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[2015] ZAGPJHC 73
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National Union of Metal Workers of South Africa v City Power Johannesburg (Pty) Limited and Another (36915/2013) [2015] ZAGPJHC 73 (23 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 36915/2013
DATE:
23 APRIL 2015
In
the matter between:
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH
AFRICA
................................................................................................................
Applicant
And
CITY
POWER JOHANNESBURG (PTY)
LIMITED
..............................................
First
Respondent
DEPUTY
INFORMATION
OFFICER
..................................................................
Second
Respondent
Summary:
Promotion of Access to Information Act,
2 of 2000
– applicant sought information as to local content of
solar geysers provided in terms of tender awarded by first respondent
– first respondent failed to acknowledge request for
information in terms of PAIA - applicant appealed such ‘deemed
refusal’ – applicant then launched application for access
to information in terms of
section 78
of the Act.
Respondents
thereafter ‘refused’ the request for access to
information on, inter alia, the grounds that the documentation
contained “
financial, commercial,
scientific or technical information of third parties which, if
disclosed, would likely to cause harm to the
financial or commercial
interests of such third party
”
and
that “
tender documents submitted
by each of the successful bidders contain sensitive and confidential
financial and commercial information
regarding each bidder’s
product and the pricing thereof as well as other sensitive commercial
and financial information relating
to each bidder’s business”
.
When the matter came to court in 2014 both parties acknowledged that
the information officer had failed to follow the procedures
in
Chapter 5 of PAIA and had failed to give notice to third parties –
the court ordered notice to be given by 8
th
August 2014.
Respondents
further failed to make a decision on the request for access to
information within 30 days of the notices – which
30 day period
is mandated by the Act.
The
application was set down on the opposed motion roll of 20
th
April 2015 – respondents decided on 1
st
April 2015
to solicit responses from third parties – then made a decision
to “refuse” access to the requested
information on 10
th
April. At the hearing on 20
th
April, respondents raised
the point
in limine
that the applicant was now required to
appeal the ‘refusal’ of 10
th
April and the
application could therefore not be heard.
The
court found the provisions of
Part 1
Chapter 5 of PAIA providing for
notices to and engagement with third parties to be peremptory
provisions of the Act which the court
had no discretion to waive –
the court found that the first 2014 “refusal” was made
without the full conspectus
of information including the input of
third parties – accordingly the 2014 appeal pertained only to
the 2014 “refusal”.
The court found that the applicant
may elect to appeal the current (2015) “refusal” but must
have done so prior to
litigating.
The
court commented on the many acts and omissions of the respondents in
frustrating access to the requested information which is
detrimental
to the ‘culture of justification’ contemplated in both
PAIA and the Constitution of the Republic of South
Africa.
The
application was postponed
sine dies
and the question of costs was postponed to a date to be arranged for
consideration of personal liability for costs on the part
of second
respondent and employees of first respondent.
JUDGMENT
SATCHWELL J:
INTRODUCTION
1.
This was meant to be an application in terms of the
Promotion of
Access to Information Act
, No 2 of 2000 (‘PAIA’) arising
out of a request for information made by applicant to first
respondent. Unfortunately,
without notification or presentation of
any papers, it turned into the hearing of a preliminary technical
point pertaining to the
internal workings of PAIA.
2.
The issue now before me is whether or not the applicant is obliged in
2015 to pursue yet another internal appeal in terms of
section 74
of
PAIA against a ‘refusal’ by respondents in April 2015 to
furnish information requested (notwithstanding that an
earlier appeal
was lodged in August 2013 against an earlier refusal by respondents
in July 2013).
3.
The chronology is instructive:
a.
Applicant made the request for information of first respondent on 3
rd
July 2013. The information sought is that which will indicate whether
or not there is local content (as required) to solar powers
provided
in terms of a tender(applicant proceeding only with prayers 1.5,1.8
and 1.9 in Notice of Motion).
b.
There
was a failure on part of respondents to give any answer to this
request. Applicant held this to be a ‘deemed refusal’.
Applicant then pursued a PAIA appeal
[1]
on 2
nd
August 2013.
c.
Litigation then commenced in October 2013. An answering affidavit was
filed in November 2013.
d.
In a
further affidavit in July 2014, the second respondent relied upon the
right of “
mandatory
refusal of a request for documentation containing financial,
commercial, scientific or technical information of third
parties
which, if disclosed, would likely to cause harm to the financial or
commercial interests of such third party
”.
