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[2012] ZASCA 82
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Bridon International GMBH v International Trade Administration Commission and Others (538/2011) [2012] ZASCA 82; [2012] 4 All SA 121 (SCA); 2013 (3) SA 197 (SCA) (30 May 2012)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 538/2011
In the matter between:
BRIDON INTERNATIONAL GMBH
…..............................................................
APPELLANT
v
INTERNATIONAL TRADE ADMINISTRATION
COMMISSION
…................................................................................
FIRST
RESPONDENT
THE MINISTER OF TRADE AND INDUSTRY
….........................
SECOND RESPONDENT
SCAW SOUTH AFRICA (PTY) LTD
….............................................
THIRD
RESPONDENT
CASAR DRAHTSEIWERK SAAR GMBH
…................................
FOURTH
RESPONDENT
Neutral citation:
Bridon
International GMBH v International Trade Administration Commission
(538/2011)
[2012] ZASCA 82
(30 May 2012)
Coram:
Brand, Cloete,
Mhlantla, Wallis JJA
et
Southwood AJA
Heard:
15
May 2012
Delivered: 30 May 2012
Summary: Confidential information
submitted to Commission during investigation in terms of
International Trade Administration Act 71 of 2002
– Commission
relying on that information for its decision – disclosure
claimed by third party for purposes of reviewing
that decision -
weighing-up of competing interests.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
North Gauteng
High Court, Pretoria. (Preller J sitting as court of first instance):
The appeal is dismissed and the
appellant is ordered to pay the costs of the first respondent.
________________________________________________________________
JUDGMENT
________________________________________________________________
BRAND JA
(
CLOETE, MHLANTLA,
WALLIS JJA
ET
SOUTHWOOD AJA concurring
):
[1] This appeal arises from an
interlocutory application for access to confidential information that
was submitted to the International
Trade Administration Commission
(the Commission) during the course of an investigation by the
Commission into the imposition of
anti-dumping duties. The issues
arising require a more detailed account of the facts. I find it
convenient to start that account
by introducing the parties. The
appellant is Bridon International GMBH (Bridon), a German based
manufacturer of steel wire ropes.
The first respondent is the
Commission, which was created in terms of
s 7
of the
International Trade Administration Act 71 of 2002
. The second
respondent is the Minister of Trade and Industry (the Minister). The
third respondent is Scaw South Africa (Pty) Ltd
(Scaw), a large South
African manufacturer of steel products. The fourth respondent is
Casar Drahtseiwerk Saar GMBH (Casar), another
German-based exporter
of steel wire ropes to South Africa. Bridon, Casar and Scaw are
competitors in the Republic as well as in
several international
markets insofar as the manufacturing of steel wire ropes is
concerned.
[2] From 2002 anti-dumping duties were
levied on steel wire ropes imported into the Southern African Customs
Union from various
countries, including Germany. Those duties were
due to expire in August 2007. During February 2007, however, Scaw
applied for the
continuation of these duties. This led to a so-called
‘sunset review’ by the Commission, which is essentially
an investigation
in terms of the Act into the need for the
reconfirmation or the amendment of the anti-dumping duties originally
imposed. The period
for investigation was confined to the 2006
calendar year. As part of the investigation the Commission sent
questionnaires to known
interested parties for completion. In
response to the questionnaires, various importers and exporters of
steel wire rope submitted
information to the Commission. Two of these
were Bridon and Casar.
[3] After the questionnaires were
submitted to the Commission, it conducted a verification exercise of
their contents. Bridon alleges,
and it is not denied, that as part of
the questionnaire and during the verification exercise, it provided
the Commission with information
‘comprising literally hundreds
of electronic and hardcopy documents many of which were clearly
indicated to be of an extremely
sensitive commercial and highly
confidential nature’. The completeness of its submission
seemingly stood Bridon in good stead.
I say that because, in its
final report, dated 15 January 2009, the Commission recommended the
continuation of and an increase
in anti-dumping duties levied on wire
ropes exported by some German manufacturers, including exports by
Casar. But with reference
to exports by Bridon, the Commission
recommended that no anti-dumping duties be imposed.
[4] The Commission’s
recommendations, contained in its final report, were accepted by the
Minister. In consequence, the anti-dumping
duties recommended by the
Commission were imposed by way of publication in the Government
Gazette of 13 February 2009. This led
to a review application by
Casar in the North Gauteng High Court, pursuant to
s 46
of the
Act (‘the main application’). What Casar sought in the
main application was an order reviewing and setting aside
both the
Commission’s decision to recommend the continued and increased
duties to be imposed on its exports and the Minister’s
decision
to accept and implement that recommendation. Bridon was not a party
to the main application.
