Caga and Others v Transnet SOC Ltd and Another (1257/2021) [2024] ZAECQBHC 26 (22 March 2024)

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[2024] ZAECQBHC 26
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Caga and Others v Transnet SOC Ltd and Another (1257/2021) [2024] ZAECQBHC 26 (22 March 2024)

FLYNOTES:
PAIA – Transnet –
Report
by forensic investigator
–
Applicants
dismissed and court proceedings finalised – Seeking access
to report allegedly referring to circumstances
leading to
dismissal – Section 7(1) exclusion not applying on these
facts in respect of already concluded proceedings
– Section
11(1) of PAIA applying, when information is requested from public
bodies – Transnet relying on breach
of confidence owed to
third party in terms of agreement – Not producing sufficient
facts – Ordered to furnish
the applicants with copy of the
report –
Promotion of Access to Information Act 2 of 2000
.
IN THE HIGH COURT OF
SOUTH AFRICA,
EASTERN CAPE DIVISION,
GQEBERHA
CASE NO: 1257/2021
In the matter between:
AKHONA METHOD
CAGA
First

Applicant
DENVER
JOHNSON
Second

Applicant
TOKELO MOHANOE
MOLELENGUANE
Third

Applicant
MVUSELELO CORNELIUS
MAKANDA
Fourth

Applicant
MAWANDE
MASELA
Fifth

Applicant
MZUKISI
DALI
Sixth

Applicant
KQUATA
SEQOKO
Seventh

Applicant
LINDINKHOSI
HASHE
Eighth Applicant
NTSIKELELO WONDERBOY
KAMNQA
Ninth

Applicant
MASIXOLE
BOTHA
Tenth

Applicant
SIYABONGA
MAFANA
Eleventh

Applicant
XOLANI
KALI
Twelfth

Applicant
and
TRANSNET SOC LTD
First

Respondent
THE INFORMATION
OFFICER,
TRANSNET SOC LTD
Second

Respondent
JUDGMENT
BOTHA AJ:
Introduction
[1]
The
applicants are former employees of the first respondent, Transnet SOC
Ltd, specifically its subsidiary, Transnet Port Terminals,

established in 2000, when Portnet was divided into two parts, one
being the National Ports Authority
(Pty)
Ltd
(the
NPA).
[1]
I shall refer to the
First Respondent as “
Transnet
”
throughout this judgment.
[2]
The
second respondent is Transnet’s Port Terminals’
Information Officer.
[2]
[3]
Transnet
was
formed
and incorporated in terms of the Legal Succession to the South
African Transport Services Act (the SATS Act).
[3]
It is a wholly state-owned public company (SOC) with many business
divisions.
[4]
The National Ports
Act
[5]
now regulates the
business of the
NPA,
as a  subsidiary company of Transnet.
[6]
The main function of the NPA is “
to
own, manage, control and administer ports to ensure their efficient
and economic functioning”.
[7]
[4]
It
is common cause that the applicants were dismissed from the employ of
Transnet’s Port Terminals in 2016 for gross insubordination.
[8]
It is also common cause that the applicants challenged the fairness
of the dismissals and referred disputes to the Transnet Bargaining

