Written by: Morne Viljoen

The recent judgment of the Supreme Court of Appeal (SCA), in Company Secretary of ArcelorMittal South Africa (AMSA) v Vaal Environmental Justice Alliance (VEJA) may go down as a watershed decision regarding the disclosure of companies’ environmental management information to third parties in terms of the Promotion of Access to Information Act (PAIA) information regarding its environmental management.

VEJA requested unsuccessfully launched a PAIA request to access AMSA’s master plan, a comprehensive strategy document containing the results of numerous specialist environmental tests for pollution levels at Vanderbijlpark, as well as AMSA’s plans to address this pollution and rehabilitate its sites.

VEJA based its request on the right enshrined in section 24 of the Constitution which provides that everyone has the right to an environment that is not harmful to their health or well-being. It stated that the information was required to ensure that AMSA complies with the law, to prevent pollution and that remediation of pollution is properly planned for and correctly timeously implemented.

The SCA subsequently found that VEJA, as “an advocate for environmental justice” is entitled to monitor AMSA’s operations and effects on the environment and that the master plan was reasonably required to protect its section 24 rights. It therefore, in effect, granted VEJA a right to collaborative corporate governance regarding environmental management adding “After all, environmental degradation affects us all.”

The SCA recognised that, in order to achieve sustainable development, a balance must be found between socio-economic development and the protection of the environment. Courts must therefore, adopt a common sense approach to how far the principle of public participation and collaboration extends.

It also found that the environmental management principles set out in Section 2 of the National Environmental Management Act (NEMA), also applies to corporate decisions and activities that impact on the environment and thus to the public interest, particularly when their activities require regulatory approval. The SCA gave specific emphasis to the following principles:
• decisions must be taken in an open and transparent manner, and access to information must be provided in accordance with the law;
• environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably; and
• The participation of all interested and affected parties in environmental governance must be promoted;

The SCA warned against “the dangers of a culture of secrecy and unresponsiveness” adding a stern warning that corporations operating in South Africa must be left in no doubt that in relation to the environment there is no room for secrecy and that constitutional values will be enforced.

In another recent matter, the Minister of Environmental Affairs gave effect to the abovementioned judgement when it decided to release key environmental compliance records in relation to Samancor Chrome’s Middelburg Ferrochrome plant after a request by the Greater Middelburg Residents’ Association (GMRA).

It must be noted that the 2014 Environmental Impact Assessment Regulations demands that a wide range of environmental information (including environmental authorisations, audit reports, environmental management programmes, independent assessments of financial provision for rehabilitation and environmental liability, closure plans and compliance monitoring reports) is made available for inspection and loaded onto a company’s website.

It is therefore clear that there is nowhere to hide. Not only is Big Brother watching you, but civil society as well. Any party wishing to protect a particular right, may claim any information reasonably required for the protection of such a right. Businesses may now find themselves at the mercy of different environmentalist groups and face legislative (including criminal) sanctions.

In light hereof, as well as the potential stringent penalties (environmental law makes provision for the personal liability of employees, managers and directors) it is imperative that all businesses get their houses in order.

Make sure that you know which environmental laws are applicable to you and ensure that you comply with same. Failure to do so may have dire consequences.

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