[5] The main application triggered the
provisions of Rule 53(1)
(b)
of the Uniform Rules of Court.
This rule provides that, in an application for review, the public
body whose decision is under review
must disclose the record of the
proceedings on which the decision was based. In the process of
complying with Rule 53(1)
(b)
the Commission divided the record
into a confidential part and a non-confidential part. It then
tendered disclosure of the non-confidential
part in compliance with
its obligation under rule 53(1)
(b)
. But with regard to the
confidential part of the record, it contended that the relevant
legislative provisions – to which
I shall presently return –
precluded it from disclosing confidential information without the
consent of the owner of that
information. Since Bridon refused its
consent to the disclosure of its confidential information included in
the confidential part,
the Commission found itself constrained to
refuse disclosure of that information, despite the wide wording of
rule 53(1)
(b)
.
[6] That gave rise to the
interlocutory application by Casar before Preller J in the court a
quo which in turn led to the present
appeal. All parties to the
appeal were joined in the interlocutory application. The latter was
opposed by Bridon only, while the
Commission, the Minister and Scaw
all abided the decision of the court.
[7] In the correspondence that
preceded the application, the battle lines were fairly clearly drawn.
Thus it became apparent that
the information submitted by Bridon to
the Commission, including that contained in the confidential part,
was relevant to the Commission’s
recommendation that
anti-dumping duties should be imposed on exports by Casar. In fact,
after some toing and froing, the Commission
confirmed in a letter to
Casar’s attorneys that its recommendation was based solely on
confidential and non-confidential
information provided by Bridon and
two other parties. In subsequent correspondence the Commission went
further and stated that
the only confidential information that was
used in the calculation of the anti-dumping duties imposed on Casar,
derived from Bridon.
Self-evidently, that part of Bridon’s
confidential information relied upon by the Commission, in arriving
at its impugned
decision, is relevant in the main application. As
interpreted by our courts, rule 53(1)
(b)
requires the
decision-maker to disclose ‘the documents, evidence, arguments
and other information before the tribunal’
(see eg
MEC for
Roads and Public Works, Eastern Cape v Intertrade Two
(Pty)
Ltd
2006 (5) SA 1
(SCA) para 15). In the normal course of events,
Bridon’s confidential information would therefore form part of
the record
which the Commission is required to produce.
[8] Despite the general import of the
rule, Casar appreciated that the disclosure of Bridon’s
confidential information to
its competitors, including Casar itself
and Scaw, would have a significant adverse effect upon Bridon, and
that it would potentially
be of significant benefit to its
competitors. In recognition of Bridon’s right to insist on
protection of its confidential
information, Casar therefore did not
ask for unqualified access to the confidential part of the
Commission’s record. What
it sought was an order, firstly,
confining access to that part of the record which the Commission
regarded as relevant in arriving
at its impugned decision and,
secondly, subjecting that access to a strict confidentiality regime.
[9] In granting the relief sought by
Casar in the interlocutory application, Preller J essentially
incorporated the confidentiality
regime proposed by Casar into the
court’s order with a few minor changes of his own. Bridon
nonetheless considered the confidentiality
regime set out in the
court’s order as inadequate for the protection of its
confidential information. It therefore sought
and obtained the leave
of the court a quo to appeal against that order. Shorn of unnecessary
detail, the order limits access to
the confidential part of the
Commission’s record to legal representatives of the parties in
the main application and one
independent expert appointed by each
party to assist in that application. In addition, these persons will
only have access after
they have signed a confidentiality undertaking
in the form dictated by the order. In terms of that undertaking the
signatory pledges
not to divulge the information that he or she
obtained from the record to anybody outside the stipulated group of
persons, which
group does not include the parties themselves or any
of their employees. The order further requires that any pleading,
affidavit
or argument filed in the main application be made up in two
parts – a confidential version and a non-confidential version;
that all references to confidential information be expunged from the
non-confidential version; and that access to the confidential
version
be reserved to permitted persons and the judge presiding in the main
application. The appeal is opposed by Casar only.
All other
respondents, including the Commission, elected to abide the decision
of this court.
