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[2013] ZASCA 11
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BHP Billiton PLC Inc and Another v De Lange and Others (189/2012) [2013] ZASCA 11; 2013 (3) SA 571 (SCA); [2013] 2 All SA 523 (SCA) (15 March 2013)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 189/2012
Reportable
In the matter between:
BHP BILLITON PLC INCORPORATED
.................
FIRST APPELLANT
HILLSIDE ALUMINIUM (PTY) LTD
..................
SECOND APPELLANT
and
JAN GEORGE DE LANGE
.....................................
FIRST RESPONDENT
MEDIA 24 LIMITED
............................................
SECOND RESPONDENT
ESKOM HOLDINGS LIMITED
............................
THIRD RESPONDENT
MOTRACO-COMPANHIA DE
TRANSMISSAO DE MOCAMBIQUE
SARL
......................................................................
FOURTH
RESPONDENT
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
................
FIFTH RESPONDENT
Neutral citation:
BHP
Billiton PLC Inc v De Lange
(189/2012)
[2013] ZASCA 11
(15 March
2013)
Coram:
Mthiyane DP,
Cloete, Mhlantla, Leach and Petse JJA
Heard: 8 November 2012
Delivered: 15 March 2013
Summary:
Promotion
of access to Information Act 2 of 2000 ─ Right of access to
information in the hands of Eskom,
a public body
─ compliance with s 78(2) ─ point in limine that
application to compel out of time dismissed by majority
of the SCA.
_____________________________________________________________________
ORDER
On appeal from:
South
Gauteng High Court, Johannesburg (Kgomo J sitting as court of first
instance):
1. The appeal is dismissed save
for paragraphs 166.4.1 and 166.4.2 of the order of the court a quo
which are set aside and replaced
with the following:
‘
1 The
first respondent (Eskom) is ordered to pay the costs of the
application including the costs of two counsel.’
2 No order is made as to costs on
appeal.
___________________________________________________________
JUDGMENT
MTHIYANE DP (MHLANTLA AND
PETSE JJA CONCURRING):
[1] This appeal arises from a
successful application by the first and second respondents (Media 24)
against the appellants (Billiton)
in the South Gauteng High Court
(Kgomo J) in terms of the Promotion of Access to Information Act 2 of
2000 (PAIA). Media 24 had
made a request to Eskom Holdings Limited
(Eskom), the third respondent, for information concerning two
contracts concluded during
the 1990’s that Eskom has with
Billiton, for the supply of electricity to two smelters that produce
aluminium. These smelters
are the Hillside smelters of Richards Bay
and Mozal smelter of Maputo, Mozambique both of which belong to the
Billiton group of
companies. In terms of these contracts Mozal is
entitled to receive electricity from the 1990’s until March
2026 and Hillside,
until 2028, at a lower rate than the standard
tariff.
[2] In terms of the Constitution
everyone has the right of access to any information held by the
State.
1
PAIA is national legislation
contemplated in s 32(2) of the Constitution that was introduced to
give effect to the right of access
to information. Section 11(1)
(a)
and
(b)
of PAIA provides:
’
11
Right of access to records of public bodies
(1) A requester must
be given access to a record of a public body if─
(a)
that
requester complies with all the procedural requirements in this Act
relating to a request for access to that record; and
(b)
access
to that record is not refused in terms of any ground for refusal
contemplated in Chapter 4 of this Part.’
2
The information sought by Media
24 is in the possession of Eskom, a ‘public body’
mentioned in s 11(1) of PAIA. Because
the information is in the
possession of a public body, Media 24 is not required to give reasons
why the information is sought.
The position would be otherwise if the
information relating to the two contracts was in Billiton’s
possession. In that event
Media 24 would have had to show that it
requires the information for the exercise or protection of its
rights.
3
[3] Although Media 24 was not
obliged to give its reasons for requesting the information, given
that such information is in the
hands of a public body, they can be
readily deduced from the extent of the public interest generated by
the subject matter of these
two contracts. The contracts relate,
after all, to the supply of electricity by Eskom and the problems
experienced by it.
[4] To all intents and purposes
Eskom is the sole provider of electricity in this country. The two
smelters, Hillside and Mozal,
consume 5.68 per cent of Eskom’s
total base load electricity capacity. In 2008 the electricity supply
was repeatedly interrupted
and the country was afflicted by regular
power outages. Eskom was unable to sustain a consistent electricity
supply and was obliged
to resort to load shedding. Its lack of
capacity was compounded by the unhealthy financial situation in which
it found itself,
as reflected in its financial statements for the
year ended 31 March 2009. According to its financial statements for
the year ended
31 March 2009, Eskom incurred an operating loss of
R3,2 billion. In addition in that same year of its financial
statements, Eskom
reflected a further loss (on embedded derivatives)
of R9,5 billion.
[5] The deponent to Media 24’s
founding affidavit
4
,
averred that ‘the operating
loss of R3,2 billion is an actual loss made by Eskom in the financial
year concerned’ and
stated further that [t]he loss of R9,5
billion on embedded derivatives represents the assessment by Eskom of
the likely losses
that it will incur due to exposure to embedded
derivatives over future years’. Media 24 is of the view that
the embedded
derivatives arise entirely out of the contracts that
Eskom has with Billiton.