[2]
The second respondent went on to state that “
tender
documents submitted by each of the successful bidders contain
sensitive and confidential financial and commercial information
regarding each bidder’s product and the pricing thereof as well
as other sensitive commercial and financial information relating
to
each bidder’s business”
.
[3]
e.
When the matter came to court in July 2014, respondents pointed out
that they had now belatedly realized that they had failed
to comply
with the relevant provisions of Chapter 5 of PAIA requiring notice to
be given to third parties. By order of Victor J
on 30
th
July 2014, respondents were to notify all third parties by not later
than 8
th
August 2014 of the request for information and
thereafter to furnish applicants with copies of any responses
received. Respondents
did so notify the third parties.
f.
On 2
nd
March 2015 notice was given that this matter was
set down for hearing on the opposed roll of 20
th
April
2015.
g.
Then,
on 1
st
April 2015, second respondent belatedly decided to solicit further
responses from third parties and accordingly, contacted third
parties
and offered them a further opportunity to respond.
[4]
h.
Second respondent then decided on 10
th
April 2015 to
‘refuse’ access to the information as requested. That
‘refusal’ was communicated to applicant
on 14
th
April 2015.
i.
The matter was set down for hearing on the opposed roll on Monday
20
th
April 2015 at which time respondents’ counsel
handed up a practice note, a supplementary affidavit and heads of
argument.
PART
2
, CHAPTER FIVE OF PAIA
4.
Respondents have taken the following point. The ‘refusal’
in terms of
section 49
(1)(c)(ii) was only made on 14
th
April 2015. The applicant “may” lodge an internal appeal
against such refusal in terms of
section 74(1).
The applicant must
lodge such appeal if it intends to proceed to court with this or any
other application because
Section 78
only permits the applicant to
apply to court after it has “exhausted the internal appeal
procedure” provided for in
terms of
section 74.
5.
Applicants maintain that they have pursued an appeal in August 2013
against the then deemed refusal of the respondents. They
have
therefore already “appealed” the “refusal”.
There is no purpose served in noting an appeal against
this
subsequent refusal because they have already appealed a refusal to
furnish the information requested and the decision has
not changed.
6.
I regret, for the reasons which I set out below, that I must uphold
the point raised by respondents.
Audi Alteram
Partem re Third Parties
7.
PAIA,
in its preamble, makes it absolutely clear that the purpose of the
legislation is to give effect to the Constitutional right
of access
to any information held by the State – the so-called ‘culture
of justification’.
[5]
However, such right of access may be limited to the extent that it is
reasonable and justifiable in an open and democratic society.
8.
Chapter Five of PAIA seeks to involve and protect third parties to
whom certain requested information pertains. It was not argued
before
me whether or not the information sought falls within the purview of
a record contemplated in
section 34
,
35
,
36
,
37
, or
43
. However, at
the hearing before Victor J, both parties agreed that notice was
required to be given to third parties and it was
so ordered. The
nature of the evidence was not argued before me and I have been given
no reason to believe that the provisions
of
section 47
to
49
are not
of application.
9.
Section
47
requires the information officer of first respondent to inform all
third parties (to whom the requested tender information relates)
of
the request made by the applicant. These third parties are to be
offered the opportunity to make representations to the information
officer – either consenting to the disclosure of the
information or setting out why the request for access to the
information
should be refused.
[6]
Such response from the third parties may be made within 21 days.
[7]
10.
Once
the information officer has made a decision whether or not to grant
the request for access to the tender information, then
the
information officer must notify both third parties and the applicant
of the decision made. Should the request for information
be granted,
the information officer must offer the third parties an opportunity
to lodge an internal appeal against such decision.
[8]
Should the request for information be refused and applicant lodges an
internal appeal
[9]
, then the
third parties must be informed thereof.
[10]
11.
It would seem that those individuals and entities who are third
parties in this matter are probably the successful bidders in
the
tender process. It is presumably them to whom the requested
information pertains.
12.
Chapter Five of the Act has gone to a lot of trouble to ensure that
these third parties are kept in the loop as regards any
request for
information concerning the tender under scrutiny. They are to know of
the request, have the opportunity to make input
into the decision to
be made, be informed of the decision, have the opportunity to appeal
the decision, and have the opportunity
to make input into any appeal
process initiated by the applicant.
13.
This is more than mere lip service to
audi alteram partem
in
respect of third parties. It is an extremely detailed process which
is clearly spelt out. I cannot see that this court would
have any
discretion to excuse compliance with any stage of this process which
is so prescribed in the Act and no such discretion
was argued.
