In a recent judgment on deadly air pollution, South Africa’s High Court described the applicants' invocation of child rights as 'opportunistic and misleading.' Could this indicate that child rights are, in fact, a blind spot of the Court?
Rongedzayi Fambasayi
“Air pollution knows no boundary and has [the] potential to affect everyone, but it can affect us differently…children [the] elderly and [the sick] are the most vulnerable to air pollution...”
This powerful opening statement by Justice Collins, in a recent Deadly Air judgement handed down by the High Court of South Africa, promises the reader that the Court will pay detailed attention to children’s rights in the context of deadly air pollution and climate-related impacts. Alas, for reasons I will explain soon, the learned judge opined that the applicants’ reliance on children’s rights in this matter was “opportunistic and misleading”. Could it be that children’s rights were in the High Court’s blind spot?
The facts of the case are that environmental justice groups started litigation in 2019 against the government (Minister of Environmental Affairs and others) for failure to reduce or address toxic air pollution in violation of the right to a healthy environment and interrelated fundamental rights. Deadly air emissions are taking place in the Highveld Priority Area, which covers over 31 000 km2 of land across two provinces (Gauteng and Mpumalanga) where coal-power plants, coal-to-liquid fuel refineries and petrochemical facilities emit fumes that are hazardous to the health and wellbeing. Children living in these areas are at a much higher risk due to their developing organs and immune systems. In fact, evidence has shown that children’s exposure is often higher than that of adults.
With expert support from amicus curiae, including the UN Special Rapporteur on Human Rights and the Environment, the litigants submitted comprehensive evidence on the health impacts of poor air quality emanating from the coal power plants and other petrochemical facilities in the area. The litigants argued that compromised air quality violates the constitutional right to a healthy environment enshrined in section 24 of the Constitution, together with a full range of the rights and interests of South African children.
In South Africa, children’s rights are incorporated in the Bill of Rights – they are human rights. For instance, the Constitution declares that a child’s best interests are of paramount importance in every matter concerning the child. This means that the best interests of the child are more important; of course, not to say everything else is unimportant. The South African child rights jurisprudence undoubtedly shines a light on the development of child rights norms, principles and standards in Africa and in some cases, globally.
However, in the deadly air case, children’s rights and interests were in the blind spot of the High Court. Despite clear and articulate evidence-based submissions on the impacts of toxic air on children’s health and other interests, the Court disappointingly declared that “the reliance placed by the applicants on constitutional jurisprudence which dealt with children’s rights under section 28 of the Constitution or education rights … is opportunistic and misleading…” This is so because the Court opined that the application should instead have complied with the so-called principle of subsidiarity, according to which the dispute is resolved in terms of subordinate legislation giving effect to a right in the Bill of Rights, and not the Constitution. By implication, in the Court’s view, children’s environmental rights and interests cannot escape the application of the subsidiarity principle. Such a view ignores the paramountcy of the best interests principle in section 28(2) of the Constitution – a constitutional right and constitutional value in South African jurisprudence.
I argued, in another study, that South Africa has an opportunity to explicitly link children’s rights and interests, air pollution, and the right to a healthy environment using the deadly air case. The Court’s approach to children’s rights is a bitter loss to child rights experts, advocates, and practitioners, and importantly for children (and young people) themselves. A child-focused declaration would have acted as a launching pad for child-led action and for civil society organisations working on children’s rights in the context of climate, energy and environment.
While recognising that the Court’s decision ordering the government to prescribe regulations to implement and enforce its plan to improve air quality is a big win in the grand scheme towards emission reduction and just transition from coal, it is vital to highlight that children cannot remain in the blind spot of decision-making, responses and interventions. In carrying out the balancing exercise of competing interests, the government must demonstrate political commitment by mainstreaming a child rights-based approach to emission reduction, air quality and climate-related responses.
Despite the perceived loss, children’s rights researchers and child rights non-for-profit organisations are presented with numerous strategic and advocacy opportunities to upscale evidence-based policy interventions for children in the context of climate, energy and the environment.