[10] Despite its election to abide,
the Commission filed an answering affidavit in the court a quo which
explained why it regarded
itself as constrained to refuse disclosure
of Bridon’s confidential information without a court order
compelling it to do
so. In this court the Commission briefed counsel
to communicate the position it took and to make submissions in
support of that
position. I believe we should express our
appreciation for the contribution made by the Commission in this way,
which I found of
considerable assistance. In the court a quo the
Commission expressed the view that the confidentiality regime
proposed by Casar
was inadequate to protect Bridon’s
confidential information. It seems, however, that the changes brought
about by Preller
J in the order he eventually granted, were
sufficient to allay the Commission’s misgivings. I say this
because of the position
it took on appeal. That position is
succinctly summarised as follows in the heads of argument on behalf
of the Commission and endorsed
by its counsel in oral argument:
‘
7.1
The information which comprises the confidential record to which
access is sought is information which has been recognised by
[the
Commission] as “confidential” under section 34(1)(a) of
the International Trade Administration Act 71 of 2002
(“The
Act”);
7.2.
Despite this determination, [the Commission] accepts that in the
context of the pending review application the question of
access to
confidential portions of the review record raises competing rights
and interests on the part of Casar and Bridon. The
adjudication of
this issue thus requires the exercise of a discretion by a Court as
to, having regard to the facts and circumstances
of this case, what
is in the interests of justice;
7.3.
The confidentiality regime set out in the order of Preller J cannot
be argued to be an improper exercise of a discretion by
the Court
a
quo
given that it
seeks to strike a balance between protecting the rights and
commercial interests of Bridon while ensuring the protection
of
Casar’s rights as a litigant.’
[11] Section 34(1)
(a)
, to which
reference is made in the quotation, is one of the sections in Part D
of Chapter 4 of the Act – comprising sections
33 to 37 –
which specifically deals with the protection of confidential
information submitted to the Commission in the course
of anti-dumping
investigations. These sections, together with the Anti-Dumping
Regulations, promulgated by the Minister in GN 3197
of 14 November
2003, were clearly intended to give effect to South Africa’s
obligations in terms of international instruments
to protect
confidential information in the course of anti-dumping proceedings.
[12] The first of these international
instruments to which South Africa became a signatory, was the General
Agreement on Tariffs
and Trade of 1947 (GATT). That was followed by
the World Trade Organisation Agreement (WTO Agreement) which was
signed by South
Africa in 1994. Part of the WTO Agreement was the
Agreement on Implementation of Article VI of GATT (the Anti-Dumping
Agreement).
Both GATT and the WTO Agreement were approved by
Parliament. Consequently they became binding on the Republic in terms
of s 231(2)
of the Constitution, 1996. Yet because they were not
enacted into our municipal law by national legislation, as
contemplated in
s 231(4) of the Constitution, the provisions of
these agreements did not in themselves become part of South African
law. (See
Progress Office Machines CC v South African Revenue
Service
2008 (2) SA 13
(SCA) paras 5 and 6; J Dugard
International Law, A South African Perspective
4 ed (2011) at
436; E C Schlemmer ‘South Africa and the WTO: Ten Years into
Democracy’ (2004) 29
SAYIL
125 at 135).
[13] This does not mean that these
international instruments have no relevance to the present enquiry.
As I have said, Part D of
Chapter 4 of the Act was a clear attempt to
give effect to South Africa’s obligations under these
international instruments.
Hence s 233 of the Constitution comes
into play. This section provides:
‘
When
interpreting any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent with
international law over any alternative interpretation that is
inconsistent with international law.’
[14] Article 6 of the Anti-Dumping
Agreement deals specifically with the protection of confidential
information submitted by interested
parties. Thus article 6.5
provides that any information which is by nature confidential, for
example, because its disclosure would
be of significant competitive
advantage to a competitor, or which is provided on a confidential
basis by parties to an investigation
shall, upon good cause shown, be
treated as such by the authorities. Once recognised as confidential,
such information shall not
be disclosed without specific permission
of the party submitting it. Notwithstanding this injunction, however,
note 17 to article
6.5 expressly provides that this treatment gives
way to domestic law which may require publication. Note 17 states:
‘
Members
are aware that in the territory of certain Members disclosure
pursuant to a narrowly-drawn protective order may be required.’
