Press release: Victory for Vaal communities as Supreme Court of Appeal orders ArcelorMittal to release environmental records

In a hard-hitting judgement handed down on 26 November 2014, the Supreme Court of Appeal ordered ArcelorMittal South Africa Ltd (AMSA) to release various environmental records to the Vaal Environmental Justice Alliance (VEJA), and to pay the communities’ legal costs.

The Supreme Court of Appeal (SCA) refused AMSA’s appeal against the September 2013 High Court judgement ordering AMSA to release its environmental “Master Plan”, as well as documents relating to its Vaal Disposal Site, and unanimously upheld the High Court judgement. This means that AMSA must make the documents available to VEJA by 17 December 2014.

The SCA made a number of critical findings in relation to AMSA’s lack of good faith in its engagement with VEJA and the discrepancies between AMSA’s shareholder communications and its actual conduct. The SCA also emphasised the importance of corporate transparency in relation to environmental issues, stating that “Corporations operating within our borders… 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”.

VEJA has been fighting for access to the Master Plan for more than a decade. AMSA has consistently refused to release it. This comprehensive strategy document contains the results of numerous specialist environmental tests for pollution levels at AMSA’s Vanderbijlpark facility, as well as its plans to address this pollution and rehabilitate its sites over a 20 year period.

Through its attorneys, the Centre for Environmental Rights, VEJA requested access to the Master Plan using the Promotion of Access to Information Act in late 2011. In February 2012, VEJA also requested records relating to the closure and rehabilitation of the company’s Vaal Disposal Site, situated in Vereeniging, after the company had illegally dumped hazardous waste here. AMSA refused both requests, arguing that VEJA had no right to access the documents.  VEJA then applied to the High Court, which in 2013 upheld VEJA’s arguments and ordered AMSA to release the documents. Instead, AMSA appealed to the SCA.

In their judgement today, the SCA highlighted the “dangers of a culture of secrecy and unresponsiveness” and berated AMSA’s “obstructive and contrived”, “disingenuous” approach in which it had “feigned ignorance” of the existence of the Master Plan. The judgement highlights AMSA’s history of environmental impacts, pointing out that such impacts are of public interest and importance, and do not only affect persons and communities in the immediate vicinity of its facilities. Navsa ADP points out that AMSA’s approach contradicts its publicly-stated commitment to engage with environmental activists, calling “into question [AMSA’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 judgement recognises “the importance of consultation and interaction with the public. After all, environmental degradation affects us all”. As an “advocate of environmental justice”, VEJA is entitled to the information sought and “to monitor the operations of [AMSA] and its effects on the environment”.

Samson Mokoena, Coordinator at VEJA, states: “This has been a long struggle. This judgement confirms what we have known all along – that we have a Constitutional right to know what AMSA’s impacts are on our health and the environment.  Polluting companies like AMSA can no longer to try to hide this kind of information.”

According to Bobby Peek, Executive Director of environmental justice NGO groundWork, “Even those who do not live close to AMSA, only have to read the Department of Environmental Affairs’ annual Environmental Compliance and Enforcement Reports to see that AMSA’s activities have serious impacts on human health and the environment. The SCA has made clear that organisations like VEJA must be given access to documents in order to monitor these environmental impacts”.

Robyn Hugo, attorney at the CER, states: “This case is about accountability. Industries like AMSA regularly refuse to release environmental information – as basic as licences – to non-government and community organisations. Like AMSA, these companies simultaneously claim – in communications with shareholders and the public – that they constructively engage with stakeholders and/or are committed to transparency. The SCA has confirmed that this approach is not only disingenuous, but unacceptable.”

The full judgement is available here.