De Lange and Another v Eskom Holdings Ltd and Others (10/10063) [2011] ZAGPJHC 75; 2012 (1) SA 280 (GSJ); [2012] 1 All SA 543 (GSJ); 2012 (5) BCLR 502 (GSJ) (5 August 2011)

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[2011] ZAGPJHC 75
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De Lange and Another v Eskom Holdings Ltd and Others (10/10063) [2011] ZAGPJHC 75; 2012 (1) SA 280 (GSJ); [2012] 1 All SA 543 (GSJ); 2012 (5) BCLR 502 (GSJ) (5 August 2011)

REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
10/10063
DATE:05/08/2011
In the matter between:
JAN
GEORGE DE
LANGE
..........................................................
First
Applicant
MEDIA
24
LIMITED
…...........................................................
Second Applicant
and
ESKOM
HOLDINGS LIMITED
...............................................
First Respondent
BHP
BILLITON PLC INCORPORATED
............................
Second
Respondent
HILLSIDE
ALUMINIUM (PTY) LTD
.......................................
Third
Respondent
MOTRACO-COMPANHIA DE TRANSMISSO
DE
MOZAMBIQUE
SARL
..................................................
Fourth
Respondent
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
....................................
Fifth
Respondent
J U D G M E N T
KGOMO, J
:
INTRODUCTION
[1] This is an application in terms of the Promotion of Access to
Information Act, 2000 (Act 2 of 2000), as amended. It arises
out of
or from a request for information made by the first applicant, a
financial journalist, and the second applicant, his employer,
to
Eskom (the first respondent).
[2] For ease of reference and for the sake of convenience the
following references or terms will be used interchangeably throughout

this judgment:
PAIA or
Promotion of Access to Information Act 2 of 2000
;
Mr de Lange or first applicant;
Media 24 Ltd or second applicant;
Eskom or first respondent;
BHP Billiton or second respondent;
Hillside Aluminium or third respondent;
Motraco-Companhia or fourth respondent;
The Minister or fifth respondent.
[3] The request relates to the contracts that Eskom has with two
companies in the BHP Billiton group of companies, namely, Hillside

Smelter in Richards Bay, South Africa and Mozal Smelter in Maputo,
Mozambique, for the supply of electricity.
[4] The request was made on 18 September 2009 and the details
thereof were for –
all documents evidencing the formula for and/or manner of the
determination of the price for the supply of electricity by Eskom
to
the two smelters;
all documents evidencing the identities of all signatories to all
written agreements between Eskom and BHP Billiton or its affiliates

for the supply of electricity to the two smelters; and
all documents evidencing the date of commencement and the date of
termination of written agreements between Eskom and BHP Billiton
or
its affiliates for the supply of electricity to the two smelters.
[5] Before this present application was brought the applicants
brought a first application for access to information under PAIA
on
30 June 2009 to Eskom. In that application the applicants sought –
the bulk purchase agreement for the supply of electricity by Eskom
to Hillside Aluminium Smelter in Richards Bay;
the bulk purchase agreement for the supply of electricity by Eskom
to the Mozai Aluminium Smelter in Maputo, Mozambique; and
the total and final invoices containing the amounts due by BHP
Billiton to Eskom in respect of the electricity for the two smelters

for a period of three years.
[6] The above request, which I
will henceforth refer to as “
the
initial request
”,
was refused by Eskom on 29 July 2009. The reasons advanced for the
refusal were advanced in the notice or letter or refusal.
For
purposes of this judgment it is not necessary to regurgitate them in
full, save to state that they can be summarised as –
Eskom not being permitted to disclose the Bulk Purchase Agreements
on the grounds set out in
sections 36(1)(b)
and (c),
37
(1)(a) and
42
(3)(b) and (c) of PAIA and that
the Bulk Purchase Agreements
contain both general and specific commercial, financial and
technical information of a highly confidential
nature belonging to
the BHP Billiton Group, the disclosure of which will cause
significant harm to the commercial and financial
interest of the
group, thereby putting it (BHP Billiton) at a disadvantage in its
contractual negotiations, both in South Africa
and Mozambique as
well as prejudice it in commercial competition.
[7] It is the applicant’s case that notwithstanding the fact
that they considered Eskom’s refusal to be unlawful and

incorrect, they ultimately took a view that it would be more
appropriate and prudent that a narrower and more specific request
for
information be filed. That was when they filed the application dated
18 September 2009 which is the object of this judgment.
[8] It is my considered view that it would be proper and appropriate
that the complete request be reproduced hereunder to put
issues in
their proper perspective. The application sought the following
records, data or documents:
“
1.
All and any documents, or relevant extracts of documents, evidencing
the formula for and/or manner of the determination of the
price for
the supply of electricity by Eskom Holdings Limited or its affiliates
to:
BHP Billiton plc or any of its affiliates or Hillside Aluminium
Limited Smelter in Richards Bay, South Africa; and
BHP Billiton plc or any of its affiliates or Mozambique
Transmission Company SARL or Mozal Smelter in Maputo, Mozambique.
2. All and any documents or
relevant extracts of documents, evidencing the identities of all
signatories to all written agreements
between Eskom Holdings Limited
or its affiliates and any other party, for the supply of electricity
to:
BHP Billiton plc or any of its affiliates or Hillside Aluminium
Limited for the operation of the Hillside Aluminium Smelter in
Richards Bay, South Africa; and
BHP Billiton plc or any of its affiliates or Mozambique
Transmission Company SARL or Mozal SARL for the operation of the
Mozal
Aluminium Smelter in Maputo, Mozambique.
3. All and any documents or relevant extracts of documents,
evidencing the date of commencement and termination of all written
agreements between Eskom Holdings Limited or its affiliates and any
other party, for the supply of electricity to:
BHP Billiton plc or any of its affiliates or Hillside Aluminium
Limited for the operation of the Hillside Aluminium Smelter in
Richards Bay, South Africa; and
BHP Billiton plc or any of
its affiliates or Mozambique Transmission Company SARL or Mozal SARL
for the operation of the Mozal
Aluminium Smelter in Maputo,
Mozambique.
”
[9] On 20 October 2009 Eskom decided to extend the period in which
it had to reply to the request for access to information by
a further
period of 30 days.
[10] This extension was done unilaterally and the applicants did not
then and do not now, have any qualms with that unilateral
decision.
Maybe because they recognised they needed to apply their minds to the
application.
[11] On 13 November 2009, the
applicants received a letter from Eskom containing a decision on
their request for access to information.
A copy of this letter is
attached marked Annexure “JD8”. The letter stated as
follows:
“
SECTION
A: GRANTING ACCESS
Upon consideration of your request for access to information on
behalf of Media 24 (trading as Sake24), we have decided to grant

access to the following record(s):
Identities of all signatories
1.1 The signatories to the electricity supply agreement for
Hillside are Eskom Holdings Limited and Hillside Aluminium Limited.
1.2 The signatories to the electricity supply agreement for Mozal
are Eskom Holdings Limited, Mozambique Transmission Company
(Motraco),
Electricidade de Mocambique E.P and Swaziland Electricity
Company.
SECTION B: REFUSAL
Upon consideration of your request for access to information, on
behalf of Media 24 (trading as Sake24), we believe that access to
the
following records should be refused on the ground set out below:
The formula for and/or
manner of the determination of the price for the supply of
electricity
Having applied our mind,
upon consideration of your request, and after been
(
sic
)
declined on consent to release the information, Eskom will not
disclose:
1.1.1 any documents or
relevant extracts of the documents relating to the formula and/or
manner of the price determination for
the supply of electricity for
the operation of Hillside on the grounds set out in sections 36(1)(b)
and (c) and 37(1)(a) of the
Promotion of Access to Information Act No
2 of 2000 (the Act); and
1.1.2 any documents or relevant extracts of the documents
relating to the formula and/or manner of the price determination for
the supply of electricity for the operation of Mozal on the grounds
set out in sections 36(1)(b) and (c) and 37(1)(a) of the Promotion
of
Access to Information Act No 2 of 2000 (the Act).
1.2 The requested documents
or the relevant extracts thereof contain both general and specific
commercial, financial and technical
information of a highly
confidential nature belonging to the BHP Billiton Group, the
disclosure of which will cause significant
harm to the commercial and
financial interest of the BHP Billiton Group. The BHP Billiton Group
believes that the disclosure of
such confidential information will
put the BHP Billiton Group at a disadvantage in its contractual
negotiations both in South Africa
and Mozambique and prejudice it in
commercial competition.
1.3 Should Eskom disclose the documents or relevant extracts of
the documents relating to the formula and/or manner of the price

determination, Eskom will be in breach of a duty of confidence owed
to either Hillside Aluminium Limited or Motraco.
The date of commencement and date of termination of all
written agreements
2.1 Having applied our mind,
upon consideration of your request, and after been
(
sic
)
declined consent to release the information, Eskom will not disclose:
2.1.1 any documents or
relevant extracts of the documents evidencing the commencement and
termination dates of written agreements
for the supply of electricity
for the operation of Hillside on the grounds set out in sections
36(1)(b) and (c) and 37(1)(a) of
the Promotion of Access to
Information Act No 2 of 2000 (the Act).
2.1.2 any documents or
relevant extracts of the documents evidencing the commencement and
termination dates of written agreements
for the supply of electricity
for the operation of Mozal on the grounds set out in sections
36(1)(b) and (c) and 37(1)(a) of the
Promotion of Access to
Information Act No 2 of 2000 (the Act).
2.2 The requested documents
or the relevant extracts thereof contain both general and specific
commercial, financial and technical
information of a highly
confidential nature belonging to the BHP Billiton Group, the
disclosure of which will cause significant
harm to the commercial and
financial interest of the BHP Billiton Group. The BHP Billiton Group
believes that the disclosure of
such confidential information will
put the BHP Billiton Group at a disadvantage in its contractual
negotiations and prejudice it
in commercial competition.
”
[12] In its letter of refusal
Eskom offered to the applicants the use or recourse to its internal
appeal mechanisms for PAIA requests.
The said internal mechanisms
were not required or contemplated by PAIA in this instance because
Eskom falls under or within paragraph
(b) of the definition of
“
public body
”
in PAIA and therefore sections 74 and 78(1) of PAIA do not apply to
it.
POINT
IN LIMINE
[13] Before the arguments proper
could be embarked on the parties approached the court with a view to
finding out whether they
should first argue a point
in
limine
raised by the
second to third respondents before dealing with the merits or whether
they should advance their arguments and submissions
normally and at
some stage dealing with the point
in
limine.
[14] It cannot be disputed that
this application relates to matters of considerable public interest.
Right at the on-set, after
going through all the papers filed of
record that far, I formed an impression that it was in the interests
of justice and of extreme
public interest that this matter not be
decided upon before all arguments and submissions have been advanced
in open court. I
accordingly ruled that all the parties should
advance their arguments and submissions and simultaneously deal with
the point
in limine
.
I reserved the right to make a ruling thereon when I gave judgment
herein.
[15] BHP Billiton raised a point
in limine
,
that the applicants were out of time in bringing this application and
have not sought condonation for non-compliance with section
78(2) of
PAIA. According to them (BHP Billiton), this application and the
“
initial
application
” are
basically or substantially the same, the difference being in the
wording used to describe the records sought. They
further argued
that that difference was illusionary in the sense that what is sought
in the application under review here is inseparably
part of and
included in the
initial application
.
That the
initial application
sought all the terms of the Bulk Purchase Agreements while the
present application seeks some, but not all, of those self-same

