THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

CASE NO: 69/2014
Reportable

In the matter between:
COMPANY SECRETARY OF ARCELORMITTAL
SOUTH AFRICA

First Appellant
ARCELORMITTAL SOUTH AFRICA LTD

Second Appellant
and
VAAL ENVIRONMENTAL JUSTICE ALLIANCE

Respondent

Neutral Citation:
Company Secretary of Arcelormittal South Africa v Vaal
Environmental Justice Alliance (69/2014) [2014] ZASCA 184
(26 November 2014).

Coram:
Navsa ADP, Majiedt & Saldulker JJA and Mathopo & Mocumie
AJJA

Heard:

6 November 2014

Delivered:

26 November 2014

Summary:
Request for environmental related information held by
industrial corporation – requirements of ss 50(1) and 53 of the
Promotion of Access to Information Act 2 of 2000 (PAIA) –
importance
of
activities
of
corporation
impacting
on
environment – distinction between obligations of private
persons and the State in terms of PAIA discussed– culture of
openness
and
ecological
sensitivity
emphasised
–
significance of the involvement of the public in environmental
issues – protection and preservation of the environment for
present and future generations.

______________________________________________________________________
ORDER
______________________________________________________________________

On appeal from: The Gauteng Local Division, Johannesburg (Carstensen AJ sitting as
court of first instance).

The following order is made:

The appeal is dismissed with costs including the costs attendant upon the employment
of two counsel.
______________________________________________________________________

JUDGMENT
______________________________________________________________________
Navsa ADP (Majiedt & Saldulker JJA and Mathopo & Mocumie AJJA concurring):

[1] This case is adjudicated against the following backdrop. First, the world, for
obvious reasons, is becoming increasingly ecologically sensitive. Second, citizens in
democracies around the world are growing alert to the dangers of a culture of secrecy
and unresponsiveness, both in respect of governments and in relation to corporations.
In South Africa, because of our past, the latter aspect has increased significance. The
legislature has rightly seen fit to cater for both aspects in legislation, driven by
Constitutional imperatives, some of which will be discussed in due course.

[2] The present litigation stems from a refusal by the second appellant, ArcelorMittal
South Africa Limited (AM), one of our country‟s major industrial corporations producing
90 per cent of South Africa‟s steel products, of two requests by the respondent, the Vaal
Environmental
Justice
Alliance
(VEJA),
a
non-profit
voluntary
association
(characterising themselves as advocates for environmental justice), for information
relating to AM‟s past and present activities, including the latter‟s documented historical

operational and strategic approach to the protection of the environment in the
Vanderbijlpark and Vereeniging areas, in each of which they operate a major steel
plant.

[3] The present litigation represents, in juxtaposition, two competing interests,
namely industrial activity and its concomitant significance for the country‟s development
and economy, as against concerns about the preservation of the environment for the
benefit of present and future generations. In Fuel Retailers Association of Southern
Africa v Director-General: Environmental Management Department of Agriculture,
Conservation and Environment, Mpumalanga Province & others 2007 (6) SA 4 (CC)
para 1, the Constitutional Court spoke about „the interaction between social and
economic development and the protection of the environment‟. This tension was
brought sharply into focus at the commencement of submissions on behalf of AM in
reply, during the hearing before us, when we were urged not to incline against the
corporation simply because it obviously emits gasses into the atmosphere and
disgorges waste products whilst being a boon to the country‟s economic development.
In the present case there is, in addition, the complicating feature of the asserted
entitlement to information held in private hands.

[4] The entanglement of the competing concerns referred to in the preceding
paragraph has been recognised by the Constitutional Court. In Fuel Retailers para 44,
the court noted that whilst s 24 of the Constitution entrenched the right to an
environment not harmful to health or wellbeing, upon which VEJA relies, it also explicitly
recognised the obligation to promote economic and social development. The
Constitutional Court stated the following (para 45):
„The Constitution recognises the interrelationship between the environment and development;
indeed it recognises the need for the protection of the environment while at the same time it
recognises the need for social and economic development. It contemplates the integration of
environmental protection and socio-economic development. It envisages that environmental
considerations will be balanced with socio-economic considerations through the ideal of
sustainable development. This is apparent from s 24(b)(iii) which provides that the environment
will be protected by securing “ecologically sustainable development and use of natural

resources while promoting justifiable economic and social development”. Sustainable
development and sustainable use and exploitation of natural resources are at the core of the
protection of the environment.‟1

[5] The background to the litigation, including the details of the corporation‟s stance
and the applicable legislation, is set out in the ensuing paragraphs.

[6] It is apposite to outline, right at the beginning, the applicable provisions of the
Promotion of Access to Information Act 2 of 2000 (PAIA), which regulate requests for
information from private persons. This will enable an early appreciation of the statutory
basis for VEJA‟s request, provide the backdrop to an evaluation of the facts and make it
easier to follow the chronology of events and the contentions of the parties. Section
50(1) of PAIA sets out the obligation to provide access to information, subject to certain
jurisdictional requirements:
„(1) A requester must be given access to any record of a private body if –
(a)
that record is required for the exercise or protection of any rights;
(b)
that person complies with the procedural requirements in this Act relating to a request for
access to that record; and
(c)
access to that record is not refused in terms of any ground for refusal contemplated in
Chapter 4 of this Part.‟

[7] The relevant parts of section 53 of PAIA, which must be read with s 50(1)(a),
provide as follows:

1 In para 43 of Fuel Retailers the following is quoted from the „Report of the World Commission on
Environment
and
Development:
Our
Common
Future‟
(Brundtland
Report),
http://www.un.org/esa/sustdev/documents/docs_key_conferences.htm, link: General Assembly 42nd
Session: Report of the World Commission on Environment and Development, accessed on 4 June 2007.
Chapter 1 para 42:
„[E]nvironmental stresses and patterns of economic development are linked to one another. Thus
agricultural policies may lie at the root of land, water, and forest degradation. Energy policies are
associated with the global greenhouse effect, with acidification, and with deforestation for fuelwood in
many developing nations. These stresses all threaten economic development. Thus economics and
ecology must be completely integrated in decision making and lawmaking processes not just to protect
the environment, but also to protect and promote development. Economy is not just about the production
of wealth, and ecology is not just about the protection of nature; they are both equally relevant for
improving the lot of humankind.‟

„(1)
A request for access to a record of a private body must be made in the prescribed form
to the private body concerned at its address, fax number or electronic mail address.
(2)
The form for a request for access prescribed for the purposes of subsection (1) must at
least require the requester concerned –
. . .
(d)
to identify the right the requester is seeking to exercise or protect and provide an
explanation of why the requested record is required for the exercise or protection of that right; . .
. .‟

[8] On 15 December 2011 VEJA‟s attorneys wrote to AM (the first request) seeking
a copy of its Environmental Master Plan (the Master Plan) which they asserted the
corporation had developed for the rehabilitation of its Vanderbijlpark site, together with
any progress reports relating to its implementation. In the prescribed private-body
request „Form C‟, VEJA, after setting out its credentials as an advocate for
environmental justice, provided the basis for its request, purportedly in terms of s
53(2)(d) of PAIA, stating:
„The requested documents are necessary for the protection of the section 24 constitutional
rights and are requested in the public interest. VEJA requires the requested documents to
ensure that ArcelorMittal South Africa Limited carries out its obligations under the relevant
governing legislation, including the National Environmental Management Act 107 of 1998, the
National Environmental Management: Waste Act 59 of 2008, and the National Water Act 36 of
1998. VEJA seeks to ensure that the operations of ArcelorMittal South Africa Limited are
conducted in accordance with the law, that pollution is prevented, and that remediation of
pollution is properly planned for, and correctly and timeously implemented.‟ (My emphasis.)

