On 26 November the Supreme Court of Appeal (SCA) dismissed ArcelorMittal's appeal in the case of Company Secretary of ArcelorMittal South Africa v Vaal Environmental Justice Alliance (69/2014)  ZASCA 184 to prevent the disclosure of its Environmental Master Plan, the Supreme Court of Appeal (SC") fired a warning shot to mining and other industrial companies when it said the following: "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."
ArcelorMittal had refused the request from an environmental lobby group made in terms of the Promotion of Access to Information Act, 2002 (PAIA) to be provided with a copy of the Environmental Master Plan (including related progress reports and updated versions), as well as records of the closure and rehabilitation of its disposal site. The appellant argued that the lobby group had not proved that the information was required for "the exercise or protection of any rights" under PAIA, and that the rights relied on (namely the right entrenched in s 24 of the Constitution to an environment that is not harmful to health or wellbeing) was too broad, as its basis for refusing to provide the documents.
In dismissing ArcelorMittal's contentions, the SCA held that the word "required" in s 50(1)(a) of PAIA should be construed as "reasonably required" in the prevailing circumstances for the exercise or protection of the environmental rights of the requestor under the Constitution and environmental statutes.
The SCA held that the request to be provided with the Environmental Management Plan was not overly broad and that the environmental lobby group had relied not only on s24 of the Constitution, but also on the provisions of environmental statutes which recognised the importance of public participation in safeguarding the environment.
This case has wide implications for mining and other industrial companies, particularly where companies have a history of negative impacts on the environment and where its industrial activities are a matter of public interest. The judgment recognises “the importance of consultation and interaction with the public. After all, environmental degradation affects us all."
The Centre for Environmental Rights has been at the forefront of requesting records on environmental governance and management under PAIA, having submitted 240 such applications over the past four years to government departments, parastatals and to private bodies. Although the Centre for Environmental Rights noted in its November 2014 report, "Money Talks", that there was an increased deference of government departments to protect all information of private bodies on the basis that these records comprised commercially sensitive information that required mandatory protection, this may no longer be justified in the light of the SCA's judgment in the ArcelorMittal case.
Companies must be aware that they may be required to make their internal documents relating to environmental matters available to public interest groups, especially where companies claim good corporate governance and a commitment to protecting the environment.