Council (TBC).
[9]
The First and
Third to Twelfth Applicants were represented by the National Union of
Metalworkers of South Africa (NUMSA). The Second
Applicant was
represented by another union, namely the United National Transport
Union (UNTU). NUMSA’s referral was submitted
late and its
application for condonation on behalf of the First and Third to
Twelfth Applicants was dismissed by both the Arbitrator
and the
Labour Court. The application for leave to appeal the Court’s
decision was dismissed in February 2018.
[5]
UNTU’s
dispute, on behalf of the Second Applicant, was filed on time. The
Bargaining Council’s Arbitrator found that
the Second
Applicant’s dismissal was substantively fair and that dismissal
was an appropriate sanction in the circumstances.
A review
application to the Labour Court was dismissed.
[10]
[6]
Despite
these rulings, the Applicants continued to challenge the legitimacy
of their dismissals,
inter
alia
,
by way of repeated calls to Transnet officials pleading for
reinstatement
[11]
and a
referral to the Public Protector in 2019. The referral was not
pursued because Transnet advised the Public Protector’s
office
that the matter was
res
judicata
.
[12]
[7]
In
2021 the applicants launched this application in terms of the
Promotion
of Access to Information Act (PAIA
)
[13]
in which they requested the respondents to provide access to two
reports, namely:
a.
a
report compiled by a Forensic Investigator, Owen Mavana, in 2019,
based on case number BC.NUMSA/TPT(ECP)13623, allegedly referring
to
the circumstances leading to the dismissal of the applicants from the
respondent’s employment (the so-called Mavana report);
and
b.
the
ICAS report of 2018 concerning the Ngqurha Container Technical
Department, which also allegedly contained information related
to the
dismissal of the applicants (the so-called ICAS report).
[8]
In
an amended notice of motion, the applicants later added an
alternative prayer, namely that the respondents be directed to
deliver
the Mavana Report to the Court in terms of
section 80(1)
of
PAIA to enable the Court to examine the Report and to decide whether
the applicants are entitled to be granted access to it.
Issues between the
parties arising from the papers
Applicants’ case
[9]
The
applicants initially alleged that they were entitled to access to
both the Mavama and ICAS Reports to protect their due process
and
labour rights as ex-employees of Transnet.
[14]
They added that the Reports were needed to enable them “to take
advice and then make a decision as to whether any further
steps
should be taken”.
[15]
[10]
The
applicants have since conceded, however, that they are not entitled
to access to the ICAS Report.
[11]
Despite
their reliance on their labour law rights, the applicants request for
access to information and this application were both
framed on the
premise that Transnet acted as a public body in terms of PAIA in
relation to the reports in issue (subsequently,
only the Mavana
Report remaining in issue).
[16]
This disconnect unfortunately complicated the issues unnecessarily.
Respondents’
case
[12]
Transnet
refuses to provide access to the Mavana Report on the basis that:
a.
the
Report is excluded from the scope of application of PAIA because
section 7
of the Act applies, but in any event;
b.
Transnet
acts as a private body in respect of employee relations, including
disciplinary proceeding; and
c.
the
Mavana Report relates to its activities as an employer; and
d.
the
applicants have not established that the Mavana Report is required
for the exercise or protection of
their rights in terms of
section 50
of PAIA, given that Transnet acted as a private body in respect of
the Report and the applicants’ employment.
[13]
Should
the applicants, however, demonstrate that they have met the
section
50
threshold, the respondents then claim that the Mavana Report falls
within the exclusion in
section 65
of PAIA,
[17]
which
provides that
“
a
private body must refuse a request for access to a record of the body
if its disclosure would constitute an action for breach
of a duty of
confidence owed to a third party in terms of an agreement”.
[14]
In
support of this ground of refusal, the respondents explain that the
Mavana Report was produced pursuant to an agreement of
confidentiality
between Mr Mavana and Transnet, with the report
containing riders protecting its confidentiality and non-distribution
to third
parties without the prior consent of Transnet and Mr
Mavana.
[18]
The respondents
add that this exclusion would apply even if I find that Transnet is a
public body for the purpose of this request
as the same exclusion
applies to a request for access to records of public bodies in terms
of
section 37
of PAIA.
[15]
Regarding
the scope of application of PAIA, the
section 7
argument,  the
respondents claim that the Mavana Report was available to the
applicants during the Bargaining Council and
Labour Court
proceedings.
[19]
If the Report
had had any bearing on their cases, the applicants would have been
entitled to request access to the Report in terms
of the rules
governing discovery in those
fora
,
which they failed to do. On this basis, the respondents argue that
section 7(1)
of  PAIA applies and that the Report is excluded as
a record to which the Act applies.
[20]
Also,
section 7
applies regardless of whether Transnet acted as a
public or private body in relation to the Mavana Report.
[16]
In
short, according to the respondents, the request for the Mavana
Report is a “fishing expedition” for information

supporting the applicants’ ongoing “agenda of
reinstatement.”
[21]
Applicants’
response
[17]
In
response, the applicants deny that Transnet acted as a private body
in relation to the production of the Mavana Report. They
allege that
it concerns not only their “individual” employment
rights, but also those of “the whole department”.
They
add that they act in their capacity as former employees of Transnet,
“who have an interest it is important to know the
outcome”
(
sic
).
[22]
[18]
Moreover,
according to the applicants, as pointed out in the Founding
Affidavit, the Mavana Report was produced with the aim of

