Willemien du Plessis326
Governance for sustainability includes issues pertaining to openness in decision making and right of access to information for both government and the people. Earthlife Africa in South Africa is a non-governmental organisation (NGO) that has fought the battle for governance for sustainability. Its court battles to obtain information about the pebble bed modular reactor from Eskom, a public company, is a study in how players react to the right of access to information and public participation. The courts in South Africa were initially reluctant to make a decision and followed a legalistic approach. They did not comment on the possible impacts of nuclear energy. Eventually Earthlife Africa managed to obtain an order from the Supreme Court of Appeal to have access to information. In other matters the courts are more outspoken regarding the role of the courts and government in the protection of the environment. In this case study it is argued that a partnership role should be introduced in which civil society, government, and private industry ensure that the environment is protected. Governance for sustainability should rest on four pillars, the environment, social, and economic considerations that are imbedded within governance (the fourth pillar), not only by government but also by civil society.
South Africa's main energy supply is coal. The impacts of coal-generated energy on the environment and humans are well known. South Africa is experiencing economic growth, resulting in an energy crisis in which energy supply exceeds demand. The government is investigating alternative forms of energy including renewable and nuclear energy. In the interim, South Africa experiences load-shedding, in which the energy supply to homes, industry, and mines is cut off resulting in severe economic losses. This practise has resulted in an outcry from both the public and private sectors for new energy resources – not necessarily to preserve ecological integrity or prevent global warming, but rather to ensure that a sustainable economy and lifestyle are perpetuated. Although earlier post-apartheid energy policy documents emphasised the need to protect the environment for future generations, a recent publication on fuel strategy included a statement that ‘development could not be sacrificed on the altar of the environment’.327 A superficial reference was made to long-term planning to prevent global warming. The Department of Minerals and Energy seems to be moving away from its mandate to protect the environment in terms of section 24 of the Constitution of the Republic of South Africa, 1996,328 but other players, such as the courts, the Department of Environmental Affairs and Tourism (DEAT) and non-governmental organisations (NGOs) have come to the fore as fierce protectors of the environment.
Eskom, South Africa's electricity provider, is currently investigating the development and generation of energy by a pebble bed modular reactor (PBMR). As nuclear energy and its potential environmental and health risks are well known, the first environmental impact assessment process in South Africa, which commenced in 2000, was met with fierce criticism and opposing views. The electricity crisis, however, ironically trivialised this debate, not as to whether the PMBR should be introduced, but as to when and how it should be introduced.
Earthlife Africa, a NGO that opposed the PBMR, was involved in several court cases against Eskom by exercising its right of access to information to meaningfully participate in environmental decision-making processes. The South African Constitution and environmental legislation provide for public participation and a right of access to information. The Constitution and environmental legislation aim to empower civil society to partake meaningfully in discussions on the environment and even in the introduction of new laws. The government's implementation of public participation processes is sometimes criticised and challenged in the courts. It is not always possible for government alone to enforce the rights in the Constitution or legislation. Section 24 of the Constitution places an obligation on everyone in South Africa to ensure that the environment is not harmful to one's health or well-being. This right can only be realised in partnership with players outside government. Public participation and the right of access to information can be seen as tools to assist members of the public to meaningfully participate and enforce their environmental rights and to give effect to the idea of management by outsiders.329 Earthlife Africa's battle to obtain information on the PBMR is an illustration of civil society's struggle to ensure governance for sustainability.