The Decision of
the Information Officer
14.
There can be no doubt that the initial refusal of the second
respondent in 2013 and 2014 was unprocedural and without full
information before him. The second respondent had not, prior to the
end of August 2014, given the third parties an opportunity to
make
any input into his decision-making process. He was therefore
operating without a full conspectus of facts and information.
15.
To the extent that the second respondent sought, in July 2014, to
claim that the information could not be released because it
was
“
sensitive and confidential”,
he was merely
offering an unsubstantiated thumbsuck. He had not asked for a
response from nor heard from any third parties; none
of them had
expressed this view; his knee jerk response was not only unprocedural
but it was made without regard to all relevant
information. I should
point out that relevant information includes views both for and
against disclosure of the information.
16.
It does not appear that the information officer has given any thought
to reduction, redaction, removal or deletion of portions
or sections
of information from the records in respondents’ possession. His
July 2014 affidavit refers to certain documents
which he believes
constitutes ‘sensitive and confidential financial and
commercial information’ (for example, audited
financial
statements or tax clearance certificates) which “ought not to
be divulged”. He does not appear to have considered
the
possibility that staples can be undone and papers removed or censored
if, indeed, any of this information is so confidential.
17.
In short, the earlier appeal noted by the applicant in August 2013
was against a decision made by second respondent absent the
information which is now available, viz the representations and views
of the third parties. There is both an entirely different
decision
which has now been made in April 2015 and an entirely different set
of considerations which may or may not have come into
play in making
that decision and to be presented and considered in an entirely new
appeal against this refusal. The appeal of August
2013 cannot
constitute or suffice as an appeal against a decision of 2015.
Appeal
Against The 2015 “Refusal”
18.
The
applicant may appeal the 2015 refusal. That is its election. However,
should the applicant wish to institute legal proceedings
in
connection with the 2015 “refusal”, it is obliged to
first exhaust all internal remedies in terms of PAIA before
turning
to the court for assistance.
[11]
19.
The applicant must first pursue and exhaust the appeal procedure
against the “refusal” of 2015. Only then and thereafter
may the applicant, if unsuccessful in its appeal, proceed, by way of
application, to a court for appropriate relief.
20.
It may be that this applicant will lodge and pursue an appeal against
the 2015 “refusal” and, if unsuccessful, may
decide to
proceed to court on the same papers duly supplemented or by way of a
new application. I make no comment in this regard.
Frustration
of this Application to Access Public Information
21.
I have already referred to the Constitutional importance of this
legislation and the ‘culture of justification’.
22.
I am unimpressed with the approach taken by and the attitude of the
respondents. Firstly, they failed to respond to requests
for
information in 2013. Secondly, the decision to refuse to disclose
information was made in 2014 and was made without reading
the
relevant provisions of the Act and taking steps to implement same in
respect of third parties. Thirdly, such an important decision
was
made without having the full conspectus of information before him.
Fourth, having been ordered by the court to notify third
parties,
respondents did so but the information officer then failed to make
his decision within the 30 days as mandated in
section 49(1).
Fifth,
no decision was made over a period of 8 months. Sixth, having failed
to make a decision within the prescribed 30 days, the
information
officer then failed to inform any parties of an entitlement to
appeal. Seventh, realizing on 2
nd
March 2015 (on receipt
of the notice of set down dated 26
th
February 2015 for the
hearing on 20
th
April 2015) that no decision one way or
the other had been made and that the processes set out in Chapter
Five had not been followed
or pursued, the information officer then
decided to solicit responses from third parties (who had apparently
decided not to make
representations when they had originally received
notification in August 2014) which is not a permitted intervention.
Eighth, such
solicitation was made some 11 working days before the
hearing of this application with the obvious result that the court
proceedings
would be rendered nugatory. Ninth, the information
officer, having solicited responses from third parties, then made a
decision
to ‘refuse’ on 10
th
April some 5
working days before the hearing of this application again with the
obvious result that the court proceedings would
be rendered nugatory.
Tenth, respondents thereafter prepared a supplementary affidavit
dated 16
th
April 2015 and heads of argument dated 19
th
April - all of which were handed up to court when this matter was
called for hearing on the opposed motion court roll.
23.
It should be obvious that the respondents have not only been dilatory
in regard to the required provisions of PAIA and apparently
obstructive in bringing this matter to finality but also contemptuous
of this court and its proceedings.
24.