investigating various irregularities at Transnet, which is evident
from the fact that “the matter was presented in Parliament
on
the 14 October 2020 in the Portfolio Committee as the public has vast
interest. The committee has made an inquest in the Department
of
Public Enterprise.”
[23]
This fact, the applicants claim, demonstrates that whilst the Report
may impact upon their labour rights (which was the originally
stated
basis for their request for access to the Report), the Report goes
far further than that – it relates to a conspiracy
by Transnet
against the applicants and other employees, which matter warranted a
forensic investigation, and which suggests “systemic
failures”
at Transnet at the times of the applicants’ dismissal, the
consequences of which include a recommendation
that the applicants be
re-instated.
[24]
[19]
The
respondents deny these allegations in their answering affidavit. They
specifically deny that the Mavana Report contains any
mention of a
conspiracy and that it addresses the circumstances giving rise to the
applicants’ dismissal.
[25]
[20]
Regarding
the presentation of the Report to Parliament and the subsequent
inquest,
it
is not clear from the founding affidavit or Annexure D thereto how
and why “the matter” was referred to Parliament;
nor is
it apparent who referred the matter to Parliament. It is equally
unclear whether “the matter” refers to the
Mavana Report,
or the ICAS Report, or both reports, or the alleged conspiracy at
Transnet when the applicants were dismissed from
Transnet’s
employ.
[26]
[21]
The
deponent to the respondents’ answering affidavit states that
she has no knowledge of the presentation of the ICAS Report
in
Parliament (or any other report) or a so-called inquest. She calls
upon the applicants to present proof of the presentation
of the
Report in Parliament.
[27]
[22]
The
invitation to present more information about the discussion of the
Report/s in Parliament and the engagement of Parliament’s

Portfolio Committee in “the matter” is not taken up in
the Replying Affidavit. The First Applicant merely repeats the

allegations contained in his founding affidavit and again asserts
broadly that the very nature of a forensic report entails that
there
must have been some form of wrongdoing at Transnet, which matter is
in the public interest.
[28]
[23]
In
regard to the
section 65
exemption, the applicants’ response to
this assertation is that, even if the Mavana Report falls within the
ambit of
section 65
, the mandatory public interest “override”
in either
section 46
or
70
of the Act applies (depending on whether
Transnet acted as a public or private body)
[29]
and thus I should grant the applicants access to the Report
regardless of any confidentiality that may pertain to the Report.
[24]
Concerning
the respondents’ reliance on
section 7
of PAIA, the applicants
say that during the Labour Court proceedings, “only a
transcript of the report was submitted.”
Also, the founding
affidavit asserts that the transcript was inaccurate, because
inter
alia
an
important audio recording was omitted.
[30]
Thus, as I understand the submission,
section 7
of the Act does not
apply.
[25]
This
allegation is dealt with specifically by the respondents in the
answering affidavit, in which it is asserted that audio recordings
do
not form part of the Mavana Report and it is not at all clear what
the distinction is between a transcript of the Report and
the Report
itself.
[31]
The replying
affidavit does not address this issue; the first applicant again
merely repeating what was said in the founding affidavit.
[32]
It is not denied that either the Mavana Report or the ICAS Report
were available to the parties during the various labour proceedings.
[26]
Instead,
by means of the amended notice of motion, the applicants place
reliance on
section 80
of PAIA and ask that I exercise my discretion
to view the Report to decide whether they are entitled to access to
it.
Section 80(1)
provides that ‘[
D]espite
this Act and any other law, any court hearing an application, or an
appeal against a decision on that application, may
examine any record
of a public or private body to which this Act applies, and no such
record may be withheld from the court on
any grounds.’
Colloquially known as a ‘judicial peek,’ this provision
permits the court hearing the application
to review the record in
issue independently to assess whether the justification for the
denial of access is a valid one.
[33]
Background to the PAIA
Request
[27]
The
applicants’ PAIA request for access to the reports was lodged
in November 2020. The applicants used
“
Form
A: Request for Access to Record of Public Body”.
[34]
In
January 2021, the CEO of Transnet’s Port Terminal replied to
the request. Access to the ICAS report was refused using
sections
33(1)(a)
and
34
of PAIA (
inter
alia
to
protect the privacy of a third party who is a natural person).
Further clarity was requested about which specific Mavana Report
was
required as Mr. Owen Mavana had apparently prepared a number of
reports for Transnet in 2019.
[35]
[28]
The
first applicant responded to Transnet’s request for information
and provided some detail about the specific Mavana Report

