Company Secretary, Arcelormittal South Africa Ltd and Another v Vaal Environmental Justice Alliance

• Jurisdiction: South Africa
• Judge: Navsa ADP, Majiedt JA, Saldulker JA, Mathopo AJA and Mocumie AJA
• Judgment Date: 26 November 2014
• Docket Number: 69/2014 [2014] ZASCA 184
• Hearing Date: 06 November 2014
• Counsel: AE Franklin SC (with P Lazarus SC) for the appellants. S Budlender (with J Bleazard and C de Villiers) for the respondent.
• Court: Supreme Court of Appeal

Navsa ADP (Majiedt JA, Saldulker JA, Mathopo AJA and Mocumie AJA concurring):

I [1] This case is adjudicated against the following backdrop. 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 J legislature has rightly seen fit to cater for both aspects in legislation,

Navsa ADP (Majiedt JA, Saldulker JA, Mathopo AJA and Mocumie AJA concurring)

driven by constitutional imperatives, some of which will be discussed in A due course.

[2] The present litigation stems from a refusal by the second appellant, ArcelorMittal South Africa Ltd (AM), one of our country's major industrial corporations producing 90% of South Africa's steel products, B of two requests by the respondent, the Vaal Environmental Justice Alliance (VEJA), a non-profit voluntary association (characterising themselves as advocates for environmental justice), for information relating to AM's past and present activities, including the latter's documented historical operational and strategic approach to the protection of the environment in the Vanderbijlpark and Vereeniging areas, in each of C which they operate a major steel plant.

[3] The present litigation represents, in juxtaposition, two competing interests, namely industrial activity and its concomitant significance for the country's development and economy, as against concerns about the D preservation of the environment for the benefit of present and future generations. In Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province, and Others 2007 (6) SA 4 (CC) (2007 (10) BCLR 1059; [2007] ZACC 13) para 1 the Constitutional Court spoke about 'the interaction between social and economic E development and the protection of the environment'. This tension was brought sharply into focus at the commencement of submissions on behalf of AM in reply, during the hearing before us, when we were urged not to incline against the corporation simply because it obviously emits gasses into the atmosphere and disgorges waste products whilst being a F boon to the country's economic development. In the present case there is, in addition, the complicating feature of the asserted entitlement to information held in private hands.

[4] The entanglement of the competing concerns referred to in the G preceding paragraph has been recognised by the Constitutional Court. In Fuel Retailers para 44 the court noted that whilst s 24 of the Constitution entrenched the right to an environment not harmful to health or wellbeing, upon which VEJA relies, it also explicitly recognised the obligation to promote economic and social development. The Constitutional Court stated the following (para 45): H

'The Constitution recognises the interrelationship between the environment and development; indeed it recognises the need for the protection of the environment while at the same time it recognises the need for social and economic development. It contemplates the integration of environmental protection and socio-economic development. It I envisages that environmental considerations will be balanced with socio-economic considerations through the ideal of sustainable development. This is apparent from s 24(b)(iii) which provides that the environment will be protected by securing ecologically sustainable development and use of natural resources while promoting justifiable economic and social development. Sustainable development and sustainable use and J

Navsa ADP (Majiedt JA, Saldulker JA, Mathopo AJA and Mocumie AJA concurring)

A exploitation of natural resources are at the core of the protection of the environment.' [1]

[5] The background to the litigation, including the details of the corporation's stance and the applicable legislation, is set out in the ensuing paragraphs.

B [6] It is apposite to outline, right at the beginning, the applicable provisions of the Promotion of Access to Information Act 2 of 2000 (PAIA), which regulate requests for information from private persons. This will enable an early appreciation of the statutory basis for VEJA's request, provide the backdrop to an evaluation of the facts and C make it easier to follow the chronology of events and the contentions of the parties. Section 50(1) of PAIA sets out the obligation to provide access to information, subject to certain jurisdictional requirements:

'(1) A requester must be given access to any record of a private body if —

(a)

D that record is required for the exercise or protection of any rights;

(b)

that person complies with the procedural requirements in this Act relating to a request for access to that record; and

(c)

access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this Part.'

