Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The Centre for Environmental Rights today launches its latest report on transparency in environmental governance, entitled Money Talks: Commercial Interests and Transparency in Environmental Governance.

The CER has submitted 240 requests for records on environmental governance and management under the Promotion of Access to Information Act, 2000 (PAIA) since 2010. Four and a half years later, PAIA remains poorly implemented and inadequately enforced. Constrained by capacity and funding, public bodies often demonstrate reluctance and inexperience in engaging with PAIA and its processes.

On average, fewer than 29% of PAIA requests resulted in records being released during our reporting period, with a mere 22.2% being released from January to August 2014.

In the past two years we have also see increased deference by government departments to the wishes of the business sector regarding disclosure, and a perceived duty to protect all information relevant to private enterprises from the public and particularly public interest groups – hence the title of this report. In 2013, this manifested itself in reliance on the “mandatory protection of commercial information of a third party” under section 36 of PAIA becoming the predominant reason for the refusal of access to information requests, whether or not such protection is justified under PAIA.

The report describes in detail our efforts, on behalf of community-based organisations, to access environmental licences and compliance reports for South Africa’s six refineries, all facilities with major environmental impacts. We applied to Sasol, NATREF, Engen, SAPREF, Chevref and PetroSA directly, as well as to the local authorities who issue licences under the National Environmental Management: Air Quality Act, 2004 (AQA). Only one local authority released documents in full, namely the City of Cape Town, for the Chevref refinery. Eden Municipality released redacted documents after consultation with PetroSA. eThekwini Municipality has refused outright any access to licences for Engen and SAPREF in Durban, relying on the mandatory protection of commercial information in these licences. No AQA licences have been released by Sasol, NATREF or the municipalities that licence them.

According to Melissa Fourie, executive director of the Centre for Environmental Rights: “We continue to call for public, online registers of all environmental licences to be established. Such online registers would reduce the burden of work on government to process PAIA requests, and promote greater compliance with licences by companies who are currently hiding behind this veil of secrecy. But more importantly, it would help affected communities to realise and defend their Constitutional right to an environment not harmful to health or well-being. Instead, communities and civil society organisations are forced to spend precious resources and time applying for court orders compelling released of records that everyone knows should be in the public domain.”

A local example of such a register already in existence is the South Africa Waste Information Centre, where waste management licences issued by national and provincial government departments can be downloaded for free by the public, 24 hours a day.

The report gives credit to some of South Africa’s corporations who have released records under PAIA, even when those records revealed information prejudicial to them. These include Eskom, Columbus Stainless, Engen Petroleum, Kelvin Power and Samancor Ferrochrome.

We also give credit to good performance by government departments, particularly the Department of Environmental Affairs, and the Gauteng Department of Agriculture and Rural Development (GDARD) – in one instance, GDARD released a record within a single day. The Departments of Water & Sanitation and Mineral Resources continue to be poor performers under PAIA.

Download the report here: Money Talks: Commercial Interests and Transparency in Environmental Governance, November 2014

Previous CER reports on Transparency in Environmental Governance:

• Unlock the doors: How greater transparency by public and private bodies can improve the realisation of environmental rights (April 2012). See more about this report, including an interview with former CER attorney Dina Townsend.
• Barricading the Doors: The latest on our work on transparency in environmental governance in South Africa (February 2013)
• Turn on the Floodlights: Trends in Disclosure of Environmental Licences and Compliance Data (March 2013)

Also see Media Release: Vaal Environmental Justice Alliance’s struggle against ArcelorMittal South Africa goes to Bloemfontein on 6 November 2014.