[9] On 13 February 2012 VEJA‟s attorneys wrote to AM (the second request),
requiring specified information. A completed „Form C‟ sought the following:
„As referred to on page 46 of the National Environmental Compliance & Enforcement Report
2010-11, in relation to the premises of ArcelorMittal South Africa Limited (“ArcelorMittal”) in
Vereeniging:
1. the reports compiled by the Department of Environmental Affairs (“DEA”) and/or the
Gauteng Department of Agriculture & Rural Development (“GDARD”) in relation to

compliance inspections conducted by DEA and/or GDARD on May 2007 and July 2010
for the Vaal dump site;
2. any representations made by ArcelorMittal in response to the inspection reports referred
to in 1 above;
3. any test results, summaries, reports and associated documents relied upon by DEA
and/or GDARD in the collation of the inspection reports referred to in 1 above, including
registration certificates, waste permits etc;
4. copies of all enforcement notices and pre-notices issued by DEA and GDARD in relation
to the Vaal dump site;
5. all closure reports and rehabilitation plans submitted by ArcelorMittal in relation to the
Vaal dump site;
6. all approvals of rehabilitation plans in relation to the Vaal dump site;
7. all certificates relating to the disposal of magnetite removed from the Vaal dump site;
8. all progress reports in relation to the Vaal dump site; and
9. all waste management licences or applications for waste management licences relating
to the closure and rehabilitation of the Vaal dump site; and
10. all correspondence between ArcelorMittal, DEA, and GDARD relating to the closure and
rehabilitation of the Vaal dump site.‟
The information requested relates to the closure and rehabilitation of AM‟s Vereeniging
site where hazardous materials were once dumped. It is also described as the Vaal
Disposal site.

[10] In respect of the second request, Form C, providing the basis for the information
sought, is framed in identical terms to the first request as described in para 8 above.

[11] Almost a month after the first request, on 13 January 2012, AM‟s attorneys,
writing in reply to the first request, blamed the delay in responding on the festive
season. They relied on the provisions of s 57(1)(c) of PAIA in support of the statement
in the letter that AM, in order to respond meaningfully, required time to conduct internal
consultations.2

2 Section 57(1)(c) of PAIA reads as follows:

[12] On 13 February 2012 AM‟s attorneys wrote to VEJA‟s attorneys requiring proof of
their mandate to act on behalf of VEJA and sought a copy of VEJA‟s constitution.
Furthermore, they asked for greater clarity and a more precise description of the
documents sought. AM‟s attorneys also asked of VEJA‟s attorneys how the „alleged
existence‟ of the requested documentation came to VEJA‟s knowledge and required an
explanation for the basis on which VEJA believed it would be entitled to „usurp the role
of the relevant regulating authorities in ensuring our client‟s statutory compliance‟. AM‟s
attorneys did, however, offer copies of „all the relevant environmentally-related
consents, permits, authorizations and the like in an endeavour to assist VEJA in fulfilling
the Purpose‟.3

[13] On 27 February 2012 VEJA‟s attorneys wrote to AM‟s attorneys stating that they
had difficulty in understanding how AM could be unaware of the existence of its own
Master Plan, since in prior litigation it had relied on that plan and had subsequently
repeatedly referred to it in annual and other reports. VEJA‟s attorneys also pointed out
that government departments did not have adequate resources to monitor compliance
at all production facilities in the country and that the public, including VEJA, can play an
active role in that regard.

[14] On 13 March 2012 AM‟s attorneys wrote to VEJA‟s attorneys concerning their
request for information. The following is the relevant part of that letter:
„We have provided a copy of your response to our client whom has confirmed that it is
consulting internally in order to collate information in respect thereto and will soon thereafter
consult with us in order to prepare an appropriate reply.‟

„The head of a private body to whom a request for access has been made, may extend the period of 30
days referred to in section 56(1) (in this section referred to as the “original period”) once for a further
period of not more than 30 days, if –
. . .
(c)
consultation among divisions of the private body or with another private body is necessary or
desirable to decide upon the request that cannot reasonably be completed within the original period.‟
Section 56 provides that ordinarily a party has 30 days to respond to a request for information.
3 Earlier in the letter „the Purpose‟ referred to is described by AM‟s attorneys as follows:
„[O]f “ensuring” that our client complies with its environmental statutory obligations.‟

[15] On 17 April 2012 AM‟s attorneys wrote to VEJA‟s attorneys stating that they were
consulting with counsel in order to determine whether their inclination, based on their
interpretation of s 50(1)(a) of PAIA, to reject the requests was justified. On 18 April 2012
AM‟s attorneys once again wrote to VEJA‟s attorneys. The relevant part of that letter
reads as follows:
„1.
We refer to . . . your client‟s request for information relating to an “Environmental Master
Plan” and the Vaal Disposal Site (“Requests”) addressed to our client, ArcelorMittal South Africa
Limited.
2.
You have not set out in your Requests, a right which you are entitled to protect or
exercise as required in terms of section 50(1)(a) of the Promotion of Access to Information Act,
2 of 2000. Accordingly, you do not set out grounds which demonstrate that you are entitled to
the records requested.
3.
In the circumstances, the Requests you have made are refused.‟

[16] That refusal led to the application by VEJA in the high court for an order
declaring the refusal invalid and directing that the information sought be supplied. It is
now necessary to have regard to what is contained in the affidavits in support of and
resisting the application.

[17] First, it is necessary to have regard to VEJA‟s description, in its founding
affidavit, of the Master Plan:
„The Master Plan is a comprehensive strategy document, developed by Iscor4 from 2000 to
2002 (and apparently since updated or amended), which details the results of numerous
specialist environmental tests for pollution levels at the Iscor/ArcelorMittal plants, and sets out
the second respondent‟s plans to alleviate pollution and rehabilitate its work sites over a 20-year
period. The initial estimated cost of implementing the Master Plan was approximately R1,3
billion.‟

[18] VEJA went further and referred to an AM executive report in 2003, in which what
is set out hereafter was indicated. For a fuller picture, it is necessary to set out those
allegations in the detail in which they were presented by VEJA:

4 AM‟s predecessor in title.

„15. The 2003 Executive Report on the Master Plan indicates that:
15.1
A core team of eight specialists was appointed to develop the Master Plan for the
Vanderbijlpark Steelworks plant, to address inter alia:

Documentation of the environmental status quo;

Identification and quantification of all environmental impacts and risks;

Development of options for the improvement of the risk profile;

Collation of an integrated plan of action;

An integrated Environmental Monitoring System.
15.2
The study area included “the total Works area of the IVS [Iscor Vanderbijlpark
Steelworks] plant” – that is,

The main Works area (South and North)

The residue management facilities (solids, sludges and liquids);

Potentially impacted areas outside the Work’s perimeter.
15.3
The methodology was informed by “a holistic integrated management philosophy, which
concentrated on technologies and measures to bring about pollution prevention”. The
following environmental disciplines were covered in the study:

Residue characterisation (solids, sediments and leachates);

Soil profiles;

Geology and groundwater;

Surface water

Process effluents

Air quality

Terrestrial and aquatic eco-systems

Noise

Geotechnical properties and land-use.
15.4
A Consultation Committee was established, which included representatives from the
Department of Water Affairs and Forestry (DWAF), the Department of Environmental Affairs
and Tourism (DEAT) and the Gauteng Department of Agriculture, Conservation,
Environment and Land-Affairs – ostensibly “to ensure that the study did not proceed in
isolation”.
15.5
Baseline studies were conducted to measure pollution levels at and around the
Vanderbijlpark plant. According to the Executive Report,

