About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2014
>>
[2014] ZASCA 184
|
|
Company Secretary of Arcelormittal South Africa and Another v Vaal Environmental Justice Alliance (69/2014) [2014] ZASCA 184; 2015 (1) SA 515 (SCA); [2015] 1 All SA 261 (SCA) (26 November 2014)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE NO: 69/2014
Reportable
In
the matter between:
COMPANY
SECRETARY OF ARCELORMITTAL
SOUTH
AFRICA
.............................................................................................................
First
Appellant
ARCELORMITTAL
SOUTH AFRICA
LTD
............................................................
Second
Appellant
and
VAAL
ENVIRONMENTAL JUSTICE
ALLIANCE
..........................................................
Respondent
Neutral
Citation:
Company Secretary of
Arcelormittal South Africa v Vaal Environmental Justice Alliance
(69/2014)
[2014] ZASCA 184(26 November
2014).
Coram:
Navsa ADP, Majiedt & Saldulker JJA
and Mathopo & Mocumie AJJA
Heard:
6 November 2014
Delivered:
26 November 2014
Summary:
Request for environmental related information held by industrial
corporation – requirements of ss 50(1) and 53 of
the Promotion
of Access to Information Act 2 of 2000 (PAIA) – importance of
activities of corporation impacting on environment
–
distinction between obligations of private persons and the State in
terms of PAIA discussed– culture of openness
and ecological
sensitivity emphasised – significance of the involvement of the
public in environmental issues – protection
and preservation of
the environment for present and future generations.
ORDER
On
appeal from
: The Gauteng Local
Division, Johannesburg (Carstensen AJ sitting as court of first
instance).
The
following order is made:
The
appeal is dismissed with costs including the costs attendant upon the
employment
of
two counsel.
JUDGMENT
Navsa
ADP (Majiedt & Saldulker JJA and Mathopo & Mocumie AJJA
concurring):
[1]
This case is adjudicated against the following backdrop. First, the
world, for obvious reasons, is becoming increasingly ecologically
sensitive. Second, citizens in democracies around the world are
growing alert to the dangers of a culture of secrecy and
unresponsiveness,
both in respect of governments and in relation to
corporations. In South Africa, because of our past, the latter aspect
has increased
significance. The legislature has rightly seen fit to
cater for both aspects in legislation, driven by Constitutional
imperatives,
some of which will be discussed in due course.
[2]
The present litigation stems from a refusal by the second appellant,
ArcelorMittal South Africa Limited (AM), one of our country’s
major industrial corporations producing 90 per cent of South Africa’s
steel products, of two requests by the respondent,
the Vaal
Environmental Justice Alliance (VEJA), a non-profit voluntary
association (characterising themselves as advocates for
environmental
justice), for information relating to AM’s past and present
activities, including the latter’s documented
historical
operational and strategic approach to the protection of the
environment in the Vanderbijlpark and Vereeniging areas,
in each of
which they operate a major steel plant.
[3]
The present litigation represents, in juxtaposition, two competing
interests, namely industrial activity and its concomitant
significance for the country’s development and economy, as
against concerns about the preservation of the environment for
the
benefit of present and future generations. In
Fuel
Retailers Association of Southern Africa v Director-General:
Environmental Management Department of Agriculture, Conservation
and
Environment, Mpumalanga Province & others
2007
(6) SA 4
(CC) para 1, the Constitutional Court spoke about ‘the
interaction between social and economic development and the
protection
of the environment’. This tension was brought
sharply into focus at the commencement of submissions on behalf of AM
in reply,
during the hearing before us, when we were urged not to
incline against the corporation simply because it obviously emits
gasses
into the atmosphere and disgorges waste products whilst being
a boon to the country’s economic development. In the present
case there is, in addition, the complicating feature of the asserted
entitlement to information held in private hands.
[4]
The entanglement of the competing concerns referred to in the
preceding paragraph has been recognised by the Constitutional
Court.
In
Fuel Retailers
para 44, the court noted that whilst s 24 of
the Constitution entrenched the right to an environment not harmful
to health or wellbeing,
upon which VEJA relies, it also explicitly
recognised the obligation to promote economic and social development.
The Constitutional
Court stated the following (para 45):
‘
The
Constitution recognises the interrelationship between the environment
and development; indeed it recognises the need for the
protection of
the environment while at the same time it recognises the need for
social and economic development. It contemplates
the integration of
environmental protection and socio-economic development. It envisages
that environmental considerations will
be balanced with
socio-economic considerations through the ideal of sustainable
development. This is apparent from s 24
(b)
(iii)
which provides that the environment will be protected by securing
“ecologically sustainable development and use of natural
resources while promoting justifiable economic and social
development”. Sustainable development and sustainable use and
exploitation of natural resources are at the core of the protection
of the environment.’
[1]
[5]
The background to the litigation, including the details of the
corporation’s stance and the applicable legislation, is
set out
in the ensuing paragraphs.
[6]
It is apposite to outline, right at the beginning, the applicable
provisions of the Promotion of Access to Information Act 2
of 2000
(PAIA), which regulate requests for information from private persons.
This will enable an early appreciation of the statutory
basis for
VEJA’s request, provide the backdrop to an evaluation of the
facts and make it easier to follow the chronology
of events and the
contentions of the parties. Section 50(1) of PAIA sets out the
obligation to provide access to information, subject
to certain
jurisdictional requirements:
‘
(1)
A requester must be given access to any record of a private body if –
(
a
) that
record is required for the exercise or protection of any rights;
(
b
) that
person complies with the procedural requirements in this Act relating
to a request for access to that record; and
(
c
)
access to that record is not refused in terms of any ground for
refusal contemplated in Chapter 4 of this Part.’
[7]
The relevant parts of section 53 of PAIA, which must be read with s
50(1)(
a
), provide as follows:
‘
(1)
A request for access to a record of a private body must be made in
the prescribed form to the private body concerned at its
address, fax
number or electronic mail address.
(2) The form for a
request for access prescribed for the purposes of subsection (1) must
at least require the requester concerned
–
. . .
(
d
)
to identify the right the requester is seeking to exercise or protect
and provide an explanation of why the requested record is
required
for the exercise or protection of that right; . . . .’
[8]
On 15 December 2011 VEJA’s attorneys wrote to AM (the first
request) seeking a copy of its Environmental Master Plan (the
Master
Plan) which they asserted the corporation had developed for the
rehabilitation of its Vanderbijlpark site, together with
any progress
reports relating to its implementation. In the prescribed
private-body request ‘Form C’, VEJA, after setting
out
its credentials as an advocate for environmental justice, provided
the basis for its request, purportedly in terms of s 53(2)(
d
)
of PAIA, stating:
‘
The
requested documents are necessary for the protection of the section
24 constitutional rights and are requested in the public
interest.
VEJA requires the requested documents to ensure that ArcelorMittal
South Africa Limited carries out its obligations under
the relevant
governing legislation, including the
National Environmental
Management Act 107 of 1998
, the
National Environmental Management:
Waste Act 59 of 2008
, and the
National Water Act 36 of 1998
.
VEJA
seeks to ensure that the operations of ArcelorMittal South Africa
Limited are conducted in accordance with the law, that pollution
is
prevented, and that remediation of pollution is properly planned for,
and correctly and timeously implemented
.’
(My emphasis.)
