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)
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:
- 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
- Supplementary Affidavit by Desmond D’Sa
- Application for leave to amend the notice of motion
- Engen’s Notice of Opposition
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;
- 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.
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.
- Founding affidavit
- Notice of intention to abide
- Letter from MTPA’s attorneys to the CER setting out the terms of settlement
- Notice of withdrawal
- National Legislation35
- International instruments4
- Provincial Legislation16
- Parliamentary Oversight1
- Key Correspondence23
- Government Documents5
Request to DEA for information relating to the international export of live rhinoceros from South Africa
April 13, 2017
Request to Ezemvelo KZN Wildlife for copies of TOPS-related applications and permits relating to Emdoneni Lodge and Cheetah Project
March 17, 2017
Request to DWS for a list of all applications or petitions for the upliftment of suspensions of water use licences pending the outcome of appeals
March 14, 2017