The first court case was instituted by Earthlife Africa's Cape Town Branch. This branch was established by environmental and social activists in Cape Town ‘to campaign against environmental injustices in the Cape Town area and to participate in environmental decision-making processes with a view to promoting and lobbying for good governance and informed and sustainable decision-making ... and to promote ecologically sound alternatives such as renewable energy’.330
The NGO is known for lobbying against nuclear energy and for its research on the environmental and safety risks of nuclear energy.331 Eskom wanted to construct a demonstration PBMR at Koeberg, an existing nuclear power station in the Cape Town area, and conducted an environmental impact assessment (EIA) process in this regard. Earthlife Africa was of the opinion that the EIA process was not conducted properly.332 It applied for information from Eskom under the Promotion of Access to Information Act 2 of 2000 (PAIA).333 Some information was released, other information requests were refused.334 Eskom's defence was based on the grounds of refusal contained in the PAIA that relate to the mandatory protection of commercial information of a third party, the economic interests and financial welfare of the Republic and commercial activities of public bodies as well as the operation of public bodies. The court relied on the evidence of an expert (called by Eskom)335 to determine whether the information could be released because, as the court stated, ‘the question as to whether certain information or a particular document is to be classified under one of the statutory exemptions, whether as a trade secret or any other basis, might well involve expert and specialised knowledge which the court does not possess’.336 After hearing expert evidence, the court held that because the project was still in the development phase, the information requested ‘constitutes confidential information and trade secrets which are protected from disclosure’.337 The court did not comment on the possible negative impacts of the PBMR. Earthlife Africa sought leave to appeal which was denied.338
In 2007339 Earthlife Africa approached the Supreme Court of Appeal for leave to appeal against the decision of the High Court. It was also requested that the court decide whether the information should be released or that records be put before the court to decide on their disclosure. The court stated that because the information was of a highly technical nature, it would not be able to judge which information could be released and which could not. The judges relied on section 19bis of the Supreme Court Act 59 of 1959 to appoint a referee. It ordered that Earthlife Africa and Eskom each propose a technical and a legal expert to peruse the materials and to make a recommendation as to what information could be released. Earthlife Africa and Eskom must then agree on one technical and one legal expert, who must peruse all the documents and make a decision on what if anything should be released. If there is a dispute between the two experts, the proposal of the technical expert would be accepted on technical issues and those of the legal expert on legal issues. If the parties cannot agree, the issue would be referred to one of two retired judges for their decision. The parties were asked to submit the expert reports to the original judge of the High Court from which they appealed, who would then order the release of the documents accordingly. At the time of this writing, the parties have not yet approached the High Court and no order has been made. Before the decision of the Supreme Court of Appeal, but after an extensive public participation process, the Director-General of DEAT considered the EIA application and granted Eskom an authorisation to construct a demonstration PBMR. Earthlife Africa opposed this decision. It argued that the Director-General based his decision on additional material that was not available during the public participation process.340 Earthlife Africa and the Legal Resources Centre asked to make further submissions based on this information, which was refused.341 Earthlife Africa then applied to the High Court for a review of the environmental authorisation based on the Promotion of Administrative Justice Act 3 of 2000. The court stated that it needed to consider the case because:342
The present application concerns the very sensitive and controversial issue of nuclear power, which potentially affects the safety and environmental rights of vast numbers of people. In the result, Eskom's application for the construction of a PBMR has generated considerable local and national interest.
The court also stated that the audi alteram partem343 rule applies, even in the stages before a final decision is reached, to prevent procedural unfairness.344 The court set aside the authorisation and indicated that Earthlife Africa be granted the opportunity to submit written comments on the information that was not introduced during the public participation process.345 The court held that the process ‘up to and including the submission by Eskom's consultants of their final environmental impact report was fair but that the decision of the Director-General was procedurally unfair.346 The court again felt that it was not necessary to address the possible risks of nuclear wastes and stated that these issues were to be addressed by the National Nuclear Regulator:347
In view of the public interest generated by this matter, it needs to be emphasised that our decision does not express any opinion as to the merits or demerits of the proposed PBMR, in particular, nor of nuclear power in general. These were not matters that we were called upon to consider.