[9]
On 13 February 2012 VEJA’s attorneys wrote to AM (the second
request), requiring specified information. A completed ‘Form
C’
sought the following:
‘
As
referred to on page 46 of the National Environmental Compliance &
Enforcement Report 2010-11, in relation to the premises
of
ArcelorMittal South Africa Limited (“ArcelorMittal”) in
Vereeniging:
1.
the reports compiled by the Department of
Environmental Affairs (“DEA”) and/or the Gauteng
Department of Agriculture
& Rural Development (“GDARD”)
in relation to compliance inspections conducted by DEA and/or GDARD
on May 2007 and
July 2010 for the Vaal dump site;
2.
any representations made by ArcelorMittal
in response to the inspection reports referred to in 1 above;
3.
any test results, summaries, reports and
associated documents relied upon by DEA and/or GDARD in the collation
of the inspection
reports referred to in 1 above, including
registration certificates, waste permits etc;
4.
copies of all enforcement notices and
pre-notices issued by DEA and GDARD in relation to the Vaal dump
site;
5.
all closure reports and rehabilitation
plans submitted by ArcelorMittal in relation to the Vaal dump site;
6.
all approvals of rehabilitation plans in
relation to the Vaal dump site;
7.
all certificates relating to the disposal
of magnetite removed from the Vaal dump site;
8.
all progress reports in relation to the
Vaal dump site; and
9.
all waste management licences or
applications for waste management licences relating to the closure
and rehabilitation of the Vaal
dump site; and
10.
all correspondence between ArcelorMittal,
DEA, and GDARD relating to the closure and rehabilitation of the Vaal
dump site.’
The
information requested relates to the closure and rehabilitation of
AM’s Vereeniging site where hazardous materials were
once
dumped. It is also described as the Vaal Disposal site.
[10]
In respect of the second request, Form C, providing the basis for the
information sought, is framed in identical terms to the
first request
as described in para 8 above.
[11]
Almost a month after the first request, on 13 January 2012, AM’s
attorneys, writing in reply to the first request, blamed
the delay in
responding on the festive season. They relied on the provisions of
s
57(1)(
c
)
of PAIA in support of the statement in the letter that AM, in order
to respond meaningfully, required time to conduct internal
consultations.
[2]
[12]
On 13 February 2012 AM’s attorneys wrote to VEJA’s
attorneys requiring proof of their mandate to act on behalf
of VEJA
and sought a copy of VEJA’s constitution. Furthermore, they
asked for greater clarity and a more precise description
of the
documents sought. AM’s attorneys also asked of VEJA’s
attorneys how the ‘alleged existence’ of the
requested
documentation came to VEJA’s knowledge and required an
explanation for the basis on which VEJA believed it would
be entitled
to ‘usurp the role of the relevant regulating authorities in
ensuring our client’s statutory compliance’.
AM’s
attorneys did, however, offer copies of ‘all the relevant
environmentally-related consents, permits, authorizations
and the
like in an endeavour to assist VEJA in fulfilling the Purpose’.
[3]
[13]
On 27 February 2012 VEJA’s attorneys wrote to AM’s
attorneys stating that they had difficulty in understanding
how AM
could be unaware of the existence of its own Master Plan, since in
prior litigation it had relied on that plan and had subsequently
repeatedly referred to it in annual and other reports. VEJA’s
attorneys also pointed out that government departments did
not have
adequate resources to monitor compliance at all production facilities
in the country and that the public, including VEJA,
can play an
active role in that regard.
[14]
On 13 March 2012 AM’s attorneys wrote to VEJA’s attorneys
concerning their request for information. The following
is the
relevant part of that letter:
‘
We
have provided a copy of your response to our client whom has
confirmed that it is consulting internally in order to collate
information in respect thereto and will soon thereafter consult with
us in order to prepare an appropriate reply.’
[15]
On 17 April 2012 AM’s attorneys wrote to VEJA’s attorneys
stating that they were consulting with counsel in order
to determine
whether their inclination, based on their interpretation of
s
50(1)(
a
) of PAIA, to reject the requests was justified. On 18
April 2012 AM’s attorneys once again wrote to VEJA’s
attorneys.
The relevant part of that letter reads as follows:
‘
1.
We refer to . . . your client’s request for information
relating to an “Environmental Master Plan” and the
Vaal
Disposal Site (“Requests”) addressed to our client,
ArcelorMittal South Africa Limited.
2. You have not set
out in your Requests, a right which you are entitled to protect or
exercise as required in terms of
section 50(1)(a)
of the
Promotion of
Access to Information Act, 2 of 2000
. Accordingly, you do not set out
grounds which demonstrate that you are entitled to the records
requested.
3.
In the circumstances, the Requests you have made are refused.’
[16]
That refusal led to the application by VEJA in the high court for an
order declaring the refusal invalid and directing that
the
information sought be supplied. It is now necessary to have regard to
what is contained in the affidavits in support of and
resisting the
application.
[17]
First, it is necessary to have regard to VEJA’s description, in
its founding affidavit, of the Master Plan:
‘
The
Master Plan is a comprehensive strategy document, developed by
Iscor
[4]
from 2000 to 2002 (and
apparently since updated or amended), which details the results of
numerous specialist environmental tests
for pollution levels at the
Iscor/ArcelorMittal plants, and sets out the second respondent’s
plans to alleviate pollution
and rehabilitate its work sites
over
a 20-year period
.
The initial estimated cost of implementing the Master Plan was
approximately R1,3 billion.’
[18]
VEJA went further and referred to an AM executive report in 2003, in
which what is set out hereafter was indicated. For a fuller
picture,
it is necessary to set out those allegations in the detail in which
they were presented by VEJA:
‘
15. The 2003
Executive Report on the Master Plan indicates that:
15.1 A core team of
eight specialists was appointed to develop the Master Plan for the
Vanderbijlpark Steelworks plant, to address
inter alia
:
Documentation
of the environmental status quo;
Identification
and quantification of all environmental impacts and risks;
Development
of options for the improvement of the risk profile;
Collation
of an integrated plan of action;
An
integrated Environmental Monitoring System.
15.2The study area
included “
the total Works area of the IVS [Iscor
Vanderbijlpark Steelworks] plant”
– that is,
The
main Works area (South and North)
The
residue management facilities (solids, sludges and liquids);
Potentially
impacted areas outside the Work’s perimeter.
15.3The methodology
was informed by “
a holistic integrated management
philosophy, which concentrated on technologies and measures to bring
about pollution prevention”.
The following environmental
disciplines were covered in the study:
Residue
characterisation (solids, sediments and leachates);
Soil
profiles;
Geology
and groundwater;
Surface
water
Process
effluents
Air
quality
Terrestrial
and aquatic eco-systems
Noise
Geotechnical
properties and land-use.
15.4A Consultation
Committee was established, which included representatives from the
Department of Water Affairs and Forestry (DWAF),
the Department of
Environmental Affairs and Tourism (DEAT) and the Gauteng Department
of Agriculture, Conservation, Environment
and Land-Affairs –
ostensibly “
to ensure that the study did not proceed in
isolation”.
15.5Baseline studies
were conducted to measure pollution levels at and around the
Vanderbijlpark plant. According to the Executive
Report,
“
The
baseline studies primarily focused on the IVS plant area, with
particular emphasis on the areas where solid, liquid or gaseous
residue originate or is impounded. The secondary emphasis was on the
plant site to determine potential contamination transgression
beyond
the plant operational area. In addition, certain areas surrounding
the plant were studied, particularly along the watercourses
emanating
from the site, where potential impacts on the eco-system could best
be identified.
The larger study
area included the Leeuwspruit and the Rietkuilspruit/Rietspruit up to
their confluences with the Vaal River . .
.”
15.6In general
terms, the risks identified in the baseline studies included the
following:
15.6.1 “
[T]he
degree of the groundwater contamination is such that it poses an
unacceptable risk to the environment within the IVS [Iscor
Vanderbijlpark Steelworks] perimeter (if available for consumption).