requested,
[36]
but did not
indicate the basis underlying the applicants’ entitlement for
the production of the Report.
[37]
[29]
Transnet
did not reply to the request in time and the applicants then launched
an internal appeal against Transnet’s failure
to provide the
documents. Even though Transnet had apparently reached a decision to
refuse access to the reports, this decision
was not sent to the
applicants within the prescribed PAIA period. There was thus a deemed
refusal of the appeal.
[38]
[30]
This
application was then launched.
[31]    After
receipt of the respondents’ replying affidavit, the applicants
conceded that they are not
entitled to the ICAS Report. For this
reason, I am only required to decide whether the applicants are
entitled to access to the
Mavana Report, alternatively whether the
Report should be provided to the Court to exercise its discretion in
terms of
section 80(1)
of PAIA.
Issues in dispute
[32]    The
main issue between the parties is whether the applicants are entitled
to access to the Mavana Report
in terms of PAIA, alternatively
whether this Court should exercise its discretion in terms of
section
80(1)
of the Act (the so-called “judicial peek”) to
determine whether the PAIA threshold has been met and, if so, whether
section 65
applies (assuming Transnet acted as a private body in
respect of the Report / relationship in question).
[33]    This
question is complicated by the fact that there is a dispute between
the parties as to whether Transnet
should be treated as a private or
as a public body in relation to the Mavana Report and the basis upon
which access to the Report
is requested.
[34]    The
applicants have also alleged that, even if
the
Report contains a confidentiality exclusion permitting Transnet to
withhold access to the Report, then the mandatory public
interest
“override” in either
section 46
of 70 of the Act applies
(depending on whether Transnet acted as a public or private body) and
thus I should grant the applicants
access to the Report.
[35]
A
preliminary issue is whether
section 7
of the Act applies and whether
or not the Mavana Report constitutes a record falling within the
scope of application of the Act.
[36]
Much
is made in the papers of the fact that the applicants used “Form
A: Request for Access to Record of Public Body”
[39]
when they first requested access to the reports.
[40]
In my view, even if I should find that Transnet acted as a private
body, this is a matter of form, does not impact on whether or
not the
applicants have complied with PAIA’s procedural requirements,
and should not influence whether I grant or refuse
access to the
Mavana Report.
[41]
Instead,
what must be determined is whether the Report constitutes a record in
terms of PAIA, whether Transnet acted as a public
or private body in
relation to the creation of the Report, its connection to the
applicants’ employment and their concomitant
dismissal and, in
turn, whether the applicants are entitled to access to the Report.
[37]    To
address these issues, I now turn to PAIA itself, its scope of
application, the requirements for access
to a record, both from a
private and public body, and the various grounds of refusal at stake.
I also address the basis for
section 80
, which entitled the Court to
exercise its discretion to have access to the Report.
The PAIA:
Constitutional and Legislative Framework
The purpose of PAIA
[38]
PAIA
was
enacted to give effect to the constitutional right of access to
information entrenched by section 32 of the Constitution
and
provides a statutory right of access to records held by public and
private bodies.
[42]
[39]
In
Brümmer
v Minister for Social Development
,
[43]
the Constitutional Court explained the importance of the right of
access to information as follows:
‘ …
in a
country which is founded on values of accountability, responsiveness
and openness, [the importance of the right] cannot be
gainsaid. To
give effect to these founding values, the public must have access to
information held by the State. Indeed one of
the basic values and
principles governing public administration is transparency. And the
Constitution demands that transparency
must be fostered by providing
the public with timely, accessible and accurate information. . .
.’
[44]
PAIA’s Structure
[40]
PAIA
is divided into four Parts. Part 1 contains its general introductory
provisions, including the objectives of the Act (section
9) and the
types of records to which the Act does not apply (section 7). The
provisions in Part 1 apply to records held by both
private and public
bodies. Part 2 of the Act addresses access to records held by public
bodies, whereas Part 3 applies to records
held by private bodies.
Part 4 contains the provisions governing internal appeals. Parts 2
and 3 set out the threshold and procedural
requirements to be met for
requests for access to records held by public and private bodies
respectively. They also contain provisions
listing the various
grounds upon which both public and private bodies may refuse access
to records held by them.
[41]
Before
distinguishing between a public and private body and the threshold
tests that have developed to determine whether a requester
is
entitled to access to a relevant record, it is necessary to address
the introductory and general provisions in Part 1 of the
Act.
[42]
The
objectives of PAIA are set out in section 9 and resonate with the
Brümmer
Court’s description of the importance of the right. For
example, section 9(e) provides that the objectives of the Act are