[15] This brings me back to Part D of
Chapter 4 of the Act. It starts with s 33. This section
provides:
‘
(1)
A person may, when submitting information to the Commission, identify
information that the person claims to be information that-
(a)
is confidential by its nature; or
(b)
the person otherwise wishes to be recognised as confidential.
(2)
A person making a claim in terms of subsection (1) must support that
claim with-
(a)
a written statement in the prescribed form-
(i)
explaining, in the case of information that is confidential by its
nature, how the information satisfies the requirements set
out in the
definition of “information that is by nature confidential”
in section 1 (2); or
(ii)
motivating, in the case of other information, why that information
should be recognised as confidential; and
(
b)
either-
(i)
a written abstract of the information in a non-confidential form; or
(ii)
a sworn statement setting out the reasons why it is impossible to
comply with subparagraph (i).’
[16] Section 1(2) referred to in
s 33(2)
(a)
(i), broadly defines ‘information that is
by nature confidential’ as information in the sphere of trade
or business
that is not generally available and the disclosure of
which would harm the owner or ‘give a significant competitive
advantage
to a competitor of the owner’. In the event of a
claim of confidentiality under s 33, the Commission is enjoined
by
s 34(1) to determine its validity. If the Commission decides
against the claimant, the latter has a right of appeal to the
High
Court. If, on the other hand, the Commission finds that the claim of
confidentiality should be recognised, s 35(2) and
s 35(3)
find application. These subsections provide:
‘
(2)
A person who seeks access to information which the Commission has
determined is, by nature, confidential, or should be recognised
as
otherwise confidential, may-
(a)
first, request that the Commission mediate between the owner of the
information and that person; and
(b)
failing mediation in terms of paragraph
(a)
, apply to a High
Court for-
(i)
an order setting aside the determination of the Commission; or
(ii)
any appropriate order concerning access to that information.
(3)
Upon . . . an application in terms of subsection (2)
(b)
, the
High Court may-
(a)
determine whether the information-
(i)
is, by nature, confidential; or
(ii)
should be recognised as being otherwise confidential; and
(b)
if it determines that it is confidential, make any appropriate order
concerning access to that confidential information.’
[17] The Commission’s viewpoint
is that the dispute between Bridon and Casar is to be resolved with
reference to s 35(2)
and (3) of the Act. Departing from that
premise, it explained in its answering affidavit how it sought to
mediate between the rivals,
as envisaged in s 35(2)
(a)
,
but without any successful outcome. This meant, so the Commission
contended, that it was precluded from disclosing information
which it
recognised as confidential for purposes of the main application in
the absence of a court order. In consequence, so the
Commission
further contended, the court a quo was enjoined to decide the matter
in terms of s 35(3) and more pertinently s 35(3)
(b)
,
by weighing the conflicting interests of the two opposing parties. In
the court a quo Bridon essentially proceeded from the same
premise.
In this court, however, it contended that s 35(3) finds no
application. The mechanism created in Part D of Chapter
4, so Bridon
contended in this court, is confined to proceedings before the
Commission which terminates with its decision on the
merits.
According to this argument, s 35(3) thus finds no application in
a case like the present where access is required
in order to review
that decision. This is borne out, so Bridon’s argument went, by
the Anti-Dumping Regulations which are
clearly confined to
proceedings before the Commission.
[18] The position taken by Bridon in
this court starts out from the premise that disclosure by the
Commission in review proceedings
is governed by rule 53(1)
(b)
.
That rule, so Bridon’s argument proceeded, requires in
principle that the Commission disclose all information relevant to
its impugned decision, regardless of confidentiality. But, so the
argument went, the court has the power to exclude confidential
information by virtue of an extended form of public interest
privilege (strictly speaking, more aptly described as a public
interest
immunity – see eg
Duncan v Cammell Laird
[1942] UKHL 3
;
[1942]
AC 624
(HL) 641, Hodge M. Malek QC ed
Phipson on Evidence
(16
ed) para 25-08, P J Schwikkard and S E van der Merwe
Principles of
Evidence
3 ed at para 11.1.1). I say extended because Bridon
rightly conceded that the public interest privilege thus far
recognised by our
courts, for example in
Van der Linde v Calitz
1967 (2) SA 239
(A), would find no application in this case. Yet
Bridon argued that the extension for which it contends has been
recognised in
both the United Kingdom and Canada and that there is no
reason in principle why we should not follow the same course.