The risk in this regard is a result of inorganic, and to a
much
lesser extent, organic contamination. The potentially unacceptable
risk to the environment extends across the IVS perimeter
into the
receiving environment . . .”
15.6.2 “
Sediments
of all evaporation dams and the maturation ponds indicate
unacceptable potential risk for groundwater contamination, both
with
regard to inorganic and organic contaminants.”
15.6.3 Surface water
risk determinations for the Rietspruit Canal and the Frikkie Meyer
Weir (which receive surface water run-off
from the IVS plant)
indicated that there is “
a potentially unacceptable risk to
the environment”;
15.6.4 Soil samples
within the plan perimeter “
displayed the potential for
unacceptable inorganic contamination risk to the environment”;
15.6.5 “
Waste
currently generated by IVS is classified as hazardous according to
the Minimum Requirement with resultant potential risk [to]
the
environment. These risks (due to mobile contaminants and associated
volumes) will have to be mitigated by inter alia treatment
to reach
[a general quality], which would reduce potential risk”;
15.6.6 With regard
to air quality, concentrations of sulphur dioxide and fine
particulates were found to be “
within the current South
African standards and/or guidelines, but with little margin for
safety”.
In the south-western part of the consolidated
plant area, the hydrogen sulphide concentrations were found to
“
exceed”
safely limits at times, while “
heavy
deposition rates”
of dust were recorded.
15.6.7 The
terrestrial ecology of the greater study area showed “
disturbed
conditions”
due to a wide range of activities, including
industrial activities. All the streams surveyed (Leeuwspruit up to
Vaal River, Rietkuilspruit
up to Rietspruit and Rietspruit up to Vaal
River) were likewise impacted. The impacts identified include “
water
abstraction; flow modification; bed modification; channel
modification; inundation; indigenous vegetation removal; solid waste
disposal; bank erosion; water quality impairment; and exotic
vegetation encroachment.”
15.7Six priority
areas were identified in the Master Plan:
15.7.1 Achieving
Zero Effluent Discharge, being a statutory requirement entrenched in
the water licence to be implemented by 2005.
This required installing
new technology for the total reuse of the plant’s effluent
(including the discharge of process waters,
contaminated surface
water, leachates and seepage).
15.7.2 Upgrading the
Coke Oven and its gas cleaning system to achieve a Zero Effluent
Discharge by 2005;
15.7.3 Upgrading the
Sinter Plant off gas system, to prevent unwanted atmospheric releases
by 2007.
15.7.4 Addressing
the current impacts and unacceptable risks to the environment outside
the Vanderbijlpark Steelworks perimeter;
15.7.5 Closing the
disposal site, and developing of a new waste disposal site;
15.7.6 Clearing the
harmful sediments in Dam 10, which was used in the past to collect
sludges and waters from the Vanderbijlpark
Steelworks plant.’
[19]
VEJA pointed out that in subsequent years, namely 2002, 2004 and as
recently as 2010, the Master Plan was referred to in AM’s
annual reports as the driver behind the corporation’s
environmental strategy. However, the 2010 annual report did state
that the original Master Plan had been amended or updated. That
annual report explained that this was done because of more stringent
environmental controls due to significant changes in the statutory
regulatory environment. The annual report went on to record
that
because of this consideration, AM decided not to release the original
Master Plan.
[20]
In para 17 of VEJA’s founding affidavit, the principal deponent
on its behalf stated the following:
‘
The Master
Plan has been a crucial framing document in the second respondent’s
approach to tackling the pollution in and around
its Vanderbijlpark
plant, and it has been discussed by the second respondent in public
fora. For instance, in the latter half of
2003, I attended a
Licensing Forum constituted to negotiate Iscor’s new water use
license based on the Master Plan. The forum
included Iscor, the
Department of Water Affairs (DWA) and community representatives.
During discussions at this forum, both the
second respondent and the
DWA made extensive reference to the Master Plan and its findings.
Among other things, [AM] committed
to a zero effluent discharge
plant, in accordance with its Master Plan, as a condition of the
water use licence.’
[21]
AM responded to VEJA’s assertions concerning the Master Plan.
It began by stating the following:
‘
32.
. . . The . . . Annual Report [2010] . . . states that the plan is
“
out-dated and irrelevant”.
This statement is correct. For this reason the report cannot assist
the applicant in the exercise of its claimed right to monitor
AMSA’s
compliance with environmental legislation. I elaborate on the status
of the Master Plan below:
32.1. The Master
Plan was compiled as a result of and for the purposes of litigation
in which AMSA was involved in 1998-1999 and
2002-2003. It was
intended to advise the legal strategy in the litigation.
32.2. The document
was based on numerous studies undertaken by external consultants
between 2000 and 2002. These studies covered
a wide range of
environmental issues including air quality, ground, surface and
process water quality, solid waste, geology and
geotechnical issues,
noise risk, visual impacts, archaeological impacts, ecological
impacts (including aquatic, terrestrial and
ecosystem impacts), land
use impacts and socio-economic impacts.
32.3. The Master
Plan was finally completed in 2003 and comprises a consolidation of
the aforesaid studies. The Master Plan was
submitted as a draft with
the intention of it being peer reviewed before producing a final
version. This was in fact never done
and the Master Plan remained in
draft form.
32.4. Accordingly,
the report was never finally adopted by AMSA [AM] to principally
guide its environmental management for the following
reasons:
32.4.1.
Firstly, upon re-evaluation of the Master Plan for the purposes of
obtaining various licences and permits in subsequent
years, the
findings contained in the various studies which form the basis of the
report were found to be scientifically and technically
flawed.’
[22]
AM went on to allege that subsequent to the completion of the Master
Plan in 2003, it implemented numerous environmental management
measures which required new licences or permits or amendments to
existing licences or permits. During this process it found that
the
information contained in the Master Plan was out-dated and could no
longer be relied on to support new licence applications.
Consequently, new studies were commissioned which replaced the
studies comprising the Master Plan and a new dynamic environmental
management process was embarked upon to accord with stricter
environmental legislation binding on AM at that time and this process
then served to substitute the out-dated Master Plan.
[23]
AM explained what it regarded as the scientific and technical flaws
in its own Master Plan. It stated that one of the main
reasons was
that inappropriate standards were used to assess environmental
quality in and around the Vanderbijlpark Works. Those
standards, it
was explained, were derived using various national and international
standards and were selected by choosing the
worst-case scenarios and
the most stringent tests. The selection of the worst case scenario as
the
standard to determine whether a particular impact posed an acceptable
or unacceptable risk resulted in impacts frequently being
identified
as unacceptable in terms of human health or the environment, when, in
fact, the impacts were well within the limits
imposed in terms of
South African law.
[24]
AM provided, as an example of the flawed nature of the Master Plan, a
groundwater study that identified the chloride concentration
in the
groundwater in and around the Vanderbijlpark site as being harmful to
human health because it exceeded the worst-case scenario
threshold
set in the study. However, in terms of the South African drinking
water quality standard, the concentration of chloride
in the
groundwater identified in the report is regarded as posing no risk to
human health.
[25]
AM provided, as a further example of conclusions contained in the
Master Plan that were scientifically unfounded, a groundwater
assessment which identified more human health impacts than any other
specialist study that was made, using one grab sample instead
of
using more data to increase the reliability and accuracy of the
assessment. As a result, risks such as those posed by elements
like
manganese and iron were identified as posing unacceptable human
health risks. According to AM, from the wealth of data presently
available it is now known that the concentration and location of
these elements do not necessarily pose a risk to human health.
