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Centre for Environmental Rights - Advancing Environmental Rights in South Africa

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Litigation

The Centre for Environmental Rights (CER) has instituted legal proceedings to compel the production of environmental records in its own name or as attorneys of record for other civil society organisations in a number of cases since 2011. The details of two of our most prominent cases are set out below. We also set out the details of some recent appeals launched against refused requests.

Vaal Environmental Justice Alliance v ArcelorMittal South Africa: Refusal of access to the so-called Environmental Master Plan and various documents referred to in the National Environmental Compliance and Enforcement Report 2010-11, relying on section 50(1)(a) of PAIA (South Gauteng High Court, Case No. 39646/12)

In this case the CER represented the Vaal Environmental Justice Alliance (VEJA), a community organisation that had been trying to gain access to information for more than a decade regarding the environmental impact of ArcelorMittal (AMSA) (formerly Iscor) on the land surrounding the Vanderbijlpark plant.VEJA approached attorneys at the CER to act on VEJA’s behalf to use the Promotion of Access to Information Act (PAIA) formally to request disclosure of a large environmental impact study commissioned by Iscor (the so-called Environmental Master Plan). Records relating to the closure and rehabilitation of AMSA’s Vaal Disposal Site were also requested. AMSA refused both requests, arguing that VEJA had no right to access the documents. VEJA then applied to the High Court, which, in 2013, upheld VEJA’s arguments and ordered AMSA to release the documents. Instead, AMSA appealed to the Supreme Court of Appeal (SCA).

In a hard-hitting judgement handed down on 26 November 2014, the SCA ordered AMSA to release the Master Plan and other records to VEJA, and to pay VEJA’s legal costs.

The SCA made a number of critical findings in relation to AMSA’s lack of good faith in its engagement with VEJA and the discrepancies between AMSA’s shareholder communications and its actual conduct. The SCA also emphasised the importance of corporate transparency in relation to environmental issues, stating that “Corporations operating within our borders… 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”.

Copies of various records relating to this case are available for download:

High court:

Supreme Court of Appeal:

Media coverage of this case:

South Durban Community Environmental Alliance and Vaal Environmental Justice Alliance v The Deputy Information Office: eThekwini Metropolitan Municipality and 3 others: Refusal of access to the atmospheric emission licences and annual reports on compliance with the AELs of Sapref and Engen (Kwa-Zulu Natal Division of the High Court, Case No. 4072/2015)

In this case, which is ongoing, the CER represents the South Durban Community Environmental Alliance (SDCEA) and the Vaal Environmental Justice Alliance (VEJA) in proceedings to force eThekwini Metropolitan Municipality to release the atmospheric emission licences and compliance reports of two south Durban refineries.The Municipality had refused requests for these records for the Engen Petroleum Limited (Engen) refinery and the Shell and BP South African Petroleum Refineries (Pty) Ltd (Sapref) refinery in south Durban in terms of the Promotion of Access to Information Act (PAIA), arguing that they constituted commercial information of the refineries. The Municipality claimed that the records contained trade secrets; financial, commercial, scientific or technical information, which, if disclosed would be likely to cause harm to the financial or commercial interests of Engen and Sapref; or that the information was supplied in confidence and its disclosure could put Engen and Sapref at a disadvantage or prejudice them in commercial competition. Internal appeals of these decisions also failed.

Shortly after the case was instituted, Engen offered to settle the matter insofar as it concerned Engen, tendering a heavily redacted copy of its licence and annual performance report. Our clients rejected the offer on the basis that the redaction was not justified under PAIA, in response to which Engen made another settlement offer, offering to redact much less of the information – a victory in itself. However, it transpired that the licence subsequently made available by Engen is not its most recent licence – as it had been varied in June 2015 – and therefore it is not the current and operative licence of Engen. We filed a notice of intention to amend our notice of motion to change the wording of the relief requested to provide for the current and operative licences of both parties and the latest compliance reports, however the application was subsequently withdrawn on agreement between the parties. In August 2016, Engen offered a redacted version of its current and operative licence – a new licence which the Municipality issued in 2016.  The other refinery, Sapref, has not indicated any intention to oppose the application, but the Municipality has given us heavily redacted copies of Sapref’s licence and compliance report. We have requested that the Municipality provide reasons explaining why the redactions are permissible in terms of PAIA.