“The baseline studies primarily focused on the IVS plant area, with particular emphasis on
the areas where solid, liquid or gaseous residue originate or is impounded. The secondary
emphasis was on the plant site to determine potential contamination transgression beyond
the plant operational area. In addition, certain areas surrounding the plant were studied,
particularly along the watercourses emanating from the site, where potential impacts on the
eco-system could best be identified.
The larger study area included the Leeuwspruit and the Rietkuilspruit/Rietspruit up to their
confluences with the Vaal River . . .”
15.6
In general terms, the risks identified in the baseline studies included the following:
15.6.1 “[T]he degree of the groundwater contamination is such that it poses an unacceptable
risk to the environment within the IVS [Iscor Vanderbijlpark Steelworks] perimeter (if
available for consumption). The risk in this regard is a result of inorganic, and to a much
lesser extent, organic contamination. The potentially unacceptable risk to the
environment extends across the IVS perimeter into the receiving environment . . .”
15.6.2 “Sediments of all evaporation dams and the maturation ponds indicate unacceptable
potential risk for groundwater contamination, both with regard to inorganic and organic
contaminants.”
15.6.3 Surface water risk determinations for the Rietspruit Canal and the Frikkie Meyer Weir
(which receive surface water run-off from the IVS plant) indicated that there is “a
potentially unacceptable risk to the environment”;
15.6.4 Soil samples within the plan perimeter “displayed the potential for unacceptable
inorganic contamination risk to the environment”;
15.6.5 “Waste currently generated by IVS is classified as hazardous according to the Minimum
Requirement with resultant potential risk [to] the environment. These risks (due to mobile
contaminants and associated volumes) will have to be mitigated by inter alia treatment to
reach [a general quality], which would reduce potential risk”;
15.6.6 With regard to air quality, concentrations of sulphur dioxide and fine particulates were
found to be “within the current South African standards and/or guidelines, but with little
margin for safety”. In the south-western part of the consolidated plant area, the hydrogen
sulphide concentrations were found to “exceed” safely limits at times, while “heavy
deposition rates” of dust were recorded.
15.6.7 The terrestrial ecology of the greater study area showed “disturbed conditions” due to a
wide range of activities, including industrial activities. All the streams surveyed
(Leeuwspruit up to Vaal River, Rietkuilspruit up to Rietspruit and Rietspruit up to Vaal

River) were likewise impacted. The impacts identified include “water abstraction; flow
modification; bed modification; channel modification; inundation; indigenous vegetation
removal; solid waste disposal; bank erosion; water quality impairment; and exotic
vegetation encroachment.”
15.7
Six priority areas were identified in the Master Plan:
15.7.1 Achieving Zero Effluent Discharge, being a statutory requirement entrenched in the
water licence to be implemented by 2005. This required installing new technology for the
total reuse of the plant‟s effluent (including the discharge of process waters,
contaminated surface water, leachates and seepage).
15.7.2 Upgrading the Coke Oven and its gas cleaning system to achieve a Zero Effluent
Discharge by 2005;
15.7.3 Upgrading the Sinter Plant off gas system, to prevent unwanted atmospheric releases by
2007.
15.7.4 Addressing the current impacts and unacceptable risks to the environment outside the
Vanderbijlpark Steelworks perimeter;
15.7.5 Closing the disposal site, and developing of a new waste disposal site;
15.7.6 Clearing the harmful sediments in Dam 10, which was used in the past to collect sludges
and waters from the Vanderbijlpark Steelworks plant.‟

[19] VEJA pointed out that in subsequent years, namely 2002, 2004 and as recently
as 2010, the Master Plan was referred to in AM‟s annual reports as the driver behind
the corporation‟s environmental strategy. However, the 2010 annual report did state that
the original Master Plan had been amended or updated. That annual report explained
that this was done because of more stringent environmental controls due to significant
changes in the statutory regulatory environment. The annual report went on to record
that because of this consideration, AM decided not to release the original Master Plan.

[20] In para 17 of VEJA‟s founding affidavit, the principal deponent on its behalf
stated the following:
„The Master Plan has been a crucial framing document in the second respondent‟s approach to
tackling the pollution in and around its Vanderbijlpark plant, and it has been discussed by the
second respondent in public fora. For instance, in the latter half of 2003, I attended a Licensing
Forum constituted to negotiate Iscor‟s new water use license based on the Master Plan. The

forum included Iscor, the Department of Water Affairs (DWA) and community representatives.
During discussions at this forum, both the second respondent and the DWA made extensive
reference to the Master Plan and its findings. Among other things, [AM] committed to a zero
effluent discharge plant, in accordance with its Master Plan, as a condition of the water use
licence.‟

[21] AM responded to VEJA‟s assertions concerning the Master Plan. It began by
stating the following:
„32. . . . The . . . Annual Report [2010] . . . states that the plan is “out-dated and irrelevant”. This
statement is correct. For this reason the report cannot assist the applicant in the exercise of its
claimed right to monitor AMSA‟s compliance with environmental legislation. I elaborate on the
status of the Master Plan below:
32.1. The Master Plan was compiled as a result of and for the purposes of litigation in which
AMSA was involved in 1998-1999 and 2002-2003. It was intended to advise the legal strategy in
the litigation.
32.2. The document was based on numerous studies undertaken by external consultants
between 2000 and 2002. These studies covered a wide range of environmental issues including
air quality, ground, surface and process water quality, solid waste, geology and geotechnical
issues, noise risk, visual impacts, archaeological impacts, ecological impacts (including aquatic,
terrestrial and ecosystem impacts), land use impacts and socio-economic impacts.
32.3. The Master Plan was finally completed in 2003 and comprises a consolidation of the
aforesaid studies. The Master Plan was submitted as a draft with the intention of it being peer
reviewed before producing a final version. This was in fact never done and the Master Plan
remained in draft form.
32.4. Accordingly, the report was never finally adopted by AMSA [AM] to principally guide its
environmental management for the following reasons:
32.4.1. Firstly, upon re-evaluation of the Master Plan for the purposes of obtaining various
licences and permits in subsequent years, the findings contained in the various studies which
form the basis of the report were found to be scientifically and technically flawed.‟

[22] AM went on to allege that subsequent to the completion of the Master Plan in
2003, it implemented numerous environmental management measures which required
new licences or permits or amendments to existing licences or permits. During this

process it found that the information contained in the Master Plan was out-dated and
could no longer be relied on to support new licence applications. Consequently, new
studies were commissioned which replaced the studies comprising the Master Plan and
a new dynamic environmental management process was embarked upon to accord with
stricter environmental legislation binding on AM at that time and this process then
served to substitute the out-dated Master Plan.

[23] AM explained what it regarded as the scientific and technical flaws in its own
Master Plan. It stated that one of the main reasons was that inappropriate standards
were used to assess environmental quality in and around the Vanderbijlpark Works.
Those standards, it was explained, were derived using various national and
international standards and were selected by choosing the worst-case scenarios and
the most stringent tests. The selection of the worst case scenario as the standard to
determine whether a particular impact posed an acceptable or unacceptable risk
resulted in impacts frequently being identified as unacceptable in terms of human health
or the environment, when, in fact, the impacts were well within the limits imposed in
terms of South African law.

[24] AM provided, as an example of the flawed nature of the Master Plan, a
groundwater study that identified the chloride concentration in the groundwater in and
around the Vanderbijlpark site as being harmful to human health because it exceeded
the worst-case scenario threshold set in the study. However, in terms of the South
African drinking water quality standard, the concentration of chloride in the groundwater
identified in the report is regarded as posing no risk to human health.

[25] AM provided, as a further example of conclusions contained in the Master Plan
that were scientifically unfounded, a groundwater assessment which identified more
human health impacts than any other specialist study that was made, using one grab
sample instead of using more data to increase the reliability and accuracy of the
assessment. As a result, risks such as those posed by elements like manganese and
iron were identified as posing unacceptable human health risks. According to AM, from

the wealth of data presently available it is now known that the concentration and
location of these elements do not necessarily pose a risk to human health.

[26] In respect of surface water, AM acknowledged that the Master Plan identified
effluent discharged into the Rietspruit canal and the Leeuspruit as the main risk to
surface water, which was said to have an unacceptable impact on human health. Since
the compilation of the report, however, so AM stated, the Vanderbijlpark Works became
a zero effluent discharge facility and the impacts identified and assessed in the Master
Plan therefore do not accurately reflect the current position.

[27] In respect of the Master Plan‟s geological report, it was contended that although
it accurately described the geology underlying AM‟s Vanderbijlpark Works and its
surrounds, many of the conclusions reached in the report were speculative. In this
regard it referred to the solid waste study that identified the waste streams emanating
from the slag produced at the site as being extremely hazardous. The study accordingly
recommended the re-use of the slag as opposed to its disposal. This conclusion was
based on the assumption that manganese (the main element of concern) would leach
from the slag into the environment. In reaching this conclusion, the consultant did not
take cognisance of the fact that the pH level of the disposal site is high and that at a
high pH level, manganese is not mobile and would therefore not leach out of the slag
and into the environment.