[6] In its answering affidavit
Billiton, through its deponent,
5
did not deny that Eskom suffered
an operating loss of over R3,2 billion. Billiton accepted Eskom’s
financial statements for
the year ended 31 March 2009 and averred
that they spoke for themselves. As to ‘embedded derivatives’,
again the loss
was not denied but the deponent averred that the
‘loss’ in respect of embedded derivatives did not arise
solely from
the contracts. The deponent then went on to disclose that
the effect of the pricing formula stipulated in the contract was
simply
that the price paid by Billiton for electricity in terms of
the contract was lower than the standard tariff. Billiton then argued
that from ‘an accounting perspective’, the contracts were
‘not loss making’ and were contributing towards
Eskom’s
operating profits, albeit at smaller margins than might have
otherwise been the case.
[7] The situation in which Eskom
found itself and the perceived relationship between these contracts
and the problems Eskom experienced
gave rise to considerable public
interest, which culminated in parliamentary debates, where the
appropriateness of these contracts
was questioned. Other factors that
bothered the public representatives and the public were, according to
Billiton:
(a) The gross disparities between
the amounts paid by ordinary consumers for electricity;
(b) The effect of these contracts
on the substantial losses incurred by Eskom;
(c) The effect of the contracts
on the substantial tariff increases, imposed at Eskom’s
request, on the ordinary South African
consumers; and
(d) The relationship between the
present contracts and power outages suffered by the public in South
Africa since 2008.
[8] Against this backdrop and the
heightened public interest regarding these two contracts, Media 24,
seeking to inform the South
African public on the issue, submitted a
request for access to information in terms of PAIA to Eskom on 30
June 2009. In that request
it sought the following documents─
‘
25.1
The bulk purchase agreement for the supply of electricity by Eskom to
the Hillside Aluminium Smelter in Richards Bay;
25.2 The bulk
purchase agreement for the supply of electricity by Eskom to the
Mozal Aluminium Smelter in Maputo;
25.3 The total and
final invoices containing the amounts due by Billiton to Eskom in
respect of the electricity for the smelters
for a period of three
years.’
[9] On 29 July 2009 Eskom refused
the request, advancing various grounds for its refusal. For purposes
of this judgment it is not
necessary to discuss these grounds.
[10] Media 24 did not pursue
Eskom’s refusal of this request. It averred that,
notwithstanding, it considered Eskom’s
refusal to be unlawful
and incorrect. It took the view that it would be more ‘appropriate
and prudent’ to submit a
‘narrower and more specific’
request for information.
[11] This it did on 18 September
2009, and in this request Media 24 sought:
‘
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:
a. 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
b. 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.
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:
a. 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
b. 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 date of termination of all written
agreements
between Eskom Holdings Limited or its affiliates and any other party,
for the supply of electricity to:
a. 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
b. 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.’
[12] On 20 October 2009, Media 24
received a response from Eskom to the effect that Eskom had decided
to extend the period in which
to reply to its request for access to
information.
[13] By letter dated 13 November
2009, Eskom communicated its decision to Media 24 acceding to some of
its information and refusing
access in other aspects. The relevant
portion of the letter reads 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):
1. 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 Sake 24), we believe that access
to the following records
should be refused on the ground set out below:
1. The formula for
and/or manner of the determination of the price for the supply of
electricity
1.1 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.
2. 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 extracts of 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); and
2.1.2 any documents
or extracts of 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.
2.3 Should Eskom
disclose the requested information, Eskom will be in breach of a duty
of confidence owed to Hillside Aluminium
Limited or Motraco.’
[14] Media 24’s second
request concerned the following parts of the agreement:
The pricing formulae;
The signatories to the
agreements; and
The date of commencement and
dates of termination of the agreements.
[15] It was as a result of
Eskom’s refusal that Media 24 launched the application in the
high court. Eskom elected to abide
the decision of the court. In this
court, Billiton no longer contends that there was any lawful basis
for refusing the request
in respect of the signatures and the dates
of commencement and termination of the contracts. Despite this,
however, it refuses
to provide the information concerned by relying
on a point in limine to the effect that Media 24’s second
request was out
of time.
[16] In respect of the pricing
formulae, Billiton submits that the request was lawfully refused in
the light of ss 36(1)(
b
), 36(1)(
c
) and 37(1)(
a
)
of PAIA. Media 24 joins issue with Billiton in this regard. First, it
asserts that none of the grounds of refusal relied on by
Billiton
justified the refusal of the request under PAIA. Second, if any of
the grounds of refusal had been established, the information
still
had to be provided pursuant to the ‘mandatory disclosure in the
public interest’ right in s 46 of PAIA. Third,
it advances
certain interpretations of s 37(1)(
a
) and the public interest
override provision in s 46 of PAIA. In the view I take of the matter,
it is not necessary to deal with
the second and third contentions of
Media 24.
[17] The appeal, which is before
this court with its leave, raises four issues. The first is the point
in limine taken by Billiton.
Billiton averred that Media 24’s
second request was out of time and consequently it was precluded from
asserting its right
of access to information under PAIA. The second
relates to the grounds of refusal in respect of the request in so far
as it relates
to the disclosure of the signatories to the two
contracts and the dates of commencement and the dates of termination
of the contracts.
