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The end of confidentiality?

Novmber 2015

It is accepted that one of the fundamental principles under the South African Constitution is that of openness and transparency.  Section 32 specifically enshrines the right of access to any information held by the state, and any information held by another person that is required for the exercise or protection of any rights.  The rights contained in the Bill of Rights are subject to the limitations contained in section 36, or elsewhere in the Bill of Rights.  It is, therefore, also accepted that the rights may be limited in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors. 

The provisions of the Promotion of Access to Information Act 2 of 2000 (PAIA), which give effect to the rights contained in section 32 of the Constitution, have been effectively used to obtain access to information held by both the state and other persons.  Equally, however, the limitations on access to information, as contemplated in PAIA, have been relied on to refuse an application for access to information.

The concept of confidentiality, in its broad sense, has provided a level of comfort to persons who wish to avoid disclosure of sensitive or potentially sensitive information, including health, safety and environmental information.

The recent judgment of the Supreme Court of Appeal (SCA) in the matter of ArcelorMittal South Africa Limited v Vaal Environmental Justice Alliance (2014 JDR 2505 (SCA)) fundamentally changed the landscape with regard to accessibility to environmental related information held by companies. 

The matter related to a request for information by the Vaal Environmental Justice Alliance, a non-profit voluntary association, in terms of PAIA.  The Alliance made the request in terms of section 50(1) of PAIA.  ArcelorMittal South Africa (AMSA) refused the request, and the Alliance brought an application in the High Court, contesting AMSA's refusal.  The High Court found in favour of the Alliance, and required AMSA to disclose the requested information to the Alliance.  AMSA appealed against the decision of the High Court, to the SCA. 

The Alliance stated that it had required the relevant documents and information on the basis that the documents were necessary for the protection of "Section 24 Constitutional Rights and are requested in the public interest".  The Alliance also stated that it "…requires the requested documents to ensure that ArcelorMittal South Africa Limited carries out its obligations under the relevant governing legislation…". 

AMSA, in its refusal, and before court, argued that the Alliance had not met the required threshold contemplated in section 50(1) of PAIA and, on this basis, the information was refused and should not be provided. Section 50(1) provides that a requestor must be given access to the record if, among others, the record is "required" for the exercise or protection of any rights.  AMSA essentially argued that the threshold requirement was not met by the Alliance, because it merely declared, in general terms, that the requested information was relevant to its performance as an advocate for environmental justice and relied on its section 24 constitutional rights.  AMSA also argued that the Alliance could not simply state it wanted the information to monitor and ensure compliance by AMSA of its obligations in relation to the environmental laws. AMSA contested that by requesting the information, the Alliance was setting itself up as a parallel regulating authority in relation to the environment, which was not sanctioned by the prevailing environmental laws. 

The High Court found that the Alliance was an association of persons, each of whom have a right in terms of section 24(a) of the Constitution and therefore they could "band together" to enforce their rights. The High Court found in favour of the Alliance on this point (that is, that the Alliance, as a grouping of interested parties, could rely on the provisions of section 24 of the Constitution and enforce their constitutional rights).  In the judgment, the High Court referred to the case of Director: Mineral Development, Gauteng Region, and another versus Save the Vaal environment and others, 1999 (2) SA 209 (SCA), where the SCA stated in that case, "…together with the change in the ideological climate must also come a change in the legal and administrative approach to environmental concerns".

The High Court also stated that a refusal of the Alliance's application would hamper it in championing the preservation and protection of the environment.  It concluded that it has clearly been established that the participation of public interest groups is vital for the protection of the environment.

It also rejected AMSA's contention that the Alliance was usurping the state's role in order to directly enforce regulatory provisions of the environmental legislation.

The SCA dismissed the appeal by AMSA, and reconfirmed the decision of the High Court.

In summary, the SCA, found that groupings of persons such as the Alliance, are entitled to rely on the provisions of section 24 of the Constitution, which provides that everyone has the right to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation, remote conservation, secure ecologically sustainable development and the use of natural resources while promoting justifiable economic and social development.  The SCA also endorsed the High Court's judgment with regard to the right of the Alliance to request information in terms of section 50(1) of PAIA in support of its enforcement of compliance with environmental laws by companies.  If requested documents are necessary for the protection of section 24 constitutional rights, and are requested in the public interest, and in pursuit of compliance with environmental obligations, it is unlikely that a refusal by a company for the requested information will be endorsed by the South African courts in these circumstances.