[28] In respect of the Master Plan‟s air quality study, the conclusion was reached that
air quality is not a major concern at the site. The study concluded that fine dust (PM10),
sulphur dioxide and other gasses were within acceptable standards in the areas
surrounding the plant. AM adopted the attitude that VEJA was correct when it pointed
out that deteriorating air quality is a significant issue in the Vaal Triangle, and
emphasised that it is presently AM‟s top environmental priority. There was accordingly
no scientific basis for the conclusion contained in the report that air quality is not a major
concern at the site. According to AM, the Master Plan, because it was completed in
2003, does not take cognisance of various projects undertaken by AM since then that

„significantly altered and mitigated the impacts identified by the various consultants who
contributed to [its] compilation‟.

[29] Towards the end of para 32 of its answering affidavit, AM referred to a number of
studies and reports commissioned by it from 2006 onwards to provide information on
and mitigate it‟s operational impact on the environment. AM is insistent that priority
areas identified in the Master Plan are not present priorities. So, for example, it asserted
emphatically that it has achieved a zero effluent discharge at its Vanderbijlpark Works
which contention, it suggests, is substantiated by a water use licence granted in respect
of the works. AM concludes that since the information contained in the Master Plan is
out-dated and inaccurate, and thus no longer informs the corporation‟s current
environmental practices, there can be no connection between the right VEJA seeks to
protect and the Master Plan.

[30] VEJA, in its reply, was adamant that AM‟s stated basis for refusing the Master
Plan, namely that it was out-dated, is entirely without merit. It contended that the Master
Plan would provide what it calls a „valuable baseline of data‟ in respect of the pollution
levels at the Vanderbijlpark site, derived from at least two years of numerous specialist
environmental tests and investigations conducted by AM. VEJA goes on to state the
following:
„Both the focus and findings of the more recent studies allegedly conducted by AMSA, and the
subsequent rehabilitation measures it has taken, can only properly be assessed in the light of a
baseline of scientific data. Given the manifest scope of the Master Plan, and the scientific
investigations that informed it, it remains a vital source of data against which the applicants can
make such assessments. Thus, even if it is accepted that the Master Plan is “outdated” (which
is not accepted given that the applicants has not had sight of the Master Plan), it does not follow
that it is “irrelevant”.‟

[31] In respect of AM‟s statements that some of the information in the Master Plan
contained scientific and technical flaws, VEJA pointed out that the explanations
provided, as set out above, lead to the ineluctable conclusion that it is not the data that

was flawed but rather that the evaluation of and the conclusions drawn from the data
were scientifically unfounded.

[32] VEJA contended that there is not a shred of evidence that AM ever gave any
indication to its own shareholders that the Master Plan was inaccurate. On the contrary,
as noted above, everything points to the Master Plan having being fundamental to and
having driven AM‟s environmental strategy. VEJA is adamant that it is self-evident that
the Master Plan was relied on by AM when it obtained authorisations and licences to
conduct its activities.

[33] I now turn to VEJA‟s assertions in its founding affidavit as to the importance of
the information requested in relation to the Vaal Disposal site. In this regard VEJA relied
on a report by the Department of Environmental Affairs (DEA) which, it alleged,
demonstrated compliance and enforcement action taken by the authorities against AM.
It appears from what is stated by VEJA that the report flowed from an inspection of the
disposal site by authorities during May 2007, when the following findings were made:
„49.1.1 “Continued dumping of hazardous waste on an unpermitted site, despite repeated
instructions from the authorities to cease such activity.”
49.1.2 “Particulate emissions to air that cause, have caused or may cause significant and
serious pollution of the environment”;
49.1.3 “Significant and serious pollution of surface and groundwater with phenols, iron, oil,
fluoride and other hazardous substances”; and
49.1.4 “Failure to lodge audit reports”.‟

[34] The departmental report noted that there had been „pre-notices‟ and „compliance
notices‟ issued to AM by regulatory authorities instructing it to cease dumping
hazardous waste on that site. On 27 July 2010 an inspection of that site revealed that
AM had stopped all activities at the site and in March 2010 had re-submitted a
rehabilitation plan for approval. The Gauteng Department of Agriculture and Rural
Development (GDARD) found that 99 per cent of the element magnetite was removed
from the site and disposed of, and that monthly progress reports in regard to the

removal of magnetite had been submitted. The status of the enforcement process is
described in the GDARD report as follows:
„Dumping at the site ceased and GDARD approved the revised rehabilitation plan. ArcelorMittal
Vereeniging has been informed that it must apply to DEA for a waste management license to
close and rehabilitate the site.‟

[35] In its answering affidavit, AM did not dispute what VEJA stated about the Vaal
Disposal site, as set out in para 33 above. However, AM stated that VEJA has been
selective in quoting from the GDARD report. In that regard, AM referred to the
inspectorate‟s conclusion that it „currently believes that ArcelorMittal has made every
effort to comply with authorities‟ requirements‟. The last two sub-paragraphs of AM‟s
clarification, in its answering affidavit, of the status of the disposal site are set out
hereafter:
„69.4. In 2004 the Gauteng Department of Agriculture and Rural Development (“GDARD”)
granted AMSA authorisation to close and rehabilitate the site. In 2007 the national Department
of Environment Affairs issued a directive to AMSA requiring it to cease all disposal activities at
the site. AMSA complied with this directive. Pursuant thereto an amended rehabilitation and
closure plan was submitted to the GDARD in January 2008 for which approval was granted by
the GDARD in 2011. This amended rehabilitation plan is yet to be approved by the National
Department of Environmental Affairs.
69.5. At this stage 99% of the magnetite disposed of at the site has been removed and the site
is in the final stages of closure.‟

[36] In the replying affidavit the principal deponent on behalf of VEJA denied that he
had been selective in quoting from the GDARD report in relation to the Vaal Disposal
site. He had, he said, acknowledged that the enforcement activity by GDARD yielded
positive results and that AM was complying with the regulator‟s directives. VEJA is
adamant that information pertaining to levels of pollution and its impact on the
environment are not publicly accessible. In essence, VEJA adopted the position that the
information it seeks in relation to that site is required for it to establish that it poses no
risk to the environment.

[37] It is necessary to record that VEJA‟s efforts to obtain the requested
documentation from regulatory authorities proved unsuccessful.

[38] That then is the factual matrix against which the matter fell to be decided in the
high court. Before us, the submission on behalf of AM, which can safely be assumed to
have been a repeat of the argument in the high court and is also reflected in the
answering affidavit, was to the effect that the threshold requirement was not met by
VEJA by merely declaring, in general terms, that the requested information is relevant to
its performance as an advocate for environmental justice and that in this regard it relied
on its s 24 constitutional rights. Nor, it was contended, does it assist VEJA to state that
it seeks to monitor and ensure compliance by AM of its obligations in relation to the
prevailing statutory regulatory regime, which is not the object of PAIA. In short, in
relation to the latter submission, AM adopted the attitude that VEJA, in seeking the
information, was setting itself up as a parallel regulating authority in relation to the
environment, which the legislation does not sanction.

[39] The high court dealt with each of those submissions in turn. First, Carstensen AJ
considered the use of the word „required‟ as it appears in s 50(1)(a) of PAIA:
„A requester must be given access to any record of a private body if-
(a)
that record is required for the exercise or protection of any rights.‟ (My emphasis.)
He went on to say the following:
„I am of the view that the use of the word “required” rather than, for example, the use of the word
“necessary”, in Section 50(1)(a) creates a far lower “threshold” than that contended for by
AMSA.‟
In support of that conclusion he had regard to decisions of this court, namely ClutchCo
(Pty) Ltd v Davis 2005 (3) SA 486 (SCA) and Unitas Hospital v Van Wyk & another
2006 (4) SA 436 (SCA).