[19] In support of its contentions
relying on the law of the United Kingdom, Bridon referred to a number
of decisions from that
jurisdiction, viz
Alfred Crompton Amusement
Machines Ltd v Customs and Excise Commissioners
[1974] 2 AC 405
;
D v National Society for the Prevention of Cruelty to Children
[1977] UKHL 1
;
[1978] AC 171
; and
R v Chief Constable of West Midlands Police, Ex
parte Wiley
[1994] UKHL 8
;
[1995] 1 AC 274.
Of these decisions,
Crompton
shows the closest resemblance to the facts of this case. It concerned
a dispute about the disclosure of documents in the possession
of the
Customs and Excise Commissioners in their litigation against
Crompton. The Commissioners objected to the disclosure to Crompton
of
various categories of documents gathered in the course of their
investigation of Crompton’s business. One of the categories
comprised documents which made reference to information obtained from
third party traders with regard to their trading practices.
The
Commissioners objected that if it were known that information of this
kind was liable to be disclosed, the third party informants
would no
longer give the Commissioners such information, which would hamper
them in the execution of their duties.
[20] The House of Lords upheld the
Commissioners’ objection to the disclosure of these documents
on the ground of public interest
privilege. In the course of his
judgment Lord Cross made the point that although this information was
obtained from the third party
traders in confidence, its mere
confidentiality did not render the documents immune from disclosure,
but that ‘it may be
a very material consideration to bear in
mind when privilege is claimed on the ground of public interest’
(at 433H). What
the court has to do when such privilege is claimed,
so Lord Cross continued, ‘is to weigh on the one hand the
considerations
which suggest that it is in the public interest that
the documents in question should be disclosed and on the other hand
those
which suggest that it is in the public interest that they
should not be disclosed and to balance one against the other. Plainly
there is much to be said in favour of disclosure. The documents in
question constitute an important part of the material on which
the
commissioners based their conclusion . . . On the other hand, there
is much to be said against disclosure . . . Here . . .
one can well
see that the third parties who have supplied this information to the
commissioners because of the existence of their
statutory powers
would very much resent its disclosure by the commissioners to the
appellants and that it is not at all fanciful
. . . to say that the
knowledge that the commissioners cannot keep such information secret
may be harmful to the efficient working
of the Act’ (at
433H-434F).
[21] In further support of its
argument for an extension of public interest privilege to the facts
of this case, Bridon also referred
to the decisions of the Canadian
courts, which seemingly adopt a more nuanced approach by introducing
the concept of ‘partial
privilege’. This appears eg from
the following dictum by McLachlin J in
M (A) v Ryan
[1997] 1
SCR 157
at para 33:
‘
It
follows that if the court considering a claim for privilege
determines that a particular document . . . must be produced to get
at the truth and prevent an unjust verdict, it must permit production
to the extent required to avoid that result. On the other
hand, the
need to get at the truth and avoid injustice does not automatically
negate the possibility of protection from full disclosure.
In some
cases, the court may well decide that the truth permits of nothing
less than full production . . . Disclosure of a limited
number of
documents, editing by the court to remove non-essential material, and
the imposition of conditions on who may see and
copy the documents
are techniques which may be used to ensure the highest degree of
confidentiality and the least damage to the
protected relationship,
while guarding against the injustice of cloaking the truth.’
[22] As I see it, the approach to the
recognition of public interest privilege on the facts of a particular
case in both the United
Kingdom and Canada therefore depends on a
judicial evaluation of the balance between two conflicting public
interests. On the one
hand there is the public interest in finding
the truth in court proceedings. This is to be weighed up against the
countervailing
public interest which sometimes requires that the
confidentiality of information be maintained. In support of its
argument that
in this case the latter interest outweighs the former,
Bridon relied on evidence produced in the answering affidavit of both
itself
and the Commission. What this evidence shows, in broad
outline, is that, in the same way as in
Crompton,
the
Commission is vitally dependant in its investigations into
anti-dumping, on receiving commercially sensitive evidence supplied
by third parties who may refuse to cooperate if the confidentiality
of their information is not ensured.
[23] I have no doubt that the
Commission has a legitimate interest in protecting information
submitted to it by third parties in
confidence. However, I do not
believe that the extension of public interest privilege contended for
by Bridon is needed to afford
that protection. On the contrary, I
agree with the viewpoint advanced by the Commission that the solution
to the problem is provided
by s 35(3) of the Act. This means
that I do not accept Bridon’s contention that the section is
limited to proceedings
before the Commission. In my view its ambit
extends to disclosure in review proceedings.