terms. That is the reason why they raised the point
in
limine
of the present
application being out of time.
[16] In substantiation of this
point
in limine
the second and third respondents submitted that since the present
application was launched on 18 March 2010, which is more than
the 180
days after the refusal of the
initial request
on 29 July 2009, they are out of time. They argued that the
applicants ought to have lodged an internal appeal against the
refusal
of the
first request
within 60 days of the refusal in terms of or pursuant to section
75(1)(a)(i) of PAIA, alternatively, bring an application similar
to
the present application in terms of section 78 of PAIA within 180
days of the internal appeal or refusal of the request in terms
of
section 78(2) of PAIA.
[17] The second and third
respondents further argued and submitted that since it is common
cause that the second request was merely
a narrowing down of the
first request made, it is undeniable that a refusal of the first
request necessarily entailed a refusal
also of the second request. In
the circumstances it amounted to an abuse by the applicants of PAIA
by attempting to circumvent
the time periods imposed by PAIA for such
an application to court to enforce their rights to access to
information.
[18] They further submitted that for the applicants only to raise
the issue of condonation during arguments in court was a cow-boyish

or cavalier attitude that proved how the former have no respect or
regard for court processes. They argued and submitted that
this
Court should not allow this application past this stage as a
consequence.
[19] On the other hand the
applicants’ contention is that the 180-day time frame had not
yet expired at the time this application
was launched. They further
submitted that they launched the present or second request well
within the 180-day time limit and at
a time when the period for the
initial request
had not
yet expired. In short, so continued their contention, both
applications were launched within the 180-day time limit required
in
terms of PAIA.
[20] The applicants further
submitted and argued that the second request was a new application
that was different from the initial
request since it dealt with
narrower and specific aspects whereas the initial request was
open-ended or general. They further submitted
that the reason that
the grounds of refusal or partial attempt to respond to the second
request was made was indicative of the
two being different.
[21] They argued further that in terms of the severability
principles set out in section 28(1) of PAIA it was not proper for
Eskom to supply details on some aspects of the request and refuse to
do so on others.
[22] Section 28(1) of PAIA
provides as follows:
“
If
a request for access is made to a record of a public body containing
information which may or must be refused in terms of any
provision of
Chapter 4 of this Part, every part of the record which –
does not contain; and
can reasonably be severed
from any part that contains, any such information must, despite any
other provision of this Act, be
disclosed.
”
[23] It is so that Eskom chose which parts of the request it should
respond to, albeit in details that are inadequate insofar
as the
applicants are concerned.
[24] The fact, in my view, that Eskom found it necessary not to
offer a blanket refusal of the second request and decide to furnish

some details, are indicative of Eskom having regarded the second
request as being a separate and independent request, separate
from
the initial request. I do not see any reasons why, if they regarded
them as being identical or substantially the same, they
should not
just have repeated their previous refusal terms.
[25] What compounds this matter
further is the fact that Eskom did not raise the point
in
limine
. They are the
instance in possession of the information sought but they are not the
ones raising this extinctive point in law.
It is in fact BHP Billiton
who do so.
[26] In
Brümmer
v Minister of Social Development and Others
2009 (11) BCLR 1075
(CC) the court ruled among others that a court
seized with a matter of this nature has the discretion to decide
whether to condone
a failure to abide by time frames in terms of PAIA
or not.
[27] Counsel on both sides
advanced cogent arguments and submissions why the point
in
limine
should be
upheld or dismissed. After listening to the totality of arguments
and submissions herein and in the light of the high
public interest
this matter attracts, I have decided to rule, as I hereby do, that
this application should be decided on the merits,
not on a
technicality. I have taken into account the second and third
respondents’ counsel’s submission that this point
in
limine
is not merely
technical. It is my considered view that this point
in
limine
is subservient
to the points to be decided on the merits of the case and that in the
interests of public interest had I have been
obliged or asked to make
a decision I would have granted a condonation to the applicants so
that the real issues inherent herein
would be ventilated fully.
Consequently, the issue of the point
in
limine
should not
stand in the way of a full and comprehensive ventilation of all
issues inherent in this application.
THE SCHEME OF PAIA
[28] Section 32(1) of the Constitution of the Republic of South
Africa, 1996 (Act of 1996), provides that:
“
(1)
Everyone has the right of access to –
any information held by the state; and
any information that is held by another person and that is
required for the exercise of any rights.
(2) National legislation must
be enacted to give effect to this right, and may provide for
reasonable measures to alleviate the
administrative and financial
burden of the state.
”
[29] According to writers
Currie
& Klaasen
in
The
Commentary on the
Promotion of Access to Information Act
,
2002 Ed the entrenchment of the right to information in the
Constitution emanates from the previous or apartheid state’s

obsession with official secrecy. It is also a characteristic feature
of despotic, authoritarian or autocratic states that they
always seek
to control the flow of information in their societies. Section 32 of
the Constitution makes a decisive break with the
past, entitling
everyone to information held by the State. Various authorities and
our higher courts have consistently held that
the purpose of the
right of access to information is to subordinate the organs of the
state to a new regimen of openness and fair
dealing with the public.
See: -
Van
Niekerk v Pretoria City Council
1997 (3) SA 839 (T) at 850C.
-MEC for Roads and Public
Works, Eastern Cape and Another v Intertrade Two (Pty) Ltd
2006 (5) SA 1 (SCA) at para [21].
-
The
President of RSA v M&G Media
2011 (2) SA 1 (SCA).
[30] The Promotion of Access to
Information Act 2 of 2000 (PAIA) was promulgated pursuant to the
above constitutional imperatives.
This Act was enacted to give effect
to the right of access to information. It is said that PAIA seeks to
strike a balance with
other competing rights including the rights to
privacy and dignity.
See:
Transnet
Ltd & Another v SA Metal Machinery Co (Pty) Ltd
2006 (6) SA 285 (SCA); [2006] 1 All SA 352 (SCA) at paras [9]-[11].
[31] In the preamble to PAIA this balancing of competing rights is
recognised as follows:
“…
the
state must respect, protect, promote and fulfil, at least, all the
rights in the Bill of Rights which is the cornerstone of
democracy in
South Africa;
…
the right of access to
any information which is held by a public or private body may be
limited to the extent that the limitations
are reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom as contemplated in
section 36 of the
Constitution …
”
[32] The preamble further states
the purpose of PAIA as:
“
…
to foster a culture of transparency and accountability in public
and private bodies by giving effect to the right of access to
information;
and actively promote a society in which the people of
South Africa have effective access to information to enable them to
more
fully exercise and protect all of their rights.
”
[33] Section 9 of PAIA sets out the objects of the Act among others
as:
“
…
(b) to give effect to that right (in section 32 of the Constitution)
subject to justifiable limitations, including, but not limited
to, limitations aimed at the reasonable protection of privacy,