[26]
In respect of surface water, AM acknowledged that the Master Plan
identified effluent discharged into the Rietspruit canal
and the
Leeuspruit as the main risk to surface water, which was said to have
an unacceptable impact on human health. Since the
compilation of the
report, however, so AM stated, the Vanderbijlpark Works became a zero
effluent discharge facility and the impacts
identified and assessed
in the Master Plan therefore do not accurately reflect the current
position.
[27]
In respect of the Master Plan’s geological report, it was
contended that although it accurately described the geology
underlying AM’s Vanderbijlpark Works and its surrounds, many of
the conclusions reached in the report were speculative. In
this
regard it referred to the solid waste study that identified the waste
streams emanating from the slag produced at the site
as being
extremely hazardous. The study accordingly recommended the re-use of
the slag as opposed to its disposal. This conclusion
was based on the
assumption that manganese (the main element of concern) would leach
from the slag into the environment. In reaching
this conclusion, the
consultant did not take cognisance of the fact that the pH level of
the disposal site is high and that at
a high pH level, manganese is
not mobile and would therefore not leach out of the slag and into the
environment.
[28]
In respect of the Master Plan’s air quality study, the
conclusion was reached that air quality is not a major concern
at the
site. The study concluded that fine dust (PM10), sulphur dioxide
and other gasses were within
acceptable standards in the areas surrounding the plant. AM adopted
the attitude that VEJA was correct
when it pointed out that
deteriorating air quality is a significant issue in the Vaal
Triangle, and emphasised that it is presently
AM’s top
environmental priority. There was accordingly no scientific basis for
the conclusion contained in the report that
air quality is not a
major concern at the site. According to AM, the Master Plan, because
it was completed in 2003, does not take
cognisance of various
projects undertaken by AM since then that ‘significantly
altered and mitigated the impacts identified
by the various
consultants who contributed to [its] compilation’.
[29]
Towards the end of para 32 of its answering affidavit, AM referred to
a number of studies and reports commissioned by it from
2006 onwards
to provide information on and mitigate it’s operational impact
on the environment. AM is insistent that priority
areas identified in
the Master Plan are not present priorities. So, for example, it
asserted emphatically that it has achieved
a zero effluent discharge
at its Vanderbijlpark Works which contention, it suggests, is
substantiated by a water use licence granted
in respect of the works.
AM concludes that since the information contained in the Master Plan
is out-dated and inaccurate, and
thus no longer informs the
corporation’s current environmental practices, there can be no
connection between the right VEJA
seeks to protect and the Master
Plan.
[30]
VEJA, in its reply, was adamant that AM’s stated basis for
refusing the Master Plan, namely that it was out-dated, is
entirely
without merit. It contended that the Master Plan would provide what
it calls a ‘valuable baseline of data’
in respect of the
pollution levels at the Vanderbijlpark site, derived from at least
two years of numerous specialist environmental
tests and
investigations conducted by AM. VEJA goes on to state the following:
‘
Both
the focus and findings of the more recent studies allegedly conducted
by AMSA, and the subsequent rehabilitation measures it
has taken, can
only properly be assessed in the light of a baseline of scientific
data. Given the manifest scope of the Master
Plan, and the scientific
investigations that informed it, it remains a vital source of data
against which the applicants can make
such assessments. Thus, even if
it is accepted that the Master Plan is “outdated” (which
is not accepted given that
the applicants has not had sight of the
Master Plan), it does not follow that it is “irrelevant”.’
[31]
In respect of AM’s statements that some of the information in
the Master Plan contained scientific and technical flaws,
VEJA
pointed out that the explanations provided, as set out above, lead to
the ineluctable conclusion that it is not the data that
was flawed
but rather that the evaluation of and the conclusions drawn from the
data were scientifically unfounded.
[32]
VEJA contended that there is not a shred of evidence that AM ever
gave any indication to its own shareholders that the Master
Plan was
inaccurate. On the contrary, as noted above, everything points to the
Master Plan having being fundamental to and having
driven AM’s
environmental strategy. VEJA is adamant that it is self-evident that
the Master Plan was relied on by AM when
it obtained authorisations
and licences to conduct its activities.
[33]
I now turn to VEJA’s assertions in its founding affidavit as to
the importance of the information requested in relation
to the Vaal
Disposal site. In this regard VEJA relied on a report by the
Department of Environmental Affairs (DEA) which, it alleged,
demonstrated compliance and enforcement action taken by the
authorities against AM. It appears from what is stated by VEJA that
the report flowed from an inspection of the disposal site by
authorities during May 2007, when the following findings were made:
‘
49.1.1
“Continued dumping of hazardous waste on an unpermitted site,
despite repeated instructions from the authorities to
cease such
activity.”
49.1.2 “Particulate
emissions to air that cause, have caused or may cause significant and
serious pollution of the environment”;
49.1.3 “Significant
and serious pollution of surface and groundwater with phenols, iron,
oil, fluoride and other hazardous
substances”; and
49.1.4
“Failure to lodge audit reports”.’
[34]
The departmental report noted that there had been ‘pre-notices’
and ‘compliance notices’ issued to
AM by regulatory
authorities instructing it to cease dumping hazardous waste on that
site. On 27 July 2010 an inspection of that
site revealed that AM had
stopped all activities at the site and in March 2010 had re-submitted
a rehabilitation plan for approval.
The Gauteng Department of
Agriculture and Rural Development (GDARD) found that 99 per cent of
the element magnetite was removed
from the site and disposed of, and
that monthly progress reports in regard to the removal of magnetite
had been submitted. The
status of the enforcement process is
described in the GDARD report as follows:
‘
Dumping
at the site ceased and GDARD approved the revised rehabilitation
plan. ArcelorMittal Vereeniging has been informed that
it must apply
to DEA for a waste management license to close and rehabilitate the
site.’
[35]
In its answering affidavit, AM did not dispute what VEJA stated about
the Vaal Disposal site, as set out in para 33 above.
However, AM
stated that VEJA has been selective in quoting from the GDARD report.
In that regard, AM referred to the inspectorate’s
conclusion
that it ‘currently believes that ArcelorMittal has made every
effort to comply with authorities’ requirements’.
The
last two sub-paragraphs of AM’s clarification, in its answering
affidavit, of the status of the disposal site are set
out hereafter:
‘
69.4.
In 2004 the Gauteng Department of Agriculture and Rural Development
(“GDARD”) granted AMSA authorisation to close
and
rehabilitate the site. In 2007 the national Department of Environment
Affairs issued a directive to AMSA requiring it to cease
all disposal
activities at the site. AMSA complied with this directive. Pursuant
thereto an amended rehabilitation and closure
plan was submitted to
the GDARD in January 2008 for which approval was granted by the GDARD
in 2011. This amended rehabilitation
plan is yet to be approved by
the National Department of Environmental Affairs.
69.5.
At this stage 99% of the magnetite disposed of at the site has been
removed and the site is in the final stages of closure.’
[36]
In the replying affidavit the principal deponent on behalf of VEJA
denied that he had been selective in quoting from the GDARD
report in
relation to the Vaal Disposal site. He had, he said, acknowledged
that the enforcement activity by GDARD yielded positive
results and
that AM was complying with the regulator’s directives. VEJA is
adamant that information pertaining to levels
of pollution and its
impact on the environment are not publicly accessible. In essence,
VEJA adopted the position that the information
it seeks in relation
to that site is required for it to establish that it poses no risk to
the environment.
[37]
It is necessary to record that VEJA’s efforts to obtain the
requested documentation from regulatory authorities proved
unsuccessful.
[38]
That then is the factual matrix against which the matter fell to be
decided in the high court. Before us, the submission on
behalf of AM,
which can safely be assumed to have been a repeat of the argument in
the high court and is also reflected in the
answering affidavit, was
to the effect that the threshold requirement was not met by VEJA by
merely declaring, in general terms,
that the requested information is
relevant to its performance as an advocate for environmental justice
and that in this regard
it relied on its
s 24
constitutional rights.