[24] In this case the route we decide
to follow will probably make no difference to the result. This is so
because all parties are
in agreement that the outcome depends on a
weighing up of their conflicting interests. Yet, the right answer as
to the source of
the court’s power to perform the weighing-up
exercise may in different circumstances lead to a different result.
My first
problem with the extended privilege route is that I have
serious doubt as to whether it is available to a third party, in the
position
of Bridon, where it is not invoked by the public body, in
the position of the Commission. But even in that doubtful event, it
stands
to reason that little weight will be afforded to the mooted
public interest in the weighing-up process if, in the view of the
public
body itself, that interest is sufficiently protected. That
perhaps directs the focus to the heart of my difficulty. It is this.
The public privilege route requires a balance to be struck between
the conflicting interests of two parties, the Commission, on
the one
hand, and Casar, on the other. It leaves little, if any, room for
consideration of the discrete interest of a third party,
such as
Bridon. As opposed to that, the application of s 35(3), as I see
it, facilitates the weighing-up of all three interests.
[25] Bridon’s first argument as
to why s 35(3) is confined to proceedings before the Commission,
is that the ambit of
the anti-dumping regulations is so limited. But
as I see it, the argument amounts to a
non sequitur.
Moreover,
it is a trite principle that subsequent regulations cannot serve to
give meaning to an Act. Bridon’s further argument
was that it
would be invidious for the Commission to perform the mediator’s
role contemplated in s 35(2) once it became
the respondent in
review proceedings. However, I fail to see the difficulty. First of
all, the Commission is a public body which
is supposed to act fairly
and whose mediation is subject to judicial control in terms of
s 35(3). Secondly, the Commission
itself has an inherent
conflict of interest. On the one hand, it has an interest in the
protection of confidential information
submitted to it, because third
parties may otherwise be unwilling to co-operate. On the other hand,
it has an interest in showing
the rationality of its decision, which
requires disclosure of as much as possible of the information it
relied upon for that decision.
It therefore has an interest to
protect both ways. Thirdly, I can think of no entity better qualified
than the Commission to perform
the mediation function. Not only does
the Commission consist of a body of experts, it knows exactly what
confidential information
it considered for purposes of its decision.
[26] In short, I find nothing in the
wording of the Act that limits the operation of s 35(2) and
s 35(3) to proceedings
before the Commission. On the contrary, I
can think of good reason why s 35(3) should also extend to
proceedings which are
aimed at a review of the Commission’s
decision. As I have said, Part D of Chapter 4 of the Act is, in my
view, intended to
give effect to South Africa’s obligations in
terms of international instruments. One of these obligations is to
protect confidential
information submitted in anti-dumping
investigations as far as possible. Self-evidently this protection may
be required, not only
in proceedings before the Commission, but also
in subsequent proceedings aimed at a review of the Commission’s
decisions.
It is difficult to think why, in the circumstances,
s 35(3) should be intended to stop short of affording that
protection
in review proceedings, particularly where it is at least
uncertain whether that protection is afforded by any other instrument
of our law. Finally, with regard to the interpretation of s 35(3),
I do not believe that the balance it requires can be described,
as
the Commission appears to think, in terms referring to the exercise
of a judicial discretion where there can be more than one
right
answer. As I see it, it amounts to a value judgment which is subject
to unrestricted re-evaluation on appeal.
[27] This brings me to the balancing
exercise between the conflicting interests which s 35(3)
requires and the ultimate question
whether the order issued by the
court a quo constitutes a fair outcome of that exercise. The
Commission’s answer is that
it does. That means, as I see it,
that as far as the Commission is concerned, its own interests are
sufficiently protected by the
order. In this light, Bridon’s
contentions to the contrary based on the protection of the
Commission’s interests cannot
be sustained. As I see it, it is
not open to a foreign company to contradict our own government
agency, as the guardian of the
international trade commission
function, as to where its best interests lie.
[28] As to Bridon’s own
interests, it is conceded by Casar that Bridon is entitled to
protection of its confidential information.
In fact, Casar
pertinently stated in its founding papers that it ‘recognises
the sensitive nature of the confidential information
which [Bridon] .
. . provided to the Commission . . . [and] accepts that it is
necessary to establish a mechanism that will protect
the Confidential
Information when the Record is furnished . . . in the main
application’. To this the Commission adds that
the disclosure
of Bridon’s confidential information ‘would give a
significant competitive advantage to a competitor
like [Casar]’.