If these court decisions are compared, it seems that the following two approaches can be deduced: (a) where a final decision was made (for example issuing a record of decision in the EIA process), the court did not hesitate to order the release of information to enable the parties to meaningfully participate in discussions; (b) where the project or project documentation pertains to documentation on which a final decision has not been reached or that may contain commercially confidential information, the court followed a more cautious approach. However, the Supreme Court of Appeal, despite following a cautious approach, still created a mechanism to ensure that at least some of the information is released.
In 2008, the government announced its intention to erect more nuclear power stations and to proceed with the introduction of the PBMR. Earthlife Africa indicated that it was going to take government to court for considering the introduction of nuclear energy without consulting the general public. In its ‘White Paper on Energy of 1998’, the government stated that it would not introduce nuclear power without consulting the general public.
In a decision relating to petrol filling stations the High Court again reiterated the importance of public participation, freedom of expression, and the role that NGOs play to protect the ecology:348
All things begin equal, Ms. Barlow and the Association bear a standard that any vibrant democratic society would be glad to have raised in its midst. Their interest and motivation is selfless, being to contribute to environmental protection in the common good. None of them stands to gain material personal profit. Their modus operandi is entirely peaceful. It is mobilised within a self-funding voluntary association. It is geared towards public participation, information gathering and exchange, discussion and the production of community-based mandates. Its accompanying public discourse and media coverage have been fair, with participants and readers alike being represented in a balanced way with viewpoints of all sides. In my view, conduct of that sort earns the support of our Constitution. In this context it should be borne in mind that the Constitution does not only afford a shield to be resorted to passively and defensively. It also provides a sword, which groups like the Association can and should draw to empower their initiatives and interests.
In its three-year court struggle, Earthlife Africa achieved its objective to receive and comment on information as well as to meaningfully participate in matters pertaining to nuclear energy. It used the ‘sword’ provided by the Constitution and it continues using it. However, it could not convince the courts to comment negatively on nuclear energy. The courts steered clear of such comments by taking a neutral stance.
The Constitutional Court was, however, more outspoken regarding the protection of the environment in a case in which there was opposition to a petrol filling station:349
Development cannot subsist upon a deteriorating environmental base. Unlimited development is detrimental to the environment and the destruction of the environment is detrimental to development. Promotion of development requires the protection of the environment. Yet the environment cannot be protected if development does not pay attention to the costs of environmental destruction ... environmental considerations will be balanced with socio-economic considerations through the ideal of sustainable development ... The importance of the environment cannot be gainsaid. Its protection is vital to the enjoyment of the other rights contained in the Bill of Rights; indeed, it is vital to life itself. It must therefore be protected for the benefit of the present and future generations. The present generation holds the earth in trust for the next generation. This trusteeship position carries with it the responsibility to look after the environment it is the duty of the court to ensure that this responsibility is carried out ... Courts therefore have a crucial role to play in the protection of the environment. When the need arises to intervene in order to protect the environment, they should not hesitate to do so.
The Earthlife Africa court battle indicates the importance of all players participating in matters pertaining to the environment – that is to ensure governance by the people for the well-being of the environment. It is not only the obligation of government to oversee the protection of the environment but it is an obligation that rests on everyone. The decision of the Constitutional Court quoted earlier stressed this obligation by stating that this generation holds the earth in trust for the next generation and that the courts and government are under an obligation to intervene if the environment may be harmed. The Constitution provides the tools that can be used.
Environmental issues may no longer be interpreted from a pure legalistic perspective. From the above discussion, it is clear that when the courts followed a pure legalistic interpretation of legislation, it was possible to find reasons why nuclear information may not be released. Where a holistic approach was followed and the rationale for the legislation and the importance of the matter before the court (in this case nuclear energy), not only locally but also nationally, were taken into consideration, the courts reached a different conclusion. It is proposed that courts should also consider the introduction of nuclear energy in light of international discussions to enhance the holistic approach.
