The right of access to environmental related information – the dawn of a new era?
On 26 November 2014, the Supreme Court of Appeal (SCA) delivered the judgment in the matter between ArcelorMittal South Africa Limited (AMSA) and the Vaal Environmental Justice Alliance (the Alliance). This judgment has fundamentally changed the landscape with regard to accessibility to environmental related information held by companies.
The opening paragraph of the judgment sets the tone for the remainder of the judgment, and the context within which requests for environmental related information will be scrutinised in future.
The court stated: "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 in significance. The legislature has rightly seen fit to cater for both aspects in legislation...".
The matter relates to a request for information by the Alliance, a non-profit voluntary association, in terms of the Promotion of Access to Information Act 2 of 2000 (the Information Act).
In summary, the Alliance requested information in terms of the Information Act, from AMSA relating to AMSA's environmental compliance with various environmental laws. The Alliance made the request in terms of section 50(1) of the Information Act. AMSA refused to provide the requested information, and the Alliance brought an application to 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 requested 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 the Information Act, 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 effectively 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, that is 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 and 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. The High Court referred to the judgment in the case of Director: Mineral Development, Gauteng Region, and another v 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, in its judgment that a refusal of the Alliance's application would hamper the Alliance in championing the preservation and protection of the environment. The High Court concluded that it has clearly been established that the participation of public interest groups is vital for the protection of the environment.
The High Court 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, in endorsing the High Court's judgment, found that groupings of persons such as the Alliance, were 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, promote conservation, and 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 the Information Act 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, in these circumstances, for the requested information, will be endorsed by the South African Courts.
The SCA stated that it is clear, in accordance with international trends and constitutional values and norms that the South African legislature has recognised, in the field of environmental protection, inter alia, the importance of consultation and interaction with the public. The judgment emphasised that environmental degradation affects all persons. The SCA also stated "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".
While the SCA emphasised the culture of openness and ecological sensitivity, 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".
The judgment of the SCA has heralded a new dawn for those members of the public, whether singly or acting together, that request environmental related information from companies in pursuit of compliance with section 24 of the Constitution. Companies will, in future, be judged critically on any refusals for information, particularly where the refusal is based on technical aspects such as the requirements of section 50(1) of the Information Act, or on the grounds that the information may impact on the commercial imperatives of the company, and the growth and development of South Africa, as a whole.