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Company Secretary, ArcelorMittal SA and another v Vaal Environmental Justice Alliance (AMSA v VEJA) – Supreme Court of Appeal

26 November 2014

Supreme Court of Appeal

Case number: 69/2014

Judges: Navsa ADP (Majiedt & Saldulker JJA and Mathopo & Mocumie AJJA concurring)

Date: 26 November 2014

Type of application: Appeal

Outcome: ArcelorMittal ordered to disclose environmental records to the Vaal Environmental Justice Alliance

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Summary:

In 2014, ArcelorMittal (AMSA) appealed a High Court decision in which it was ordering to disclose environmental records requested by the Vaal Environmental Justice Alliance (VEJA). An important record requested by VEJA was AMSA’s ‘Environmental Master Plan’ which contained information about the levels of pollution in its Vanderbijlpark steel plant. The Masterplan detailed the levels of water pollution affecting surrounding areas, possibly unsafe levels of ambient air pollution, as well as the steel company’s plans to alleviate the pollution. VEJA also requested documents relating to the closure and rehabilitation of AMSA’s Vereeniging
site where hazardous materials were once dumped. AMSA refused to make the records available to VEJA.

The High Court ordered AMSA to disclose the records requested.

The Supreme Court of Appeal upheld the decision of the High Court. The court considered the meaning of section 50(1)(a) of PAIA which provides as follows:

“A requester must be given access to any record of a private body if –

(a) that record is required for the exercise or protection of any rights;

The SCA considered this threshold requirement and AMSA’s argument that more than a general statement that the information sought was required for the protection of environmental rights. The court considered the NEMA principles including those entrenching the participation of all interested and affected parties in environmental governance and transparent decision making.

It also considered the fact that VEJA had listed three laws in addition to the Constitutional environmental right: NEMA, the National Water Act and the National Environmental Management: Waste Act as relevant legislation in its PAIA request to AMSA. It held that VEJA had complied with the threshold contained in section 50(1)(a) of PAIA and agreed with the High Court’s reasoning in ordering AMSA to disclose the records requested.

The SCA dismissed the appeal with costs.

This judgment has been cited numerous times, for instance in Mineral Sands Resources (Pty) Ltd v Reddell (the SLAPP suit):

The defendants referred to Company Secretary, ArcelorMittal South Africa Ltd and another v Vaal Environmental Justice Alliance where the following was stated:

“. . . 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 significance.”

The SCA went on to emphasise the critical role played by the public in environmental debates:

“It is clear, therefore, in accordance with international trends, and constitutional values and norms, that our legislature has recognised, in the field of environmental protection, inter alia, the importance of consultation and interaction with the public. After all, environmental degradation affects us all. One might rightly speak of collaborative corporate governance in relation to the environment.”

It concluded that:

“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.”

High Court of South Africa, Gauteng Division, Johannesburg 

Case number: 39646/12

Date: 10 September 2013

Judge: Carstensen, AJ

Type of application: Application to compel disclosure of records under PAIA

Legislation considered: Constitution of the Republic of South Africa, 1996; National Environmental Management Act, 1998; Promotion of Access to Information Act, 2000.

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Keywords: Iscor; Vanderbijlpark; Vaal Dump; “parallel enforcement agency”

Summary:

On 15 December 2011 the Vaal Environmental Justice Alliance (VEJA), an organisation of environmental activists, submitted a PAIA request to ArcelorMittal (AMSA), one of the largest steel producing companies in South Africa. The request sought information regarding AMSA’s activities and the company’s approach towards pollution prevention. AMSA as a steel company contributes heavily to water and air pollution where its plants are based.

An important record requested by VEJA was AMSA’s “Masterplan” which contained information about the levels of pollution in their Vanderbijlpark steel plant. The Masterplan detailed the levels of water pollution affecting surrounding areas, possibly unsafe levels of ambient air pollution, as well as the plans by AMSA to alleviate the pollution as the area which was being closed and rehabilitated.

AMSA refused to make the records available and argued that VEJA had not shown that the request for the records was for the purpose of protecting their rights as provided in 50(1)(a) of PAIA. It argued that failure to meet the requirements in this section meant that the request for the PAIA response was invalid. They argued that VEJA was usurping the role of the state by enforcing a regulatory provision of environmental legislation. AMSA also argued that the Masterplan should not be considered a reliable document because it was outdated and scientifically flawed, and was no longer relied on.

Upon consideration, the High Court was satisfied that VEJA had shown a prima facie right in terms of PAIA to have access to the records requested. This therefore entitled the applicant to monitor, protect and exercise their right to access to information. This was supplemented by the court finding that VEJA, as a collective of individuals, had the right to section 24(a) and the section encourages the development of such public campaigns. As opposed to VEJA usurping the role of the state in requesting these documents, the Court found that VEJA’s actions were a way for the state to collaborate with the public to ensure that Constitutional rights were upheld and companies were being monitored for the benefit of the environment and people.

Additionally, the court found that the Masterplan was in fact a significant document because it had been used by AMSA as a primary strategic tool, it had been previously submitted to the state for formal submissions, and it had been shown to shareholders. Despite any errors that may have been later found by AMSA, it was a record that should have been made public and available to VEJA.

The court found that AMSA had not shown any prejudice caused by VEJA in asking for the records, and AMSA’s decision to refuse the PAIA request was therefore set aside.

The High Court ordered that VEJA was entitled to the records requested within 14 days of the order being made.

Court papers:

Media coverage of this case:

In early October 2013, AMSA gave notice of its intention to appeal the judgement of the South Gauteng High Court. ArcelorMittal obtained leave to appeal to the Supreme Court of  Appeal (SCA) on 9 December 2013: