PAIA

Facts: A Board of Inquiry was conducted by the Department of Defence in the aftermath of the Battle of Bangui which took place in the Central African Republic in 2013. The Battle involved troops of the SANDF, including a contingent of Special Forces, and a grouping of CAR rebel forces who fought collectively under the name “Seleka”. It resulted in a loss of 15 South African soldiers’ lives and injury of a further 25. The applicant is a journalist who sought information in question for purposes of a book that he was writing with two other journalists about the battle. He states that the department has never provided an official account of what transpired in the battle, save for sweeping broad answers and vague descriptions, including to the families of the deceased, which means that no one has been held accountable for the disaster which is described as South Africa’s worst military defeat in the democratic era.

Application: The applicant seeks the review and setting aside of the information officer’s decision to refuse his request for access to information which was made in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA), as well as the review and setting aside of the Minister’s decision to dismiss his appeal against the officer’s refusal. He also seeks an order directing the Minister to provide the requested information within ten days.

Discussion: The inquiry was indeed held by the department, specifically looking into the reasons why soldiers died and some were injured, as well as into the loss of military hardware and munitions. Regarding the refusal of access and the bilateral, diplomatic or international relations that are said to be at stake, the Minister’s letter did not elaborate on the nature thereof, whether economic, security or scientific, or why the release of information would jeopardize the relations between the two countries, or with any other international country. Another ground relied upon by the respondents for refusing access is prejudice which may be caused to the defence or security of the Republic. The Minister’s letter states that the witness statements and evidence contained in the inquiry dealt with military combat strategies employed, which ought not to be in the public domain.

Findings: The dearth of information provided by the respondents is regrettable as the court has not been placed in a position to assess the validity of the claims of the respondents, and specifically their reliance on the section 41(1)(a) exemptions. If disclosing the type of military equipment and strategies used in the battle and contained in the inquiry could pose a threat to the defence or security of the Republic, that cannot be undone at a later stage. This is an appropriate case for the court to exercise its discretion in terms of section 80 to examine the inquiry – to take a judicial peek into it. Not only will such an order be in the interests of justice, taking into account the concerns of the parties involved in this case, but it will assist the court in determining, in terms of section 46, whether ultimately the public interest in the disclosure of the inquiry outweighs the harm contemplated in section 41.

Order: The respondents are ordered, in terms of section 80 of PAIA, to deliver to the chambers of the judge the SANDF Board of Inquiry into the events commonly referred to as the Battle of Bangui which took place in the Central African Republic in 2013.

MANGCU-LOCKWOOD J

Facts and issue: The Trust concluded a written agreement with the respondent in terms of which the Trust leased immovable property to the respondent. The lease ultimately expired by effluxion of time.  The respondent continued to occupy the leased premises. The Trust believes the respondent kept the Mast operational after 30 June 2020 without paying rent. The Trust lodged a request for access to the records of the respondent, such request was declined. The Trust seeks an order directing the respondent to make available the documents listed in the notice of motion.

Discussion: The rspondents basis for opposition is that the Trust has not shown that the requested documents are required for the exercise or protection of a right.  The requested documents are not reasonably required to identify the right defendant. The requested documents are not reasonably required to formulate the Trust’s claim. The applicants have not shown that the requested documents are reasonably required for the exercise or protection of the Trust’s right to institute an action. The Trust knows the identity of the only potential defendant that is mentioned in the founding affidavit and it is able to formulate its claim against that defendant. Once the Trust initiates an action, the rules of discovery will apply with all of the safeguards that are built into that process.

Findings and order: The main application is dismissed.

Facts and issue: The respondent instituted a civil action against the MEC for health to recover the monies due to it. He contended that obtaining copies of the docket for investigation against him would assist in the civil claim with the MEC for Health. The applicant notified the requester that his request did not comply with PAIA requirements. The court a quo granted an order against the applicants, that the respondent be provided with requested documents. The applicants seek rescission of the order.

Discussion: The applicants argued that the order was erroneously granted by reason of the fact that incomplete information was presented to the court by the respondent. In support of this assertion, the applicants argued that the order was granted despite the respondent’s failure to adhere to the mandatory requirements of PAIA. The applicants further challenged the manner in which the order was sought before court. The second ground for seeking rescission of the order lies with the fact that the order was granted against the second applicant in circumstances where he was not served with the application papers. 

Findings: The respondent ought to have declared that there was a civil case that had already commenced in respect of the same set of facts. In contrast with the provisions of section 75(1) (a) of PAIA, the form used to lodge an internal appeal was not the one prescribed in the first applicant’s manual. The citation of the Minister of Police as a second respondent before the court granting an order by default was erroneous. Had the court been appraised of these errors, the application for the default order would not have been granted.

Order: The application for the rescission of the default order is granted. 

Facts: The applicant, Kanyi Ilanga, believes that arson was perpetrated at the Satico Plantation, and that it has been committed by the first respondent, Stoltz, acting within the course and scope of his employment with the second respondent. This belief arises from Stoltz being observed to have been present in the Satico Plantation on the day in question and from a voice message being sent by the Stoltz via a WhatsApp messaging to a representative of Kanyi Ilanga, advising that a fire had originated at the Satico plantation. The fire caused damage to 1,250 tonnes of standing trees and timber to the extent of R972,500. The tyre tracks of the vehicle driven by Stoltz was visible in the mud at Satico plantation. Other than it being common cause that Stoltz was present at the Satico Plantation on the date in question, and he is being suspected of the unlawful conduct of arson, it is not clear to Kanyi Ilanga whether Stoltz is indeed responsible for the unlawful conduct of arson.

Application: In terms of section 50 of the Promotion of Access to Information Act 2 of 2000 (PAIA), Kanyi Ilanga requests access to certain records to identify the appropriate offender to protect and exercise its rights in respect of the Satico Plantation, and for the purpose of a potential damages claim. The request includes full particulars of all the tracking in respect of the vehicle, reflecting fully the whereabouts of Stoltz, his movements, and use of the vehicle on the mountain area in the Satico Plantation.

Discussion: The request sets out that the records were required to protect and exercise the applicant’s right in respect of the Satico Plantation and seeking damages in amount of R972,500. The respondents’ argument that his presence is common cause, and therefore the information sought relates to a common cause fact, is misguided as the way Kanyi Ilanga’s request is understood is that it is to establish not whether Stoltz was present in general, but in the mountain area, and more specifically at the source or within the vicinity of the fire. Kanyi Ilanga must satisfy two requirements, the first being, to identify the right that it seeks to exercise and need only put up facts which prima facie, though open to some doubt, establish that it has a right which access to the record is required to exercise or protect. Secondly, Kanyi Ilanga must demonstrate how the information will assist in exercising or protecting the right in question.

Findings: The request complies with section 53 in that the information required is identified, the right which the applicant seeks to protect is set out, and from the record of the circumstances on the day in question, speaks to how it would assist in establishing the exact position of Stoltz within the Satico Plantation. The information is required for the exercise and protection of Kanyi Ilanga’s rights in respect of the Satico Plantation, and to consider and institute any action necessary to compensate its damages in the amount of R972,500. Kanyi Ilanga contends that it has the right to obtain the information to protect its right of limiting its risk that may follow because of the fire at the Satico Plantation and its contractual obligation to provide silviculture and fire protection services at Satico Plantation. It is thus understood that Kanyi Ilanga requires the information which would assist it in identify the respondents as the defendants in any future action for damages or limiting of the damages in respect of the Satico Plantation. Kanyi Ilanga has satisfied the first of the two requirements in that it has adequality identified the right it seeks to exercise and protect. Kanyi Ilanga legitimately utilised section 50 of PAIA to potentially identify the correct defendant and the information sought is thus reasonably required.

