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Last year, Just Share and amaBhungane filed a series of access to information requests to try to establish the extent of corporate climate lobbying in South Africa. The responses demonstrate that closed-door engagement between government officials and private business on climate policy is common practice. We also discovered a lamentable lack of record-keeping about these engagements, write Caroline James and Emma Schuster.
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International research has identified corporate climate lobbying in South Africa as a significant threat to effective national climate change policy. "Corporate climate lobbying" refers to efforts by the fossil fuel industry and its industry associations to delay and weaken government efforts to respond to the climate crisis, and to shape policy to suit their own interests instead of those of the broader public.
Last year, in an effort to discover just how deep this lobbying goes, Just Share and amaBhungane submitted a series of access to information requests, in accordance with the Promotion of Access to Information Act (PAIA), asking government and industry stakeholders for details of any closed-door meetings between corporates or their representatives, and policymakers, relating to climate and energy policy.
The outcomes of our PAIA requests reveal not only that this lobbying is taking place, but also that there appears to be no attempt to record or preserve the nature or outcomes of these discussions. At best, this is evidence of worrying levels of disorganisation. At worst, it represents a disturbing resistance to accountability and transparency on an issue of crucial public importance.
The PAIA requests
The right of access to information is protected in the Constitution, as is the right to an environment that is not harmful to health or well-being. Transparency about the extent to which industry players are meeting with policymakers behind closed doors to stall or weaken climate-related policy, or to shape it to their advantage, is clearly in the public interest.
Our PAIA requests were sent to Sasol, South Africa's biggest private carbon emitter and a key player in influencing government climate policy; three industry associations active in relation to energy policy: Business Unity SA (BUSA), the Minerals Council of South Africa, and the Energy Council of South Africa (ECSA); and to the departments of Mineral Resources and Energy (DMRE), Forestry, Fisheries and the Environment (DFFE), National Treasury, and the Presidency.
The requests sought records relating to any government-industry engagements between 1 January 2021 and the date of response (approximately three years) on climate matters, including the agendas for and minutes of such meetings, and supporting documents such as follow-up letters, presentations, and policy recommendations.
Our experience with the practicalities of the requests made it clear that the PAIA process is crying out for review if it is to be an effective, broad-based tool for realising the constitutional right of access to information.
We would not have obtained any information without the dogged work of lawyers acting on our behalf, repeatedly following up with both public and private entity information officers to remind them of legislative deadlines, and essentially hassling them into providing us with a response. Not one of the respondents provided the information requested within the initial 30-day timeframe specified in PAIA.
After months of follow-up letters, phone calls and emails, multiple requests for extensions, an accusation by the Minerals Council that we were undertaking a "fishing expedition", and refusals to disclose specific documents, all parties eventually provided some information.
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The holes in the records
The information that we did receive paints a picture of industry's regular and ongoing solicitation of government on climate policy without the knowledge or inclusion of the public.
None of the parties appear to see anything concerning in this lack of transparency. For example, the Minerals Councils' response stated that it "actively participates in engagements and consultation processes advocating for the mining industry positions in the development of South Africa's policy and regulatory approach to climate change mitigation and adaptation", but at the same time that it is "not involved in any "corporate lobbying" activities.
Equally concerning is the incompleteness of the records, and the lack of alignment in responses from government and industry about the same engagements.
Government departments appear to lack basic calendar records of when meetings took place and with whom. In many instances, where government respondents acknowledged that meetings had taken place, they could provide no agendas or minutes of those meetings. The private entities also do not appear to keep accurate records.
BUSA sent us a list of 26 meetings held with various government stakeholders over the period of the request, but only 14 sets of minutes. Two of the sets of minutes were from meetings that were not on BUSA's meeting list.
BUSA also provided some minutes of meetings held between BUSA and the DMRE, but either the DMRE did not have any records of those same meetings, or it chose not to disclose them.
Sasol provided us with a letter from its CEO Fleetwood Grobler to Forestry, Fisheries and Environment Minister Barbara Creecy, referring to a meeting held between the DFFE and Sasol in June 2021, and sharing "further developments […] specifically relating to our hydrogen journey, as well as our air quality compliance and GHG reduction strategy." It also states that "we have made good progress in establishing an Energy Council, in collaboration with several key players in the energy sector." However, neither Sasol nor DFFE referred to or provided any information relating to the June 2021 meeting.
DFFE provided a redacted list of attendees and minutes from various meetings with Sasol between June 2022 and September 2022, relating to air quality issues, but with the names of the parties redacted due to them being "commercially sensitive information". Sasol did not refer to any of these meetings, despite its description of its conduct as "transparently engaging with regulators".
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The DMRE told us that it does not have any minutes of meetings on the issues requested other than the single document it provided, which was from a "Just Energy Transition Framework consultation with Sasol". This document is useful, but it is hard to believe it represents the only engagement with the DMRE.
The ECSA, which purports to be the "unified voice of the energy sector in South Africa" said that it has had "no official meetings or engagements" on any of the topics, or with any of the parties in our request. Beyond inviting us to a meeting in which the structure and process of the National Energy Crisis Committee (NECOM) was explained, the ECSA did not provide any of the information requested.
National Treasury provided a very limited initial response, including a list of meetings, but confirmed via an affidavit in terms of section 23 of PAIA that "minutes associated with each listed meeting, including agenda items, written notes, memoranda, action items, transcripts, or any other document recording the meeting activity and outcomes are unavailable."
The Presidency proved an intractable respondent, acknowledging the PAIA request a month after the deadline for response, and only after multiple follow-ups. When it did eventually respond to the request, the Presidency refused to disclose certain documents on the basis of section 44(1)(a) of PAIA, "frustrating the policy-making process". This decision was later reversed, and the documents were provided.
This is only a snapshot of the responses. Those from government departments mean that officials are either refusing to disclose information about their engagements with industry, or they honestly just cannot do so because they have kept no records of these engagements. Either scenario is deeply concerning.
If no records are being kept, government officials are being influenced in ways that it is impossible to scrutinise, eliminating any chance of accountability. If there are records which the officials are refusing to disclose, then they are making a mockery of the PAIA process and the system of transparency it is supposed to facilitate, and allowing private interests to supersede the public good.
South Africa has a history of allowing unaccountable corporate intervention to capture public institutions; the lack of publicly accessible information on the interaction between state and private bodies in a supposedly post-State Capture era is of huge concern.
Every private meeting that industry players secure with policymakers - something completely out of reach of ordinary South Africans and most of civil society - is part of a process of shaping climate policy in a specific direction. As the climate crisis intensifies, government needs to get serious about transparency, and South Africans must be vigilant about the threat of corporates lobbying to protect their profits instead of our future.
Caroline James is the advocacy coordinator at amaBhungane and Emma Schuster is the senior climate risk analyst at shareholder organisation Just Share.
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