Nor, it was contended, does it assist VEJA to state that it seeks to
monitor and ensure compliance by AM
of its obligations in relation to
the prevailing statutory regulatory regime, which is not the object
of PAIA. In short, in relation
to the latter submission, AM adopted
the attitude that VEJA, in seeking the information, was setting
itself up as a parallel regulating
authority in relation to the
environment, which the legislation does not sanction.
[39]
The high court dealt with each of those submissions in turn. First,
Carstensen AJ considered the use of the word ‘required’
as it appears in
s 50(1)(
a
) of PAIA:
‘
A
requester must be given access to any record of a private body if-
(
a
) that
record is
required
for the exercise or protection of any
rights.’ (My emphasis.)
He went on to say
the following:
‘
I
am of the view that the use of the word “required” rather
than, for example, the use of the word “necessary”,
in
Section 50(1)(
a
)
creates a far lower “threshold” than that contended for
by AMSA.’
In
support of that conclusion he had regard to decisions of this court,
namely
ClutchCo (Pty) Ltd v Davis
2005 (3) SA 486
(SCA) and
Unitas
Hospital v Van Wyk & another
[2006] ZASCA 34
;
2006
(4) SA 436
(SCA).
[40]
The high court took the view that in order for it to answer the
question whether the threshold requirement of
s 50(1)(
a
) had
been met by VEJA, it had to have regard to the primary basis supplied
by VEJA in Form C, namely the asserted right in terms
of s 24 of the
Constitution, which provides:
’
24.
Everyone has the right –
(
a
) to an
environment that is not harmful to their health or well-being; . . .
.’
[41]
Carstensen AJ said the following:
‘
12.
I am convinced that the Applicant, being an association of persons
each of whom have the right in terms of Section 24(a), can
band
together to enforce their rights and agree with the Applicant’s
contentions in this regard.
13. Even if I have
extended the meaning of Section 24(a), I have no doubt that Section
24(b) is applicable and assists the Applicant,
following the
sentiments expressed by the Supreme Court of Appeal that there must
be a change in ideology to the extent that “
together with
the change in the ideological climate must also come a change in the
legal and administrative approach to environmental
concerns”
.
Director: Mineral Development, Gauteng Region and Another v Save
the Vaal Environment and Others
,
1999 (2) SA 209
(SCA) at para.
20.’
Section 24(
b
)
reads as follows:
‘
24.
Everyone has the right -
(
b
) to have
the environment protected, for the benefit of present and future
generations, through reasonable legislative and other
measures that –
(i) prevent
pollution and ecological degradation;
(ii) promote
conservation; and
(iii) secure
ecologically sustainable development and use of natural resources
while promoting justifiable economic and social development.’
[42]
The high court stated that a refusal of VEJA’s application
would hamper the organisation in championing the preservation
and
protection of the environment. With reference to the decision of the
Constitutional Court in
Biowatch Trust v
Registrar, Genetic Resources & others
2009 (6) SA 232
(CC), it concluded that it has clearly been
established that the participation of public interest groups is vital
for the protection
of the environment.
[43]
Carstensen AJ, having reached the conclusions set out above, went on
to reject AM’s contention that VEJA was usurping
the state’s
role in order to directly enforce regulatory provisions of
environmental legislation.
[44]
The high court had regard to the further submissions on behalf of AM
that the Master Plan was out-dated, could not be relied
upon and was
consequently irrelevant. It agreed with VEJA that the Master Plan
provided a baseline and was a result of years of
environmental tests
and investigations which, on AM’s version, led to further tests
and investigations. Carstensen AJ said
the following:
‘
For
any assessment of the operations it would be essential for persons
whose rights may have been infringed to review the baseline
and
assess those against the information and studies conducted at the
time, the rehabilitation and measures adopted and current
studies and
investigations. It cannot, therefore, be labelled as irrelevant.’
[45]
In assessing the Master Plan’s significance and relevance, the
high court considered, in VEJA’s favour, that it
had been
published and communicated to AM’s shareholders and repeatedly
mentioned in its annual reports, where it was referred
to as a
primary strategic tool. In addition, the reports had been submitted
to state authorities. Carstensen AJ concluded that
it would be naïve
for the court to find that this plan need not be at least considered,
assessed and critically analysed by
entities such as VEJA.
[46]
In respect of the information sought by VEJA in relation to the Vaal
Disposal site, the high court noted that the relevance
of the
information was not disputed by AM but rather that the corporation’s
resistance to producing the information sought
was based on its
assertion that VEJA had not met the threshold requirement of s
50(1)(
a
).
[47]
Having made the findings referred to above, the high court found
itself unable to accede to AM’s suggested approach,
namely that
in the event of the court holding that VEJA had met the threshold
requirement, the corporation should be afforded a
further opportunity
to consider anew the two requests for information.
[48]
The high court made the following order:
‘
33.1.
The First Respondent’s decision to refuse to grant the
Applicant’s requests for access to information dated 15
th
[December] 2011 and 13
th
February 2012, is invalid and set aside;
33.2. The First
Respondent is directed to supply the Applicant with copies of all the
records requested in the Applicant’s
requests for access to
information dated 15
th
December 2011 and 13
th
February 2012 within 14 (FOURTEEN) days from date of this order;
33.3. The Second
Respondent is to pay the costs of this application, including the
costs of two counsel.’
It
is against those orders that the present appeal is directed. I turn
to deal with the correctness of the material conclusions
reached by
the high court.
The
PAIA threshold requirement
[49]
In considering whether the threshold requirement of s 50(1)(
a
)
has been met, it is important to bear in mind what was said by this
court in
Unitas
(para 6):
‘
Generally
speaking, the question whether a particular record is “required”
for the exercise or protection of a particular
right is inextricably
bound up with the facts of that matter.’
[5]
[50]
Thus, the word ‘required’ in s 50(1)(
a
)
of PAIA should be construed as ‘reasonably required’ in
the prevailing circumstances (see
Clutchco
para 12). A scrutinising court should determine whether an applicant
for information did ‘lay a proper foundation for why
that
document is reasonably “required” for the exercise or
protection of his or her rights’. See
Clutchco
para 12 and
Le
Roux v Direkteur-Generaal van Handel en Nywerheid
1997
(4) SA 174
(T).
[51]
Before us, it was rightly conceded by counsel on behalf of AM that,
in adjudicating VEJA’s claim to the information sought,
and in
considering whether the threshold requirement had been met, the high
court and concomitantly this court, were entitled to
consider not
only the basis provided in Form C referred to above, but also the
evidence adduced by the parties. In this case that
consists in the
details that emerge from the affidavits filed in support of or
resisting the application in the high court.
[52]
As part of the evaluation of the factual background, I agree with the
submission on behalf of VEJA that AM’s acknowledged
history of
operational impact on the environment is important. This is not an
aspect touched on by the high court. AM’s industrial
activities, impacting as they do on the environment, including on air
quality and water resources, has an effect on persons and
communities
in the immediate vicinity and is ultimately of importance to the
country as a whole. Translated, this means that the
public is
affected and that AM’s activities and the effects thereof are
matters of public importance and interest. Put differently,
the
nature and effect of AM’s activities are crucially important.
AM is a major, if not
the
major, polluter in the areas in which it conducts operations.
[53]
In addition, AM’s publicly stated commitment to engage with
environmental activists is not without importance. AM itself,
in its,
2010 annual report under the title ‘Engaging with stakeholders
on environmental issues’, stated the following:
‘
We
remain committed to engaging with key stakeholders on issues of
environment. These include environmental NGO’s, government,
communities and the media.’
