Submitted by Zizipho Zondani on
SOUTH AFRICA
Title:
Arcelormittal South Africa Ltd v. Vaal Environmental Justice Alliance
Court:
Supreme Court of Appeal
Citation:
Case No. 69/2014
Date:
26 November 2014
Instrument(s) Cited:
Constitution of the Republic of South Africa, 1996
Promotion of Access to Information Act 2 of 2000
National Environmental Management Act 107 of 1998
Waste Act 59 of 2008
National Water Act 36 of 1998
Case Summary:
Background:
ArcelorMittal South Africa Limited ("ArcelorMittal"), a large steel and mining company, refused to provide the environmental organisation Vaal Environmental Justice Alliance (“VEJA”), with information relating to the company’s activities. VEJA requested information on the company’s environmental plans to address pollution in the areas where they operate a major steel plant, including access to the company’s environmental “Master Plan”, a 20 year rehabilitation plan on its work sites and information on its implementation.
VEJA claimed that the requested information was in the public interest and was necessary for the protection and exercise of the right to an environment provided for in section 24 of the South African Constitution. The information would indicate whether the company was complying with its obligations under South African environmental law to prevent and remove pollution. A lower court ordered the company to release the information to VEJA. In this case the Court considers the appeal by ArcelorMittal against that decision.
Issue and resolution:
The environment and the right to access information from private actors. The Court upheld the order for release of information, indicating that companies must operate with transparency and in compliance with constitutional values.
Court reasoning:
The Court explained the case raised an issue concerning two competing interests. On the one hand industrial activity and the significant contributions it makes to South Africa’s social and economic development, against concerns on the preservation of the environment for present and future generations. Section 24 of the Constitution protects the environment, it provides everyone with a right to an environment not harmful to health or well-being and also protection of the environment for present and future generations. The Court noted the importance of transparency in a democratic society, the right to access information is provided for under section 34 of the Constitution. The Court reaffirmed that VEJA had a right under law to request access to information from the company.
The Court took into account the arguments presented by ArecelorMittal on why the order to release information should be dismissed. ArcelorMittal put forward that the requested “Master Plan” was no longer accurate and did not present its current environmental practices. The Court rejected the argument the plans were not relevant as the company had published it in its annual reports and provided the plan to company shareholders and state authorities. Finding that ArcelorMittal was a major polluter in the areas it operated, the information in the plan would reveal pollution results relevant to the communities near the sites as well as in the public interest. In another attempt to refuse access to the environmental plans the company argued that VEJA was attempting to act as a regulating authority although it had no legal powers to do so, rejecting this the Court found that as environmental advocates VEJA have a right to monitor ArcelorMittal’s operations and the impact this has on the environment.
The Court also rejected the argument that, as a private actor, ArcelorMittal has a less stringent obligation than the State arising from the right to access information. The Court explained the important role transparency plays in preventing abuse of power and human rights violations by public and private actors. In certain circumstances Constitutional rights are binding on companies, the Court found ArcelorMittal had no legal basis to refuse the information requests. The Court critised the company’s disingenuous correspondence with VEJA leading up to the litigation, emphasising that companies must operate with transparency and in compliance with values under the Constitution.
The Court upheld the order requiring ArcelorMittal to release its environmental records to VEJA.
Link to Full Judgment:
http://cer.org.za/wp-content/uploads/2012/12/VEJA-v-AMSA-SCA-Judgment.pdf
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.