Barbara Creecy made a media statement on April 11th explaining that her decision not to contest the court ruling was purely a desire to get legal clarity on whether or not she was required to make regulations.
She suggested that the application to appeal against certain sections of the 18-March High Court judgment in The So-Called Deadly Air casewas being sought on an infrequent basis and cognizant her constitutional and statutory duties.
Minister Creecy stated that she does not intend to use the appeal process in order to delay the drafting regulations. The process will continue independent of any appeal.
She stated that parts of the judgment could have a wider meaning and could have an impact on many statutes in the environmental sphere.
However, a closer inspection of her four-page founding statement and her 10-page application will reveal the truth. For leave to appeal suggests Creecy may be contesting the majority orders made by Pretoria judge Colleen Collis.
Creecy explains in her supporting affidavit that she became aware of the urgent and ongoing problem of air pollution in the Highveld Priority Area shortly after becoming national environment minister.
Every person who lives or works in the Highveld Priority Area is my sympathies, as well as the sympathies of all the National Department officials. I also realized and know that the current state of affairs regarding unacceptable levels of air polluting in the Highveld Priority Area, and the potential adverse effects thereof, not only on health or wellbeing, but also on the environment, is within my political and legal responsibility, as Minister.
She stated that she had actually prioritised the issue air quality, not just in the Highveld Priority Area, but on a larger scale.
However, the minister makes it clear in the appeal’s more detailed grounds that she is concerned about attempts to limit the minister’s discretion and autonomy as national environment minister. She also cites the broad sub-set of Orders that she believes would make her compelled to impose duties on other Organs of State such as MECs and other Departments as well as officials responsible for the minimum emission standards for air pollution by Eskom, Sasol or other polluting sectors.
Initial reactions to Creecys appeal have been muted. Centre for Environmental Rights (CER), which represents lawyers, stated that they want to consult senior counsel as well as clients this week in order to review their legal response on the Supreme Court of Appeal application for leave to appeal.
CER represents Vukani Environmental Justice and groundWork, two non-governmental watchdog groups that initiated the legal action.
However, civil society groups remain. Pay close attentionSee how Creecy will react to the increasing pressure to tighten control on big polluters.
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Separation
Creecy, who seems to be on a tightrope in balancing her legal mandate as national environment custodian and serving as one minister among several government ministers with different mandates, claims Judge Collis’ order impermissibly interferes with the separation between powers.
Judge Collis issued seven orders, one of which contained 11 sub-orders. Creecys limited appel contests four of these orders, which include all 11 sub-orders.
She has not challenged the court’s initial cost order or its key declaration about poor air quality in Highveld Priority Area being in violation of residents section 24,(a), constitutional right for an environment that is not detrimental to their health.
She contests the majority of the orders that she is required to act within 12 months to establish new regulations to curb air pollution. These regulations would include appropriate penalties for violators.
Creecy, her legal representatives, and Creecy claim Judge Collis erred when she ruled that the Air Quality Act imposed on her a duty to prescribe regulations.
She argues that the Minister is free to decide whether or to exercise this discretion under this law.
The law allows the minister to make decisions about the content of regulations and the timing of regulations if she chooses.
She claims the ruling illegally restricts her legal competence, impermissibly interferes avec the separation of power and also limits her legislative discretion.
Highveld Plan
She contests the court’s finding that she had unreasonably waited to prepare and initiate regulations to give effect the Highveld (air pollution reduction) Plan.
She also contests orders that require enhanced monitoring of atmospheric emission in the priority region. This includes urgent improvement and maintenance of the network of air quality monitoring stations to ensure reliable data are collected and enhanced reporting by industry.
Collis also ruled it was necessary for all relevant national, municipal, provincial, and MEC departments to participate at the Highveld Priority Zone process and to collaborate in the implementation of the Highveld Plan.
The judge also stated that the court needed to address the suspension or postponement by major polluters of the Highveld of complying with the minimum emission standards. He set a cut-off date for April 2025.
If the Supreme Court of Appeal was to agree with Creecy’s finding that Creecy had an obligation to make these rules, then it should declare the minister’s freedom should not be restricted by stating the specific factors she needed to consider.
According to a legal source, Creecy was not disputing her agreement to write the implementation regulations. However, she was disputing whether she was required to do so or if she had to address the specific considerations in the court order.
The order confirming constitutional rights violations remains. This will, according to me, have to direct the formulation and enforcement of the regulations that the department is drafting and will promulgate in due time. DM/OBP
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