Case Summary and Outcome

An environmental protection organization requested that environment-related documents be disclosed and delivered to it by a private entity in South Africa. The private entity refused to disclose documents stating that the organization did not meet the South Africa’s PAIA threshold. The PAIA threshold requires that an entity demonstrate the protection of a right. The Supreme Court of Appeals determined that as advocates of environmental protection, the organization could rely on environmental legislation in order to comply with the threshold requirement under PAIA.

Facts

The Vaal Environmental Justice Alliance (“VEJA”) is a non-profit voluntary association that advocates for environmental justice in South Africa. VEJA requested environmental information from a private entity called ArcelorMittal (“AM”). AM is one of the major corporations producing steel products in South Africa. The information requested by VEJA related to AM’s past and present activities regarding its operational and strategic approaches to the protection of the environment in areas in which they operated steel plants, specifically AM’s environmental Master Plan and the Vaal Disposal Site documents. VEJA’s request was made pursuant to sections 50(1) and 53 of the Promotion of Access to Information Act 2 of 2000 (“PAIA”).

AM refused VEJA’s request, stating that under section 50(1)(a) of PAIA, VEJA did not demonstrate a right which it is entitled to protect or exercise. AM also asserted that VEJA was not a regulatory authority that could request such information. The High Court granted access to VEJA and ordered AM to disclose the documents. AM appealed the High Court’s decision to the Supreme Court of Appeals.

Decision Overview

Justice Navsa delivered the opinion of the Supreme Court of Appeals (“SCA”). The main issue before the SCA was whether VEJA met the threshold of section 50(1) of PAIA relating to the request of documents from a private entity. Justice Navsa determined that, in order to meet the PAIA threshold, VEJA could rely on environmental laws that promoted the protection of the environment and public interaction. The SCA concluded that, as advocates for environmental protection and justice, VEJA did meet the threshold criteria under PAIA.

Furthermore, Justice Navsa stated that, as advocates of environmental justice, VEJA was entitled to monitor the operations of AM and the effects of its activities on the environment. He also stated that VEJA’s claim was not frivolous. For this matter, Justice Navsa cited the South African Constitution, which establishes that, similar to section 50(1) of PAIA, everyone has a right to access of information for the protection of any right. [paras. 79-80]. Finally, Justice Navsa affirmed that, in relation to the protection of the environment, “there is no room for secrecy and that constitutional values will be enforced.” [para. 82].