Environmental compliance – A legal turning point for Air Quality Enforcement
A recent Supreme Court of Appeal (SCA) judgment in the Trust for Community Outreach and Education and Another v Minister of Environmental Affairs and Others case (commonly referred to as the “Deadly Air” case) has brought renewed focus to the legal responsibilities of government in addressing air quality in priority areas.
This judgment, together with the publication of the Regulations for Implementing and Enforcing Priority Area Air Quality Management Plans, 2024 and the Second-Generation Highveld Priority Area Air Quality Management Plan (HPA-AQMP), mark a decisive shift in environmental enforcement.
The “Deadly Air” Case – A Victory for Constitutional Rights
In this landmark decision, handed down on 11 April 2025, the SCA confirmed that the poor air quality in the Highveld Priority Area (HPA) is a breach of residents’ constitutional right to an environment that is not harmful to their health or well-being, as enshrined in section 24 of the Constitution.
Crucially, the Court found that the Minister responsible for Environmental Affairs had failed to act reasonably and appropriately by not implementing the 2012 HPA Air Quality Management Plan. The failure to effectively implement the plan was held to be unconstitutional and invalid.
The judgment reinforces the binding nature of air quality management plans and confirms that government authorities cannot adopt a passive stance when constitutional rights are at stake.
New Regulations and the Second-Generation HPA-AQMP
Following the High Court's earlier judgment in this matter, the Department of Forestry, Fisheries and the Environment published the Regulations for Implementing and Enforcing Priority Area Air Quality Management Plans, 2024 in terms of the National Environmental Management: Air Quality Act 39 of 2004 (NEMAQA). These regulations introduce:
Binding emission reduction targets;
Mandatory reporting obligations; and
Enforcement mechanisms with penalties of up to R5 million for first-time offences.
On 26 March 2025, the Second-Generation HPA-AQMP was published for implementation. The Plan outlines key emission sources in the HPA, sets new reduction targets for various sectors (including mining and industry), and introduces strategies to improve compliance with National Ambient Air Quality Standards.
The Plan’s main objectives are to:
Improve ambient air quality;
Establish realistic, enforceable emission targets;
Monitor emissions more effectively;
Ensure compliance by both government and industry players.
What this means for the Mining and Industrial Sectors
These developments link directly to broader environmental compliance obligations for mining and industrial operations.
The SCA judgment and subsequent regulatory updates demonstrate that environmental compliance is not simply a box-ticking exercise – it is a constitutional imperative. Companies operating within Priority Areas must now engage proactively with air quality legislation, including the new HPA-AQMP, or risk significant legal and operational consequences.
This moment represents a shift from policy to enforcement. With courts affirming the constitutional significance of clean air, and with new regulations holding both government and private actors accountable, the time for passive compliance is over.
Companies must now take active steps to align their operations with air quality standards – not only for legal and commercial resilience, but to uphold the rights of the communities in which they operate.