The third is the public interest issue. The fourth
and final issue pertains to the constitutional challenge.
[18] It follows that if the point
in limine is decided in favour of Billiton, that would dispose of the
matter entirely. If not,
but the arguments advanced by Media 24 in
respect of ss 36(1)(
b
), 36(1)(
c
) and 37(1)(
a
)
are upheld, it is unnecessary to traverse the issues relating to the
s 46 public interest override provisions and the constitutional
challenge. I turn to the issues and propose to deal with them in
turn.
Point In Limine
[19] In the appeal before us,
Billiton persisted in its point
in limine. It argued that the application to the high court was
launched on 18 March 2010, which
is more than 180 days after the
refusal of the initial request on 29 July 2009. It contended that the
application was out of time
and that Media 24 is accordingly time
barred. In its turn,
Media
24 averred that at the time the application was launched the 180 days
had not expired. It argued that the second request was
refused in
November 2009 and consequently when the application was launched in
March 2010, the 180 days had not expired.
[20] The dispute between the
parties revolves around whether the second request and the first
request is one and the same request.
If it is, then it is indeed hit
by the 180-day deadline. See
Br
ű
mmer
v Minister for Social Development
2009
(6) SA 323
(CC) para 46. If not, Media 24 is not precluded from
asserting its right of access to information in terms of PAIA.
[21] The resolution of the above
question is a factual issue and entails examining the contents of
both requests. In regard to the
contents of the two requests there
is, in my view, a marked difference. In the first request Media 24
sought the documents, referred
to in para 8 above:
‘
25.1
The bulk purchase agreement for the supply of electricity by Eskom to
the Hillside Aluminium Smelter in Richards Bay;
25.2 The bulk
purchase agreement for the supply of electricity by Eskom to the
Mozal Aluminium Smelter in Maputo;
25.3 The total and
final invoices containing the amounts due by Billiton to Eskom in
respect of the electricity for the smelters
for a period of three
years.’
The second request refers only to
the pricing formulae, the signatories to the agreements and the dates
of commencement and dates
of termination of the contracts. In my view
the two requests are not the same. I therefore conclude that Media 24
was not out of
time and accordingly the point in limine falls to be
dismissed.
[22] I now turn to Billiton’s
refusal of access to information based on ss 36(1)(
b
),
36(1)(
c
) and 37(1)(
a
) of PAIA. The first two provisions
provide for the mandatory protection of commercial information of a
third party. The third -
s 37(1)(
a
) - refers to mandatory
protection of certain confidential information and protection of
other confidential information of a third
party. While Eskom abides
the decision of the court, it is not prepared to disclose information
in its possession relating to the
two contracts. If such a disclosure
occurs it will lead to the consequences contemplated in the above
sections.
[23] In terms of s 36(1) the
information officer of a public body (such as Eskom) is obliged to
refuse a request for access to a
record of the body (here,
information relating to the contracts) if the record contains ‘(
b
)
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 interest
of that party’ (emphasis added); or ‘(
c
)
information
supplied in confidence
by a third party the
disclosure of which
would be reasonably expected’
(emphasis added) – ‘(
c
)(i) to place that party at
a commercial disadvantage in contractual or other negotiations’;
or ‘(
c
)(ii) to prejudice that party in commercial
competition.’
[24] In s 37(1)(
a
),
a public body is obliged to
refuse a request for access to a record of the body if such
disclosure
would constitute an action for
breach of a duty of confidence owed to a third party (emphasis
added).
[25] The information that
Billiton seeks to protect from disclosure relates that relating to
the ‘pricing formulae’.
It contends that if this
information is supplied to Media 24 it will fall into the hands of
its competitors and consequently cause
harm
6
to it as contemplated in ss
36(1)(
b
)
and (
c
)
of PAIA. As I understand the law, a party relying on these provisions
must provide a basis to substantiate its reliance. (See
President
of the Republic of South Africa v M & G Media Limited
2012 (2) SA 50
(CC) para 15. A
party who relies on these provisions to refuse access to information
has a burden of establishing that he or she
or it will suffer harm as
contemplated in ss 36(1)(
b
)
and (
c
).
The party upon whom the burden lies,
in
this case, Billiton, must adduce evidence that harm ‘will and
might’ happen if Eskom parts with or provides access
to
information in its possession relating to the contracts. The burden
lies with the holder of the information and not with the
requester.
7
[26] In
Transnet
this court explained the degree
of proof that is required as follows:
‘
[42]
It follows that the difference between
(b)
and
(c)
of
s 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.’
8
[27] In the high court,
Kgomo J noted that Billiton’s
stance ‘rests’ on the premise that the pricing
information requested is ordinarily
unavailable to its competitors.
Billiton fears that its disclosure will harm its financial and
commercial interests by informing
other industry participants of the
production costs of the smelters. It concludes therefore that that is
the reason why all aluminium
producers vigorously protect information
relating to their electricity costs. The same line of argument was
pursued by Billiton
in the appeal before us. But as pointed out by
counsel for Media 24,
the
papers demonstrate that the premise on which this argument is based
is false or at the very least, substantially overstated.
