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:
- Notice of Motion and Founding Affidavit Part 1, Part 2, Confirmatory Affidavit
- Respondent’s Answering Affidavit and Confirmatory Affidavit
- Applicant’s Replying Affidavit
- Annexures to Applicant’s Replying Affidavit
- Applicant’s heads of argument
- Respondents’ heads of argument
- 10 September 2013 judgement
Supreme Court of Appeal:
- ArcelorMittal leave to appeal application
- 9 December 2013 leave to appeal judgement
- 4 February 2014 Notice of Appeal
- 20 June 2014: AMSA’s heads of argument
- 21 July 2014: VEJA’s heads of argument
- 26 November 2014 judgment
Media coverage of this case:
- Steel giant loses court battle over documents, Business Day, November 27, 2014
- ArcelorMittal SA must reveal pollution plans, Bloomberg News, November 27, 2014
- ArcelorMittal shows it is out of touch with investors, Business Report, 30 May 2013
- Steel giant secretive about Vaal incidents, Business Report, 31 May 2013
- Environmental group, steel giant at war, Business Report, 4 June 2013
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.
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. 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.
In February 2016, we submitted further papers that contended that SDCEA and VEJA are entitled to Engen’s current and operative licence and that the Sapref redactions were not justifiable under sections 36(1)(a) and (b) of PAIA, as no reasons had been given by the Municipality as to why this information could be redacted under PAIA. We simultaneously 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. Engen objected to this, which meant that we were required to bring an application for leave to amend the notice of motion. This application is set down for hearing at the KwaZulu-Natal High Court in Durban on 2 December 2016.
We continue to await copies of the refineries’ current and operative licence of Engen; justifications for the redactions in Sapref’s licence and compliance report; and copies of the latest compliance reports of Engen and Sapref.
Copies of various records relating to this case are available for download:
- Notice of Motion and Founding Affidavit
- Annexures to founding affidavit (DD1-DD2; DD3; DD4; DD5; DD6; DD7; DD8; DD9-DD10; D11-DD12; DD13.1; DD13.2; DD13.3; DD13.4; DD14(1); DD14(2); DD15; DD16-DD18; DD19-DD23; DD24-DD25; DD26(1); DD26(2); DD27; DD28(1); D28(2); DD29; DD30; DD31)
- Supporting affidavit – Samson Mokoena
- The Notice of Motion in the Application for leave to amend and the Founding Affidavit
- Engen’s Notice of Opposition and Opposing Affidavit
- The Applicants’ Replying Affidavit
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
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;
- The DMR did not comply with the statutory timeframes set out in PAIA
- The DMR did not apply its mind to the request
- The DMR did not interpret PAIA as to promote transparency and in favour of disclosure (as provided for in section 32 of the Constitution)
- The records requested do not fall within the scope and ambit of section 44(1) of PAIA
- 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
- The DMR had an obligation to apply section 28 of PAIA (severability); and
- 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.
- National Legislation35
- International instruments4
- Provincial Legislation16
- Parliamentary Oversight1
- Key Correspondence20
- Government Documents5
Request to Mindset Mining Consultants (Pty) Ltd for a copy of its pre-feasibility study for the proposed Yzermyn in the Mabola Protected Environment
February 6, 2017
Request to Ezemvelo KZN Wildlife for copies of permits and permit applications for sungazers in terms of the CITES Regulations
January 31, 2017
January 18, 2017