Order: The first respondent is ordered to grant access to the applicant to the plotting records of his movements through the tracking device on his motor vehicle reflecting his use of the motor vehicle on the mountain area in the Satico Plantation.

GREYLING-COETZER AJ

Facts and issue: The real issue for adjudication in this matter is whether the applicant has made out a case for relief in terms of section 78(2)(d)(i) read with section 82 of the Promotion of Access to Information Act 2 of 2000. The applicant avers that he is currently booked off sick. In seeking clarity on the status of his application for temporary incapacity leave he attended meetings with certain departmental officials. One official threatened to terminate his services. The applicant consulted attorneys Randall & Associates whereupon they dispatched a request for access to record of public body. 

Discussion:  In the respondents’ heads of argument the concession is made that the Act also recognises Randal & Associates as being the requester, in the sense that it is alleged that they were acting on behalf of the applicant in making the request for access. Apart from this concession there can be no question that Randall & Associates fall within the definition of ‘requester’ in the Act. It is thus inconceivable that the respondents have opposed this application, and have persisted in doing so, on the technical basis that sans a power of attorney the request has not been properly made. 

Findings: The request submitted on behalf of the applicant by his attorneys is a request properly made in terms of the Act and the second respondent’s failure to respond thereto within the stipulated timeframe amounts to a ‘deemed refusal’. This is of importance because the Act obliges the requester, before approaching a court, to challenge a decision by way of an internal appeal when no decision has been made by way of a refusal or a deemed refusal. This is precisely the course adopted by the applicant’s attorneys prior to the launch of this application, and within the stipulated timeframe for lodging an appeal.

Order: The respondents are directed, within 20 days and in accordance with the provisions of the Promotion of Access to Information Act 2 of 2000, to furnish the applicant with copies of the requested documents. 

Facts: The Organisation Undoing Tax Abuse (OUTA) requested, in terms of the Promotion of Access to Information Act 2 of 2000, access to copies of documents relating to a tender awarded to N3TC for the construction and management of a portion of the N3 highway between Heidelberg South in Gauteng and Cedara in KwaZulu Natal. While SANRAL is a public body in terms of PAIA, N3TC is not. It is a private company. Some of the information requested has already been provided. SANRAL states that certain requested information is not in its possession and information that is in its possession is confidential, therefore, it is entitled to refuse access to that information.

Application: For reconsideration of the request to furnish the requested documents.

Discussion: The reasons proffered fall squarely within the provisions of section 36 alternatively section 38 of PAIA. Since both SANRAL and N3TC deny that SANRAL is in possession of the specific items of information, there is no obligation upon SANRAL to furnish to OUTA that which it does not have. PAIA does not require that the party from whom information is requested must embark upon a process to obtain information or documents that are not already in their possession. SANRAL states that the disclosure of the records in its possession would cause harm to N3TC. The disclosure of commercial records in their raw form would prejudice N3TC in its ability to tender fairly and competitively. Insofar as its financial records are concerned, N3TC had to develop a bespoke and discreet financial model that could accommodate the specific financing requirements of the main contract to enable it to perform its obligations in terms thereof. This information, if disclosed, would especially cause commercial and financial harm to N3TC.

Findings: Section 36 expressly enjoins SANRAL to refuse access if N3TC does not consent to its furnishing and that is precisely the situation that prevails in the present matter. SANRAL and N3TC argued that there is no basis for the application of the public interest override. OUTA’s claim that the disclosure of the disputed documents is in the public interest is predicated entirely upon on the perception, after an investigation conducted some 20 years after the fact, that N3TC in the performance of its obligations in terms of the contract may well have made profit. There is no provision in law that any private third party which contracts with the State is prohibited, within the confines of a lawfully made and awarded tender, to make a profit. The making of profit, in a private company, is an everyday commercial consequence and is not in and of itself a matter which requires disclosure in the public interest. The public interest override finds no application in respect of the disputed documents.

Order: The application is dismissed.