The record
shows,
however,
that the information Billiton
seeks to withhold is not currently unavailable to Billiton’s
competitors. There is a significant
amount of information about
electricity and other costs of aluminium that is readily available to
those who can afford to pay for
it. Media 24 put up a brochure by a
company called Brook Hunt, which is dedicated to providing specific
and continually updated
information about costs of aluminium
smelters. The costs of purchasing this information from Brook Hunt
would be approximately
R200 000 ─ an amount well beyond
the means of an average South African consumer of electricity
supplied by Eskom, and
consumers undoubtedly have a public interest
in the information in the hands of Eskom, which affects the payment
and consumption
of electricity supplied by Eskom.
[28] In the circumstances, if the
information of the kind described above is already in the public
domain, as Media 24 has demonstrated,
I do not see how giving access
to it would result in the perceived harm to Billiton. The harm relied
on by Billiton is not of the
kind that would be ‘likely’
to occur or ‘reasonably’ be expected to occur. (See
Transnet
para 42.) Besides Billiton has already admitted that
in terms of the pricing formula, it pays less for electricity than
the standard
tariff.
[29] As to whether the
information is protected from disclosure under s 36(1)(
c
), it
is my view that the stance adopted by Billiton is without merit. The
information requested by Media 24 is not ‘information
supplied
in confidence’ as the section requires. Billiton concluded an
agreement with the State entity and the specific information
sought
constitutes a term in an agreement with the State entity. It is
significant that Billiton makes no effort in its heads of
argument to
explain how s 36(1)(
c
) is applicable.
[30] Turning to s 37(1)(
a
)
of PAIA, a public body such as Eskom is obliged to refuse access ‘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’.
Eskom is on record as stating that there
is no express provision in
either of the contracts that imposes a duty of confidentiality in
relation to the provisions of the
contracts. It relies on its
‘general’ practice of not disclosing such information and
then makes reference to a confidentiality
agreement signed between
Eskom, Hillside and Billiton. However Billiton appears to accept that
the agreement concerned applies
only to the supply of electricity to
another site. Billiton relies squarely on a statement, in its
affidavit, that the ‘parties’
unanimously and
continuously accepted that they owe each other reciprocal duties of
confidentiality, not to disclose any commercial
or operationally
sensitive or confidential information arising from those agreements.
[31] I agree with counsel for
Media 24 that this is insufficient to ‘constitute an action for
breach of a duty of confidence’
as contemplated in s 37(1)(
a
)
in the event of a disclosure of the records sought by Media 24. There
is no reference in any of the agreements to a term to substantiate
the ‘general practice referred to above’. In my view s
37(1)(
a
) is inapplicable and does not avail Billiton in its
attempt to avoid disclosure of the information sought by Media 24 in
terms
of the provisions of PAIA.
[32] In the event of the appeal
being dismissed both counsel were agreed that this is not a case in
which the unsuccessful party,
in the event of it being Billiton,
should be ordered to pay costs. In the result the appeal is
dismissed. There will be no order
as to costs.
[33] The final issue is costs in
the high court. Eskom persisted in its refusal to disclose the
information sought. Its counsel
advanced argument opposing the
application notwithstanding its decision to abide the decision of the
court. The high court, however,
mulcted Billiton with the costs of
suit and merely ordered Eskom to pay costs up to the filing of its
answering affidavit. In this
court, both parties submitted that the
high court ought to have ordered the State entities to pay such
costs. I agree.
[34] In the result the following
order is made:
1 The appeal is dismissed save
for paragraphs 166.4.1 and 166.4.2 of the order of the court a quo
which are set aside and replaced
with the following:
‘
1 The
first respondent (Eskom) is ordered to pay the costs of the
application including the costs of two counsel.’
2 No order is made as to costs on
appeal.
____________________
K K MTHIYANE
DEPUTY PRESIDENT
CLOETE JA (LEACH JA
CONCURRING):
[35] I have had the advantage of
reading the judgment of the learned Deputy President. I regret that
(save for the alteration to
the costs order made by the high court) I
cannot concur in the process of reasoning followed, the conclusion
reached or the order
made. In my view the point in limine taken by
Billiton is decisive; Billiton should in any event succeed on the
merits; and the
appeal should be allowed.
[36] Section 78(2) of PAIA
provides that a requester such as Media 24 has 30 days to apply to a
court for the sort of relief it
seeks in these proceedings. The
reported judgment of the Constitutional Court in
Brümmer
v Minister for Social Development
2009
(6) SA 323
(CC) reflects that the court ordered, inter alia, that:
‘
(e)
The
words “within 30 days” in
s 78(2)
of the
Promotion
of Access to Information Act 2 of 2000
are declared to be
inconsistent with ss 32 and 34 of the Constitution and s 78(2)
is declared to be invalid for that
reason.
(f)
The declaration of
invalidity made in para
(e)
above
is suspended for a
period of 18 months from the date of this order [13 August 2009] to
enable Parliament to enact legislation to
correct the inconsistency
which has resulted in the declaration of invalidity.
(g)
Pending the
enactment of legislation by Parliament or the expiry of the period
referred to in para (
f
)
above, whichever occurs first, the words “within 30 days”
in
s 78(2)
of the
Promotion of Access to Information Act 2 of
2000
shall be replaced by the words “within 180 days from the
date when the requester receives notice of the decision on internal
appeal”.
