disability,” the report said.

I hope for justice, because we have to fight for a better future for our grandchildren

—  Mapule Mdhluli

South Africa’s emission rules are lenient compared with the global norm, and Eskom is the world’s largest power sector emitter of sulphur dioxide (SO2), which, together with  nitrogen oxide (NO2), is a risk factor linked to respiratory disease. In addition, inhalable “particulate matter” known as PM2.5 has been linked with a slew of other conditions including lung cancer and heart disease, the report said. 

In its defence, the government has highlighted the devastating socioeconomic impact of power shortages, which cripple the economy and potentially cost lives. In its heads of argument submitted last year in the appeal case, the then minister in charge of environmental affairs, Barbara Creecy, argued that the high court could not instruct a minister on matters of policy.

“Regulations are subordinate legislation. A court cannot ordinarily compel parliament or the executive to which a legislative power has been delegated to pass legislation. This would undermine the separation of powers,” the ministry argued, adding that air quality management tools had already been adopted to address air pollution.

That the measures are insufficient is common cause on the streets of Empumelelweni township on the outskirts of Emalahleni, where Sbongile Masina complains her eye infection is getting worse. She recently failed a medical test required to get a mine security job.

“It was my ears, eyes and chest. I failed and didn’t get the job,” she said. “Most of the people they failed that medical test. You are hungry, you want that job. But you know it is a danger to your life because you know you are sick.” 

The air pollution case is led by environmental groups Groundwork and Vukani Environmental Justice Movement in Action, with support from the Centre for Environmental Rights.

“We have been forgotten, sacrificed, for years, and there is no sign of this changing on the ground,” said Promise Mabilo, co-ordinator at Vukani. “We have no choice but to breathe this toxic air as we go about our daily lives. Our people get sick, our loved ones die. And still the polluters are allowed to continue polluting, and this is enabled by the state which is supposed to protect us. We hope that the judges will recognise this and give us the necessary relief.” 

Forestry, fisheries and environment spokesperson Peter Mbelengwa said the department had not granted exemptions to big polluters, but rather postponements to comply with timeframes, or compliance suspensions for these facilities scheduled for decommissioning by 2030. 

“The minimum emission standards came into existence in 2010, many years after some of the largest polluters had been in existence. These facilities were not designed and built with strict emission limits in mind then, as the legal framework at the time did not require of them to comply with strict emission limits,” Mbelengwa said.

“In order to allow these facilities to put into place the necessary investments and technologies to retrofit their operations towards complying with the emission limits, a temporary regulated framework was made for qualifying facilities to postpone immediate compliance with the standards to future dates, not exceeding five years."