commercial confidentiality and effective, efficient and good
governance; and
in a manner which balances
that right with any other rights, including the rights in the Bill
of Rights in Chapter 2 of the Constitution.
”
[34] PAIA deals with information
held by public bodies differently from information held by private
bodies. For public bodies,
which include Eskom, the requester does
not need to explain why it seeks the information, let alone why it
requires it for the
exercise of its rights. In terms of section
11(1) of PAIA a requester of information is entitled to the
information requested
from a public body as long as it has complied
with the procedural requirements set in that Act and
as long
as none of the grounds of refusal are applicable
(my emphasis). Those grounds of refusal are set out in Chapter 4 of
Part 2 of the Act.
[35] Consequently, the importance of access to information held by
the state or public or state entity as a means to secure
accountability
and transparency justifies the approach adopted in
section 32(1)(a) of the Bill of Rights and in PAIA, namely, that
unless one
of the specially enumerated grounds of refusal obtains,
citizens are entitled to information held by the state or state or
public
entity as a matter of right. This is so regardless of the
reasons for which access is sought and regardless of what the organ
of
state believes those reasons to be.
[36] Chapter 4 of PAIA provides for a range of grounds of refusal,
including grounds where third party privacy and commercial
interests
would be harmed if information were made available to a requesting
party. It is therefore crucial to determine whether
any of the
grounds of refusal contemplated in Chapter 4 of PAIA apply to this
case. If they do not, that will be the end of the
matter and the
information sought must be disclosed.
[37] The grounds of refusal relied on must be understood within the
legislative scheme which seeks to balance the rights of the
requester
to have access to information, and a third party’s rights to
privacy and to protect its commercial interests in
a manner which is
constitutionally defensible in terms of the limitations clause.
[38] It is the second and third
respondents’ contention that the grounds of refusal, which are
limitations to or of the right
of access to information must
accordingly be read or interpreted as narrowly as possible,
consistent with their purpose of protecting
specific rights or
compellingly important interests. Access to information is a norm
while refusal to disclose is an exception
to the norm or general
rule. However, in terms of section 2(1) of PAIA when interpreting a
provision of the Act a court must prefer
any reasonable
interpretation of the provision that is consistent with the objects
of the Act over any alternative interpretation
that is not consistent
with these objects.
See:
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
2009 (1) SA 337 (CC) at paras [46], [84] and [107].
Fraser v Absa Bank Ltd (NDPP
as Amicus Curiae)
2007
(3) SA 484 (CC) at para [9] p 47.
See also:
Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd: In re Hyundai Motor Distributors
(Pty) Ltd v Smit NO
2001 (1) SA 545 (CC) at paras [22]-[23].
[39] If grounds of refusal do
apply it must still be investigated whether the disclosure of the
information is required or justified
in terms of section 46 of PAIA,
i.e. where it is in the public interest to so make such a disclosure.
[40] Section 46 of PAIA provides as follows:
“
Despite
any other provision of this Chapter, the information officer of a
public body must grant a request for access to a record
of the body
contemplated in section 34(1), 36(1), 37(1)(a) or (b), 38(a) or (b),
39(1)(a) or (b), 40, 41(1)(a) or (b), 42(1) or
(3), 43(1) or (2),
44(1) or (2) or 45; if
the disclosure of the record would reveal evidence of –
a substantial contravention of, or failure to comply with, the
law;
or
an imminent and serious public safety or environmental risk; and
the public interest in the
disclosure of the record clearly outweighs the harm contemplated in
the provision in question.
”
[41] In terms of section 78 of
PAIA a requester of information or third party referred to in section
74 may only apply to a court
for relief in terms of section 82 (of
PAIA) after such requester or third party has exhausted the internal
appeal procedure against
the decision of the information officer of
the public body. The powers set out in section 82 include powers to
make orders confirming,
amending or setting aside the decision which
is the subject of the application concerned; to require from the
information officer
or relevant authority of a public body or the
head of a private body to take such action or to refrain from taking
such action
as the court considers necessary within a period
mentioned in the order; to grant an interdict, interim interdict or
specific
relief, a declaratory order or compensation or for an order
of costs.
[42] What is of paramount importance is that the exercise at issue
in a section 78(2) application is not a review or an appeal
from the
decision of the information officer or an internal appeal. The
proceedings in section 78 are original proceedings for
the
enforcement of the right that the requester has under section 11(1)
to be given access to a record in the absence of grounds
for refusing
it.
See:
President
of the Republic of South Africa and Others v M&G Media Limited(
supra)
Suffice to state that the above section does not apply to proceedings
of public bodies like Eskom in this case.
[43] In
Transnet
Ltd & Another v SA Metal Machinery Co (Pty) Ltd (supra)
the Supreme Court of Appeal put it as follows:
“
A
court application under the Act is not the kind of limited review
provided for, for example under the
Promotion of Administrative
Justice Act 3 of 2000
. It is much more extensive. It is a civil
proceeding like any motion matter, in the course of which both sides
(and the third
party, if appropriate) are at liberty to present
evidence to support their respective cases for access and refusal. As
the present
matter serves to illustrate, the parties’
respective cases in such an application will no doubt in most
instances travel
beyond the limited material before the information
officer. That conclusion is reinforced by the Legislature having
catered for
the presentation of evidence and the resolution of
disputes of fact by reference to an onus of proof. Those provisions
would have
been unnecessary if the suggested limitation applied.
Moreover, it is unlikely that a court, acting under
section 82
, would
be sufficiently informed so as to be in a position to make a just and
equitable order were the limitation to apply.
”
[44]
Section 81
of PAIA provides that court proceedings such as the
present application are civil proceedings and that the burden of
establishing
that the refusal of a request for access complies with
the provision of the Act rests on the party claiming that it so
complies.
[45] In the context of this case section 78 of PAIA also assumes
pride of place where there may be disputes of fact that need
to be
dealt with. This is so because, as stated above, the rules
applicable to application proceedings apply to section 78
applications.
[46] The principles set out in
Plascon-Evans
as invoked in the
M&G
Media
case above may
also play an important role in the final determination of issues
herein.
[47] The abovementioned aspects
are neatly set out in
President
of the RSA v M&G Media
2011
(2) SA 1
at paras [11]-[16]. For convenience, I quote those
paragraphs in full:
“
[11]
The 'culture of justification' referred to by Mureinik permeates the
Act. No more than a request for information that is held
by a public
body obliges the information officer to produce it, unless he or she
can justify withholding it. And if he or she refuses
a request then
'adequate reasons for the refusal' must be stated (with a reference
to the provisions of the Act that are relied
upon to refuse the
request). And in court proceedings under s 78(2) proof that a record
has been requested and declined is enough
to oblige the public body
to justify its refusal.
[12]
The proceedings that are contemplated by s 78(2) are not a review of
or an appeal from the decision of the information officer
or the
internal appeal. They are original proceedings for the enforcement of
the right that the requester has under s 11(1) to
be given access to
a record in the absence of grounds for refusing it. The proceedings
must be commenced on application. They are
'civil proceedings' to
which '(t)he rules of evidence applicable in civil proceedings'
apply. I think that that latter provision
contemplates that the civil
rules of evidence apply as much to the manner in which evidence is
received as it does to the admissibility
of evidence.
[13]
The approach to evidence in application proceedings is well known and
need not be repeated in full.  A court will not
weigh the
veracity of the evidence on the papers alone. Generally, but with
exceptions,
a court must rely for its decision upon the facts that are alleged by
the respondent, together with those alleged by the applicant
that he
or she cannot dispute. Where an application cannot properly be
decided in that way rule 6(5)
(g)
confers a wide discretion on a court to hear oral evidence.
[14] In cases of this kind the public body bears the burden of
proving that secrecy is justified, but the general rules that I have

referred to apply as much in such cases.  That burden of proof
nonetheless casts an evidential burden on the public body to
allege
sufficient facts that will justify the refusal. The burden of proof
in its true sense will come into play if the veracity
of the evidence
is required to be tested — in which case it is for the public
body to satisfy a court that its evidence is
probably true.
[15] While the ordinary rules apply generally to applications
under s 78(2), there are nonetheless some aspects of such proceedings

that call for special mention. The first is that true disputes of
fact will seldom arise, because the material facts will generally
be
within the peculiar knowledge of the public body. If an application
for information is not to be thwarted by that inequality
of arms, I
think that a court must scrutinise the affidavits put up by the
public body with particular care and, in the exercise
of its wide
discretion that I referred to earlier, it should not hesitate to
allow cross-examination of witnesses who have deposed
to affidavits
if their veracity is called into doubt.
[16]
Secondly, it can be expected that an information officer, or other
officials of a public body, will most often not have direct
knowledge
of facts that are material to justifying secrecy, and will
necessarily be reliant upon documents and other hearsay sources.
Section 3
of the
Law of Evidence Amendment Act 45 of 1988
gives a
court a wide discretion to admit hearsay evidence and liberal use of
that section is quite capable of overcoming difficulties
that might
be encountered by a public body in that regard.
”
[48] With the above scheme of things in mind, we can now deal with
the nitty-gritty of the application itself.
GENERAL BASIS OF APPLICATION
[49]
The first applicant is a specialist writer employed by the second
applicant, a publishing group with a wide range of newspapers
amongst
whom resort Beeld and City Press as well as ordinary magazines like
Fin Week and on-line publications like News24.com,
Sake24.com and
Fin24.com. His fields of speciality include mining and labour for
the past 10 years. Among the various articles
he wrote are issues
that have a particular relevance in and to the contracts that the
Billiton Group of companies have with Eskom
for the supply of
electricity to its Hillside Aluminium Smelter in Richards Bay, South
Africa and its Mozal Aluminium Smelter in
Maputo Mozambique.
[50] The above articles were written against the general background
of electricity supply interruptions in South Africa as well
as the
incessant or regular tariff increases applied for and granted to
Eskom. Eskom has been generating operating losses, for
instance, the
R3,2 million registered for the year ended 31 March 2009. There is
also a projected loss on embedded derivatives
of R9,5 billion going
forward.
[51]
It is common knowledge that the above contracts have already been
the subject of debates in Parliament and in the mass media.

According to the applicants, the contracts and their effects also
have a significant impact on the reliability of the public’s

supply of electricity by Eskom and the rates paid by the public in
this regard. Furthermore, it is the applicant’s contention

that the two smelters consume 5,68 percent of Eskom’s total
electricity supply capacity and at rates that at present, cause

substantial losses for Eskom and make profits for Billiton.
[52] There are five respondents in this application. The first is
Eskom Holdings Ltd, a public company, duly registered in terms
of the
laws of the Republic of South Africa (RSA), with its registered
address being situated at Megawatt Park 2, Sunninghill,
Johannesburg;
an area situated within the jurisdiction of this Court. Eskom is
cited by virtue of the fact that the request for
access to
information by the two applicants was directed to and was refused by
it.
[53] The
second respondent,
BHP
Billiton Plc Inc
(Billiton) is an external company with its local (RSA) registered
address situate at 6 Hollard Street, Johannesburg. It is cited
for
such interest as it may have in the relief sought by the applicants.
No relief was sought against the second respondent save
for a costs
order in the event they opposed the application.
[54]
The third respondent,
Hillside
Aluminium (Pty) Ltd
is a public company duly registered in terms of the laws of the RSA
with its registered address being at 9 West Central, Arterial,