(h)
Pending the
enactment of legislation by Parliament or the expiry of the period
referred to in para
(f)
above, whichever
occurs first, a court considering an application contemplated in
s 78(1)
of the
Promotion of Access to Information Act 2 of 2000
shall have the power to extend or condone non-compliance with the
period of 180 days referred to in para
(g)
above.’
I have obtained a copy of the
judgment filed at the Constitutional Court and it appears from p 47
thereof that para
(g)
of the order does not contain the
words ‘on internal appeal’. It would further appear from
the judgment itself that
the reference to ‘
s 78(1)
’
in para
(h)
of the order should have been, or
should have included, a reference to ‘
s 78(2)
’ and
the appeal was argued by both sides on that basis. Parliament did not
enact the legislation contemplated in the order
within the period of
suspension laid down in para
(f)
of the order and has not done so
since.
[37] The first request by Media
24 to Eskom was made on 30 June 2009 and it was refused on 29 July of
the same year. The full and
exact terms of the request were for:
‘
a)
The terms and Conditions (ie “The Bulk Purchase Agreement”)
between Eskom Holdings and its affiliates, and Gencor/Alusaf
for the
supply of electricity by Eskom Holdings and its affiliates, to
Alusaf, an affiliate of BHP Billiton plc, formerly Gencor,
for the
operation of the Hillside aluminium smelter in Richards Bay, South
Africa.
b) The Terms and
Conditions (ie “The Bulk Purchase Agreement”) for the
supply of electricity by Eskom Holdings to Mozal,
an affiliate of BHP
Billiton plc, for the operation of the Mozal aluminium smelter in
Maputo, Mozambique.
c) The total and
final invoices containing the total and final amounts due by BHP
Billiton plc or its affiliates for the supply
of electricity to the
said Hillside aluminium smelter and the Mozal aluminium smelter for
the financial years ending March 2007,
March 2008 and March 2009.’
Shorn of verbiage, Media 24
wanted access to the contracts between Eskom and Billiton for the
supply of electricity and the invoices
in respect thereof for three
years.
[38] The second request was made
on 18 September 2009 and refused some two months later on 30
November. The terms of this request
are set out in para 11 of the
judgment of the Deputy President. What was requested was the pricing
formula in the contracts for
the supply of electricity by Eskom to
Billiton together with the duration of, and the identity of the
signatories to, the contracts.
[39] The reason for the second
request, preceded by some background, is given in Media 24’s
founding affidavit as follows:
’
On
30 June 2009, I submitted a request for access to information in
terms of PAIA to Eskom. I refer to this as the “initial
request”. I stress that this initial request is not the subject
of the present application and I mention it simply by way
of
background. A copy of the initial request is attached . . . . In that
request I sought the following documents:
1 The bulk purchase
agreement for the supply of electricity by Eskom to the Hillside
Aluminium Smelter in Richards Bay;
2 The bulk purchase
agreement for the supply of electricity by Eskom to the Mozal
Aluminium Smelter in Maputo;
3 The total and
final invoices containing the amounts due by Billiton to Eskom in
respect of the electricity for the smelters for
a period of three
years.
On 29 July 2009,
Eskom refused this initial request. A copy of its letter refusing the
request is attached . . . . It relied on
a variety of grounds for its
refusal.
Notwithstanding the
fact that I and the second applicant considered Eskom’s refusal
to be unlawful and incorrect, we ultimately
took the view that it
would be more appropriate and prudent for a narrower and more
specific request for information to be filed.
Accordingly, we did not
pursue any review in respect of Eskom’s decision in relation to
the initial request.’
[40] Billiton dealt with these
allegations in the answering affidavit as follows:
‘
I
deny that, properly analysed, the initial request is not the subject
of the present application.
On a perusal of the
two request documents, it is clear that the only difference is in the
wording used to describe the record sought
by [Media 24]. That
difference however is illusionary ─ what is sought in [the
second request] is inseparably part of and
included in [the first
request]. Put differently, [the first request] sought all the terms
of [the electricity supply agreements]
while [the second request]
seeks some, but not all of, those self same terms.
In the circumstances
I respectfully submit that the application is out of time and should
be dismissed on that basis alone.’
[41] Media 24 in the replying
affidavit in turn responded as follows:
’
I
deny the contents of this paragraph. [Media 24] persist[s] in their
view that the first request is not the subject of the present
application. As is explained in . . . the founding affidavit, [Media
24] took the view that it would be more appropriate and prudent
for a
narrower and more specific request for information to be filed than
the first request. Accordingly the second request was
drawn up and
filed.’
[42] An analysis of the terms of
the first and second requests shows that despite different wording,
all of the information requested
in terms of the second request, and
more particularly that requested in paragraph 1 thereof (which, I
emphasize, is the only information
with which this appeal is
concerned), was also requested in terms of the first request. Counsel
representing Media 24 specifically
and correctly conceded in oral
argument that this was so; to use counsel’s own phrase, ‘the
signatures, duration and
pricing formula were embraced by the first
request’.
[43] Media 24 was only entitled
to obtain the information refused if it brought court proceedings to
compel the furnishing of the
documents within 180 days of the
refusal. The refusal was communicated on 29 July 2009. The court
proceedings culminating in this
appeal were commenced more than 180
days later, on 18 March 2010. There was no application for
condonation as contemplated in para
(h)
of the order in
Brümmer
.