MILLAR J

Facts: The applicant is the former Head of the KwaZulu Natal Department of Social Development. She seeks records of a meeting of the Provincial Executive Committee relating to an agenda item concerning her; the reports of two forensic investigations into her alleged misconduct which were conducted by the office of the Premier and the Provincial Treasury; and records relating to her unsuccessful applications for the posts of head of the Department of Social Development and of the Department of Transport.

Application: Brought in terms of section 78 of the Promotion of Access to Information Act 2 of 2000 (PAIA) to compel production of records which the respondents have refused to disclose. This follows a largely unsuccessful request for access to information made to the Director-General in her capacity as the Information Officer in the office of the Premier and the Premier’s dismissal of an appeal against the Director-General’s refusal to provide most of the information requested.

Discussion: That allegations were made by unnamed parties that the applicant was guilty of financial and human resources management misconduct; that two full-blown forensic investigations were conducted into the allegations of misconduct; that no disciplinary or other charges were ever proffered against the applicant as a result of the reports; applicant’s attempts to secure the information; the interpretation of exemptions and sufficiency of evidence; the grounds of exemption on which the respondents rely; section 7 of PAIA and records for purposes of legal proceedings after commencement; section 44 and reports for purposes of making decisions; section 23 and records that cannot be found; and section 12 and records of cabinet and its committees.

Findings: The applicant states that she requires the information to clear her name of spurious and hurtful allegations. She explains that the documents might lead to a press release or a claim for declaratory relief but she cannot make a decision on whether further court proceedings might be warranted until she has seen the documents. The respondents do not engage with these assertions meaningfully. Their reliance on sections 7 and 44 was misplaced and as to section 23, the bald allegations are entirely inadequate to discharge the burden to demonstrate that the report cannot be found. Section 12 of PAIA does not exempt the records of a provincial executive committee from disclosure. As to the records relating to the applicant’s unsuccessful applications for the positions: having given the applicant the summary of the scores of the panellists and the minutes, there is no basis upon which they could refuse to provide the individual score sheets or the audio recordings.

Order: The decisions of respondents refusing to grant the applicant access to the listed records are set aside. See para [100]. The Director-General is ordered to provide the records to the applicant’s attorneys within 20 court days. The respondents are directed to pay the costs of the application jointly and severally, the one paying the other to be absolved.

ANNANDALE AJ

Facts: The Health Justice Initiative (HJI) requested, in terms of the Promotion of Access to Information Act 2 of 2000, access to copies of documents relating to the negotiation and conclusion of agreements by the Minister of Health and the department for the supply of Covid-19 vaccines. Pfizer SA replied by email to the request and stated that the information requested was confidential and protected from disclosure and cannot be provided. The respondents replied by email to the HJI and stated that as per confidential agreements, the department was not at liberty to divulge the information.

Application: For reconsideration of the request to furnish the requested documents.

Discussion: While it is permissible for the disclosure of information and documentation to be withheld if it would put a third party at a disadvantage in contractual or other negotiations, or would cause prejudice in commercial competition, it is necessary for the respondents to show that disclosure would in fact result in disadvantage or, alternatively, prejudice in commercial competition. There is nothing before court to indicate that there would be any disadvantage in future negotiations or commercial prejudice to the Republic or to any of the other parties to the contracts concerned were the information and documentation to be disclosed. The basis for refusing disclosure is without any merit.

Findings: It is self-evident that there is a public interest in the disclosure of the records. There is no merit in the arguments on the part of the respondents that: the information and records sought should not be disclosed in consequence of material non-joinder of affected parties, confidentiality clauses which are alleged to be contained in the contracts in question, the present or future commercial interests of the Republic preclude disclosure of the records, and that there is no basis upon which there should be mandatory disclosure in the public interest.

Order: The respondent is directed to supply to the applicant copies of the requested documents sought.