[40] The high court took the view that in order for it to answer the question whether
the threshold requirement of s 50(1)(a) had been met by VEJA, it had to have regard to
the primary basis supplied by VEJA in Form C, namely the asserted right in terms of
s 24 of the Constitution, which provides:

‟24. Everyone has the right –
(a)
to an environment that is not harmful to their health or well-being; . . . .‟

[41] Carstensen AJ said the following:
„12.
I am convinced that the Applicant, being an association of persons each of whom have
the right in terms of Section 24(a), can band together to enforce their rights and agree with the
Applicant‟s contentions in this regard.
13.
Even if I have extended the meaning of Section 24(a), I have no doubt that Section 24(b)
is applicable and assists the Applicant, following the sentiments expressed by the Supreme
Court of Appeal that there must be a change in ideology to the extent that “together with the
change in the ideological climate must also come a change in the legal and administrative
approach to environmental concerns”. Director: Mineral Development, Gauteng Region and
Another v Save the Vaal Environment and Others, 1999 (2) SA 209 (SCA) at para. 20.‟
Section 24(b) reads as follows:
„24. Everyone has the right -
(b)
to have the environment protected, for the benefit of present and future generations,
through reasonable legislative and other measures that –
(i)
prevent pollution and ecological degradation;
(ii)
promote conservation; and
(iii)
secure ecologically sustainable development and use of natural resources while
promoting justifiable economic and social development.‟

[42] The high court stated that a refusal of VEJA‟s application would hamper the
organisation in championing the preservation and protection of the environment. With
reference to the decision of the Constitutional Court in Biowatch Trust v Registrar,
Genetic Resources & others 2009 (6) SA 232 (CC), it concluded that it has clearly been
established that the participation of public interest groups is vital for the protection of the
environment.

[43] Carstensen AJ, having reached the conclusions set out above, went on to reject
AM‟s contention that VEJA was usurping the state‟s role in order to directly enforce
regulatory provisions of environmental legislation.

[44] The high court had regard to the further submissions on behalf of AM that the
Master Plan was out-dated, could not be relied upon and was consequently irrelevant. It
agreed with VEJA that the Master Plan provided a baseline and was a result of years of
environmental tests and investigations which, on AM‟s version, led to further tests and
investigations. Carstensen AJ said the following:
„For any assessment of the operations it would be essential for persons whose rights may have
been infringed to review the baseline and assess those against the information and studies
conducted at the time, the rehabilitation and measures adopted and current studies and
investigations. It cannot, therefore, be labelled as irrelevant.‟

[45] In assessing the Master Plan‟s significance and relevance, the high court
considered, in VEJA‟s favour, that it had been published and communicated to AM‟s
shareholders and repeatedly mentioned in its annual reports, where it was referred to as
a primary strategic tool. In addition, the reports had been submitted to state authorities.
Carstensen AJ concluded that it would be naïve for the court to find that this plan need
not be at least considered, assessed and critically analysed by entities such as VEJA.

[46] In respect of the information sought by VEJA in relation to the Vaal Disposal site,
the high court noted that the relevance of the information was not disputed by AM but
rather that the corporation‟s resistance to producing the information sought was based
on its assertion that VEJA had not met the threshold requirement of s 50(1)(a).

[47] Having made the findings referred to above, the high court found itself unable to
accede to AM‟s suggested approach, namely that in the event of the court holding that
VEJA had met the threshold requirement, the corporation should be afforded a further
opportunity to consider anew the two requests for information.

[48] The high court made the following order:
„33.1. The First Respondent‟s decision to refuse to grant the Applicant‟s requests for access to
information dated 15th [December] 2011 and 13th February 2012, is invalid and set aside;

33.2. The First Respondent is directed to supply the Applicant with copies of all the records
requested in the Applicant‟s requests for access to information dated 15th December 2011 and
13th February 2012 within 14 (FOURTEEN) days from date of this order;
33.3. The Second Respondent is to pay the costs of this application, including the costs of two
counsel.‟
It is against those orders that the present appeal is directed. I turn to deal with the
correctness of the material conclusions reached by the high court.

The PAIA threshold requirement
[49] In considering whether the threshold requirement of s 50(1)(a) has been met, it is
important to bear in mind what was said by this court in Unitas (para 6):
„Generally speaking, the question whether a particular record is “required” for the exercise or
protection of a particular right is inextricably bound up with the facts of that matter.‟5

[50] Thus, the word „required‟ in s 50(1)(a) of PAIA should be construed as
„reasonably required‟ in the prevailing circumstances (see Clutchco para 12). A
scrutinising court should determine whether an applicant for information did „lay a
proper foundation for why that document is reasonably “required” for the exercise or
protection of his or her rights‟. See Clutchco para 12 and Le Roux v Direkteur-Generaal
van Handel en Nywerheid 1997 (4) SA 174 (T).

[51] Before us, it was rightly conceded by counsel on behalf of AM that, in
adjudicating VEJA‟s claim to the information sought, and in considering whether the
threshold requirement had been met, the high court and concomitantly this court, were
entitled to consider not only the basis provided in Form C referred to above, but also the
evidence adduced by the parties. In this case that consists in the details that emerge
from the affidavits filed in support of or resisting the application in the high court.

[52] As part of the evaluation of the factual background, I agree with the submission
on behalf of VEJA that AM‟s acknowledged history of operational impact on the

5 See also Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC & others 2001 (3)
SA 1013 (SCA) and Claase v Information Officer, South African Airways (Pty) Ltd 2007 (5) SA 469 (SCA).

environment is important. This is not an aspect touched on by the high court. AM‟s
industrial activities, impacting as they do on the environment, including on air quality
and water resources, has an effect on persons and communities in the immediate
vicinity and is ultimately of importance to the country as a whole. Translated, this means
that the public is affected and that AM‟s activities and the effects thereof are matters of
public importance and interest. Put differently, the nature and effect of AM‟s activities
are crucially important. AM is a major, if not the major, polluter in the areas in which it
conducts operations.

[53] In addition, AM‟s publicly stated commitment to engage with environmental
activists is not without importance. AM itself, in its, 2010 annual report under the title
„Engaging with stakeholders on environmental issues‟, stated the following:
„We remain committed to engaging with key stakeholders on issues of environment. These
include environmental NGO‟s, government, communities and the media.‟
Equally important is the following part of AM‟s 2010 annual report:
„We continue to engage with GroundWork, VEJA and other local and international NGOs on
compliance in terms of the new environmental legislation, and environmental projects in our
areas of operation.‟
Nothing in the evidence adduced in this case militates against VEJA being anything
other than genuine advocates for environmental justice.
In light thereof it is difficult to understand AM‟s accusation that VEJA is setting itself up
as an alternative regulatory authority. It calls into question AM‟s stated commitment to
collaborative corporate governance in relation to the environment, as well as its bona
fides in resisting the request for information.

The Master Plan
[54] That brings us to the point concerning the relevance of the Master Plan or, from
AM‟s asserted perspective, its obsolescence.

[55] It is clear from what is set out above that when the Master Plan was being
formulated it was seen as a forward looking document, informing action not only in the
present but setting out a strategy for the future – a 20 year plan. It was seen as a

seminal document and was repeatedly proclaimed as such. Whilst the 2010 annual
report does state that the Master Plan was not being released because of updates and
more stringent legislative controls, it had never, until then, been disavowed publicly nor,
as far as can be ascertained, to AM‟s board. It also appears to have been of some
importance in the acquisition of regulatory approvals.

[56] I agree, as found by the court below, that the Master Plan has importance as a
baseline document. Historically extensive data, even disputed standards and testing
methodology, must be valuable. The asserted flaws can be examined and/or
challenged. The veracity of AM‟s justifications can be measured. Contemporary
knowledge can be compared to historical practises and present-day data can be
contrasted or aligned with what was recorded in the past. There is some justification for
the submission on behalf of VEJA that the explanations concerning technical and
scientific flaws provided by AM, properly analysed, lead to the compelling conclusion
that it is not so much the data that was flawed but rather the conclusions drawn from the
data. This appears to be so, at least in some respects.

