Inside Africa blog

Legal developments around Africa

South Africa - Public Access to Environmental Records

Tina Costas

Transparency and accountability in corporate governance are fundamental principles of environmental management in South Africa, and in recent developments it is now much easier to gain automatic access to environmental records. 

The National Environmental Management Act, 1998 (NEMA) requires that decisions must be taken in an open and transparent manner, and that access to information must be provided in accordance with the law.  The South African Constitution provides that where information is required for the exercise or protection of any rights, everyone has a right of access to it.  The Promotion of Access to Information Act, 2000 (PAIA) was promulgated to give effect to this constitutional right.  Whilst mechanisms allowing persons access to environmental information held by public and private bodies are entrenched in PAIA, this information is not always provided when requested, with public bodies and private parties relying on procedural and substantive grounds to refuse access to information.  Due to recent developments under PAIA, a person now has automatic access to a number of important environmental records held by specific public bodies.

With the recent publication of the Department of Environmental Affairs’ (DEA) notice which lists categories of records that are automatically available and the Department of Water and Sanitation’s (DWS) Promotion of Access to Information Manual, the public now has automatic access to certain private parties’ records where these are under the control of a public body.  These records, held by DEA and DWS, include environmental authorisations, biodiversity permits, waste licenses, general permits for boat based whale watching and white shark cage diving; atmospheric emission licenses, water use licenses, water use license applications, and the water use license applicant’s audit and compliance reports.

Automatic access to this information provides persons who are interested in protecting the environment with the conditions that should be complied with, and the level of compliance with those conditions.

Third party notification of the request is not required for records that are automatically available, but the DEA’s and the DWS’ information officer is entitled to delete any part of a record under the grounds of refusal set out in PAIA.  However, information cannot be withheld if the disclosure would reveal evidence of a substantial contravention of the law or if there is an imminent and serious public safety or environmental risk and the public interest in the disclosure outweighs the harm.

Access to information is a powerful tool.  It has been a long term goal of members of the public, civil society and the media who act as watchdogs and seek access to this information to ensure prosecution of polluters and encourage long term sustainable development.  Private parties must be aware that increasingly non-compliance with their environmental responsibilities will not escape the public eye. 

Inside Africa would like to thank Marais de Vaal, Trainee, for his contribution to this blog post.

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