MILLAR J

Facts: In 2021 the husband of Ms Leuvennink (applicant) was involved in a fatal accident while piloting an airplane. The Civil Aviation Authority (CAA) investigated the accident and published a final report. The applicant thereafter appointed two experts who agree that the CAA’s report lacked certain relevant information necessary to establish the cause of the accident. One of the experts has advised that he requires certain records from the CAA to enable him to provide a final report and these include pilot recordings, radar plots, weather reports and communication transcripts.

Application: An opposed application for access to records in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA). The applicant properly applied for access to these records in terms of PAIA and that access was refused by the deputy information officer of the CAA.

Discussion: How both parties laboured under the incorrect impression that they were in court for a review application; the contention that applicant should have approached the court in terms of the provisions of the Promotion of Administrative Justice Act 3 of 2000; that PAIA's only “ground” for bringing an application is that there was a procedurally compliant request for access, which was refused and that internal remedies have been exhausted; that the principle of subsidiarity places the application squarely within the ambit of PAIA; the reliance of the CAA on the provisions of part 12 of the regulations (SACARS); the evaluation of records refused as not in existence or in possession of the CAA; the refusal in terms of section 41(1)(a)(iii) related to prejudice to international relations; and the refusal related to an international agreement.

Findings: The answering affidavit was wholly insufficient and it contains no information regarding a search done for the records or enquiries made as to the existence of the records. The CAA has provided no information showing how divulging records to enable the applicant to find out the cause of her husband’s death would influence the Republic’s relationships or negotiating powers on a global level. The provisions of PAIA prevail and this court is not bound to the provisions of SACARS or the Convention on International Civil Aviation (insofar as direct incorporation may be argued) where such provisions are materially in conflict with the provisions of PAIA. The CAA has failed to prove that any of the records are exempted from production in terms of PAIA. The CAA made no attempt to comply with its obligations in terms of PAIA and relied on bald generalised references to the exemptions, without laying a fundamental basis for the reliance thereon.

Order: The CAA is ordered to make the listed original records available for inspection by the applicant or her representatives or any experts appointed by her and to furnish clear copies within 15 business days of the order. See para [87] for the list of records. See also the directions should a record not exist.

STRYDOM AJ

Facts: The AG is obliged to audit and report on the accounts, financial statements, and financial management of all municipalities. Sakeliga says that in the process of performance review by the AG, a management report is produced for each municipality, which delves into the performance of the municipality. If the municipality has underperformed, the management report provides information on the reasons for the underperformance. These reports contain findings on each municipality's performance, its compliance with legislation, its internal controls and of any emerging risks. The report outlines specific problems which have been identified during the audit. These reports are not made public. This application outlines the financial mismanagement which has occurred in a significant number of municipalities, some of whom are at a point of total collapse. The central question is what the AG’s constitutional obligation in respect of the publication of reports is.

Application: Sakeliga seeks an order that the AG's failure to make all her report’s public, including the management reports, is unlawful and inconsistent with the Constitution.

Discussion: The AG correctly argued that section 78(1) of PAIA is peremptory and that a requester may only approach a court once it has exhausted its administrative remedies. See Huijink­ Maritz v Municipal Manager, Matjabeng Municipality and Another 2018 (5) SA 614 (FB). Sakeliga contended that both the AG's and the Information Regulator's respective PAIA Guides state that a requester may choose to refer the complaint to the Information Regulator, or, at its discretion, to approach a court, without exhausting the remedies created by Chapter 1A of PAIA. Even if both the Information Regulator's guide and the AG's guide were to create the impression that it is not necessary to exhaust the remedies in section 77A, it is of no consequence given the express peremptory terms of PAIA.

Findings: An audit report is one that meets the requirements of section 20(2) of the Public Audit Act 25 of 2004 (PAA). It is those reports that the AG is obliged to make public. In contrast, a management report is a communication tool between the AG's office and a particular municipality. Once the AG has completed a preliminary investigation of the affairs of the municipality, it communicates its initial findings to the municipality. The management reports prepared by the AG are not reports within the meaning of section 188 of the Constitution and section 20 of the PAA. The AG was not under a constitutional obligation to make the management reports public. The application in terms of PAIA is premature.