[7] The relevant parts of s 53 of PAIA, which must be read with E s 50(1)(a), provide as follows:

'(1) A request for access to a record of a private body must be made in the prescribed form to the private body concerned at its address, fax number or electronic mail address.

(2) The form for a request for access prescribed for the purposes of subsection (1) must at least require the requester concerned —

F . . .

(d)

to identify the right the requester is seeking to exercise or protect and provide an explanation of why the requested record is required for the exercise or protection of that right; . . . .'

Navsa ADP (Majiedt JA, Saldulker JA, Mathopo AJA and Mocumie AJA concurring)

[8] On 15 December 2011 VEJA's attorneys wrote to AM (the first A request) seeking a copy of its Environmental Master Plan (the Master Plan) which they asserted the corporation had developed for the rehabilitation of its Vanderbijlpark site, together with any progress reports relating to its implementation. In the prescribed private-body request, form C, VEJA, after setting out its credentials as an advocate for environmental justice, provided the basis for its request, purportedly in B terms of s 53(2)(d) of PAIA, stating:

'The requested documents are necessary for the protection of the s 24 constitutional rights and are requested in the public interest. VEJA C requires the requested documents to ensure that ArcelorMittal South Africa Limited carries out its obligations under the relevant governing legislation, including the National Environmental Management Act 107 of 1998, the National Environmental Management: Waste Act 59 of 2008, and the National Water Act 36 of 1998. VEJA seeks to ensure that the operations of ArcelorMittal South Africa Limited are conducted in accordance with the law, that pollution is prevented, and that remediation of D pollution is properly planned for, and correctly and timeously implemented.' [My emphasis.]

[9] On 13 February 2012 VEJA's attorneys wrote to AM (the second request) requiring specified information. A completed form C sought the following: E

'As referred to on page 46 of the National Environmental Compliance & Enforcement Report 2010 – 11, in relation to the premises of ArcelorMittal South Africa Limited (ArcelorMittal) in Vereeniging:

1.

The reports compiled by the Department of Environmental Affairs F (DEA) and/or the Gauteng Department of Agriculture & Rural Development (GDARD) in relation to compliance inspections conducted by DEA and/or GDARD on May 2007 and July 2010 for the Vaal dump site.

2.

Any representations made by ArcelorMittal in response to the inspection reports referred to in 1 above. G

3.

Any test results, summaries, reports and associated documents relied upon by DEA and/or GDARD in the collation of the inspection reports referred to in 1 above, including registration certificates, waste permits etc.

4.

Copies of all enforcement notices and pre-notices issued by DEA and GDARD in relation to the Vaal dump site. H

5.

All closure reports and rehabilitation plans submitted by ArcelorMittal in relation to the Vaal dump site.

6.

All approvals of rehabilitation plans in relation to the Vaal dump site.

7.

All certificates relating to the disposal of magnetite removed from the Vaal dump site. I

8.

All progress reports in relation to the Vaal dump site.

9.

All waste management licences or applications for waste management licences relating to the closure and rehabilitation of the Vaal dump site.

10.

All correspondence between ArcelorMittal, DEA, and GDARD relating to the closure and rehabilitation of the Vaal dump site.' J

Navsa ADP (Majiedt JA, Saldulker JA, Mathopo AJA and Mocumie AJA concurring)

A The information requested relates to the closure and rehabilitation of AM's Vereeniging site where hazardous materials were once dumped. It is also described as the Vaal disposal site.

[10] In respect of the second request, form C, providing the basis for the information sought, is framed in identical terms to the first request as B described in [8] above.

[11] Almost a month after the first request, on 13 January 2012, AM's attorneys, writing in reply to the first request, blamed the delay in responding on the festive season. They relied on the provisions of C s 57(1)(c) of PAIA in support of the statement in the letter that AM, in order to respond meaningfully, required time to conduct internal consultations. [2]

[12] On 13 February 2012 AM's attorneys wrote to VEJA's attorneys requiring proof of their mandate to act on behalf of VEJA and sought a D copy of VEJA's constitution. Furthermore, they asked for greater clarity and a more precise description of the documents...