Environmental legislation
[57] Furthermore, it was submitted on behalf of AM that such rights as VEJA might
have ought to be located in and enforced through the provisions of the National
Environmental Management Act 107 of 1998 (NEMA) rather than by seeking
information through s 50(1)(a) of PAIA. Section 32(1) of NEMA, under the title „Legal
standing to enforce environmental laws‟, provides:
„(1)
Any person or group of persons may seek appropriate relief in respect of any breach or
threatened breach of any provision of this Act, including a principle contained in Chapter 1, or of
any provision of a specific environmental management Act, or of any other statutory provision
concerned with the protection of the environment or the use of natural resources –
(a)
in that person‟s or group of person‟s own interest;
(b)
in the interest of, or on behalf of, a person who is, for practical reasons, unable to
institute such proceedings;
(c)
in the interest of or on behalf of a group or class of persons whose interests are affected;
(d)
in the public interest; and

(e)
in the interest of protecting the environment.‟

[58] It was submitted on behalf of AM that there were thus specific statutory
mechanisms at VEJA‟s disposal that provided a conduit through which a regulatory
authority could be compelled to ensure compliance by persons engaged in any activity,
operation or undertaking which has a detrimental effect on the environment. In this
regard, reliance was placed on s 28(4) read with s 28(12) of NEMA, the provisions of
which are set out hereafter:
„(4)
The Director-General or a provincial head of department may, after consultation with any
other organ of state concerned and after having given adequate opportunity to affected persons
to inform him or her of their relevant interests, direct any person who fails to take the measures
required under subsection (1) to –
(a)
investigate, evaluate and assess the impact of specific activities and report thereon;
(b)
commence taking specific reasonable measures before a given date;
(c)
diligently continue with those measures; and
(d)
complete them before a specified reasonable date;
Provided that the Director-General or a provincial head of department may, if urgent action is
necessary for the protection of the environment, issue such directive, and consult and give such
opportunity to inform as soon thereafter as is reasonable.
. . .
(12)
Any person may, after giving the Director-General or provincial head of department 30
days‟ notice, apply to a competent court for an order directing the Director-General or any
provincial head of department to take any of the steps listed in subsection (4) if the Director-
General or provincial head of department fails to inform such person in writing that he or she
has directed a person contemplated in subsection (8) to take one of those steps, and the
provisions of section 32(2) and (3) shall apply to such proceedings with the necessary changes.‟

[59] The submissions referred to in the immediately preceding paragraphs miss the
point. Information sought by parties contemplating litigation to vindicate asserted rights
is conventionally sought in order for it to be useful in that litigation, or, to put it in
constitutional and statutory terms, the information is „required for the exercise or
protection of any rights‟. In this regard, AM is putting the cart before the horse.

[60] It will be recalled that AM‟s fundamental resistance to the requests by VEJA was
that the basis provided in Form C was too generalised and vague and did not meet the
threshold requirement set by s 50(1)(a) of PAIA. It was contended on behalf of AM that,
in order for VEJA to pass the threshold requirement, more was required than just a
general statement that the information was required „for the protection of the section 24
constitutional rights and are requested in the public interest‟. It was submitted that the
right had to be more specifically identified so as to be recognisable and enforceable.
Furthermore, it was contended that, based on the principle of subsidiarity, the asserted
right had to be located in the statutes that were enacted to give effect to the
constitutional right, rather than based on the constitutional right in general terms. AM
was adamant that VEJA, in Form C, in asserting the right upon which they relied in the
manner described above, were on a „fishing expedition‟ and did not meet the criterion
set by s 50(1)(a).

[61] In respect of its attitude reflected in the preceding paragraph, AM ignores the fact
that additionally, in Form C, reliance was placed by VEJA on three statutes which it
describes as being part of „the relevant governing legislation‟ namely NEMA, the
National Environmental Management: Waste Act 59 of 2008 (NEMWA) and the National
Water Act 36 of 1998 (NWA). I intend, in the following paragraphs, to deal with the
relevant provisions of those enactments.

[62] NEMA recognises, in s 2(2), that „[e]nvironmental management must place
people and their needs at the forefront of its concern, and serve their physical,
psychological, developmental, cultural and social interests equitably‟.

[63] Furthermore, NEMA acknowledges in s 2(3) that „[d]evelopment must be socially,
environmentally and economically sustainable‟.

[64] Importantly, s 2(4)(b) of NEMA provides:
„(b)
Environmental management must be integrated, acknowledging that all elements of the
environment are linked and interrelated, and it must take into account the effects of decisions on

all aspects of the environment and all people in the environment by pursuing the selection of the
best practicable environmental option.‟

[65] Even more significantly, s 2(4)(f) of NEMA states the following:
„(f)
The participation of all interested and affected parties in environmental governance must
be promoted, and all people must have the opportunity to develop the understanding, skills and
capacity necessary for achieving equitable and effective participation, and participation by
vulnerable and disadvantaged persons must be ensured.‟

[66] Of particular importance in relation to PAIA is what is set out in s 2(4)(k) of
NEMA. That section reads:
„(k)
Decisions must be taken in an open and transparent manner, and access to information
must be provided in accordance with the law.‟
I accept that this relates principally to the state. However, the same must, in principle,
apply to corporate decisions and activities that impact on the environment and thus
implicate the public interest, particularly when their activities require regulatory approval.

[67] Parts of the preamble to the NEMWA bear repeating:
„WHEREAS everyone has the constitutional right to have an environment that is not harmful to
his or her health and to have the environment protected for the benefit of present and future
generations through reasonable legislative and other measures that –
(a)
prevent pollution and ecological degradation;
(b)
promote conservation; and
(c)
secure ecologically sustainable development and use of natural resources while
promoting justifiable economic and social development;
AND WHEREAS waste management practices in many areas of the Republic are not conducive
to a healthy environment and the impact of improper waste management practices are often
borne disproportionately by the poor;
AND WHEREAS poor waste management practices can have an adverse impact both locally
and globally;
AND WHEREAS sustainable development requires that the generation of waste is avoided, or
where it cannot be avoided, that it is reduced, re-used, recycled or recovered and only as a last
resort treated and safely disposed of;

AND WHEREAS the minimisation of pollution and the use of natural resources through vigorous
control, cleaner technologies, cleaner production and consumption practices, and waste
minimisation are key to ensuring that the environment is protected from the impact of waste; . . .
.‟

[68] Two of the objects of the NEMWA are set out in s 2(b) and 2(c), namely:
„(b)
to ensure that people are aware of the impact of waste on their health, well-being and
the environment;
(c)
to provide for compliance with the measures set out in paragraph (a); . . . .‟
Section 2(a) read with s 2(c) is designed to put measures in place to minimise the
consumption of national resources, to avoid and minimise the generation of waste and
to provide statutory tools to ensure compliance. Section 2(d) indicates that the general
object of the Act is „to give effect to section 24 of the Constitution in order to secure an
environment that is not harmful to health and well-being‟.
Sections 72 and 73 provide for local and provincial authorities to engage in consultation
with the public and to ensure public participation.