Order: The application is dismissed.

SWANEPOEL J

Facts: A financial journalist was employed by Arena and in 2019 made an application to SARS in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA) to gain access to Mr Zuma’s tax records. The application was premised on allegations that were made by Jacques Pauw in his book The President’s Keepers. It was averred that there was “credible evidence” that, while he was President, Mr Zuma was not tax compliant. An internal appeal followed the refusal by SARS. The applicants approached the High Court on the dismissal of that appeal.

Confirmation: The High Court found that the blanket prohibitions of disclosure of taxpayer information contained in section 35 of PAIA and section 69 of the Tax Administration Act 28 of 2011 (TAA) unjustifiably limit the right of access to information provided for in section 32 of the Constitution. The High Court declared the impugned provisions invalid and unconstitutional. The applicants now approach the Constitutional Court to confirm the declaration of invalidity.

Discussion: The right to privacy under section 14 of the Constitution; the Marcel principle and the contention by SARS that the relief sought would enable a PAIA requester to freely disseminate tax information; and that SARS contended that the regime created by the TAA and PAIA was established after extensive consultation and careful consideration of other tax regimes, and it strikes a fair and reasonable balance between the right to privacy and the right of access to information.

Findings: In a rules-based society, serious criminality undermines the values of the Constitution, just as a serious and imminent environmental or health risk poses a high level of threat to the populace. These considerations are, objectively, sufficiently serious in the public interest to warrant lifting the cloak of confidentiality that would otherwise vest in information worthy of protection by virtue of private or public considerations. If high-profile public figures more often find themselves the subject of requests to invoke the “public-interest override”, that would not be because they are subject to a different test than other members of the public, but because their conduct might more readily meet the high standard set by section 46 of PAIA for the override.

Order: The orders of constitutional invalidity of the High Court of sections 35 and 46 of PAIA and of sections 67 and 69 of the TAA are confirmed. Interim provisions are provided pending any measures Parliament might take to address the constitutional invalidity. The request under PAIA for access to the individual tax returns of Mr Zuma for the 2010 to 2018 tax years is referred to SARS for consideration afresh in the light of this order.

KOLLAPEN J (BAQWA AJ, MAJIEDT J, MATHOPO J and ROGERS J concurring)

MHLANTLA J (MADLANGA J, MBATHA AJ and TSHIQI J concurring) would have dismissed the confirmation application.

Facts: Elite was owed R349,618.58 by Jadel Development who did not pay because it was owed money by Malan Developments. Elite obtained judgment against Jadel and then found out that Malan had been liquidated and that the liquidator had paid Jadel over R12 million, apparently into the trust account of Casper Le Roux, who had been representing Jadel in the litigation. Elite requested details about the money but the attorneys declined to provide the information, claiming that it was protected by attorney-client privilege. Elite then made two formal requests for access to the information under section 53(1) of Promotion of Access to Information Act 2 of 2000 (PAIA). Those formal requests, too, were refused.

Application: Seeking an order to compel the firm of attorneys to provide it with the information sought.

Discussion: Information held by a private body being an a firm of attorneys on behalf of its client; the contended distinction between “record” and information; the procedural requirements of PAIA for a request for records held by a private body; the internal appeal procedure; complaints to the Information Regulator; and that a citizen can request access to a record of a private body and if the request is refused, the citizen has recourse to an entire complaints procedure that will yield a decision from the Information Regulator.

Findings: An aggrieved requester for access to a record of a private body is not entitled to approach a court unless it has first exhausted the complaints procedure referred to in section 77A. Elite did not exhaust the complaints procedure and was not entitled to approach this court for relief in terms of section 82 of the Act. The failure to exhaust the internal remedy was fatal to its application.

Order: The application is dismissed with costs.

HOPKINS AJ