That to my mind is the end of the matter.
[44] I wish to emphasise that the
second request cannot be categorized as a new or a different request.
The documents requested
were more limited than the documents
requested in the first request ─ but it is common cause that
they were covered by the
first request. That being so, refusal of the
documents sought in the first request of necessity entailed refusal
of the documents
sought in the second request. The greater includes
the lesser. And the lesser must be taken to have been refused not
only as a
matter of plain logic, but also because of the provisions
of
s 28(1)
of PAIA which provides:
‘
(1)
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─
(
a
)
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.’
[45] What Media 24 should have
done, if it considered that it required only part of the documents
that it had requested in terms
of the first request, was to limit the
application to compel ─ not make another but limited request.
If the position were
otherwise, it would defeat the time limit which
the Constitutional Court laid down in
Brümmer
─
for a requester could
then make a series of requests for progressively narrower categories
or portions of documents, and thereby
obtain successive periods of
180 days in respect of each request. That would be manifestly absurd.
[46] The fact that Eskom treated
the second request as an independent request cannot redound to the
disadvantage of the appellants
or serve to circumvent the provisions
of PAIA. Media 24’s counsel relied on the following dictum in
Millennium Waste
Management (Pty) Ltd v Chairperson, Tender Board: Limpopo Province
2008 (2) SA 481
(SCA) para 17:
‘
Moreover,
our law permits condonation of non-compliance with peremptory
requirements in cases where condonation is not incompatible
with
public interest and if such condonation is granted by the body in
whose benefit the provision was enacted . . . .’
(The principle is discussed in
more detail in
SA Eagle
Insurance Co Ltd v Bavuma
1985
(3) SA 42
(A) at 49G-50D.) The argument was that Eskom had by its
conduct tacitly waived compliance with the 180-day period. But the
time
period was not enacted solely for the benefit of the public body
(in the present matter, Eskom) but also for the benefit of the
third
party (in the present matter, Billiton) so that after the lapse of
the period, the third party could legitimately assume
the danger to
have passed and regulate its affairs on that basis, without having
thereafter again (and possibly repeatedly) to
seek, in terms of
chapter 5 of PAIA, to prevent disclosure of information that had
already been refused by the public body.
[47] The objects of the Act are
spelt out in s 9, and include the following:
‘
(
a
)
to give effect to the constitutional right of access to─
(i) any information
held by the State; and
(ii) any information
that is held by another person and that is required for the exercise
or protection of any rights;
(
b
)
to
give effect to that right
─
(i)
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 . . . .’ (Emphasis added.)
One of the limitations is the
time period for compelling the furnishing of the information sought
by court proceedings. By amending
the period of the time limit in
PAIA, the Constitutional Court in
Brümmer
necessarily recognised the
constitutionality of this very provision as amended. I repeat that in
this matter there was no application
for condonation. Media 24’s
attitude therefore amounts to this: We have not brought ourselves
within the constitutionally
justifiable parameters laid down in PAIA
for compelling information that has been refused; we make no excuse
for that; but we want
the information anyway.
[48] I am perfectly conscious of
the public debate that surrounds the provision of electricity by
Eskom to Billiton. It is already
known that Eskom supplies about six
per cent of the electricity generated by it to Billiton, and at a
rebated rate. It is not necessary
to consider what access to the
precise manner of determination of the price paid by Billiton to
Eskom for electricity would contribute
to that debate. A refusal to
allow access to that information is not to stifle the debate, but
rather to enforce a specific requirement
of a statute that (I say yet
again) the Constitutional Court has held passes constitutional muster
(once amended) , and thereby
to uphold the rule of law.
[49] Although it is strictly
speaking unnecessary for me to do so, I would briefly record my
respectful disagreement with the majority
judgment on the merits as
well. No argument was addressed to this court based on s 35(1)(
c
)
and it can therefore be ignored.
[50] So far as s 36(1)(
b
)
is concerned, the brochure produced by Brook Hunt refers to ‘details
of power source and energy costs variables’ and
‘comprehensive
cost leagues and graphs showing historic and forecast costs . . . to
allow clients to assess change in costs’,
and the spreadsheet
annexed to the Deutsche Bank report entitled ‘Aluminium: Where
is fair value?’ (also annexed to
the replying affidavit) gives
as its source of information ‘Brook Hunt, DB estimates’.
That indeed is what Brook Hunt
produces ─ information on which
estimates
can be based. That is a far cry from the precise
manner in which the cost of electricity from Eskom paid by Billiton
has in the
past been and will in the future be calculated, which is
the information Media 24 seeks. Nor do I believe that Media 24 can
remotely
be said to have rebutted the detailed and motivated evidence
of Dr Von Szczepanski of Billiton that in the aluminium business
globally,
the prices paid for inter alia electricity are a closely
guarded secret because otherwise the producer would be at a severe
competitive
disadvantage. The very fact that Brook Hunt produces
estimates of such prices (and it is not the only company that does
so) that
it sells at a considerable cost, bears out this statement
and negates any conclusion that the prices are ‘in the public
domain’.
