Local communities neighbouring industries, are often negatively impacted by pollution caused by those industries. Due to the many industries in and around the Vaal Triangle, the area has become infamous for its air pollution and respiratory disease.

The Vaal Environmental Justice Alliance (“VEJA”) is an alliance of environmental organizations operating in the Vaal Triangle, aimed at challenging all forms of environmental degradation by local industries in that area. In order to understand the full extent of pollution caused by industries and the measures taken by industries to prevent and remedy such pollution, it is often necessary to obtain documentation to this effect.

As of 2011, VEJA have been trying to obtain access to ArcelorMittal South Africa (“ArcelorMittal”), one of South Africa’s major industrial steel producing corporations, Master Plan (the “Plan”) and documents relating to its Vaal Disposal Site. After years of trying to get this information, the Supreme Court of Appeal (“SCA”), on 26 November 2014, ordered ArcelorMittal to hand over this information to VEJA.

 

Basis on which VEJA could access the information?

VEJA relied on section 50(1) and 53 of the Promotion of Access to Information Act, 2 of 2000 (the “PAIA”), which sets out the obligation to provide access to any record of a private body, if that record is required for the exercise or protection of any rights, and the procedural requirements for the application are complied with.

The Court stated that due to the following acknowledgements of ArcelorMittal, its documentation and Plan should be made publicly available:

  • ArcelorMittal had a history of operational impacts on the environment;
  • The pollution of the air and water has an effect on persons and communities in the neighbouring vicinity, and ultimately nation wide;
  • ArcelorMittal had publicly stated its commitment to engage with environmental activists in its 2010 annual report.

 

Why did ArcelorMittal not want company documents to be made public

ArcelorMittal SA argued that the Plan was outdated (dated 2002) and therefore inaccurate, and no longer reflected the company’s environmental practices. There could therefore be no connection between the right VEJA sought to protect and the Plan.

In resisting the request, ArcelorMittal had relied on being a private company. It said VEJA had not shown that the information was required “for the exercise or protection of any rights” as set out in PAIA.

 

SCA Judgement

The Court stated that local and international companies “must be left in no doubt” that, when it came to the environment, there was “no room for secrecy”. The judgment scathingly rebuked ArcelorMittal for how it initially dealt with the requests for information.

The Court held that ArcelorMittal’s industrial activities were a matter of public interest and were “crucially important”. It agreed with VEJA on its argument that the Plan was still an important “baseline” document and that the fact that ArcelorMittal had “feigned ignorance” of the existence of the master plan, was “disingenuous”.

 

Conclusion

Like many legal disputes concerning the environment, this matter represents two competing interests, namely industrial activity aimed at developing South Africa’s economy, as against the preservation of the environment for the benefit of present and future generations.

In terms of the NEMA: Environmental Impact Assessment Regulations, 2010, there is a legal obligation on applicants for environmental authorisations to include an environmental management plan/ programme in its basic assessment report, or its environmental impact assessment report. As decided by the SCA, this plan/ programme may be required for the exercise or protection of any rights of affected persons, and will therefore be publically available.

The judgment is a victory for environmental organisations seeking to monitor the practices of private companies and ensuring that companies comply with their commitment to mitigate any harm caused by activities on site.