[69] The NWA in s 2 sets out, as one of its purposes:
„[T]o ensure  that the nation‟s water resources are protected, used, developed, conserved,
managed and controlled in ways which take into account amongst other factors –
(a)
meeting the basic human needs of present and future generations.‟

[70] Section 3(1) of the NWA provides:
„(1)
As the public trustee of the nation‟s water resources the National Government, acting
through the Minister, must ensure that water is protected, used, developed, conserved,
managed and controlled in a sustainable and equitable manner, for the benefit of all persons
and in accordance with its constitutional mandate.‟

Conclusion on the threshold requirement

[71] It is clear, therefore, in accordance with international trends,6 and constitutional
values and norms, that our legislature has recognised, in the field of environmental
protection, inter alia the importance of consultation and interaction with the public. After
all, environmental degradation affects us all. One might rightly speak of collaborative
corporate governance in relation to the environment. In Biowatch para 19 the
Constitutional Court said the following:
„A perusal of the law reports shows how vital the participation of public-interest groups has been
to the development of this court‟s jurisprudence. Interventions by public-interest groups have led
to important decisions concerning the rights of the homeless, refugees, prisoners on death row,
prisoners generally, prisoners imprisoned for civil debt and the landless. There has also been
pioneering litigation brought by groups concerned with gender equality, the rights of the child,
cases concerned with upholding the constitutional rights of gay men and lesbian women, and in
relation to freedom of expression. Similarly, the protection of environmental rights will not only
depend on the diligence of public officials, but also on the existence of a lively civil society
willing to litigate in the public interest. This is expressly adverted to by the National
Environmental Management (NEMA) which provides that a court may decide not to award costs
against unsuccessful litigants who are acting in the public interest or to protect the environment
and who had made due efforts to use other means for obtaining the relief sought.‟

[72] In Magaliesberg Protection Association v MEC: Department of Agriculture,
Conservation, Environment and Rural Development, North West Provincial Government
[2013] 3 All SA 416 (SCA), this court (para 61), in dealing with what ultimately was a
failed attempt by conservationists to set aside a decision granting environmental
authorisation for the construction of a hotel and conference centre, nevertheless said
the following about the importance of the efforts of conservationists:
„We should all laud the efforts of conservationists such as the MPA. It is beyond dispute that the
MPA has a genuine concern about the environment and that they generally act to preserve and
protect the environment for the benefit of present and future generations.‟
This court continued as follows (para 63):

6  See inter alia Principle 10 of the Rio Declaration on Environment and Development UN Doc.
A/CONF.151/26 (vol. I) [31 ILM 874 (1992)]; the Convention on Access to Information, Public
Participation in Decision-Making, and Access to Justice in Environmental Matters 2161 UNTS 447 [38
ILM 517 (1999)]. See also B Gemmill and A Bamidele-Izu „The Role of NGOs and Civil Society in Global
Environmental Governance; in D C Esty and M H Ivanova Global Environmental Governance (2002).

„In my view, the court below was a trifle harsh in criticising the MPA for persisting in the final
relief sought by it. It did not take into consideration that the MPA was an organisation which
genuinely has the concerns and objectives set out in paragraph 61 above. Accordingly, it should
not have awarded costs against the MPA. Kgaswane might be aggrieved in having to pay its
own costs but it should not be forgotten that the malfeasance that led to all the trouble and the
subsequent costly litigation was of its own making.‟

[73] The hallmark of our Constitution is proportionality. A balance has to be struck
between the competing concerns referred to at the beginning of this judgment and our
courts will be astute to adopt a common sense approach to how far, in any set of
circumstances, the principle of public participation and collaboration extends.

[74] It appears to me to be clear that VEJA, as advocates for environmental justice,
was entitled to place reliance on the statutes referred to above in requesting the
information from AM. Furthermore, in doing so VEJA met the threshold requirement for
obtaining the requested information.

AM as a private body
[75] In argument before us, AM sought to set up yet another hurdle. We were urged
by counsel on behalf of AM, in their efforts to persuade us to overturn the high court‟s
order, to not ignore the distinction drawn in PAIA between the obligations of the state in
dealing with requests for information, and the obligations of private parties. It was
submitted that the obligation on the state to produce information is much more stringent.
In this regard s 11(1) of PAIA is relevant. That section provides:
„A requester must be given access to a record of a public body if –
(a)
that requester complies with all the procedural requirements in this Act relating to a
request for access to that record; and
(b)
access to that record is not refused in terms of any ground for refusal contemplated in
Chapter 4 of this Part.‟

[76] The grounds for refusal contained in Chapter 4 of PAIA relate principally to the
protection of information related to the privacy, confidentiality and safety of third parties

and individuals who are natural persons. There is also protection of information
privileged from production in legal proceedings and for certain categories of commercial
information. These exclusions are not relevant to the present dispute. As can be seen
from the provisions of s 11, public bodies are obliged, subject to what is stated in the
preceding two sentences, to accede to a request for information.

[77] On the other hand, s 50 of PAIA, in relation to private persons, as can be seen
from its provisions set out above, requires justification in the form of a requester, having
to show that the information requested is required „for the protection of any rights‟. That
issue has already been dealt with.

[78] What should, however, not be lost sight of is that PAIA, in its preamble,
recognises that the system of government in South Africa, before the advent of a
constitutional democracy, „resulted in a secretive and unresponsive culture in public and
private bodies which often led to an abuse of power and human rights violations‟.
Furthermore, it also expressly recognises the horizontal application of rights in the Bill of
Rights to juristic persons „to the extent required by the nature of the rights and the
nature of those juristic persons‟. (My emphasis.)

[79] Section 32(1)(b) of the Constitution also comes into play. It provides:
„(1) Everyone has the right of access to –
. . .
(b)
any information that is held by another person and that is required for the exercise or
protection of any rights.‟7

[80] I am mindful of the caveat in Clutchco that one must guard against forcing
corporates to throw open their books on claims of alleged minor errors or irregularities.
The basis provided by VEJA for its application does not fall into the category of trivial or
frivolous. It concerns us all. In my view it is clear that VEJA supplied an adequate basis

7 Section 32(2) provides: „National legislation must be enacted to give effect to this right, and may provide
for reasonable measures to alleviate the administrative and financial burden on the state‟. PAIA is the
envisioned legislation.

for its requests and is entitled to the information sought; it is entitled as an advocate for
environmental justice to monitor the operations of AM and its effects on the
environment. This additional obstacle raised by AM is, in the circumstances, without any
merit.

The approach of AM leading up to and including this litigation
[81] I now turn to AM‟s attitude, reflected in the correspondence leading up to the
commencement of litigation. AM was disingenuous in claiming ignorance of the
existence of its own Master Plan. Feigning ignorance is probably a more accurate
description. It dithered and appeared at one stage to be gravitating towards disclosure
before resisting the request altogether. From a purely public relations perspective it
ought to have considered more carefully the consequences for its image. Counsel on
behalf of AM urged us to guard against the simplistic view embodied in the question of
what harm would be caused by the disclosure of the information. I am prepared to be
accused of that „simplistic‟ attitude. From AM‟s stated perspective it can explain away
any concerns that anybody might have concerning the applicability, accuracy or
relevance of the Master Plan. The disclosure of the information will enable either a
verification of AM‟s stance or might cause us to have even greater concerns about
environmental degradation. That it will be a valuable controlling tool can afford of no
doubt. Insofar as the information related to the Vaal Disposal site is concerned, the
public is entitled to be assuaged as to the safety of that site.

[82] 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.

[83] AM in its 2002 annual report was emphatic that it was adopting a modern day
progressive approach in the following terms:
„Our environmental management is being expanded progressively from a legislative compliance
activity, to become an all-inclusive business sustainability strategy. In this regard, we have
employed specialist consultants to evaluate and produce holistic environmental management

plans using internationally recognised best practice. These environmental master plans drive
our entire environmental management strategy.‟
It is not to AM‟s credit, espousing, as it does, a commitment to environmental sensitivity
and asserting a collaborative approach to ensuring that environmental degradation is
limited, to then assume an obstructive and contrived approach to a request for
information which can only assist that collaborative effort.

[84] As we continue to reset our environmental sensitivity barometer, we would do
well to have regard to what was said about planet Earth by Al Gore, a former vice-
president of the United States and an internationally recognised environmental activist
engaged in educating the public about the dangers of global warming and those steps
to be taken in response to reduce carbon emissions (for which he was a joint recipient
of the 2007 Nobel Peace Prize):
„You see that pale, blue dot? That‟s us. Everything that has ever happened in all of human
history, has happened on that pixel. All the triumphs and all the tragedies, all the wars, all the
famines, all the major advances . . . It‟s our only home. And that is what is at stake, our ability to
live on planet Earth, to have a future as a civilization. I believe this is a moral issue, it is your
time to seize this issue, it is our time to rise again to secure our future.‟8
On the importance of developing a greater sensitivity in relation to the protection and
preservation of the environment for future generations, Gore had the following to say:
„Future generations may well have occasion to ask themselves, “What were our parents
thinking? Why didn‟t they wake up when they had a chance?” We have to hear that question
from them, now.‟
We would, as a country, do well to heed that warning.