If the information officer had given notice to third parties pursuant
to the court order of 30
th
July 2014, he would have made
his decision by mid-September 2014 and any appeals against such
decision would have been lodged,
prosecuted and adjudicated upon long
before this hearing on 20
th
April 2015.
25.
For these reasons I am not in agreement with respondents’
counsel that the hearing of this application is “premature”
- I prefer to take the view that the hearing of this application has
been ‘frustrated’.
26.
In
such circumstances, the respondents have succeeded in impeding the
request for access to information which was made on 3
rd
July 2013. I do not know whether or not there has been mere
incompetence or deliberate purposive action to obstruct the request
for access to this particular information concerning this particular
tender. It really does not matter which it is – the
result is
the same. A tender was granted and information pertaining thereto has
been sought and refused under the most peculiar
of circumstances.
Shakespeare wrote that ‘Something is rotten in the state of
Denmark’
[12]
– I
trust that the applicant is not correct in suspecting that there is
something rotten in City Power of Johannesburg. Whether
or not there
is, respondents have ensured (thus far) that they have not abided and
supported the ‘culture of justification’
which is a
cornerstone of our Constitutional democracy.
COSTS
27.
I have made it clear that I have no option other than to postpone
this matter
sine dies
in order to enable the further
procedures set out in
Part 2
Chapter Five and
Part 4
Chapters One and
Two of the Act to be followed and implemented.
28.
I am very reluctant to simply order that the wasted costs occasioned
by the respondents be paid by the taxpayer. This teaches
no one
anything about responsibility or compliance with statutory duties.
29.
Accordingly, I shall postpone the question of costs (as discussed
with both counsel at the hearing) to a date to be arranged
when both
parties are asked to furnish this court with affidavits and argument
as to whether or not and whom within the offices
of first and second
respondent should bear personal financial responsibility for wasted
costs.
ORDER.
An
order is made as follows:
1.
The application is postponed
sine dies
.
2.
First Respondent is to pay the wasted costs of applicant including
those costs occasioned by the employment of two counsel, senior
and
junior.
3.
The question of liability for costs on the part of first or second
respondent or any employee thereof is postponed to a date
to be
arranged within the months of April or May 2015.
DATED
AT JOHANNESBURG 23
rd
APRIL 2015
SATCHWELL
J
Attorneys
for Applicant: Kgokong Nameng Tumagole Inc.
Counsel
for Applicant: Adv H.B Marais SC and with him Adv M Cajee
Attorneys
for First Respondent: Whalley Van Der Lith Inc.
Counsel
for First Respondent: Adv J Both SC
Dates
of hearing: 20
th
April 2015.
Date
of judgment: 23
rd
April 2015
[1]
In terms of
section 74
of the Act.
[2]
Paragraph 7.
[3]
Paragraph 10.
[4]
Paragraph 14 onwards of supplementary affidavit of 16
th
April 2015.
[5]
The
President
of the Republic of South Africa and others v M & G Media Ltd
2011 (2) SA 1
SCA.
[6]
Section
47
Notice to third parties: (1) The information officer of a
public body considering a request for access to a record that might
be a record contemplated in
section 34
(1),
35
(1),
36
(1),
37
(1)
or
43
(1) must take all reasonable steps to inform a third party to
whom or which the record relates of the request.(2) The information
officer must inform a third party in terms of subsection (1)-(a) as
soon as reasonably possible, but in any event, within 21
days after
that request is received or transferred; and (b) by the fastest
means reasonably possible. (2) When informing a third
party in terms
of subsection (1), the information officer must- (a) state that he
or she is considering a request for access
to a record that might be
a record contemplated in
section 34
(1),
35
(1),
36
(1),
37
(1) or
43
(1), as the case may be, and describe the content of the record;
(b) furnish the name of the requester;(c) describe the provisions
of
section 34
(1),
35
(1),
36
(1),
37
(1) or
43
(1), as the case may
be;(d) in any case where the information officer believes that the
provisions of
section 46
might apply, describe those provisions,
specify which of the circumstances referred to in
section 46
(a) in
the opinion of the information officer might apply and state the
reasons why he or she is of the opinion that
section 46
might apply;
and (e) state that the third party may, within 21 days after
the third party is informed-(i) make written
or oral representations
to the information officer why the request for access should be
refused; or(ii) give written consent
for the disclosure of the
record to the requester.