Richards Bay, South Africa. It is also cited for such interest as it
may have in the relief sought by the applicants. No relief
is sought
directly against them, save for a costs order in the event of them
opposing the application.
[55]
The fourth respondent,
Motraco
de Transmisso Mozambique SARL
(Motraco), is an external company with locally registered address
situate at Megawatt Park, Maxwell Drive, Sunninghill Ext 3,
Johannesburg. It is cited for such interest as it may have in the
relief sought by the applicants. No relief is sought directly

against the fourth respondent save for a costs order in the event of
opposition.
[56]
The fifth respondent, the national
Minister
of Justice and Constitutional Development, RSA
,
(Minister), is cited herein by virtue of the fact that he is the
Minister responsible for the administration of PAIA. The Minister
is
also cited because the applicants are advancing contentions as to the
proper interpretation of PAIA, particularly
sections 37(1)(a)
and
46
thereof: In the event those contentions are upheld, no question of
constitutional invalidity will arise. Should they be rejected,
then
the applicants contend that
sections 37(1)(a)
and
46
of PAIA are
unconstitutional and ought to be declared as such by this Court, so
argued the applicants. The above or last mentioned
is the principal
reason why the Minister’s interest in this matter arises.
[57] In terms of the Rules of Procedure in terms of PAIA, the
applicants were not obliged to formally cite the second to fourth

respondents. They could have simply relied on Eskom to inform them
of the application. However, for practical reasons as well
as for
purposes of saving time or in anticipation of any application to
intervene in the proceedings by any of them, they have
been cited as
set out above.
[58]
Eskom is basically not opposing the application: In my view they
are only going through the motions, feebly advancing submissions
and
arguments that are indicative of them respecting and abiding by
Billiton’s vehement objections. They, like the fifth

respondent, the Minister of Justice and Constitutional Development,
will abide the ruling of this Court either way. The Minister
however
made an application at the beginning of arguments in this Court, for
leave to supplement their heads of argument to testify
their
opposition to a constitutional challenge to
sections 36
,
37
and
46
of
PAIA by the applicants in the event of this Court finding and ruling
that there are valid grounds for the refusal to grant applications.

I have originally reserved my ruling on this latter application,
which ruling is set out hereinbefore.
ISSUES IN DISPUTE
[59] There are basically three aspects in dispute in this
application, namely,
a request for access to all and any documents or relevant extracts
of documents, evidencing the identities of all signatories
to all
written agreements concerning the supply of electricity to the two
smelters;
a request regarding the duration of the agreements; and
a request for documents evidencing the formula and/or manner of the
determination of the price for the supply of electricity
to the two
smelters as well as documents evidencing the commencement and
termination of the agreements.
[60]
In respect of the request for signatories the respondents’
refusal is based on
section 34(1)
and (2) of PAIA, in that such a
disclosure “
might
”
have implications on their right to privacy.
[61] In respect of the request for documents evidencing the start
and end of the agreements, i.e. duration, the respondents rely
on
sections 36(1)(b)
,
36
(1)(c) and
37
(1)(a) of PAIA in their refusal.
[62] In respect of the request for the pricing formulas they also
rely on
section 36(1)(b)
and (c) as well as
section 37(1)(a)
of PAIA.
[63] It is so that Eskom furnished some kind of response to the
requests: In respect of the signatories, instead of furnishing
the
documents on which the signatures of the signatories appear, it
furnished the names of the parties to the agreements. In respect
of
the periods of the agreements Eskom only disclosed that the
agreements came into effect in the 1990’s and that Mozal
Smelter will receive electricity until March 2026 and Hillside until
2028.
THE RELEVANT STATUTORY PROVISIONS
[64] Due to the fact that they will be referred to regularly
hereinafter I find it necessary to quote in full
sections 34(1)
and
(2),
36
(1)(b) and (c),
37
(1)(a) and
46
of PAIA.
[65]
Section 34
of PAIA reads as follows:
“
(1)
Subject to subsection (2), the information officer of a public body
must refuse a request for access to a record of the body
if its
disclosure would involve the unreasonable disclosure of personal
information about a third party, including a deceased individual.
(2) A
record may not be refused in terms of subsection (1) insofar as it
consists of information—
[…]
(f)
about an individual who is or was an officer of that public body and
which relates to the position or functions of the individual,

including, but not limited to –
the fact that the individual is or was an official of that public
body;
the
title,
work
address, work phone number and other similar particulars of the
individual;
the
classification, salary scale or remuneratio
n
and responsibilities of the position held or services performed by
the individual; and
the name
of the individual on a record prepared by the individual in the
course of employment.
”
[66] The applicable provisions of
section 36
of PAIA reads as
follows:
Subject to
subsection (2), the information officer of a public body must refuse
a request for access to a record of the body if the record contains—
[…]
financial,
commercial, scientific or
technical information, other than trade secrets, of a third party,
the disclosure of which would be likely to cause harm to the

commercial or financial interests of that third party; or
information
supplied in confidence by a third party the disclosure of which
could reasonably be expected—
to put
that third party at a disadvantage in contractual or other
negotiations; or
(ii)
to
prejudice that third party in commercial competition.
”
[67]
Section 37(1)(a)
of PAIA provides that –
“
...
the information officer of a public body … must refuse a
request for access to a record of the body if the disclosure
of the
record would constitute an action for breach of a duty of confidence
owed to a third party in terms of an agreement.
”
[68]
Section 46
of PAIA provides as follows:
“
Despite
any other provision of this Chapter, the information officer of a
public body must grant a request for access to a record
of the body
contemplated in
section 34(1)
,
36
(1),
37
(1)(a) or (b),
38
(a) or (b),
39
(1)(a) or (b),
40
,
41
(1)(a) or (b),
42
(1) or (3),
43
(1) or (2),
44
(1) or (2) or
45
, if –
(a) the disclosure of the record would reveal evidence of—
(i) a substantial contravention of, or failure to comply with.
the law; or
an imminent and serious public safety or environmental risk: and
(b)
the
public interest in the disclosure of the record clearly outweighs the
harm contemplated in the provision in question
.”
[69]
Nugent
JA
aptly summed up the situation analogous to the one we are dealing
with in
President
of the RSA v M&G Media (supra)
,
when he stated that –
“
(1)
Open and transparent government and a free flow of information
concerning the affairs of the state is the life blood of democracy.

That is why the Bill of Rights guarantees to everyone the right of
access to any information that is held by the state …
”
[70]
Ngcobo
J
(as he then was) put it as follows in
Brümmer
v Minister of Social Development and Others
2009 (6) SA 323
(CC) at para [62]:
“
The
importance of this right … in a country which is founded on
values of accountability, responsiveness and openness, cannot
be
gainsaid.  To give effect to these founding values, the public
must have access to information held by the State. Indeed
one of the
basic values and principles governing public administration is
transparency. And the Constitution demands that transparency
'must be
fostered by providing the public with timely, accessible and accurate
information'
.”
[71] As
stated above, Eskom purported to furnish particulars requested in
respect of the signatories to the agreements but instead
furnished
the names of the parties to the contracts. No documents were
furnished. I can state right here that Eskom in fact does
not have
any difficulties in giving access to this information. They are
curtailed in their choices by the second to third respondents’

objections. In their response they state that disclosure
might
have implications for their right to privacy. No specifics are
given.
[72]
The second and third respondents’ objection or refusal is
based on the signatories’ right to privacy. It was
incumbent
on the refuser to lay the basis why it averred that such a disclosure
would involve unreasonable disclosure of personal
information. In
all refusals the holder of the requested information must convince
the court why its refusal should be upheld.
It must, in its affidavit
furnish cogent grounds why otherwise disclosable data or information
should not be disclosed.
[73]
I have not come across any instance in the papers herein where it is
averred that the signatories to the agreements in issue
here were not
officers of Eskom, a public body, or that such signatories were not
performing their functions or holding positions
as such at the time
they signed the agreements. The exceptions set out in section 34(2)
do not apply. It is the reason why I
have a problem with the
respondents’ reliance on section 34 of PAIA to justify their
refusal to disclose the particulars
of the signatories by making
available the documents where they appended their signatures. The
respondent’s contentions are
not sustainable.
THE ISSUE OF SIGNATURES
[74] It was submitted on behalf of the respondents that if the
particulars of the signatories are disclosed, the latter may be

harassed or subjected to public attacks. The above is a bland
statement which in my view is not substantiated in any way in the

papers.
[75] It is my considered view and finding that the respondents,
especially the first to the third respondents, have not proved

adequately that they deserve the protection of section 34 of PAIA.
THE DURATION OF THE AGREEMENTS
[76]
The refusal of the request regarding the duration of the agreements
also falls under the same criticism as the one in respect
of the
signatory issue. Eskom was ready to disclose “
the
1990’s
”
as the commencement date and 2026 and 2028 as the termination dates.
Nothing in the papers before me justifies why the
exact dates or
periods were not or cannot be disclosed. The answering affidavits do
not shed any convincing light what prejudice
the respondents would or
could suffer if the full documents evidencing the dates of
commencement and termination of the agreements
are disclosed.
THE PRICING FORMULAS
[77] Section 36(1)(b) and (c) are very clear and direct as to what
disclosure can be refused or under what circumstances. For
emphasis
I repeat the relevant parts thereof:
“
(1)
Subject to subsection (2), the information officer of a public body
must refuse a request for access to a record of the body
if the
record contains—
…
financial,
commercial, scientific or technical information, other than trade
secrets, of a third party, the disclosure of which
would be likely
to cause harm to the commercial or financial interests of that third
party; or
information
supplied in confidence by a third party the disclosure of which
could reasonably be expected—
to put
that third party at a disadvantage in contractual or other
negotiations; or
to
prejudice that third party in commercial competition.
”
[78]
The procurement and/or use of information derived from confidential
sources falls squarely within the ambit of the above section
also. In
Financial
Mail (Pty) Ltd & Others v Sage Holdings Ltd and Another
[1993] 2 All SA 109
(A)
Corbett
JA
confirmed that in determining whether or not parties are entitled to
use information derived from confidential sources, like the
data
Billiton supplied to Eskom during their contract negotiations in
relation to the supply of electricity to the smelters, the
party’s
right to privacy and the law relating to unfair (or rather unlawful)
competition is applicable. This ruling overruled
Joffe
J’s
finding in the same case in the High Court Johannesburg that the
above only applied to natural persons, not to a company.
See:
Sage
Holdings Ltd and Another v Financial Mail (Pty) Ltd and Others
1991 (2) SA 117
(W) at 131F.
[79]
The
respondents (i.e. second and third respondents) submitted in argument
that the basis of their recommendations to Eskom to refuse
to give
access to the information about the pricing structures tendered by
them to Eskom in confidence was not the certainty of
harm to ensue
but a reasonable probability of harm. In substantiation of this
aspect they relied on the judgment of
Howie
JP
in
Transnet
Ltd & Another v SA Metal Machinery Co (Pty) Ltd
2006 (6) SA 285
(SCA);
[2006] 1 All SA 352
(SCA), especially
para
42
wherein the following was said:
“
It
follows that the difference between (b) and (c) of section 36(1) is
to be measured, not by degrees of probability. Both involve
a result
that is probable, objectively considered. The difference, in my view,
is to be measured rather by degrees of expectation.
In (b), that
which is likely is something which is indeed expected. This
necessarily includes, at least that which would reasonably
be
expected. By contrast, (c) speaks of that which could reasonably be
expected. The results specified in (c) are therefore consequences