Equally
important is the following part of AM’s 2010 annual report:
‘
We
continue to engage with GroundWork, VEJA and other local and
international NGOs on compliance in terms of the new environmental
legislation, and environmental projects in our areas of operation.’
Nothing
in the evidence adduced in this case militates against VEJA being
anything other than genuine advocates for environmental
justice.
In
light thereof it is difficult to understand AM’s accusation
that VEJA is setting itself up as an alternative regulatory
authority. It calls into question AM’s stated commitment to
collaborative corporate governance in relation to the environment,
as
well as its bona fides in resisting the request for information.
The
Master Plan
[54]
That brings us to the point concerning the relevance of the Master
Plan or, from AM’s asserted perspective, its obsolescence.
[55]
It is clear from what is set out above that when the Master Plan was
being formulated it was seen as a forward looking document,
informing
action not only in the present but setting out a strategy for the
future – a 20 year plan. It was seen as a seminal
document and
was repeatedly proclaimed as such. Whilst the 2010 annual report does
state that the Master Plan was not being released
because of updates
and more stringent legislative controls, it had never, until then,
been disavowed publicly nor, as far as can
be ascertained, to AM’s
board. It also appears to have been of some importance in the
acquisition of regulatory approvals.
[56]
I agree, as found by the court below, that the Master Plan has
importance as a baseline document. Historically extensive data,
even
disputed standards and testing methodology, must be valuable. The
asserted flaws can be examined and/or challenged. The veracity
of
AM’s justifications can be measured. Contemporary knowledge can
be compared to historical practises and present-day data
can be
contrasted or aligned with what was recorded in the past. There is
some justification for the submission on behalf of VEJA
that the
explanations concerning technical and scientific flaws provided by
AM, properly analysed, lead to the compelling conclusion
that it is
not so much the data that was flawed but rather the conclusions drawn
from the data. This appears to be so, at least
in some respects.
Environmental
legislation
[57]
Furthermore, it was submitted on behalf of AM that such rights as
VEJA might have ought to be located in and enforced through
the
provisions of the National Environmental Management Act 107 of 1998
(NEMA) rather than by seeking information through s 50(1)(
a
)
of PAIA. Section 32(1) of NEMA, under the title ‘Legal standing
to enforce environmental laws’, provides:
‘
(1)
Any person or group of persons may seek appropriate relief in respect
of any breach or threatened breach of any provision of
this Act,
including a principle contained in Chapter 1, or of any provision of
a specific environmental management Act, or of any
other statutory
provision concerned with the protection of the environment or the use
of natural resources –
(
a
) in that
person’s or group of person’s own interest;
(
b
) in the
interest of, or on behalf of, a person who is, for practical reasons,
unable to institute such proceedings;
(
c
) in the
interest of or on behalf of a group or class of persons whose
interests are affected;
(
d
) in the
public interest; and
(
e
)
in the interest of protecting the environment.’
[58]
It was submitted on behalf of AM that there were thus specific
statutory mechanisms at VEJA’s disposal that provided
a conduit
through which a regulatory authority could be compelled to ensure
compliance by persons engaged in any activity, operation
or
undertaking which has a detrimental effect on the environment. In
this regard, reliance was placed on s 28(4) read with s 28(12)
of
NEMA, the provisions of which are set out hereafter:
‘
(4)
The Director-General or a provincial head of department may, after
consultation with any other organ of state concerned and
after having
given adequate opportunity to affected persons to inform him or her
of their relevant interests, direct any person
who fails to take the
measures required under subsection (1) to –
(
a
)
investigate, evaluate and assess the impact of specific activities
and report thereon;
(
b
) commence
taking specific reasonable measures before a given date;
(
c
)
diligently continue with those measures; and
(
d
) complete
them before a specified reasonable date;
Provided that the
Director-General or a provincial head of department may, if urgent
action is necessary for the protection of the
environment, issue such
directive, and consult and give such opportunity to inform as soon
thereafter as is reasonable.
. . .
(12)
Any person may, after giving the Director-General or provincial head
of department 30 days’ notice, apply to a competent
court for
an order directing the Director-General or any provincial head of
department to take any of the steps listed in subsection
(4) if the
Director-General or provincial head of department fails to inform
such person in writing that he or she has directed
a person
contemplated in subsection (8) to take one of those steps, and the
provisions of section 32(2) and (3) shall apply to
such proceedings
with the necessary changes.’
[59]
The submissions referred to in the immediately preceding paragraphs
miss the point. Information sought by parties contemplating
litigation to vindicate asserted rights is conventionally sought in
order for it to be useful in that litigation, or, to put it
in
constitutional and statutory terms, the information is ‘required
for the exercise or protection of any rights’.
In this regard,
AM is putting the cart before the horse.
[60]
It will be recalled that AM’s fundamental resistance to the
requests by VEJA was that the basis provided in Form C was
too
generalised and vague and did not meet the threshold requirement set
by s 50(1)(
a
)
of PAIA. It was contended on behalf of AM that, in order for VEJA to
pass the threshold requirement, more was required than just
a general
statement that the information was required ‘for the protection
of the section 24 constitutional rights and are
requested in the
public interest’. It was submitted that the right had to be
more specifically identified so as to be recognisable
and
enforceable. Furthermore, it was contended that, based on the
principle of subsidiarity, the asserted right had to be located
in
the statutes that were enacted to give effect to the constitutional
right, rather than based on the constitutional right in
general
terms. AM was adamant that VEJA, in Form C, in asserting the right
upon which they relied in the manner described above,
were on a
‘fishing expedition’ and did not meet the criterion set
by s 50(1)(
a
).
[61]
In respect of its attitude reflected in the preceding paragraph, AM
ignores the fact that additionally, in Form C, reliance
was placed by
VEJA on three statutes which it describes as being part of ‘the
relevant governing legislation’ namely
NEMA, the National
Environmental Management: Waste Act 59 of 2008 (NEMWA) and the
National Water Act 36 of 1998 (NWA). I intend,
in the following
paragraphs, to deal with the relevant provisions of those enactments.
[62]
NEMA recognises, in s 2(2), that ‘[e]nvironmental management
must place people and their needs at the forefront of its
concern,
and serve their physical, psychological, developmental, cultural and
social interests equitably’.
[63]
Furthermore, NEMA acknowledges in s 2(3) that ‘[d]evelopment
must be socially, environmentally and economically sustainable’.
[64]
Importantly, s 2(4)(
b
) of NEMA provides:
‘
(
b
)
Environmental management must be integrated, acknowledging that all
elements of the environment are linked and interrelated, and
it must
take into account the effects of decisions on all aspects of the
environment and all people in the environment by pursuing
the
selection of the best practicable environmental option.’
[65]
Even more significantly, s 2(4)(
f
) of NEMA states the
following:
‘
(
f
)
The participation of all interested and affected parties in
environmental governance must be promoted, and all people must have
the opportunity to develop the understanding, skills and capacity
necessary for achieving equitable and effective participation,
and
participation by vulnerable and disadvantaged persons must be
ensured.’
[66]
Of particular importance in relation to PAIA is what is set out in s
2(4)(
k
) of NEMA. That section reads:
‘
(
k
)
Decisions must be taken in an open and transparent manner, and access
to information must be provided in accordance with the law.’
I
accept that this relates principally to the state. However, the same
must, in principle, apply to corporate decisions and activities
that
impact on the environment and thus implicate the public interest,
particularly when their activities require regulatory approval.
