Deadly Air and the Misinterpretation of the Section 24 Environmental Right: The Groundwork Trust Case

Abstract

The judgment in Trustees for the Time Being of the Groundwork Trust v Minister of Environmental Affairs rests on a finding that the right in section 24 of the Constitution consists of two separate rights in subsections (a) and (b), and that the right in section 24(a) is immediately realisable. I argue in this article that this approach is incorrect and that a logical and contextual interpretation of section 24 cannot justify the conclusion that the court reached. I argue that section 24(b) is a qualifying "internal modifier" to section 24(a), and that, in practical terms and due to the modifier in section 24(b), in many situations section 24 would have to be regarded as implementable over time, and not immediately. Such implementation would have to be reasonable. The article also considers the use of the National Environmental Management: Air Quality Act to address the unacceptable level of air pollution in the area known as the Highveld Priority Area.