(i) that could be expected as probable (ii) if reasonable grounds
exist for that expectation.
”
[80]
The two protagonists in this application disagree on how the above
obiter
dictum
should be interpreted and/or applied. The applicants are placing
emphasis on the term “
likely
”
in the portion of the section 36(1)(b) which provides for “
…
likely to cause harm to the commercial or financial interests …
”.
They further submit that each ground of refusal under PAIA is tied to
one of two standards – “
likely
to
”
or “
could
reasonably be expected to
”.
Further relying on the authors,
Currie
& Klaaren
:
The
Commentary on the
Promotion of Access to Information Act (2002
)
at pages 102-3, they contend that the expression “
likely
to
”
is the more stringent of the tests applicable to the causative
element of the grounds of refusal, which meant that a greater
degree
of probability is required where the ground of refusal uses the
language, “
likely
to
”
rather than “
reasonably
be expected to
”.
They submitted that a body invoking a “
likely
to
”
ground of refusal must therefore show, based on real and substantial
grounds, that there is a strong probability that a
harmful
consequence will occur. Their overall submission and contention was
that for Eskom or Billiton to succeed in establishing
this ground,
they must demonstrate that it is
probable
(not possible) that the disclosure
would
cause harm to the commercial or financial interests of Billiton.
Their conclusion was that Eskom has made no effort to establish
the
section 36(1)(b)
ground in the papers before this Court but left it
to Billiton to try to do so.
[81]
Billiton’s argument in turn rests on the premise that the
pricing information requested is ordinarily unavailable to
its
competitors. It fears that its disclosure would harm its financial
and commercial interests by informing other industry participants
of
the production costs of the smelters. It concluded that that was the
reason why all aluminium producers vigorously protect
information
relating to their electricity costs.
[82] Billiton has proved that pricing structures of major aluminium
producers can be purchased from the company Brook Hunt at
around
R200 000 and the respondents also attached to their papers a
report and spread sheet prepared by Deutsche Bank commenting
on fair
value in the aluminium industry. It has also shown that the said
Brook Hunt which is a specialist service provider in the
aluminium
industry continually update their information about the costs of
aluminium smelters and allegedly do costing for 99%
of global
aluminium production, giving detailed costs analysis of nearly all
the world’s aluminium smelters as well as providing

comprehensive plant by plant information of costs inputs from energy
through raw materials and labour, providing a clear assessment
of
each operation within the industry cost curve.
[83] Instead of refuting the above assertions the applicants only
countered by stating that they as SA media players, just like
the
average member of the South African public cannot afford to purchase
this kind of information from firms like Brook Hunt.
[84] Where a party seeks to rely on
section 36(1)(b)
of PAIA to
resist disclosure, it does not have to prove a certainty of harm. It
is sufficient if it proves a probability of harm.
Proof of a
probability or to be more precise, proof of a likely result on a
balance of probability is something courts and litigants
deal with on
a daily basis.
[85]
Billiton bore the
onus
to put forward evidence that it is probable that it will suffer the
harm contemplated in sub-sections (b) and (c) of
section 36.
Should
disputes of fact arise, same must be dealt with by looking at
Billiton’s version, on the
Plascon-Evans
test.
Only where such a version is so far-fetched or clearly untenable
that the court would be justified in rejecting it merely
on the
papers may the respondents fail in their bid to refuse to disclose.
[86]
The applicants went to great lengths to set out facts and instances
that arose, out of Parliamentary debates as well as the
very
utterances of Eskom’s CEO, Mr Maroga, surrounding this issue of
the agreements which point to the security of electricity
supply
being probably compromised as a result of, among others, the
agreements entered into with the Billiton Group of companies

pertaining to the supply of electricity to the two smelters. The
first applicant was present at a press conference called by Eskom
on
27 August 2009 where the issue of embedded derivatives amounting to
R9,5 billion and which could worsen the losses were some
of the
issues discussed. He put specific questions to the CEO relating to
whether these were related to the Billiton smelters but
the latter
(CEO) refused to respond to the questions. Nevertheless Creamer Media
Engineering News on the same date reported that:
“
…
(the) said valuation of aluminium contracts
with embedded derivatives had resulted in accounting losses of R9,5
billion and were
clearly not sustainable.
”
[87] Eskom did not refute the above report. The respondents also
did not explain this aspect in their answering affidavits.
The
perception remained that Eskom charged Billiton for electricity at
its smelters based to some extent on the prevailing aluminium
price
on the London Metals Exchange (LME) which is linked to the aluminium
price.
[88]
The respondents also did not gainsay a report in the Mail &
Guardian dated 20 April 2010 titled “
Going
Cheap
”
as well as an article in The Times newspaper dated 25 May 2010 titled
“
Minister’s
Eskom Shocker
”,
- all related to the price Billiton was paying for electricity
supplied by Eskom to its smelters. In the Mail & Guardian

article, Eskom is reported to have responded to questions by stating
among others that –
“
…
the biggest contributor to the [embedded
derivatives] liability was the Mozal contract.
”
[89] The Times article reported that Billiton was paying only half
of the generation costs of electricity. This newspaper also
quoted
the reactions of various stakeholders who voiced their outrage over
the tariffs Eskom was charging the Billiton Group of
companies for
electricity to its smelters. Among others:
A representative of the National Consumer Forum is quoted as
stating:
“
This
is outrageous. Consumers in South Africa don’t even have
enough money to put food on the table but they still have to
pay 41
cents/Kwh. It is totally irrational and I am outraged!
”
Cosatu’s representative is quoted therein as saying:
“
This
confirms everything we have feared. It is basic unfairness, where the
poorest pay the most.
”
[90] The Times article even stated that the contract Eskom had with
Mozal (Motraco) was signed in 1997 and would expire in 2025.
This
period differs from the one Eskom purported to give in its response.
Surely some certainty is required on this aspect and
it can only be
obtained by seeing the relevant documents.
[91]
According to the minutes of the Parliament’s Portfolio
Committee on Public Enterprises held on 6 October 2009 where
the
issue of tariffs in general and in respect of the aluminium smelters
specifically were some of the issues discussed, Eskom’s
CEO (Mr
Maroga) is reported to have stated the following:
“
In
terms of differences in tariffs for different consumers, there were
two kinds of customers. There were consumers who were subject
to
standard tariffs, which increased every year. The second type of
consumers were subject to special pricing agreements. There
was a
small section in the industrial sector subject to special agreements
such as the aluminium industry. On average, the industrial
customers
subsidised the rest of the customer base when one looked at costs to
suppliers.
”
[92] From the above, it becomes clear that aluminium smelters do not
pay what other users or consumers pay, inclusive of other
industrial
customers.
[93] The papers herein show that the issue relating to Eskom’s
supply of electricity to the aluminium smelters evoked a
heated
debate or exchanges in the Portfolio Committee. For example, an
exchange between Mr Maroga and Parliamentarian Mr C Gololo
went
something like this:
Gololo
: The
aluminium smelters are electricity guzzlers and yet they are exempt
from tariff increments because the price of aluminium
in the market
fluctuated. He asked if Eskom found that they lost a lot of money
because of this. He also wanted to know of the
percentages for
reserve margins regarding electricity security.
Mr Maroga’s
response
: He
stated that the aluminium contracts represented in terms of capacity,
about 5% of the system. It was important that Eskom
learn from this
and focus more closely on long term contracts and how they reflected
the reality of what was happening in the country
presently (meaning
the load sheddings then underway). He added that Eskom wanted to do
this in a way that did not leave an impression
that they could not
fulfil their commitments. He further stated that the reserve margins
were not where they should be and that
new power stations were needed
to ensure electricity supply security. He put the current reserve
margin then at 10% as against
the required reserve margin of 15%.
[94] The Chairperson of the Parliamentary Portfolio Committee, Ms
Veitjie Mentoor is reported to have expressed herself on this
aspect
as follows:
“
Mentoor
cautioned Eskom and ‘any other’ state entity from
entering into contracts with big companies or big business
that they
could not simply resile from in the event of things going out of
hand, like economic meltdowns we are experiencing and
all suffering
from – and we cannot escape out of these contracts.
So
we want you to go and take a fine comb and go through that contract
and see whether we cannot escape out of it or whether we
cannot
renegotiate it.
”
[95] I agree with the applicants’ contention that the above
also demonstrate a significant public interest in the aluminium