It is accordingly common cause that Bridon has an interest worthy of
protection. Moreover, I believe it is
an interest underwritten as
part of Bridon’s right to privacy guaranteed by s 14 of
the Constitution, 1996 (see eg
Financial Mail (Pty) Ltd v Sage
Holdings Ltd
[1993] ZASCA 3
;
1993 (2) SA 451
(A); and
Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd: In re Hyundai Motor Distributors (Pty)
Ltd v Smith NO
[2000] ZACC 12
;
2001
(1) SA 545
(CC)).
[29] A further consideration which
should, according to Bridon, weigh in its favour, is that it provided
its confidential information
to the Commission on the specific
understanding that it would only be used with reference to itself and
not in relation to third
parties. But whatever Bridon’s
subjective motive might have been, I find it difficult to accept that
the Commission could
and would agree to this restraint in the face of
s 37(1)
(a)
of the Act which pertinently authorises the
Commission to take confidential information into account ‘[w]hen
making any decision
in terms of this Act’. However, be that as
it may, we know that as a fact the Commission took Bridon’s
confidential
information into account – as it was entitled to
do in terms of s 37(1)
(a)
– in making its
challenged decision against Casar. In this light it goes without
saying, I think, that any breach by the
Commission of an agreement
between itself and Bridon cannot be held against Casar.
[30] According to Bridon’s
argument, another factor which should count in its favour is that
Casar deliberately elected not
to cooperate with the Commission and
thereby chose to run the risk of a decision against it. In these
circumstances, so Bridon
argued, Casar should not be rewarded for its
unsuccessful gamble by being provided with access to the confidential
information
of its competitor, who elected to cooperate with the
Commission. The first answer to this contention, I believe, is that
in terms
of the court a quo’s order, Casar itself will not be
provided with access to Bridon’s confidential information.
Secondly,
it is denied by Casar that it did not fully cooperate with
the Commission. Its counter allegation is that it submitted
information
as an interested party as best it could. Whether or not
it did so, would probably be relevant in the main application. But in
these
proceedings I believe it is of no consequence. Even if Casar
was in the wrong in not submitting information to the Commission, it
cannot be punished by frustrating it in the review proceedings it is
entitled to bring against the Commission.
[31] Nonetheless, all this does not
detract from Bridon’s constitutional right to its confidential
information which is protected
by both our Constitution and our
international agreements, that I have already underscored. Equally
self-evident, however, is Casar’s
countervailing interest in
disclosure of that same confidential information for purposes of the
main application. The Commission
expressly stated that it had relied
on Bridon’s confidential information in arriving at the
decision which Casar seeks to
challenge in the main application. It
follows that, without knowing the basis for the decision, Casar will
have to mount that challenge
in the dark against an opponent with
perfect night vision, in that it knows exactly what information it
had considered. For example,
Casar will hardly be able to contend
that the decision was irrational; that irrelevant considerations were
taken into account;
or that the decision was taken arbitrarily or
capriciously. These, of course, would all constitute legitimate
grounds for review
under s 6 of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA). What is more, it is not only the
confidential information
actually relied upon by the Commission that
may potentially be material. Disclosure of Bridon’s
confidential information
that was available to the Commission may
show that it had failed to have regard to relevant considerations
which is another review
ground contemplated in s 6(2)
(e)
of PAJA.
[32] In short, I agree with the
sentiment expressed by Preller J in the court a quo that a ban on
disclosure of Bridon’s confidential
information will
effectively deprive Casar of a fair hearing in the main application.
As I see it, Casar’s interest in disclosure
therefore enjoys
constitutional protection, not only under s 32 which guarantees
everyone’s right of access to any information
held by the
State, but also under s 34 which guarantees the right to a fair
public hearing before a court. The importance
of the latter right
has, in turn, been emphasised as follows in
De Beer NO v
North-Central Local Council and South-Central Local Council
[2001] ZACC 9
;
2002
(1) SA 429
(CC) para 11:
‘
This
s 34 fair hearing right affirms the rule of law, which is a founding
value of our Constitution. The right to a fair hearing
before a court
lies at the heart of the rule of law.’
