We have entered the most pivotal decade in human history. The actions of our species over the next ten years with respect to the climate crisis will determine whether or not humanity has a long-term future on this planet. Within this context, there has never been a more urgent need for the law to adapt in accordance with global developments. Amidst devastating fires in Australia, which has in many respects become “ground-zero” for the climate crisis, as well as heightened tensions in the Middle East as a result of US foreign policy, the Dutch Supreme Court handed down a landmark judgment wherein it ruled that the government had an explicit duty to protect citizens’ fundamental human rights from climate change.

Similarly, South Africa in 2020 will expect to hear a case at the intersection of human rights and the fossil fuel industry, providing further evidence of the recent pattern of human rights-based litigation dealing with environmental and energy issues—the “Deadly Air” case.

BACKGROUND OF THE CASE

At the heart of the Deadly Air case is the fact that it has been over a decade since the South African government deemed the levels of air pollution in the Mpumalanga and Gauteng provinces as lethal. In this time, almost nothing has been done to address this issue. South Africa’s coal-fired and fuel plants continue to be linked to the deaths of thousands every year. Johannesburg, the provincial capital of Gauteng and South Africa’s economic powerhouse, has the fifth worst air quality of any city in the world. This is above other financial hubs with far denser populations and far larger economies, including London and New York. Johannesburg residents, on average, have a lifespan that is over three years shorter than their counterparts in Cape Town. It is egregious that the South African government has done little to combat this crisis. 

HOW THE DEADLY AIR CASE IS SIMILAR TO FOREIGN CLIMATE CASES

The founding affidavit does not explicitly mention climate change, but there can be little doubt that the global ecological crises is at the core of the Deadly Air case. The applicants in the matter, Groundwork and the Vukani Environmental Justice Movement in Action, are non-profits similar in function to Urgenda in the Netherlands in that they advocate for environmental justice and a green economy premised on renewable energy. They currently represent South Africans unable to breathe in the shadow of the coal-fired plants and refineries. The matter, mirroring the Exxon case in the US, involves the nation’s highest carbon emitters, specifically Eskom, South Africa’s coal-based public electricity utility, and Sasol, an energy company based in Sandton.

SOUTH AFRICA’S ENERGY CRISIS

The fact that Eskom is listed as a respondent in the case is all the more pertinent given South Africa’s current energy crisis. The nation’s electricity grid is teetering on the edge of disaster. Years of corruption, mismanagement and incompetence have left Eskom in a situation where power is frequently cut-off in a rotational schedule across various parts of the country in stages known as “load shedding” in order to stabilise the overworked grid. The obvious solution would be a gradual shift towards a renewable energy-based economy.

However, this course of action, often debated in South Africa, is caught up in contractual disputes and bureaucratic red-tape. It would seem the reasoned option is at odds with the current government’s policy of short- term economic gain for the South African political class.

If the Deadly Air case showcases human rights-based arguments that strike at the core of Eskom’s incompetence and greed, South Africa may very well be one giant step closer to a sustainable, profitable future. For now, the fossil fuel industry remains at the helm.

Human Rights Pulse core team member and Managing Editor, Vaughn is passionate about sustainability and human rights, his scholarship and writing focuses on international law, climate change and transitional justice.

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