smelter agreements.
[96] Mr Maroga also told that Parliamentary Portfolio Committee that
aluminium smelters were not exempt from tariff increases.
This is at
variance with the fact that there are special contracts in place
between it and the smelter owners which are of a fixed
nature over a
long period or those agreements tie the electricity price to the
smelters to a number of external factors, such as
the price of
aluminium. These aspects were not adequately explained in the
answering affidavits despite the respondents being
specifically
called upon to do so. Some certainty or closure is needed on these
agreements or electricity supply to the smelters.
[97]
What raised more concern was a report in
Business
Day
newspaper of 7 October 2009 wherein Mr Maroga was reported to have
stated that he told the Portfolio Committee that Eskom was engaged
in
talks to renegotiate long term aluminium contracts with the aim of
declining them from the aluminium price, which had fallen
sharply
during the global financial crisis. He is also reported to have
stated that the commodity linked contracts are being blamed
for the
utility’s record annual loss and that Billiton was resisting
the move.
[98] The then Chairperson of the Eskom Board Mr Bobby Godsell, was
also reported to have said the following in an article published
in
Creamer Media’s Engineering News of 27 August 2009:
“
Eskom
would be engaging its commodity-linked customers with a view to
achieving more equitable pricing. These contracts were concluded
a
long time ago, under very different circumstances. These customers
have long term as well as short term interests, and we will
simply
sit down with them and explain why these contracts are problematic,
not only in price, but also because of the accounting
uncertainty
that they impose, that makes proper strategic management of resources
very difficult …
”
[99] With regards to the R9,7 million loss Mr Godsell is also
reported to have said:
“
The
scale of Eskom’s financial losses is clearly unsustainable.
”
[100]
It is common cause that the muted renegotiations never took place or
there is no indication that they were ever embarked
upon.
[101]
According to the papers herein Eskom’s total net base load
generation capacity was 34 294 megawatts at the time.
For
security of supply the required reserve margin is 15%. The current
reserve margin is 10%. The above situation precipitated
the massive
blackouts or “
load
shedding
”
as Eskom liked to call them colloquially, that occurred throughout
South Africa in 2008. The Hillside Smelter consumed
1100 megawatts
and the Mozal Smelter consumed 845 megawatts. The two smelters on
their own, alone, consumed 5,68% of Eskom’s
total base load
capacity at the time. Taken to its logical conclusion, so argued the
applicant, which argument was not convincingly
refuted, if Eskom had
not been supplying electricity to the smelters in terms of these two
contracts in 2008, the public would
have faced neither blackouts nor
if they did occur, they would have been fewer or not to the same
massive extent.
[102] The above, in my considered view, makes the terms of the
contracts, more particularly their duration, highly relevant to
the
stability of the public’s electricity supply. Disclosure of
same therefore is in the public interest. What remains to
be
determined is whether the respondents’ refusal to so disclose
is justified by
section 37(1)(a)
of PAIA.
[103] In its latest financial statements for the relevant period
i.e. for the year ended 31 December 2003 the following was noted:
“
Customised
Pricing Arrangements
Eskom
has entered into a number of agreements to supply electricity to
electricity intensive industries where the price is influenced
by
commodity prices, foreign exchange rates and production price
indices. Due to the long term nature of the contracts, relevant
and
reliable forward pricing data is unavailable for many of the inputs
needed in determining the value. Estimates of value, given
various
simulations of forward prices, yield a range of values that is so
variable and the possibilities of the various outcomes
so numerous
that the usefulness of estimates of value is negated. Disclosure has
been provided to reflect the economic characteristics
and inputs that
are necessary in determining a range of values. The following
disclosure has been provided according to the type
of commodity to
which the pricing agreement is linked:
Commodity
Pricing Component
Mechanism
Period
Annual Commodity
Tonnage
% Electricity Revenue
Aluminium
3 months forward
Aluminium price US Dollar/R
Monthly consumption of these
Contracts converted at the ruling 3 months LME
aluminium price converted to Rand at the then ruling spot US
Dollar rate
2002
2003
2004-
2012
2013-2020
2021-2025
113 632
106 500
116 880
200 978
84 098
5.7
4.8
“
[104]
According to the above, the contracts will continue to exist until
at least 2025. In fact the above indicate that Eskom’s

exposure in respect of the two aluminium contracts will increase in
future from 116 880 tons per annum to 200 978 tons
per
annum for the period 2013 to 2020.
[105] Billiton confirms the above statement or situation in their
2009 Annual Report. In respect of Mozal the report states that:
“
Mozal
sources power generated by Eskom via Motraco, a transmission joint
venture between Eskom and the national electricity utilities
of
Mozambique and Swaziland. Tariffs are fixed through to 2012 and will
be linked to the LME aluminium price thereafter.
”
[106]
In relation to section
36(1)(b)
Billiton has put up facts to show that disclosure of the information
sought by the applicants would reasonably be expected to result
in
some commercial harm. In a competitive environment such as the
aluminium industry, competition is all about input costs. If

Billiton’s electricity costs were to become publicly known, it
will not be uncommon for its competitors to be able to calculate,

with a high degree of accuracy, its costs of production. It would
enable Billiton’s competitors to predict accurately Billiton’s

response to fluctuations in the London Metal Exchange (LME) prices.
[107]
As stated above, knowledge of Billiton’s costs of production
would enable Billiton’s competitors to alter their
commercial
behaviour to take advantage of their knowledge of Billiton’s
position. They would then be able to engage in competitive
behaviour
with the advantage of knowledge which Billiton did not have of them.
They may ultimately end up undermining Billiton’s
ability to
generate a return on, and to recoup, the substantial capital
investment required to engage in expansion projects.
[108] In relation to
section 36(1)(c)
Billiton has put up facts
establishing reasonable grounds to show a probability that knowledge
of their production costs would
enable competitors to alter their
commercial behaviour to take advantage of that knowledge of
Billiton’s position. There
are also probabilities that
Billiton’s suppliers and customers would also be able to use
this knowledge or information to
calculate its cost of production
and/or use this information in their negotiations with them.
[109] On the papers before this Court it cannot be seriously said
that Billiton’s version on the pricing structures is so

far-fetched or clearly untenable that this Court could justifiably
reject them merely on the papers.
[110]
It is so that business concerns are in constant competition with one
another and would normally keep their pricing structures

confidential. However, it has been demonstrated in the papers herein
as well as argued in this Court that the pricing structures
of almost
all aluminium players the world over are readily available upon
payment of a fee in the region of R200 000. Deutsche
Bank has
aluminium values in respect of all role players and even Hillside
Smelter is regarded as being too small a player to attract
any
envious competition or competitors. The Brook Hunt Brochure also has
data of almost all pricing structures for aluminium producers.
[111]
The applicants
challenged the above contention. The applicants complain about the
steep price for accessing this information as they plead poverty
in
relation to the Billiton Group.
[112]
Billiton’s gripe with the disclosure of the pricing formulae
is that their competition would have been led in through
the back
door into the inner sanctity of their trade secrets. They contend
further that the disclosure will cause or prompt their
competitors to
alter their commercial behaviour and take advantage of the knowledge
they would have gained of Billiton’s
pricing structures.
[113] It is not uncommon that a business player would feel
uncomfortable with its inner workings falling into the hands of its

competition. Such discomfort may be adequate justification for the
trade secret holder to resist a request for access to a document
or
information relying on
section 37(1)(a)
of PAIA.
[114] The applicants aver that the respondents’ fears as
aforementioned are unjustified as their pricing structures are
in the
public domain as same can be accessed through Brooks Hunt.
[115]
In any competitive environment, competition may be all about input
costs. It is so that should Billiton’s electricity
costs be
publicly available, the possibility and probability of its
competitors being able to use same to calculate and adjust
their own
production costs cannot be said to be remote. Their competitors may
be then enabled to predict and calculate accurately,
Billiton’s
responses to fluctuations in the LME prices, thus gaining an unfair
advantage. They could also be in a position
to engage in competitive
behaviour with the advantage of knowledge which Billiton on the other
hand did not have of them. Billiton’s
ability to generate a
return on, and to recoup the substantial capital investment required
for expansion projects may be prejudiced.
[116]
On the facts placed before me I am satisfied that Billiton has
established that it can justly rely on sections of PAIA to
resist
the request for the pricing formulas. It has shown that knowledge of
its costs of production could enable its competitors
to alter their
commercial behaviour to take advantage of their knowledge of
Billiton’s position. These competitors would
then be able to
engage in competitive behaviour with the advantage of this knowledge,
which advantage Billiton would not be having
as it would be in the
dark about their (competitors’) states of affairs. The
competitors may also use such knowledge to
calculate Billiton’s
costs of production and then use the information in their
negotiations with it.
DISPUTE OF FACTS
[117]
On this aspect there are two diametrically opposed view points, i.e.
the applicants’ and the respondents’. The
respondents
contend that in such a situation, where there is a dispute of fact on
the probability of harm, such a dispute must
be resolved in their
favour unless their version is so far-fetched or clearly untenable
that the court is justified in rejecting
it merely on the papers. The
principles in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) kick in, to be precise. Two questions are
relevant:
Is there ground for refusal made out?
If so, has the respondents made out a case for the exception?
In answering these the respondents’ case should be relied on.
[118]
In cases of this kind the public body bears the burden of proving
that secrecy is justified. This burden of proof casts
an evidential
burden on the public body to allege sufficient facts that will
justify the refusal.
[119]
As held in the
President
of RSA v M&G Media
case, (p 7 para [15]), true disputes of fact will seldom arise
because the material facts will generally be within the peculiar

knowledge of the public body. However, if a genuine dispute of fact
does occur the court must scrutinise the affidavits put up
by the
public body with particular care and, in the exercise of its wide
discretion, the court should not hesitate to allow
viva
voce
evidence that may entail also allowing cross-examination of the
witnesses who deposed to the affidavits to ascertain the veracity
of
their stories. Because the officials of the public body would more
often than not have direct knowledge of facts that are material
to
justifying secrecy, there may be instances where the applicants may
rely on hearsay evidence. In such cases the court has a
wide
discretion to allow for the admission of hearsay evidence though the
use of
section 3
of the
Law of Evidence Amendment Act 45 of 1988
to
overcome any difficulty.
[120] After evaluating the totality of evidence before me and
considering the matter I have come to the conclusion that in the