8 Al Gore has written a book on environmental topics, namely Earth in the Balance: Ecology and the
Human Spirit (1992, Houghton Mifflin). During his time in the Clinton administration he pushed for the
implementation of a carbon tax to encourage energy efficiency. This was partially implemented in 1993.
Although he helped procure the 1997 Kyoto Protocol (Kyoto Protocol to the United Nations Framework
Convention on Climate Change, UN Doc FCCC/CP/1997/7/Add.1, Dec. 10, 1997; 37 ILM 22 (1998)), an
international treaty to curb greenhouse gasses, ironically it was not ratified in the United States of
America after a 95 to 0 vote in the Senate. The objections appear to have been based on exemptions in
the treaty given to China and India whose carbon footprints have grown rapidly and American fears that
they were thereby given a competitive advantage. After his defeat in the 2000 presidential election to
George W. Bush, Mr Gore returned his focus to the environment, presenting more than one thousand
times in the US and across the world. That slide-show was made into an Academy Award-winning (2006)
documentary film called „An Inconvenient Truth‟, from which the quotes are derived. Although it has been
included in the curriculum of colleges and schools, it has received some criticism for not being 100 per
cent scientifically accurate.

[85] To sum up, I can find no material flaw in the essential reasoning of the court
below. For all the reasons set out above the following order is made:
The appeal is dismissed with costs including the costs attendant upon the employment
of two counsel.

__________________
NAVSA ADP

FOR APPELLANT:

Adv. A E Franklin SC (with him P Lazarus SC)

Instructed by:

Edward Nathan Sonnenbergs, Sandton

Webbers, Bloemfontein

FOR RESPONDENT:

Adv. S Budlender (with him J Bleazard and C de Villiers)

Instructed by:

Centre for Environmental Rights, Cape Town

McIntyre & Van der Post, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

26 November 2014

STATUS

Immediate

Company Secretary of Arcelormittal South Africa v Vaal Environmental Justice Alliance
(69/2014) [2014] ZASCA 184 (26 November 2014).

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Today the Supreme Court of Appeal (SCA) delivered a judgment dismissing the appeal of
ArcelorMittal South Africa Limited (AM) against a judgment of the Gauteng Local Division in terms of
which AM‟s refusal to supply information to the Vaal Environmental Justice Alliance (VEJA) relating to
ArcelorMittal‟s industrial activities which might have environmental impacts was declared invalid and
set aside. VEJA are advocates for environmental justice.

VEJA had made two requests. In the first, it had sought a copy of AM‟s Environmental Master Plan
including related progress reports and updated versions. VEJA‟s second request was dated 13
February 2012 and was related to records of AMs closure and rehabilitation of the Vaal Disposal site
in Vereeniging.

AM refused the requests on the basis that the threshold requirements of s 50(1)(a), read with s 53 of
the Promotion of Access to Information Act 2 of 2000 (PAIA) were not met by VEJA. It contended that
the right relied on by VEJA, namely the right entrenched in s 24 of the Constitution to an environment
that is not harmful to health or wellbeing was too generalised and offended against the principle of
subsidiarity, namely, that where there is legislation giving effect to those rights the provisions of the
latter are where the rights should be located. It accused VEJA of being on a „fishing expedition‟. It
also accused VEJA of setting itself up as a parallel regulatory authority which it contended PAIA did
not sanction. It submitted further that VEJA had other statutory avenues which it could employ to
assert the rights it contended for.

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 rights by the requestor. It
considered, against AM, that in the request form VEJA had relied, not only on s 24 of the Constitution,
but also on the provisions of the National Environmental Management Act 107 of 1998 (NEMA), the
National Environmental Management: Waste Act 59 of 2008 (NEMWA) and the National Water Act 36
of 1998 (NWA). Those statutes recognised the importance of public participation in safeguarding the
environment. The SCA held that insofar as the environment is concerned, collaborative governance
was a virtue.

The SCA took into consideration, in favour of VEJA, the nature of AM‟s operations and its
consequences. AM produces 90 per cent of South Africa‟s steel products and has a history of
negative impacts on the environment. The SCA held that AM‟s acknowledged history of operational
impact on the environment was important. It stated the following:
„AM‟s industrial activities, impacting as they do on the environment, including on air quality and water
resources, has an effect on persons and communities in the immediate vicinity and is ultimately of
importance to the country as a whole. Translated, this means that the public is affected and that AM‟s
activities and the effects thereof are matters of public importance and interest. Put differently, the
nature and effect of AM‟s activities are crucially important. AM is a major, if not the major, polluter in
the areas in which it conducts operations.‟

The SCA noted that the world, for obvious reasons was becoming increasingly ecologically sensitive
and that citizens in democracies were growing alert to the dangers of a culture of secrecy and
unresponsiveness, both in respect of governments and in relation to corporations. In South Africa, the
legislature saw fit to cater for both aspects in legislation, driven by Constitutional imperatives.

The court recognised that it was important to balance two competing interests, namely, industrial
activity and its concomitant significance for the country‟s development and economy, as against
concerns about the preservation of the environment for the benefit of present and future generations.
The court was conscious of the difference between the obligations placed on the state to make
disclosure of information it held and the position of private persons who held information.

The SCA thought it important that AM had in the past engaged with civil society regarding the
environment:
„In addition, AM‟s publicly stated commitment to engage with environmental activists is not without
importance. AM itself, in its, 2010 annual report under the title „Engaging with stakeholders on
environmental issues‟, stated the following:
“We remain committed to engaging with key stakeholders on issues of environment. These include
environmental NGO‟s, government, communities and the media.”‟

The court held that there was nothing that militated against the conclusion that VEJA were not
genuine advocates for environmental justice. It rejected AM‟s contention that VEJA was setting itself
up as a parallel regulating authority. It dismissed as a justification for the denial of VEJA‟s requests
that the Master Plan was out-dated and irrelevant and said the following:
„I agree, as found by the court below, that the Master Plan has importance as a baseline document.
Historically extensive data, even disputed standards and testing methodology, must be valuable. The
asserted flaws can be examined and/or challenged. The veracity of AM‟s justifications can be
measured. Contemporary knowledge can be compared to historical practises and present-day data
can be contrasted or aligned with what was recorded in the past. There is some justification for the
submission on behalf of VEJA that the explanations concerning technical and scientific flaws provided
by AM, properly analysed, lead to the compelling conclusion that it is not so much the data that was
flawed but rather the conclusions drawn from the data. This appears to be so, at least in some
respects.‟

The SCA held that AM, in asserting that VEJA had statutory avenues which it could pursue to prevent
harm to the environment, was in the prevailing circumstances, putting the cart before the horse. The
information was required to inform a decision on future action. The court could find no error in the
high court‟s essential reasoning that led it to an order compelling AM to provide the requested
information.

The court was critical of AM‟s approach leading up to and including this litigation. It said the following:
„I now turn to AM‟s attitude, reflected in the correspondence leading up to the commencement of
litigation. AM was disingenuous in claiming ignorance of the existence of its own Master Plan.
Feigning ignorance is probably a more accurate description. It dithered and appeared at one stage to
be gravitating towards disclosure before resisting the request altogether. From a purely public
relations perspective it ought to have considered more carefully the consequences for its image.
Counsel on behalf of AM urged us to guard against the simplistic view embodied in the question of
what harm would be caused by the disclosure of the information. I am prepared to be accused of that
„simplistic‟ attitude. From AM‟s stated perspective it can explain away any concerns that anybody
might have concerning the applicability, accuracy or relevance of the Master Plan. The disclosure of
the information will enable either a verification of AM‟s stance or might cause us to have even greater
concerns about environmental degradation. That it will be a valuable controlling tool can afford of no
doubt. Insofar as the information related to the Vaal Disposal site is concerned, the public is entitled
to be assuaged as to the safety of that site.‟

In general terms, the SCA 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.
‟

The SCA upheld the order of the court below in terms of which AM was ordered to make disclosure.
The appeal was dismissed with costs including the costs of two counsel.