The Department of Environment, Forest and Fisheries (DEFF) is taking Eskom to court over alleged failure to comply with air pollution standards.
The power utility’s Kendal Power Station is at the centre of the legal tussle. Officials allegedly supplied falsified and misleading information in reports to an Air Quality Officer at the power station, violating Section 51 (1) (g) of the Air Quality Act.
The alleged offense took place between 2018 and 2019. Eskom representatives have been summoned to appear in the Malahleni Regional Court on 28 January 2021.
According to energy expert Chris Yelland, the power utility could be fined up to R10 million and implicated officials could be jailed for up to 10 years – if found guilty.
The power utility has confirmed the receipt of the summons.
Spokesperson Sikonathi Mantshantsha says the organisation is charged with three counts, including exceeding emissions limit on air pollutants.
In May, Minister Barbara Creecy ordered the shutting down of one the two units of the Kendal Power Station found to have been posing serious health risks to surrounding communities, while corrective measures were being taken to ensure compliance with the Kendal’s Atmospheric Emissions License.
Greenpeace Africa has welcomed the Department of Environmental Affairs and Fisheries’ move to lay criminal charges against Eskom.
The court case comes amid another looming legal showdown between environmental justice groups and the government.
GroundWork and the Vukani Environmental Movement have lodge an application to the High Court in Pretoria to declare that the poor air quality in the Highveld Priority Area, in Mpumalanga, constitutes a violation of the Constitutional right to an environment that is not harmful to health or well-being of residents.
“Every day, people living and working on the Mpumalanga Highveld are breathing toxic, polluted air that is harmful to their health and well-being. This is the basis of the Deadly Air case, which will be heard by the North Gauteng High Court in Pretoria on 17 to 19 May 2021,” the organisations say.
“Living in Witbank, one of the most polluted areas in the country, has hugely affected our health and lives. Both government and industry have continuously failed to deal with the problem, irrespective of our efforts to engage with them to ensure they take steps to protect human health. Together with groundWork, Vukani has decided to use litigation to push government to take urgent steps to deal with the high air pollution and in the interest of our health and to protect our right to clean air”, says Vusi Mabaso, Chairperson of Vukani.
The applicants are represented by the Centre for Environmental Rights and the United Nations Special Rapporteur on Human Rights and the Environment, Prof David Boyd, was admitted as an amicus curiae (friend of the court) in the case by the Pretoria High Court in early November. Professor Boyd is represented by Lawyers for Human Rights.
According to the organisations, Mpumalanga accounts for about 83% of South Africa’s coal production, and Eskom owns the 12 coal-fired power plants located in the area in and around the HPA. The area has been plagued with deadly air quality for decades, with the high concentration of coal-fired power plants in the province, Sasol’s coal-to-liquids plant located in Secunda, and the NatRef refinery in Sasolburg contributing large amounts of pollution.
Greenpeace Africa has also been complaining about the country’s Sulfur Dioxide (SO2) emissions for years.
Over a week ago – while welcoming a sharp drop in the emissions in 2019 – the organisation raised concern that they were still well above the recommendations of the World Health Organisation (WHO).
It highlighted that the decrease was not due to any proactive action by the government to curb South Africa’s air pollution crisis. Instead, it believes, the temporary reduction in coal-fired power generation, which led to load shedding, could have played a role in it.
Greenpeace has identified the Kriel area in Mpumalanga as a global hotspot for SO2 emissions, and is still a global hotspot by annual emission amount. It says it is also the largest hotspot in Africa and the largest hotspot driven by coal combustion worldwide.
Below are the organisation’s demands to reduce emissions:
- President Cyril Ramaphosa to halt all investment in fossil fuels and shift to safer, more sustainable energy sources, such as wind and solar,
- Minister of Environment, Forestry and Fisheries, Barbara Creecy to strengthen SO2 emissions standards by reinstating South Africa’s 500 mg/Nm3 minimum emission standard and applying flue gas pollution control technology at power plants, smelters, and other industrial SO2 emitters,
- South Africa’s National Air Quality Officer, Dr Thuli Khumalo, to enforce existing minimum emission standards,
- Minister Creecy to hold carbon majors accountable for their emissions resulting from the use of fossil fuels by implementing and enforcing national environmental legislation,
- Minister for Mineral Resources and Energy Gwede Mantashe to revise the commitments made in the Integrated Energy Plan and,
- abandon plans for installing new coal-fired power stations of 1500 MW capacity scheduled for 2023 and 2027, and
- increase uptake and implementation of renewable energy generation capacity through radical and deliberate policies and programmes, and
- Minister Jackson Mthembu to ensure the development of a comprehensive and inclusive Just Transition programme that moves the country away from the use of fossil fuels to renewable energy.