Murky waters of environment disclosure cleared up

In a case that is expected to have wide implications for mining and industrial companies, the Supreme Court of Appeal (SCA) has ruled that, with regard to environmental issues, local and international companies should be left in no doubt that there is “no room for secrecy” and that “constitutional values will be enforced”. 

Lawyers warn that companies will have to be more transparent about their environmental plans, and make sure they have nothing to hide.

ArcelorMittal South Africa had refused to disclose the contents of its Environmental Master Plan or documents relating to its Vaal disposal site to a nongovernmental (NGO)group, the Vaal Environmental Justice Alliance. 

The alliance contends that the plan, drawn up in 2002, covered rehabilitation of the disposal site, situated in Vereeniging, after the company had allegedly dumped hazardous waste there, as well as the company’s plans to address pollution and rehabilitate its sites over a 20-year period.

The SCA dismissed ArcelorMittal’s appeal against a Johannesburg high court ruling, ordering the company to hand over its environmental plan to the lobby group. 

The company said after the SCA ruling that it would not appeal the judgment and would hand over the documents. 

It still contends, however, that the plan was an internal document and had become outdated over the years because of changes to environmental legislation. 

ArcelorMittal, relying on being a private company, had rejected the alliance’s application under the Promotion of Access to Information Act (Paia), saying the NGO had not proved that the information was required for the “exercise or protection of any rights”. The Act includes this provision for private companies, which does not apply to organs of state or the government. 

The SCA, in a unanimous ruling, rejected the company’s -argument and held the wording of section 50(1) of Paia should be construed as “reasonably required” when it came to the exercise or protection of environmental rights. 

Werksmans director Neil Kirby said the SCA in its judgment balances two competing interests, industrial activity against concerns of preservation of the environment. This has been also emphasised in the Constitutional Court.

The SCA said in its judgment that the NGO had not only relied on section 24 of the Constitution, which states, among other things, that everyone has a right to an environment that is not harmful to their health or wellbeing, but had also drawn from provisions of environmental statutes that recognised the importance of public participation in safeguarding the environment.  

Robyn Hugo, attorney at the Centre for Environmental Rights which represented the NGO, said the case was about accountability. 

“Industries like AMSA [ArcelorMittal] regularly refuse to release environmental information — as basic as licences — to nongovernmental and community -organisations. Like AMSA, these companies simultaneously claim — in communications with shareholders and the public — that they -constructively engage with stakeholders and/or are committed to transparency.  

Lawyers from Webber Wentzel’s project finance, construction and environment practice unit said the ruling had “wide implications” for companies, particularly those with a history of having a negative impact on the environment, and where its industrial activity could be considered a matter of public interest. 

The law firm said the SCA judgment could spell the end of what the Centre for Environmental Rights, in its November report, said was a growing deference by government departments to the records of private companies when the issue involves environmental matters.

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Related stories


Subscribers only

How smuggled gold destined for Dubai or Singapore has links...

Three Malagasy citizens were apprehended at OR Tambo International airport, but now the trail is found to connect to France and Mali

How lottery execs received dubious payments through a private company

The National Lottery Commission is being investigated by the SIU for alleged corruption and maladministration, including suspicious payments made to senior NLC employees between 2016 and 2017

More top stories

Spy boss tells how agency was used to detain Zuma’s...

Day two of State Security Agency testimony at the Zondo commission birthed more revelations that point to the former head of state and agents breaking the law

Covid-19 economic crisis will be felt by the poor for...

The pandemic’s economic fallout will affect the world’s poor for years, while the richest billionaires increase their wealth, an Oxfam report notes

VBS case delays cause massive frustration

A certificate is needed from the head of the NPA for more arrests to be made

Ramaphosa warns rich countries against vaccine nationalism

During his address at the World Economic Forum’s Davos Dialogues on Tuesday, the president implored countries hoarding vaccines to release their excess doses

press releases

Loading latest Press Releases…