[67]
Parts of the preamble to the NEMWA bear repeating:
‘
WHEREAS
everyone has the constitutional right to have an environment that is
not harmful to his or her health and to have the environment
protected for the benefit of present and future generations through
reasonable legislative and other measures that –
(
a
) prevent
pollution and ecological degradation;
(
b
) promote
conservation; and
(
c
) secure
ecologically sustainable development and use of natural resources
while promoting justifiable economic and social development;
AND WHEREAS waste
management practices in many areas of the Republic are not conducive
to a healthy environment and the impact of
improper waste management
practices are often borne disproportionately by the poor;
AND WHEREAS poor
waste management practices can have an adverse impact both locally
and globally;
AND WHEREAS
sustainable development requires that the generation of waste is
avoided, or where it cannot be avoided, that it is
reduced, re-used,
recycled or recovered and only as a last resort treated and safely
disposed of;
AND
WHEREAS the minimisation of pollution and the use of natural
resources through vigorous control, cleaner technologies, cleaner
production and consumption practices, and waste minimisation are key
to ensuring that the environment is protected from the impact
of
waste; . . . .’
[68]
Two of the objects of the NEMWA are set out in s 2(
b
) and
2(
c
), namely:
‘
(
b
)
to ensure that people are aware of the impact of waste on their
health, well-being and the environment;
(
c
) to
provide for compliance with the measures set out in paragraph (
a
);
. . . .’
Section
2(
a
) read with s 2(
c
) is designed to put measures in
place to minimise the consumption of national resources, to avoid and
minimise the generation of
waste and to provide statutory tools to
ensure compliance. Section 2(
d
) indicates that the general
object of the Act is ‘to give effect to section 24 of the
Constitution in order to secure an
environment that is not harmful to
health and well-being’.
Sections
72 and 73 provide for local and provincial authorities to engage in
consultation with the public and to ensure public participation.
[69]
The NWA in s 2 sets out, as one of its purposes:
‘
[T]o
ensure that the nation’s water resources are protected,
used, developed, conserved, managed and controlled in ways
which take
into account amongst other factors –
(
a
)
meeting the basic human needs of present and future generations.’
[70]
Section 3(1) of the NWA provides:
‘
(1)
As the public trustee of the nation’s water resources the
National Government, acting through the Minister, must ensure
that
water is protected, used, developed, conserved, managed and
controlled in a sustainable and equitable manner, for the benefit
of
all persons and in accordance with its constitutional mandate.’
Conclusion
on the threshold requirement
[71]
It is clear, therefore, in accordance with international trends,
[6]
and constitutional values and norms, that our legislature has
recognised, in the field of environmental protection, inter alia
the
importance of consultation and interaction with the public. After
all, environmental degradation affects us all. One might
rightly
speak of collaborative corporate governance in relation to the
environment. In
Biowatch
para
19 the Constitutional Court said the following:
‘
A
perusal of the law reports shows how vital the participation of
public-interest groups has been to the development of this court’s
jurisprudence. Interventions by public-interest groups have led to
important decisions concerning the rights of the homeless, refugees,
prisoners on death row, prisoners generally, prisoners imprisoned for
civil debt and the landless. There has also been pioneering
litigation brought by groups concerned with gender equality, the
rights of the child, cases concerned with upholding the
constitutional
rights of gay men and lesbian women, and in relation
to freedom of expression. Similarly, the protection of environmental
rights
will not only depend on the diligence of public officials, but
also on the existence of a lively civil society willing to litigate
in the public interest. This is expressly adverted to by the National
Environmental Management (NEMA) which provides that a court
may
decide not to award costs against unsuccessful litigants who are
acting in the public interest or to protect the environment
and who
had made due efforts to use other means for obtaining the relief
sought.’
[72]
In
Magaliesberg Protection Association v MEC: Department of
Agriculture, Conservation, Environment and Rural Development, North
West
Provincial Government
[2013] 3 All SA 416
(SCA), this court
(para 61), in dealing with what ultimately was a failed attempt by
conservationists to set aside a decision granting
environmental
authorisation for the construction of a hotel and conference centre,
nevertheless said the following about the importance
of the efforts
of conservationists:
‘
We
should all laud the efforts of conservationists such as the MPA. It
is beyond dispute that the MPA has a genuine concern about
the
environment and that they generally act to preserve and protect the
environment for the benefit of present and future generations.’
This
court continued as follows (para 63):
‘
In
my view, the court below was a trifle harsh in criticising the MPA
for persisting in the final relief sought by it. It did not
take into
consideration that the MPA was an organisation which genuinely has
the concerns and objectives set out in paragraph 61
above.
Accordingly, it should not have awarded costs against the MPA.
Kgaswane might be aggrieved in having to pay its own costs
but it
should not be forgotten that the malfeasance that led to all the
trouble and the subsequent costly litigation was of its
own making.’
[73]
The hallmark of our Constitution is proportionality. A balance has to
be struck between the competing concerns referred to
at the beginning
of this judgment and our courts will be astute to adopt a common
sense approach to how far, in any set of circumstances,
the principle
of public participation and collaboration extends.
[74]
It appears to me to be clear that VEJA, as advocates for
environmental justice, was entitled to place reliance on the statutes
referred to above in requesting the information from AM. Furthermore,
in doing so VEJA met the threshold requirement for obtaining
the
requested information.
AM
as a private body
[75]
In argument before us, AM sought to set up yet another hurdle. We
were urged by counsel on behalf of AM, in their efforts to
persuade
us to overturn the high court’s order, to not ignore the
distinction drawn in PAIA between the obligations of the
state in
dealing with requests for information, and the obligations of private
parties. It was submitted that the obligation on
the state to produce
information is much more stringent. In this regard s 11(1) of PAIA is
relevant. That section provides:
‘
A
requester must be given access to a record of a public body if –
(
a
) that
requester complies with all the procedural requirements in this Act
relating to a request for access to that record; and
(
b
)
access to that record is not refused in terms of any ground for
refusal contemplated in Chapter 4 of this Part.’
[76]
The grounds for refusal contained in Chapter 4 of PAIA relate
principally to the protection of information related to the privacy,
confidentiality and safety of third parties and individuals who are
natural persons. There is also protection of information privileged
from production in legal proceedings and for certain categories of
commercial information. These exclusions are not relevant to
the
present dispute. As can be seen from the provisions of s 11, public
bodies are obliged, subject to what is stated in the preceding
two
sentences, to accede to a request for information.
[77]
On the other hand, s 50 of PAIA, in relation to private persons, as
can be seen from its provisions set out above, requires
justification
in the form of a requester, having to show that the information
requested is required ‘for the protection of
any rights’.
That issue has already been dealt with.
[78]
What should, however, not be lost sight of is that PAIA, in its
preamble, recognises that the system of government in South
Africa,
before the advent of a constitutional democracy, ‘resulted in a
secretive and unresponsive culture in
public
and private
bodies which often led to
an abuse of power and human rights violations’. Furthermore, it
also expressly recognises the horizontal
application of rights in the
Bill of Rights to juristic persons ‘to the extent required by
the nature of the rights and the
nature
of those juristic persons
’. (My
emphasis.)
[79]
Section 32(1)(
b
) of the Constitution also comes into play. It
provides:
‘
(1)
Everyone has the right of access to –
. . .
(
b
)
any information that is held by another person and that is required
for the exercise or protection of any rights.’
[7]
[80]
I am mindful of the caveat in
Clutchco
that one must guard against forcing corporates to throw open their
books on claims of alleged minor errors or irregularities. The
basis
provided by VEJA for its application does not fall into the category
of trivial or frivolous. It concerns us all. In my view
it is clear
that VEJA supplied an adequate basis for its requests and is entitled
to the information sought; it is entitled as
an advocate for
environmental justice to monitor the operations of AM and its effects
on the environment. This additional obstacle
raised by AM is, in the
circumstances, without any merit.
