SCA moved environmental rights forward, but left children's rights behind

Daily Maverick

27-05-2025

Children are disproportionately affected by environmental harms and they will be affected by the pollution caused today for decades after this generation of adults has died.
On 11 April 2025, the Supreme Court of Appeal (SCA) handed down judgment in what is known as the Deadly Air case, a court case brought by affected communities living in the Highveld Priority Area, the most polluted section of air in South Africa and a hotspot of air pollution globally.
The court declared the high levels of air pollution to be a violation of the right to an environment which is not harmful to health and wellbeing and ordered the Minister of Environmental Affairs to make regulations to implement special measures to improve air quality.
While the judgment is hailed as a victory for environmental rights, it is eerily silent on the rights of those most affected – children. This is despite overwhelming evidence and legal submissions before the court on their particular vulnerability to deadly air.
The Highveld Priority Area is an area covering 31,106km² of Gauteng and Mpumalanga. It was designated priority status in 2007 under the National Air Quality Act, because of the obscene levels of air pollution, which is caused by 12 of Eskom's 15 coal-fired power stations, Sasol's petrochemical refinery, metal smelters and hundreds of mines, contributing to the deaths of at least 3,000 children annually.
The affected communities, including their children, represented by local NGOs groundWork Trust and VEM, provided the court with evidence that in the 10 years since its declaration as a high priority area, there was no improvement in air quality in the Highveld Priority Area, and that up to 10,000 deaths (and myriad diseases) could be avoided annually if the levels of pollutants were brought within the prescribed limits.
The applicants showed that children are particularly vulnerable to air pollution due to, among other factors, their smaller lungs, developing brains and bodies, and increased amount of time spent outside.
Respiratory diseases are a leading cause of death in children under the age of five. According to Unicef, South Africa ranks 8th globally for the number of children dying annually from diseases caused by fossil fuel combustion, in this case, for coal-fired power.
The then minister did not dispute these facts but argued that she was not duty-bound to enact regulations to implement the necessary measures to reduce air pollution. This was the question the court had to answer: does the minister have a duty to enact regulations necessary to give effect to the plans for reduction in air pollution?
The Centre for Child Law was admitted to the proceedings in the SCA as amicus curiae (a friend of the court) to provide the court with considerations regarding the interests of affected children.
The Centre argued that the minister's duty to enact regulations stems from her special duty to children, which includes the constitutional duty to consider the best interests of the child as paramount in any matter concerning children (section 28(2)), and to promote and protect children's rights to dignity, health and a safe environment, under constitutional and international law.
The high court had already confirmed that children's rights are necessarily violated by the violation of the right to an environment which is not harmful to health and wellbeing, but did not elaborate further.
Disappointingly, and rather confusingly, the high court's judgment calls the communities' child rights arguments 'opportunistic' when they are clearly implicated, even in the view of the court.
In the SCA, the centre implored the court to confirm that children's rights were crucial to the case, and to the cases children will bring in the future. The SCA, in an even more disappointing outcome for children, does not engage whatsoever with the rights of children in its April 2025 judgment.
Why children?
The Deadly Air case presented an opportunity for the court to set a precedent that children's rights must be core to the inquiry regarding the duties of government, and the interpretation of rights in the context of environmental justice.
Children cannot vote and have few opportunities to have their voices heard on important matters affecting their lives. Many have turned to the courts globally to exercise their right to be heard and to access justice.
In December 2024, the youth-led African Climate Alliance won their case against the Minister of Mineral Resources, in which the court reversed the minister's decision to procure additional coal-fired power based solely on the fact that the impact on children's rights was not considered.
This judgment is just the start of what children will need to ensure that their present and future are safe from harm. The SCA had the opportunity to grapple with the content and scope of the rights of the child, paving the way for their future protection, but failed to do so.
Children are to be singled out for good reason. They are disproportionately affected by environmental harms, and they will be affected by the pollution caused today for decades after this generation of adults has died. It is a matter of equality that they are given due regard.
Coupled with their limited opportunity for democratic participation, and the vulnerabilities inherent in their position in society, the courts have a duty to develop the law in consideration of their rights.
The global climate justice movement is being led by children – think Ayakha Melithafa and Greta Thunberg, who are just two of millions of children globally advocating for a liveable climate.
In addition to their massive protests, more than 50 court cases have been launched by children all over the world challenging governments and private actors to reduce emissions that cause climate change and environmental harms. They often represent the interests of other children and future generations in their work. They are claiming their rights, where adults are failing, and the courts must be their ally.
Positive takeaways from the Deadly Air Judgment
The SCA makes three important findings which advance environmental and climate rights: 1) a 'state of affairs' can be a violation of rights, if coupled with government inaction; 2) a purposive, rights-informed interpretation of relevant legislation finds that the minister bears a duty to the public to implement plans to reduce harm; and 3) that the right to an environment which is not harmful to health is immediately realisable, and not subject to availability of resources.
This significant development in environmental rights law should have reflected the intersections with child rights and defined the scope and meaning in the interest of all children.
Conclusion
The African Committee of Experts on the Rights and Welfare of the Child is calling the climate crisis an African child rights crisis because of the clear evidence that African children are already suffering more than any other demographic in the world because of environmental damage.
Africa's negligible contribution to greenhouse gas (GHG) emissions is made up almost entirely by South Africa's coal industry. South Africa has a duty to local children, as well as children in the wider sub-Saharan region.
Children are counting on the courts to enforce this important duty. DM
Liesl Muller is a senior attorney at the Centre for Child Law. She is appointed as external expert on climate change and children's rights to the South African Human Rights Commission and the African Committee of Experts on the Rights and Welfare of the Child.