[33] In the same vein is the following
succinct statement about the importance of disclosure in court
proceedings by Moseneke DCJ
in
Independent Newspapers (Pty) Ltd v
Minister for Intelligence Services: In re Masetlha v President of the
Republic of South Africa
2008 (5) SA 31
(CC) para 25:
‘
Ordinarily
courts would look favourably on a claim of a litigant to gain access
to documents or other information reasonably required
to assert or
protect a threatened right or to advance a cause of action. This is
so because courts take seriously the valid interest
of a litigant to
be placed in a position to present its case fully during the course
of litigation. Whilst weighing meticulously
where the interests of
justice lie, courts strive to afford a party a reasonable opportunity
to achieve its purpose in advancing
its case. After all, an adequate
opportunity to prepare and present one’s case is a
time-honoured part of a litigating party’s
right to a fair
trial.’
[34] This brings me to the crucial
question as to the outcome of the weighing-up exercise. Two answers
had been proposed. The one
was accepted by the court a quo and
embodied in its order. The alternative was suggested by Bridon. In
broad outline it amounted
to this. The Commission must reveal to
Bridon exactly what confidential information it relied upon. If
possible, Bridon will then
permit disclosure of that information in
the form of a non-confidential summary. Though on the face of it, the
offer may seem reasonable,
closer analysis reveals why the court a
quo found it unacceptable. From Bridon’s answering affidavit it
is apparent that
it had a good idea which of its confidential
information was involved. Pursuant to s 33(2)
(b)
of the
Act, it was obliged, when it claimed confidentiality in respect of
that information, to provide a non-confidential summary
of the
information or to state under oath why a non-confidential summary was
not possible. Having opted for the latter, it is scarcely
open to
Bridon to offer the very non-confidential summary, which it
previously stated under oath to be impossible. In addition,
according
to Bridon’s answering affidavit the confidential information
probably relied upon by the Commission consists of
exact figures
pertaining to cost prices, input costs, percentage mark-ups and so
forth, which are hardly capable of being summarised
in a
non-confidential form. Finally I have already alluded to the fact
that it is not only the confidential information actually
used by the
Commission that may prove relevant in the main application, but also
confidential information which it did not use.
[35] As to the solution preferred by
the court a quo, Bridon’s main objection is that it is
difficult to apply in practice
and that it provides no absolute
guarantee against leakage. Though these objections are not without
substance, the types of restrictions
imposed in the court a quo’s
order are not novel. Despite Bridon’s pessimistic predictions
similar orders had been
granted before, for example, in
Moulded
Components and Rotomoulding SA (Pty) Ltd v Coucourakis
1979 (2)
SA 457
(W) and in
Crown Cork & Seal Co Inc v Rheem SA (Pty)
Ltd
1980 (3) SA 1093
(W). More recently, this type of order has
also been used as a mechanism in the application of
s 45(1)
of
the
Competition Act 89 of 1998
, which is very similar in wording to
s 35(3)
, in that it requires the Competition Tribunal to ‘make
any appropriate order concerning access to that confidential
information’
(see
Competition Commission v Unilever Plc
2004
(3) SA 23
(CAC) at 30F-I).
[36] As rightly pointed out by Bridon
this type of order has been criticised in other cases (see eg
Unilever Plc v Polagric (Pty) Ltd
2001 (2) SA 329
(C) at
341C-F;
Ekuphumleni Resort (Pty) Ltd v Gambling and Betting Board,
Eastern Cape
2010 (1) SA 228
(E) para 12). But the criticism was
aimed at the inequity these restrictions may bring about for the
litigant who seeks disclosure.
Since Casar is seemingly prepared to
accept the inequitable result in the interests of a compromise, this
objection hardly lies
in the mouth of Bridon. In all the
circumstances I believe that the order granted by the court a quo
strikes an appropriate balance
between the conflicting interests by
affording Casar access to Bridon’s confidential information in
the most restrictive
manner possible without denying Casar its right
to a fair hearing.
[37] In the result the appeal is
dismissed and the appellant is ordered to pay the costs of the first
respondent.
_______________
F D J BRAND
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: W TRENGOVE SC
F
ISHMAIL
Instructed
by: VAN DER MERWE ATTORNEYS
PRETORIA
Correspondents:
KRAMER WEIHMANN & JOUBERT ATTORNEYS
BLOEMFONTEIN
For
First Respondent: K PILLAY -
Instructed
by: THE STATE ATTORNEY
PRETORIA
Correspondents:
THE STATE ATTORNEY
BLOEMFONTEIN
For
Fourth Respondent: M C SEALE