Earthlife Africa overcame the obstacles of being prevented by government and Eskom from obtaining information by using its civil-based tools and ensuring management by outsiders by approaching the courts. When its first submissions failed, it kept fighting until the Supreme Court of Appeal came to its rescue. It managed to overturn a decision to grant an environmental authorisation because the judge understood the importance and sensitivity surrounding nuclear activities. Its activities and opposition to the PBMR became well known as the media also became involved in the discussions. However, NGOs or interested or affected parties may in the future experience opposition as the public opinion may turn against them. Continuing power failures benefit the proponents of nuclear power. When people's livelihoods, their jobs, and their comfort are threatened, they tend to forget moral issues. The future has less importance when day-to-day survival is at stake. It is laudable that the courts, after a silence since 1994 when the democratic Constitution was introduced, have become the staunch protectors and upholders of the right to an environment that is not detrimental to one's health or well-being.
Community involvement and participation are crucial to ensure governance by the people. The environment should be protected by a partnership between government, the courts, and the community. Everyone should play a role to ensure that the environment is protected. The community must be empowered to participate in environmental discussions, community members must have access to information and the courts and be able to express their opinions freely, and NGOs must be supported in their endeavours to obtain and disseminate information. Environmental governance should be seen holistically and the impact of decisions and activities that harm the environment should not be addressed in a vacuum but within the pillars of sustainability namely environmental, social, and economic issues. A fourth pillar of sustainability should be added, namely governance. The first three pillars should be imbedded within the principles of governance, which includes not only governance by the state but also governance by the people.350
326 Willemien du Plessis, B Jur, LLB, MA, LLD, Professor of Law, North-West University, Potchefstroom, South Africa, Email: email@example.com
327 www.dme.gov.za/pdfs/energy/Energy_Master_Plan_Appr.pdf. Energy Security Master Plan Liquid Fuels, p. 31.
328 Section 24 states that: ‘Everyone has the right (a) to an environment that is not harmful to their health 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’.
329 Du Plessis, W. and Nel, J. ‘An evaluation of NEMA based on a generic framework forenvironmental framework legislation’ South African Journal of Environmental Law and Policy, Vol. 10, No. 1, 2001, pp. 1–37.
330 Earthlife Africa (Cape Town Branch) v Eskom Holdings Ltd Case no 04/27514 (C) (15 December 2005) para.  and .
331 Ibid., para. .
332 Ibid., para. .
333 The right of access to information may be enforced both against government and private institutions – section 32 of the Constitution. Eskom is regarded as a public body as it exercises a function in terms of legislation as a public company – see also para. .
334 Op cit, supra note 330, para.  and . Access to minutes of the board, plan and business plans concerning the PBMR, records relating to financing of the PBMR and technical reports were refused. The documents were also not severed as is allowed for in PAIA as according to Eskom the remainder of the legislation could mislead the reader.
335 Earthlife Africa relied on the affidavit of a person that the court did not regard as an expert – para. .
336 Op cit., supra note 330, para. .
337 Op cit., supra note 330, para. .
338 Earthlife Africa (Cape Town Branch) v Eskom Holdings Ltd (2006) 2 All SA 632 (W).
339 Earthlife Africa (Cape Town Branch) v Eskom Holdings Ltd (SCA) (2007) Case number 426/2006 Date heard: 6 September 2007).
340 Earthlife Africa (CT) v DG: Department of Environmental Affairs and Tourism (2005) 3 SA 156 (C).
343 The right to be heard.
347 177F and 178B.
348 Petro Props (Pty) Ltd v Barlow and Another (2006) (5) SA 160 (WLD) 183H-184B.
349 Fuel Retailers Association of SA (Pty) Ltd v Director-General Environmental Management Mpumalanga and Others (2007) 10 BCLR 1059 (CC) paras. , ,  and .
350 See also Du Plessis, W. and Britz, L., ‘The filling station saga: environmental or economic concerns?’ Journal of South African Law, No. 2, 2007, p. 263.
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