light of the conclusion I am about to reach in this application, this
aspect of disputes of facts have no substance. The final
ruling can
still be made without any prejudice to any of the parties arising out
of the rejection of the issue relating to a dispute
of facts. In any
event whatever is supposed to be a dispute of facts can, in my view,
be determined on the papers herein.
DUTY OF CONFIDENCE OWED TO THIRD PARTIES
[121] The respondents have produced and handed to the applicants
copies of a confidentiality agreement between Eskom and Billiton.
[122] As stated above,
section 37(91)(a)
of PAIA decrees that an
information officer must refuse a request for access to a record of
the public body if the disclosure of
the record would constitute an
action for breach of a duty of confidence owed to a third party in
terms of the agreement.
[123] The general rule is that where there is a confidentiality
agreement in place and the harm of the kind contemplated in
section
36(1)(b)
and
36
(1)(c) had not been established, this was a bar to
section 37(1)(a)
being applied.
[124]
Both sides rely on the principles laid down in
Transnet
Ltd v SA Metal Machinery Co
case
(
supra
).
The material part in issue is paragraph [88] thereof where
Howie
JP
is quoted as having said the following:
“
The
respondent’s right in submitting that if disclosure of the
rates would not be likely to cause the harm referred to in
s.
36(1)(b)
(the court
a
quo’s
finding as to which is not appealed against) and could not reasonably
be expected to result in probable harm of the kinds referred
to in
s.
36(1)(c)
(which I have found to be the case) there is no basis to
conclude that if Inter Waste did indeed sue the appellant for breach
of
confidentiality, the latter would be at any risk of an adverse
finding whether as to material breach entitling cancellation or as
to
an award of damages. The appellant’s case therefore fails in
regard to
sect 37(1)(a).
”
[125]
The applicants contended that the above
dictum
resonated with their case and as such Eskom should be ordered to
supply the information requested. On the other hand, the respondents

argued and submitted that the above
obiter
dictum
was misunderstood or misapplied by the applicants. They contended
that
Howie
JP
instead held or meant that the confidentiality agreement in issue in
the
Transnet
case was applicable only to the period before the tender contract was
concluded and that as such there was no interest to protect.
[126] It was the applicant’s further contention and argument
that if all public bodies were allowed to hide behind confidentiality

agreements or clauses in their agreements to avoid disclosure, that
would be a negation of the spirit and purpose of PAIA.
[127] After perusing all the attachments to the affidavits it came
to my knowledge that the confidentiality agreement relied on
was not
applicable to the agreements in issue here. They were
confidentiality agreements between or relating to Hillside Smelters

and Billiton before the present agreements were signed. The
agreements related to the supply of electricity to Bayside aluminium

pot lines.
[128] Over and above that, in its letter of refusal to disclose on
the basis of confidentiality, Eskom gave no details as to the
nature
of this confidence, whether it arises from the agreements themselves
or some other basis, what aspects of the agreements
the duty of
confidence covers, and whether the duty of confidence contains any
exceptions, for example, in relation to disclosures
required by law
or pursuant to a court order.
[129]
In terms of
section 25(3)(a)
of PAIA Eskom was enjoined or expected
to provide adequate reasons for the refusal. It is my considered
view that Eskom did not
comply with the requirements of the above
section. From Eskom’s answering affidavit it appears also that
Eskom only gave
due regard to representations from Billiton not to
grant the applicants’ request for access to the information.
That also
falls foul of
section 49(1)(a)
of PAIA. Eskom are in my
view being nudged from behind by Billiton to refuse to disclose and
they are helplessly trudging forward
or being stringed along.
SEVERABILITY
[130] From the aforegoing, at this stage it appears that we have a
mixed bag of scenarios when
sections 34
,
36
and
37
of PAIA are
applied to the facts of this case. The next question to be answered
is whether, in the event of the above prevailing,
there is a case
made to severe those aspects in the application for disclosure that
should be disclosed as of law and right from
those that may be of a
refusable and confidential nature, like the pricing formulas.
[131]
Section 28
of PAIA provides as follows:
“
If
a
request
for access is made to a record of a public body containing
information which may or must be refused in terms of any provision
of
Chapter 4 of this Part every part of the record which—
does not contain: and
(b)
can
reasonably be severed from any part that contains,
any such
information must, despite any other provision of this Act, be
disclosed.
”
[132]
Eskom
did not produce or provide any document whatsoever. As a result, it
cannot be determined what should be severable or what
is not. What
Eskom and Billiton are saying is that Eskom would have already
considered this aspect when it issued out its responses
which
included the refusals. This Court is thus not in any position to say
whether any part can be severed from any whole (document)
in such a
manner that it will not impugn on the tone and content of the rest of
the remaining document.
PUBLIC INTEREST OVERRIDE
[133] Section 46 of PAIA has been promulgated specifically to serve
or act as a mandatory public interest override provision where
one or
more grounds of refusal have been established. The section’s
requirements are mandatory: where access to a record
is denied under
section 36(1)(b) or (c) or section 37(1)(a), an information officer
must nonetheless grant access to the record
if it is in the public
interest to do so.
[134] For elucidatory purposes I repeat the wording of the section:
“
Despite
any other provision of this Chapter, the information officer of a
public body must grant a request for access to a record
of the body
contemplated in section 34(1), 36(1) or 37(1) […] if –
the disclosure of the record would reveal evidence of –
a substantial contravention of, or failure to comply with, the
law;
or
an imminent and serious public safety or environmental risk; and
the
public interest in the disclosure of the record clearly outweighs
the harm contemplated in question.
”
[135] The requirements for the granting of access under section 46
are the following:
If the disclosure of the record would reveal evidence of a
substantial breach of the law or an imminent and serious public

safety or environmental risk; and
Where the public interest in the disclosure clearly outweighs the
harm contemplated in the section.
[136]
In respect of private bodies, mandatory disclosure in the public
interest is governed by section 70 of PAIA whose provisions
are
identical to those in section 46, the only difference in both being
the use of the term “
public
”
in section 46 and “
private
”
in section 70. The override for public bodies operates in respect of
all the grounds for refusal that may be used by a
public body except
one – the ground of refusal relating to certain records of the
SA Revenue Service. In respect of the
public interest override for
private bodies, it is applicable to all the grounds of or for refusal
without any exception.
[137] The override is an exception to the operation of the grounds
of refusal to which it is applicable. The override is only
operative
once it has been determined that one or more of the grounds of
refusal apply to a particular record. If none of the grounds
is
applicable the requested information must be disclosed. The effect
of the override is that, notwithstanding the applicability
of a
ground of refusal, the record must nonetheless be disclosed. Where
it does apply, the public interest override equals disclosure,
i.e.
the release of the requested record is mandatory.
See:
Currie
& Klaaren
:
The
Promotion of Access to Information Act: A
Commentary,
2002,
at 108.
[138] There are two schools of thought over the applicability of the
requirements of
section 46.
The first school of thought suggest that
where the first condition, e.g., that a record reveals evidence of a
substantial contravention
of the law, is satisfied, then the second
condition or requirement, i.e. of the public interest in the
disclosure outweighing the
harm that disclosure will entail, will
necessarily also have been satisfied. I go along with the views of
the second school of
thought, who are of the view that the public
interest in the disclosure of a record that reveals evidence of an
imminent and serious
public safety or environmental risk may not
necessarily outweigh the harm contemplated. The wording of
section
46
clearly contemplates a two-part test.
[139]
The term “
public
interest
”
in my view, may mean more than the meagre aspect specifically
identified in the section. It may include the public interest
in
upholding the law as well as the publics’ awareness of public
safety or environmental risks. There may also be the public
interest
in furthering the general goals of the Act.
[140]
In their heads of argument and arguments in court both sides engaged
in academic pontifications and splitting of hairs about
what is meant
by “
substantial
contraventions of or failure to comply with the law
”
and “
…
an imminent and serious public safety or environmental risk
”.
[141]
My view is that if given their ordinary grammatical meanings the
above expressions do not need any “
arm
twisting
”
to understand what they imply or how they should be interpreted.
[142]
The second respondent’s argument and contention on compliance
with the relevant statutory provisions, notably, the
Electricity
Regulation Act 4 of 2006 and the Electricity Act 41 of 1987 is that
for the fact that Eskom or rather the Regulator
has approved the
pricing of the contracts in issue here, it is common cause or implied
that they are not in contravention of the
Acts. They go further as
to argue or contend that in any event there is no suggestion of a
substantial contravention of the law.
[143]
Public safety or environmental risk is defined as follows:
“…
means
harm or risk to the environment or the public (including individuals
in their work place) associated with -
a product or service which is available to the public;
a substance released into the environment, including, but not
limited to, the work place;
a substance intended for human or animal consumption;
a means of public transport; or
an
installation or manufacturing process or substance which is used in
that installation or process.
”
[144] The respondents (second and third) accept that –
“
…
it is important to remember that the
requirement is such that the record itself must reveal evidence of
the imminent and serious
risk in question …
”
[145] The obvious flaw in the above contention is that the
respondents or Eskom at the behest of the second and third
respondents
is refusing to make available the contracts or records
from which such imminent and serious risk can be determined.
[146]
It is a fact that Eskom incurred substantial losses and projects
further losses due to its exposure to price fluctuations
linked to
the aluminium price. It is also a fact that the Billiton Group is
part of the equation contributory to this through the
contracts it
has with Eskom. Even Eskom acknowledges this when it states that its
losses do not arise “
solely
”
from the contracts. The term or word “
solely
”
may be interpreted to mean the contracts do form part of the loss
making process, though not on their own or alone.
[147]
South Africa has been experiencing power outages – the
so-called “
load
shedding
”
since 2008. Residents face regular and sustained price increases on
electricity while the Billiton Group’s businesses
enjoy
security of supply without having to worry about increases until 2026
at the least and 2028 at the most. A few weeks earlier
as at the date
of this judgment a hefty price increase was implemented and a
similarly hefty increase is already scheduled for
next year. The
applicants contend and submit that a disclosure of the terms of the
agreements between Eskom and the Billiton Group
of companies could
shed a light on the perceptions held that the contracts contribute
towards insecurity of electricity supply.
[148]
Based on the figures set out above that the two Billiton smelters
consume 5,68% of Eskom’s total base load capacity
and that
Eskom’s base load deficiency is almost the same percentage, the
conclusions by the applicants and the general public
that the extent
of the rolling electricity blackouts experienced in South Africa
since 2008 would have been substantially reduced
or completely
eliminated make sense. Such conclusions and perceptions can be dealt
with and laid to rest by a disclosure of the
documents relevant to
the supply of electricity to the Billiton smelters.
[149] An overwhelming majority of services and conveniences rendered
to the general public is dependent on the supply of electricity.
If
electricity supply is unavailable to ordinary households, unhealthy
power supplies like the use of coal fired stoves or braziers
may be
utilised. The environmental and health dangers associated with these
alternative power supplies are obvious. People die
from smoke or
gas/fumes inhalations. Lung deceases increase resulting in
unbearable pressure on health care facilities. Fatal
consequences
most times follow. These aspects are linked to substances released
into the environment.
[150]
Rail or commuter services are dependent on electricity. A short
supply of electricity can cause enormous harm to the economy
of the
country as well as rolling mass actions associated with community
strike actions. Workers may lose their jobs or have their
earnings
drastically reduced due to late reporting at work. That the above
are serious public safety or environmental risks cannot
be gainsaid.
They are relatively imminent.
[151] It is not clear or settled whether the disclosure of the
records would reveal a substantial contravention or failure to
comply
with the law, primarily because there are no documents to determine
this. It is the words of the one party against the other.
This
situation brings into reckoning the issue of public interest –
whether the harm contemplated in the refusal to disclose
is
outweighed by the public interest.
[152]
On the other hand it is my considered view and finding that the
disclosure of the records would reveal evidence of an imminent
and
serious public safety or environmental risk.
[153] It is the law that if one or more of the requirements set out
in section 46 are present, then despite the fact that disclosure