While the SCA emphasised the culture of openness, and the significance of the involvement of the public in environmental issues, it did recognise what it described as "entanglement" of competing concerns between environmental protection and commercial imperatives.  The SCA stated "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".

On Friday, 7 August, the High Court of South Africa, Gauteng Division, Pretoria, delivered its judgment in the application by the Industrial Health Resource Group and Others versus the Minister of Labour and Others (Case Number 74793/2013) (the IHRG judgment), which has fundamentally changed the landscape regarding the disclosure of reports prepared by a Presiding Officer who has conducted an inquiry into an incident/accident under the provisions of section 32 of the Occupational Health and Safety Act 85 of 1993 (OHSA).  Section 32(1) of the OHSA requires the Chief Inspector to direct an inspector to conduct a formal inquiry into any incident that has resulted, or in the opinion of the Chief Inspector, could have resulted in the injury, illness, or death of any person.  In terms of section 32(9) of the OHSA, at the conclusion of an inquiry under section 32(1) of the OHSA, the Presiding Officer is required to compile a written report.  Under section 32(10) of the OHSA, the evidence given at any inquiry shall be recorded. A copy will be submitted by the Presiding Officer, together with his or her report, to the Chief Inspector and, in the case of an incident in which or as a result of which any person died, or was seriously injured, or became ill, the Presiding Inspector shall submit a copy of the evidence and the report to the Attorney General (now the Director of Public Prosecutions) within whose area of jurisdiction the incident occurred.

Historically, the Department of Labour (the DoL), which is responsible for the enforcement and compliance with the relevant provisions of the OHSA, has taken the approach that any report prepared in terms of section 32(9) can only be disclosed and sent to the Chief Inspector and the Director of Public Prosecutions.  This is despite the provisions of section 36, which specifically provides for disclosure of information in circumstances where the information may be necessary:

  • for the proper administration of the provisions of the OHSA;
  • for the purposes of the administration of justice; or 
  • at the request of a health and safety representative or a health and safety committee.

In the application by the Industrial Health Resource Group and Others (the Applicants), the Applicants had applied for access to the report prepared in terms of section 32(9) of the OHSA. The report had been prepared following a workplace fire, at the facility of Paarl Print in Paarl on 17 April 2009.  The DoL had refused the application for access to the report made under the provisions of PAIA on various grounds, including that, in terms of section 32, the provisions only allow for the disclosure of the report to the Chief Inspector and the National Prosecuting Authority. Disclosure to any other persons would violate the principles of co-operative governance enshrined in sections 40 and 41 of the Constitution, and that as a result of the provisions of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 employees injured on duty, who have died as a result of injuries sustained on duty, and/or their dependents are not entitled to sue their employer for damages. 

The Applicants contended that they were entitled to a copy of the report contemplated in section 32(9) for various reasons, including that the contents of the report could assist in preventing the recurrence of similar incidents, and that the contents would be relevant to employers who are required to comply with various responsibilities for the health and safety of employees and non-employees, in terms of the OHSA. The Applicants argued that, if the information was not made available, employees and their representatives would be deprived of knowledge they required in relation to the protection of their health and safety.

The court, per KE Matojane J, held that the position adopted by the respondents in relation to the interpretation of section 32 "…undermines the constitutional values of transparency, openness and accountability in that it deprives interested parties their right to information held by the State.  The refusal to disclose Section 32 report violates the right to human dignity provided for in Section 10 of the Constitution, in that families and next of kin of workers killed in industrial accidents do not receive an authoritative report on the cause of their loved ones death to enable them to find psychological closure".

It also held that without access to the report, employers and trade unions are hampered in their ability to ensure health and safety in the workplace, and unions cannot adequately protect their members' interests.

The court declared that the persons referred to in section 32(5)(c), on request to the Presiding Inspector, are entitled to be furnished with a copy of the report contemplated in section 32(9), and that the policy of the DoL’s policy of refusing access to these reports, is unlawful and invalid. The court ordered the respondents to disclose the report, to the Applicants.

One would be hard-pressed to argue against the logic adopted by the court in the IHRG judgment and, in particular, that relevant information is required in support of the obligation to improve health and safety continuously.

It is also interesting to note that in the case of both the OHSA and the Mine Health and Safety Act 29 of 1996, the responsibilities placed on the employer are qualified with reference to a defined term "reasonably practicable".  The definition of this term includes knowledge that is reasonably available. It is logical that reports prepared in terms of section 32(1) of the OHSA, constitute part of knowledge that is reasonably available.

The team

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