Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
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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.
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.
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].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The most important aspect of this decision is that it concluded that an environmental organization met the strict threshold established under PAIA regarding the request of information from private entities. Moreover, not only did the Court order the disclosure of the documents–it also established that environmental organizations can monitor the operations of private entities in order to protect the environment.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The Supreme Court of Appeals established that there is an international trend regarding environmental protection that recognizes consultation and interaction with the public.
The SCA referenced Principle 10 of the Rio Declaration.
Case significance refers to how influential the case is and how its significance changes over time.
The value of this case is that it established that an environmental organization can rely on environmental protection legislation in order to meet the threshold of PAIA to have access to information held by a private entity.
Let us know if you notice errors or if the case analysis needs revision.