[51] In any event, these being
motion proceedings, Billiton’s evidence must be accepted:
President of the Republic of South Africa v M & G Media Ltd
2011 (2) SA 1
(SCA) paras 13 and 14. The rule applies equally to the
situation where the onus is on the respondent, in casu, Billiton, as
this
court has repeatedly said in at least 15 reported judgments
spanning the last quarter of a century ─ starting with
Ngqumba
v Staatspresident
;
Damons NO v Staatspresident
;
Jooste
v Staatspresident
1988 (4) SA 224
(A), and continuing, most
recently, with
President of the RSA v M & G Media Ltd
that
was decided in the context of PAIA and is therefore directly in
point. The rule is dictated not by the incidence of the onus
but by
the nature of the proceedings the applicant, in casu, Media 24, has
chosen to institute. Therefore whilst I accept, as pointed
out by the
Deputy President in para 26 of his judgment, that a party who relies
on s 36(1)(
b
) of PAIA has a burden of establishing that
it will suffer harm as contemplated in the section; and whilst I also
accept the degree
of proof required as set out by the Deputy
President in para 27 of his judgment, the position is this: in the
event of a conflict
of fact (and save in exceptional circumstances as
mentioned in
President of the RSA v M & G Media Ltd
, para
13, that are not present here) the question whether Billiton has
discharged the onus must be decided on the facts put forward
by it.
It has manifestly discharged the evidential burden to allege
sufficient facts that will justify refusal of the information
sought
by Media 24, as required by
President of the RSA v M & G Media
Ltd
, para 14; and as Media 24 did not seek a reference to
evidence or to trial on this (or any other) point, the veracity of
Billiton’s
evidence must be accepted.
[52] So far as s 37(1)(
a
)
is concerned, the requirements of that section were in my view
satisfied by the following evidence. Eskom said:
‘
Eskom
owes a duty of confidentiality to its customers in relation to
information concerning the contractual arrangements between
them.
’
Billiton said:
‘
The
parties unanimously and continuously accept that in respect of the
[electricity supply agreements] they owe each other reciprocal
duties
of confidentiality, not to disclose any commercially or operationally
sensitive or confidential information arising from
those agreements.
More particularly, Eskom has since inception of the agreements
acknowledged that, particularly the pricing information
is extremely
sensitive and confidential and that disclosure thereof would be
severely detrimental to Billiton.
Eskom has at all
times been aware that all aluminium producers protect, as far as
possible, information as to their electricity
costs. This practice
applies to all aluminium producers, across the globe and has done so
for decades.’
This evidence was met in each
case by Media 24 with a bald denial in the replying affidavit. There
was accordingly no genuine dispute
of fact and I repeat that these
are motion proceedings. The principle in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634I-635C is therefore applicable and ─ there
being no suggestion that the evidence of the appellants is inherently
not credible, or so far-fetched or clearly untenable that the court
would be justified in rejecting it merely on the papers ─
that
evidence must be accepted:
President
of the Republic of South Africa v M & G Media Ltd
,
para 13.
[53] For these reasons I would
allow the appeal and alter the order of the court a quo to read:
‘
The
application is dismissed’.
_______________
T D CLOETE
JUDGE OF APPEAL
PETSE JA (MHLANTLA JA
CONCURRING):
[54] I have had the advantage of
reading the judgments of my colleagues, Mthiyane DP and Cloete JA. I
respectfully agree with the
order proposed by the learned Deputy
President and his reasoning. I am, however, with equal respect,
unable to agree with either
the reasoning or the conclusion reached
by Cloete JA.
[55] Regrettably I have found it
necessary to add my own observation in relation to the point in
limine. The difference in the approaches
of my colleagues seems to me
to lie in their interpretation of the content of the first and second
requests by Media 24 to Eskom
made on 30 June 2009 and 18 September
2009 respectively.
[56] My colleague Cloete JA is of
the view that since the information required in terms of the second
request was embraced by the
first request it would defeat the time
limit which the Constitutional Court laid down in
Brummer
‘for
a requester to then make a series of requests for progressively
narrower categories or portions of documents, and thereby
obtain
successive periods of 180 days in respect of each request’.
[57] To my mind the question
whether repeated requests for information in terms of PAIA would
constitute abuse or amount to substantially
the same request and thus
calculated to circumvent the provisions of s 78(2) of PAIA is an
issue which can only properly be determined
on a case-by-case basis
in the context of the facts of each case.
[58] Although the information
covered by the second request would have been encapsulated in the
first request had Eskom not declined
the latter one should, however,
not lose sight of the fact that the former required limited
information and was not as extensive
as the first request.
[59] Moreover Eskom itself
regarded and understood the second request to be distinct from the
first one. It requested more time
to deal with it and consulted
Billiton in regard thereto. Thus Billiton could not have been under
any illusion that Media 24 was
still pursuing the matter albeit to a
limited extent only. Accordingly there would have been no basis, as
my colleague Cloete JA
suggests, for Billiton (as the third party) to
legitimately assume the danger to have passed and regulate its
affairs on that assumption.
[60] The proposition by my
colleague Cloete JA that Media 24 could and should have instituted
proceedings to compel Eskom –
once its first request had been
declined – but limit such application to only part of the
documents it had requested in terms
of the first request, with
respect, pays insufficient regard to one of the cardinal objects of
PAIA which, in terms of s 9
(d)
thereof, is to establish
voluntary and mandatory mechanisms or procedures to give effect to
that right [right of access to a record
of a public or private body]
in a manner which enables persons to obtain access to records of
public and private bodies
as swiftly, inexpensively and
effortlessly as reasonably possible
. (Emphasis added.)