could be validly refused in terms of sections 34(1), 36(1), 37(1)(a)
or (b), 38(a) or (b), 39(1)(a) or (b), 40, 41(1)(a) or (b),
42(1) or
(3), 43(1) or (2), 44(1) or (2) or 45 of PAIA, the information
officer of a public body must still grant a request for
access to a
record of the body contemplated.
[154]
It is my finding that the applicants have made out a case for access
to the information sought in terms of the above principles.
CONSTITUTIONAL CHALLENGE
[155] The applicants argued that should this Court find that a
disclosure or access should not be ordered, then the provisions
of
sections 37(1)(a) and 46 of PAIA should be ruled unconstitutional.
[156] In my view, without making any finding thereon, the above is a
strange submission indeed. However, in the light of my finding
that a
disclosure should be ordered, the whole aspect becomes academic. No
pronouncement or ruling is made on the constitutionality
of the
abovementioned sections. In the same breath I see no justification,
as argued and submitted by second and third respondents,
to postpone
this matter for further affidavits.
COSTS
[157] Eskom, the first respondent, argues that since it abides the
court’s decision, at the most a costs order against it
should
be up to the moment it deposed to its answering affidavit.
[158] It is common cause that Eskom has to date refused to disclose
information held by itself. The fact that it was egged on
by the
second and third respondents to do so is, in my view, immaterial.
For the reasons already advanced in this judgment, Eskom
cannot
escape a costs order against it in the peculiar circumstances of this
case. Even though they professed to abide the ruling
of this Court,
its counsel made a full submission and argument. In my view, Eskom
wishes to make a cake and also eat it.
[159] It is rule of thumb that costs follow the suit.
[160] The fifth respondent, i.e. the Minister of Justice and
Constitutional Development, confined its involvement in this matter

on the constitutionality of sections 37 and 46 of PAIA. They sought
leave at the start of arguments herein to file supplementary

affidavits on the matter. I did not allow them to do so outright. I
ruled that I may re-consider my ruling at the end of arguments

herein.
[161] Only if and when the issue of constitutionality had
sufficiently raised its head during the entire arguments period or
process would there have been a need to allow the filing of
supplementary affidavits, not only to the fifth respondents but also

to all the parties herein. At the end of the day I came to the
conclusion that there was no need to file supplementary affidavits
on
the issue of constitutionality.
[162]
Although this matter cannot be categorised as being a constitutional
one it is nevertheless constitutional in nature. The
principles
governing the awarding of costs in cases such as this one are set out
in
Biowatch
Trust v Registrar, Genetic Resources, and Others
2009 (6) SA 232
(CC): The court held among others that –
the starting point had to be the nature of the issues. That equal
protection under the law required that costs awards not be
dependent
on whether the parties were acting in their own interests or in the
public interest, or whether they were indigent
or well endowed. The
primary consideration in constitutional litigation had to be the way
in which a costs order would hinder
or promote the advancement of
constitutional justice;
what mattered was not the nature of the parties or the causes they
advanced, but the character of the litigation and their conduct
in
pursuit of it; i.e. whether it had been undertaken to assert
constitutional rights and whether there had been impropriety
in the
manner in which the litigation had been undertaken;
private
parties that lost in constitutional litigation against the state
should not, as a rule, be mulcted in costs; i.e. that
when a private
party sought to assert a constitutional right against the government
and failed, each party should normally bear
its own costs;
particularly powerful reasons had to exist for a court not to award
costs against the state in favour of a private litigant who
achieved
substantial success in proceedings against it; and
the principle that people should not be discouraged from pursuing
constitutional claims should be applied in the awarding of
costs in
cases where private parties sued the state for its failure to fulfil
its obligation to regulate competing claims between
private parties,
irrespective of the number of private parties seeking to support or
oppose the state’s posture in such
litigation.
[163] Under the circumstances cost orders should be awarded as
follows in this matter:
Against the first respondent (Eskom) – costs to be awarded up
to but excluding the last day of court, i.e. date of argument.
To
include costs of two counsel.
Against
the second and third respondents – costs of suit which
includes the costs of two counsel except for the date of
argument
where it should not be for two counsel, ie costs of one counsel for
the last day.
Against the fourth respondent – no order as to costs.
Against the fifth respondent – costs including costs of two
counsel up to the filing of answering affidavits.
CONCLUSION
[164] The respondents have not justified a refusal for access to the
documents sought, held by Eskom, on the basis of the ground
of
signatures and duration of the agreements. They have however
justified a refusal on the grounds of the pricing formulas and
the
duty of confidence owed to third parties. The severability principle
cannot be applied for the reasons advanced above. Up
to this far the
applicants are partially successful and partially unsuccessful.
[165] However, on the basis of the public interest override in terms
of section 46 of PAIA, it is in the public interests that
the first
respondent disclose to the applicants the information or data as well
as the documents sought in this application.
ORDER
[166] The following order is made:
166.1 The first respondent’s decision to refuse to fully grant
or grant the applicants’ request for access to information

dated 18 September 2009 is hereby set aside;
166.2 The first respondent is directed to provide or furnish to the
applicants all the information and records as fully set out

hereunder:
166.2.1 All and any documents, or relevant extracts of documents,
evidencing the formula for and/or manner of the determination
of the
price for the supply of electricity by Eskom Holdings Limited or its
affiliates to:
166.2.1.1 BHP Billiton plc or any of its affiliates or Hillside
Aluminium Limited for the operation of the Hillside Aluminium
Smelter
in Richards Bay, South Africa; and
166.2.1.2 BHP Billiton plc or any of its affiliates or Mozambique
Transmission Company SARL or Mozal SARL for the operation of
the
Mozal Aluminium Smelter in Maputo, Mozambique.
166.2.2 All and any documents, or relevant extracts of documents,
evidencing the identities of all signatories to all written
agreements between Eskom Holdings Limited or its affiliates and any
other party, for the supply of electricity to:
166.2.2.1 BHP Billiton plc or any of its affiliates or Hillside
Aluminium Limited for the operation of the Hillside Aluminium Smelter

in Richards Bay, South Africa; and
166.2.2.2 BHP Billiton plc or any of its affiliates or Mozambique
Transmission Company SARL or Mozal SARL for the operation of
the
Mozal Aluminium Smelter in Maputo, Mozambique.
166.2.3 All and any documents, or relevant extracts of documents,
evidencing the date of commencement and date of termination
of all
written agreements between Eskom Holdings Limited or its affiliates
and any other party, for the supply of electricity to:
166.2.3.1 BHP Billiton plc or any of its affiliates or Hillside
Aluminium Limited for the operation of the Hillside Aluminium
Smelter
in Richards Bay, South Africa;
166.2.3.2 BHP Billiton plc or any of its affiliates or Mozambique
Transmission Company SARL or Mozal SARL for the operation of
the
Mozal Aluminium Smelter in Maputo, Mozambique.
166.3 The
point
in
limine
raised by the second and third respondents is dismissed with costs.
166.4 The applicants are awarded the costs hereof as follows:
166.4.1
Against
the first respondent
:
(Eskom): Costs against them up to the filing of their answering
affidavit but excluding the date of argument. The costs to include

the costs of two counsel;
166.4.2
Against
the second and third respondents
:
Costs of suit which include the costs of two counsel, jointly and
severally, the one paying, the other being absolved;
166.4.3
Against
the fourth respondent
:
No order of costs;
166.4.4
Against
the fifth respondent
:
Costs including the costs of two counsel up to the filing of its
answering affidavit but excluding the day of argument.
______________________________
N
F KGOMO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
FOR THE APPLICANTS STEVEN
BUDLENDER
INSTRUCTED BY WILLEM DE KLERK
ATTORNEYS
c/o GARRAT MBUYISA NEALE
PARKHURST, JOHANNESBURG
TEL: 011 717 8562/37
FAX: 011 486 4506
FOR THE FIRST RESPONDENT PAUL
KENNEDY SC
INSTRUCTED BY BOWMAN
GILFILIAN INC
c/o KEITH SUTCLIFFE &
ASSOCIATES
MELROSE ESTATE,
JOHANNESBURG
TEL: 011 699 9000 /
011 789 8763
FAX: 011 699 9001
FOR THE SECOND AND THIRD
RESPONDENTS KIRSTY McLEAN
INSTRUCTED BY MERVIN TABACK
INC
PARKTOWN, JOHANNESBURG
TEL: 011 358 7700
FAX: 011 358 7800
FOR THE FIFTH
RESPONDENT KAMESHNI PILLAY
INSTRUCTED BY THE STATE
ATTORNEY
JOHANNESBURG
TEL: 011 330 7660
FAX: 011 337 6200
DATE OF ARGUMENT 2011-04-11
DATE OF JUDGMENT 2011-07-29