[7]
Section
48
Representations and consent by third parties(1) A third party
that is informed in terms of
section 47
(1) of a request for access,
may, within 21 days after the third party has been informed-(a) make
written or oral representations
to the information officer concerned
why the request should be refused; or (b) give written consent for
the disclosure of the
record to the requester concerned. (2) A third
party that obtains knowledge about a request for access other than
in terms of
section 47
(1) may- (a) make written or oral
representations to the information officer concerned why the request
should be refused; or(b)
give written consent for the disclosure of
the record to the requester concerned.
[8]
Section
49
Decision on representations for refusal and notice thereof:
(1) The information officer of a public body must, as soon as
reasonably possible, but in any event within 30 days after every
third party is informed as required by
section 47
- (a) decide, after
giving due regard to any representations made by a third party in
terms of
section 48
, whether to grant the request for access;(b)
notify the third party so informed and a third party not informed in
terms of
section 47
(1), but that made representations in terms of
section 48
or is located before the decision is taken, of the
decision; and (c) notify the requester of the decision and, if the
requester
stated, as contemplated in
section 18
(2) (e), that
he or she wishes to be informed of the decision in any other manner,
inform him or her in that manner if it
is reasonably possible, and
if the request is- (i) granted, notify the requester in accordance
with
section 25
(2); or (ii) refused, notify the requester in
accordance with
section 25
(3). (2) If, after all reasonable steps
have been taken as required by
section 47
(1), a third party is not
informed of the request in question and the third party did not make
any representations in terms of
section 48
, any decision whether to
grant the request for access must be made with due regard to the
fact that the third party did not have
the opportunity to make
representations in terms of
section 48
why the request should be
refused. (3) If the request for access is granted, the notice in
terms of subsection (1) (b) must
state- (a) adequate
reasons for granting the request, including the provisions of this
Act relied upon; (b) that the third party
may lodge an internal
appeal or an application, as the case may be, against the decision
within 30 days after notice is given,
and the procedure for lodging
the internal appeal or application, as the case may be; and (c) that
the requester will be given
access to the record after the expiry of
the applicable period contemplated in paragraph (b), unless
such internal appeal
or application with a court is lodged within
that period. (4) If the information officer of a public body decides
in terms of
subsection (1) to grant the request for access
concerned, he or she must give the requester access to the record
concerned after
the expiry of 30 days after notice is given in terms
of subsection (1) (b), unless an internal appeal or an
application
with a court, as the case may be, is lodged against the
decision within that period.
[9]
Section
74
Right of internal appeal to relevant authority (1) A requester
may lodge an internal appeal against a decision of the information
officer of a public body referred to in paragraph (a) of the
definition of 'public body' in
section 1
- (a) to refuse a request
for access; or (b) taken in terms of
section 22
,
26
(1) or
29
(3),
in relation to that requester with the relevant authority. (2) A
third party may lodge an internal appeal against a decision
of the
information officer of a public body referred to in paragraph (a) of
the definition of 'public body' in
section 1
to grant a request for
access.
[10]
Section
76.
[11]
Section
78
Applications regarding decisions of information officers or
relevant authorities of public bodies or heads of private bodies (1)
A requester or third party referred to in
section 74
may only apply
to a court for appropriate relief in terms of
section 82
after that
requester or third party has exhausted the internal appeal procedure
against a decision of the information officer
of a public body
provided for in
section 74.
(2) A requester- (a) that has been
unsuccessful in an internal appeal to the relevant authority of a
public body; (b) aggrieved
by a decision of the relevant authority
of a public body to disallow the late lodging of an internal appeal
in terms of
section 75
(2); (c) aggrieved by a decision of the
information officer of a public body referred to in paragraph (b) of
the definition
of 'public body' in
section 1
- (i) to
refuse a request for access; or
(ii)
taken in terms of
section 22
,
26
(1) or
29
(3); or (d) aggrieved by
a decision of the head of a private body- (i) to refuse a request
for access; or (ii) taken in terms
of
section 54
,
57
(1) or
60
, may,
by way of an application, within 180 days apply to a court for
appropriate relief in terms of
section 82.
(3) A third party- (a)
that has been unsuccessful in an internal appeal to the relevant
authority of a public body; (b) aggrieved
by a decision of the
information officer of a public body referred to in paragraph (b) of
the definition of 'public
body' in
section 1
to grant a
request for access; or (c) aggrieved by a decision of the head of a
private body in relation to a request for access
to a record of that
body, may, by way of an application, within 180 days apply to a
court for appropriate relief in terms of
section 82.
[12]
Hamlet, Act I, scene iv page 5.