The
approach of AM leading up to and including this litigation
[81]
I now turn to AM’s attitude, reflected in the correspondence
leading up to the commencement of litigation. AM was disingenuous
in
claiming ignorance of the existence of its own Master Plan. Feigning
ignorance is probably a more accurate description. It dithered
and
appeared at one stage to be gravitating towards disclosure before
resisting the request altogether. From a purely public relations
perspective it ought to have considered more carefully the
consequences for its image. Counsel on behalf of AM urged us to guard
against the simplistic view embodied in the question of what harm
would be caused by the disclosure of the information. I am prepared
to be accused of that ‘simplistic’ attitude. From AM’s
stated perspective it can explain away any concerns that
anybody
might have concerning the applicability, accuracy or relevance of the
Master Plan. The disclosure of the information will
enable either a
verification of AM’s stance or might cause us to have even
greater concerns about environmental degradation.
That it will be a
valuable controlling tool can afford of no doubt. Insofar as the
information related to the Vaal Disposal site
is concerned, the
public is entitled to be assuaged as to the safety of that site.
[82]
Corporations operating within our borders, whether local or
international, must be left in no doubt that in relation to the
environment in circumstances such as those under discussion, there is
no room for secrecy and that constitutional values will be
enforced.
[83]
AM in its 2002 annual report was emphatic that it was adopting a
modern day progressive approach in the following terms:
‘
Our
environmental management is being expanded progressively from a
legislative compliance activity, to become an all-inclusive
business
sustainability strategy. In this regard, we have employed specialist
consultants to evaluate and produce holistic environmental
management
plans using internationally recognised best practice. These
environmental master plans drive our entire environmental
management
strategy.’
It
is not to AM’s credit, espousing, as it does, a commitment to
environmental sensitivity and asserting a collaborative approach
to
ensuring that environmental degradation is limited, to then assume an
obstructive and contrived approach to a request for information
which
can only assist that collaborative effort.
[84]
As we continue to reset our environmental sensitivity barometer, we
would do well to have regard to what was said about planet
Earth by
Al Gore, a former vice-president of the United States and an
internationally recognised environmental activist engaged
in
educating the public about the dangers of global warming and those
steps to be taken in response to reduce carbon emissions
(for which
he was a joint recipient of the 2007 Nobel Peace Prize):
‘
You
see that pale, blue dot? That’s us. Everything that has ever
happened in all of human history, has happened on that pixel.
All the
triumphs and all the tragedies, all the wars, all the famines, all
the major advances . . . It’s our only home. And
that is what
is at stake, our ability to live on planet Earth, to have a future as
a civilization. I believe this is a moral issue,
it is your time to
seize this issue, it is our time to rise again to secure our
future.’
[8]
On
the importance of developing a greater sensitivity in relation to the
protection and preservation of the environment for future
generations, Gore had the following to say:
‘
Future
generations may well have occasion to ask themselves, “What
were our parents thinking? Why didn’t they wake up
when they
had a chance?” We have to hear that question from them, now.’
We
would, as a country, do well to heed that warning.
[85]
To sum up, I can find no material flaw in the essential reasoning of
the court below. For all the reasons set out above the
following
order is made:
The
appeal is dismissed with costs including the costs attendant upon the
employment of two counsel.
__________________
NAVSA ADP
FOR
APPELLANT: Adv. A E Franklin SC (with him P Lazarus SC)
Instructed
by:
Edward
Nathan Sonnenbergs, Sandton
Webbers,
Bloemfontein
FOR
RESPONDENT: Adv. S Budlender (with him J Bleazard and C de Villiers)
Instructed
by:
Centre
for Environmental Rights, Cape Town
McIntyre
& Van der Post, Bloemfontein
[1]
In
para 43 of
Fuel
Retailers
the following is quoted from the ‘Report of the World
Commission on Environment and Development: Our Common Future’
(Brundtland Report),
http://www.un.org/esa/sustdev/documents/docs_key_conferences.htm
,
link: General Assembly 42
nd
Session: Report of the World Commission on Environment and
Development, accessed on 4 June 2007. Chapter 1 para 42:
‘
[E]nvironmental
stresses and patterns of economic development are linked to one
another. Thus agricultural policies may lie at
the root of land,
water, and forest degradation. Energy policies are associated with
the global greenhouse effect, with acidification,
and with
deforestation for fuelwood in many developing nations. These
stresses all threaten economic development. Thus economics
and
ecology must be completely integrated in decision making and
lawmaking processes not just to protect the environment, but
also to
protect and promote development. Economy is not just about the
production of wealth, and ecology is not just about the
protection
of nature; they are both equally relevant for improving the lot of
humankind.’
[2]
Section
57(1)(
c
)
of PAIA reads as follows:
‘
The
head of a private body to whom a request for access has been made,
may extend the period of 30 days referred to in section
56(1) (in
this section referred to as the “original period”) once
for a further period of not more than 30 days,
if –
.
. .
(
c
)
consultation among divisions of the private body or with another
private body is necessary or desirable to decide upon the request
that cannot reasonably be completed within the original period.’
Section
56 provides that ordinarily a party has 30 days to respond to a
request for information.
[3]
Earlier
in the letter ‘the Purpose’ referred to is described by
AM’s attorneys as follows:
‘
[O]f
“ensuring” that our client complies with its
environmental statutory obligations.’
[4]
AM’s
predecessor in title.
[5]
See
also
Cape
Metropolitan Council v Metro Inspection Services (Western Cape) CC &
others
2001
(3) SA 1013
(SCA) and
Claase
v Information Officer, South African Airways (Pty) Ltd
2007 (5) SA 469 (SCA).
[6]
See
inter
alia
Principle
10 of the Rio Declaration on Environment and Development UN Doc.
A/CONF.151/26 (vol. I) [31 ILM 874 (1992)]; the Convention
on Access
to Information, Public Participation in Decision-Making, and Access
to Justice in Environmental Matters 2161 UNTS 447
[38 ILM 517
(1999)]. See also B Gemmill and A Bamidele-Izu ‘The Role of
NGOs and Civil Society in Global Environmental
Governance; in D C
Esty and M H Ivanova
Global
Environmental Governance
(2002).
[7]
Section
32(2) provides: ‘National legislation must be enacted to give
effect to this right, and may provide for reasonable
measures to
alleviate the administrative and financial burden on the state’.
PAIA is the envisioned legislation.
[8]
Al
Gore has written a book on environmental topics, namely
Earth
in the Balance: Ecology and the Human Spirit
(1992, Houghton Mifflin). During his time in the Clinton
administration he pushed for the implementation of a carbon tax to
encourage energy efficiency. This was partially implemented in 1993.
Although he helped procure the 1997 Kyoto Protocol (Kyoto
Protocol
to the United Nations Framework Convention on Climate Change, UN Doc
FCCC/CP/1997/7/Add.1, Dec. 10, 1997; 37 ILM 22
(1998)), an
international treaty to curb greenhouse gasses, ironically it was
not ratified in the United States of America after
a 95 to 0 vote in
the Senate. The objections appear to have been based on exemptions
in the treaty given to China and India whose
carbon footprints have
grown rapidly and American fears that they were thereby given a
competitive advantage. After his defeat
in the 2000 presidential
election to George W. Bush, Mr Gore returned his focus to the
environment, presenting more than one
thousand times in the US and
across the world. That slide-show was made into an Academy
Award-winning (2006) documentary film
called ‘An Inconvenient
Truth’, from which the quotes are derived. Although it has
been included in the curriculum
of colleges and schools, it has
received some criticism for not being 100 per cent scientifically
accurate.