Procedural Rights Conference Wroclaw 2016

1. Procedural Rights Conference Wroclaw 2016 The Right of Access to Information in South Africa: a case study Professor Jan Glazewski Institute of Marine & Environmental Law University of Cape Town September 2016

3. Table Bay Harbour, Cape Town

4. The University of Cape Town

5. South Africa and PolandSimilarity One (1) • South Africa: 1990 to 1994 undergoes transition to democracy dismantling 300 years of colonial apartheid past; attains constitutional democracy as in The Constitution, 1996 including a Bill of Rights • Poland: 1989–1991, transition to democracy culminating in the Third Polish Republic and the Constitution of the Republic of Poland April, 1997 (EU in 2004)

6. South Africa/PolandSimilarity Two (2) Sustainable Development South Africa: Bill of Rights “…ecologically sustainable development and use of natural resources while promoting justifiableeconomic and social development Poland: 1997 Constitution: Policies that ensure: “the ecological security of current and future generations,” (Art 74(1))

7. Both: South Africa and PolandGiving effect to Sustainable Development Principles Precautionary principle Preventive principle Polluter pays principle etcetera Rights : Environmental Rights; Administrative Justice (including reasons); Access to Information.

8. Bill of Rights: Environmental Right 24. Every one has the right - (a) to an environment which is not harmful to theirhealth or well-being; and (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

9. Director: Mineral Development Gauteng Region v Save the Vaal Environment 1999 “ Our Constitution, by including environmental rights as fundamental justiciable human rights, by necessary implication requires that environmental considerations be accorded appropriate recognition and respect in the administrative process in our country” Judge Pierre Olivier in the SCA

10. Framework environmental legislationNational Env’tal Mgt Act 1998 (NEMA) “sustainable development” ‘the integration of social, economic and environmental factors into planning , implementation, and decision-making so as to ensure that development serves present and future generations’ (National Environmental Management Act sect 1)

11. Constitution: Bill of Rights: sect 33Right to Just Administrative Action 33(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair (2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons (3) National legislation must be enacted to give effect to these rights…… Promotion of Just Administrative Action Act 2000 (PAJA)

12. Constitution: Bill of Rights: S. 32Right of Access to Information 32(1) Everyone has the right of access to – (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights (2) National legislation must be enacted to give effect to this right…… Promotion of Access to Information Act 2 of2000 (PAIA) 1997 (7) BCLR 907 (C) 1997 (7) BCLR 907 (C)

13. Aquafund (Pty) Ltd v Premier of the Western Cape1997 (7) BCLR 907(C) “[i]f it is accepted that every person is entitled to lawful administrative action, it must follow that in a legal culture of accountability and transparency . . . manifested in the constitution, a person must be entitled to such information as is reasonably required by him to determine whether his right to lawful administrative action has been infringed or not. If a person is not able to establish whether his rights have thus been infringed, he will clearly be prejudiced.”(at 916E)

14. Promotion of Access to Information ActEssential features • Meaning of ‘required’ has been debated; relevant/essential? • Earthlife Africa: (Nuclear issue) held that Applicant showed right was ‘necessary’ to show that environmental right would be protected; • Unique feature: distinguishes between private and public information; • Protects intellectual property: trade secret (trump) • Right used in controversial fracking debate in SA

15. PAIA: Definition of: “public safety or environmental risk” . . . harm or risk to the environment or the public (including individuals in their workplace) associated with – (a) a product or service which is available to the public; (b) a substance released into the environment, including, but not limited to, the workplace; (c) a substance intended for human or animal consumption; (d) a means of public transport; or (e) an installation or manufacturing process or substance which is used in that installation or process.

16. Arcelormittal v Vaal Environmental Justice Alliance (VEJA) VEJA: Environmental NGO alleged that pollution from the steel company harmed the environment but also had detrimental health impacts on its members; sought various environmental reports; Arcelormittal: Major Steel manufacturer; allegedly Causing major environmental pollution inc health aspects; argues request for info is speculative VEJA Successful after long protracted legal battle

17. Arcelormittal v Vaal Environmental Justice Alliance (VEJA) COURT “[O]ne 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 for its requests and is entitled to the information sought; it is entitled as an advocate for environmental justice to monitor the operations of [ArcelorMittal] and its effects on the environment.”  Para. 80.

18. Arcelormittal v Vaal Environmental Justice Alliance (VEJA) The Court criticized ArcelorMittal’s lack of candor throughout the litigation, warns: “Corporations operating within our borders, whether local or international, 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.”  Para. 82.

19. Company Secretary, Arcelormittal South Africa v Vaal Environmental Justice Alliance, 2015 (1) SA 515 SCA “On the importance of developing a greater sensitivity in relation to the protection and preservation of the environment for future generations Al Gore had the following to say: ‘Future generations may well have occasion to ask themselves, what were our parents thinking? Why did they not wake up when they had a chance? We have to hear that question from them now’”

20. Where to we sail to from here?

21. Take Home Points Procedural rights • Sustainable development on the judicial map; • Strong reliance on Constitutional rights; • Right of Access to Info but also Environmental Rights and Right to Administrative Justice ; • Important role of NGOs (Non Governmental Organisations)