The application is still pending.  SDCEA and VEJA intend to engage with the Municipalities and refineries around issues of transparency in the air emission licensing process and air quality monitoring, to potentially resolve the litigation.

Copies of various records relating to this case are available for download:

We expressly acknowledge the financial support of the Open Society for South Africa, without whose support this litigation would not be possible.

Federation for a Sustainable Environment v Department of Mineral Resources – appeal against a decision by the Department of Mineral Resources to refuse access to records relating to the mining right granted to Atha-Africa Ventures (Pty) Ltd in respect of its proposed Yzermyn in the Mabola Protected Environment

On 16 April 2015, the CER, on behalf of the Federation for a Sustainable Environment (FSE), requested from the Department of Mineral Resources access to records relating to the mining right granted to Atha-Africa Ventures (Pty) Ltd, including the mining right, the approved environmental management programme (EMPR), the mining works programme (MWP), the social and labour plan (SLP) and the financial provision put down by AAV for its proposed mining operation. On 29 May 2016, the DMR granted the FSE access to some records requested, but refused it access to the financial provision; the MWP; any correspondence between AAV and the DMR/Minister of Mineral Resources contemplated by section 48(1)(b) of the National Environmental Management: Protected Areas Act, 2003; and any correspondence between the DMR and AAV and between the DMR and the Department of Environmental Affairs and/or the Department of Water and Sanitation regarding AAV’s proposed Yzermyn project.The DMR relied on section 36(1) (mandatory protection of commercial information of a third party) and 44(1) (operations of public bodies) of PAIA to justify its refusal. It however, did not provide reasons why it relied on those specific grounds.

On 21 July 2016, the CER, on behalf of the FSE, launched an internal appeal against the decision of the DMR to refuse access to the said records. In the appeal it was argued that;

  1. The DMR did not comply with the statutory timeframes set out in PAIA
  2. The DMR did not apply its mind to the request
  3. The DMR did not interpret PAIA as to promote transparency and in favour of disclosure (as provided for in section 32 of the Constitution)
  4. The records requested do not fall within the scope and ambit of section 44(1) of PAIA
  5. records requested consist of an account or statement of reasons required to be given in terms of section 5 of the Promotion of Administrative justice Act 1 of 2000
  6. The DMR had an obligation to apply section 28 of PAIA (severability); and
  7. Disclosure of the records is in the public interest.

On 15 September 2016, the Minister of Mineral Resources upheld the FSE’s appeal.

The Mpumalanga Regional Office of the DMR has still not given CER the records to which it was granted access in May 2015.

Centre for Environmental Rights NPC v The Information Officer: Mpumalanga Tourism and Parks Agency and others

In this matter, the Centre for Environmental Rights (CER) requested copies of documents relating to three captive elephant facilities in Mpumalanga from the Mpumalanga Tourism and Parks Agency (MTPA) in terms of the Promotion of Access to Information Act, 2000 (PAIA). The CER’s PAIA request was refused by the MTPA. The CER consequently approached the High Court for an order directing the MTPA to provide the CER with the requested records. After the litigation was initiated by the CER, the parties agreed to settle the matter on the basis that the MTPA will provide the requested information to the CER and upon receipt of the documentation, the CER will withdraw its application.

 

 

Section 24 of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and 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 use of natural resources while promoting justifiable economic and social development.

Report a Violation

National Environmental Crimes & Incidents Hotline (24 hours): 0800 205 005

In addition, there are a number of national and provincial hotlines that may be useful.

Contact us

  • Telephone:+27 21 447 1647
  • Fax:+27 86 730 9098
  • Email:info@cer.org.za
  • Address:Second Floor, Springtime Studios, 1 Scott Road, Observatory, 7925, Cape Town
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