[61] I therefore conclude that,
on the facts of this case, Media 24 should not be penalised for
adopting a pragmatic approach which,
to my mind, accords with the
objects of PAIA when it made the second (but limited) request rather
than bringing an application
in court to compel which would not have
been a swift, inexpensive and effortless manner of gaining access to
the information required.
Hence my concurrence in the judgment and
order of the learned Deputy President.
______________________
X M PETSE
JUDGE OF APPEAL
LEACH JA (CLOETE JA
CONCURRING):
[62] Having enjoyed the benefit
of reading the judgments prepared by my colleagues in this matter I
find myself unable to agree
with the reasoning and conclusion of
Mthiyane DP and Petse JA in regard to the objection in limine. And
although I agree with Cloete
JA on this issue, I am constrained to
set out reasons of my own for reaching a contrary conclusion.
[63] It is accepted by all that
the information to which these proceedings relate, namely, certain of
the information contained
in the request of 18 September 2009, had
been amongst that sought by way of the original request of 30 June
2009. The refusal on
29 July 2009 of the original request thus
resulted in the information sought in the second request, and
particularly that to which
these proceedings relate, having been
refused at that stage. Consequently, while my colleague Petse JA is
perfectly correct in
his finding that the second request related to
information ‘encapsulated in’ and was not ‘as
extensive’
as the first request, this leads me to a contrary
conclusion on the point in limine.
[64] The point in limine can only
be dismissed if the limited information sought by way of the second
request had not already been
sought and refused. As I have said,
everyone accepts that the information in the second request was
contained in the first request
and I can see no basis for finding
that this information was not refused along with the other
information sought in the first request.
The more limited nature of
the second request cannot alter that simple fact. Accordingly the
expiry period for the bringing of
an application under s 78(2) of
PAIA started running on 29 July 2009, and was still running when,
some six weeks later, the second
request was lodged seeking certain
of the information originally refused.
[65] Furthermore, the fact that
Eskom requested more time and consulted with Billiton after the
second request had been lodged does
not mean that Billiton was not
entitled to assume that the period under s 78(2) which commenced to
run on 29 July 2009 would lapse
after 180 days. Billiton knew that
the information sought in the second request had earlier been
refused. The fact that certain
of that information had again been
requested does not mean that it had to treat the matter as if the
period for an application
under s 78(2) had not commenced to run in
respect of such information. It must be remembered that Billiton’s
interest in
the information asked for differed from that of Eskom.
Billiton feared that disclosure would harm its financial and
commercial
interests in a competitive industry and it was entitled to
have those interests protected to the extent that PAIA required
persons
seeking information to do so within the time period that Act
prescribed. Eskom’s attitude to the second request was
irrelevant
to that issue.
[66] Furthermore I do not see how
the objectives of s 9(
d
) of PAIA should lead to the mechanisms
and procedures prescribed by that Act being ignored. The question is
not whether there had
been an abuse of the procedures laid down by
the Act calculated to circumvent s 78(2) but whether there had been
compliance with
the Act. Not only did Media 24 not comply but, in
addition, by repeating part of its request for information already
refused rather
than proceeding to seek such information by way of an
application under s 78(2), it disregarded the remedy PAIA provided. I
fail
to see how this can be regarded as a ‘pragmatic approach’
in line with s 9(
d
) of PAIA to seek that information swiftly,
inexpensively and with less effort. The opposite seems to me to be
the case.
[67] For these reasons and those
set out by Cloete JA in his judgment, I would uphold the objection in
limine and, for that reason
alone, uphold the appeal. Strictly
speaking that conclusion renders it unnecessary to venture an opinion
on the remaining issues
raised in the appeal but, for completeness, I
should record that I find myself in respectful agreement with the
reasoning of Cloete
JA set out in paras 50 to 52 of his judgment.
[68] For the above reasons I,
too, would allow the appeal and alter the order of the court a quo in
the manner suggested by Cloete
JA.
_____________________
L E LEACH
JUDGE OF APPEAL
APPEARANCES
For Appellants: FA Snyckers SC
(with him KS McLean)
Instructed by:
Mervyn Taback Incorporated,
Johannesburg
bbers, Bloemfontein
For Respondents: GJ Marcus SC
(with him S Budlender)
Instructed by:
Willem de Klerk Attorneys,
Johannesburg
Honey Attorneys, Bloemfontein
1
See
s 32(1)
(a)
of
the Constitution.
2
Chapter
4 sets out various grounds for refusal of access to records which
are not relevant to the determination of this matter.
As will become
clearer later in the judgment access to information relating to the
two contracts was refused on the basis of
ss 36(1)
(b)
and 37(1)
(a)
of PAIA.
3
Section
32(1)
(b)
of
the Constitution.
4
Jan
George de Lange.
5
Johanna
Smit dated 14 May 2010.
6
Transnet
Ltd & another v SA Metal Machinery Co (Pty) Ltd
2006
(6) SA 285
(SCA) para 41.
7
President
of the Republic of South Africa v M & G Media Limited
2012 (2) SA
50
(CC) para 15.
8
Supra
note 6 para 42.