‘
generally, to promote
transparency, accountability and effective governance of all public
and private bodies by, including, but
not limited to, empowering and
educating everyone (i) to understand their rights in terms of this
Act in order to exercise their
rights in relation to public and
private bodies; (ii) to understand the functions and operation
of public bodies; and
(iii) to effectively scrutinise, and
participate in, decision-making by public bodies that affects their
rights.’
The
application of PAIA – section 7
[43]
Chapter
2 of Part 1 of PAIA is headed “General Application Provisions”.
The provision most relevant here is section
7. It provides that the
PAIA
does
not apply
to
information sought for the purpose of criminal or civil proceedings
after the commencement of those proceedings (
my
emphasis
).
This is so regardless of whether the holder of the record is a public
or private body. The three requirements listed in section
7, must
nonetheless be met for a record to be excluded from the application
of the Act.
[45]
These
are that
the
Act does not apply to any record if:
a)
that record is requested for the purpose of criminal or civil
proceedings; (b) [was] so requested after the commencement
of
such criminal or civil proceedings …; and (c) the
production of or access to that record for the purpose referred
to in
paragraph (a) is provided for in any other law.
[44]
The
rationale for the exclusion of such records from PAIA’s scope
of application is that ‘the right of access to information,
as
given effect to by PAIA, should not be used to circumvent the
particular rules of procedure in litigation.
[46]
This
rationale was recently confirmed by the Constitutional Court in
Competition Commission of South Africa v Standard Bank,
[47]
the
Court holding that “a dual system of access to information, in
terms of both PAIA and the particular court rules, has
the potential
to be extremely disruptive to court proceedings’ and that the
purpose of section 7 is to protect the process
of the court.
[48]
After
proceedings have been instituted,  the parties should be
governed by the applicable rules of court.
[45]
However,
section 7 must be restrictively interpreted.
[49]
Access to records held
by public and private bodies
[46]
Assuming
that the section 7 application hurdle is overcome, PAIA provides that
b
oth
public and private bodies must provide access to requested records if
the threshold requirements in sections 11 and 50 respectively
are
met. This is the case, unless refusal of the request is permitted by
a ground of refusal recorded in PAIA. These grounds
must be
narrowly interpreted and carefully applied though as they limit the
constitutional right of access to information.
[50]
[47]
The
distinction between a public and private body is important when
determining whether a requester is entitled to a record, because
PAIA
contains different threshold tests depending on whether the record in
issue is held by a public body as opposed to a private
body.
Threshold
test for access to records held by a public body
[48]
Section
11(1) of PAIA provides that when information is requested from public
bodies, a requester
must
be given access to the information requested if a) the requester
complies with all the Act’s procedural requirements for
such a
request
and
b)
access to
that record is not refused by any ground for refusal contemplated in
Chapter 4 of the Act.
[49]
In President
of the Republic of South Africa v M &G Media Ltd (M &G Media
Ltd )
[51]
the
Constitutional Court held that
the
language used in section 11 of the PAIA places a peremptory
obligation on a public body to give access of information to the

requester. This means that the disclosure of information is the rule,
whilst exemption from disclosure, the exception. When access
is
sought to information in the possession of the state it must be made
available. Refusal limits the right of access to information.

The onus is thus on the state to justify a request for refusal of
access to a record.
[52]
Threshold
test for access to records held by a private body
[50]
In
the case of private bodies, section 50 of the Act applies, and the
right is exercisable only to the extent that the record requested
is
required for the exercise or protection of the requester’s
rights.
[53]
If this threshold
is met, and the various procedural requirements are met, then the
report must be provided, unless the requester
raises a Chapter 4
ground of refusal.
[51]
The
requester bears the onus of proving that the request falls within the
ambit of section 50(1) of PAIA and is thus required to
state what
right is relied upon, the record required, and why that record is
required to exercise or protect that right.
[54]
It is thus more difficult to obtain access to a report generated by a
private body.
[52]
To
discharge this onus, the applicant “need only put up facts
which
prima
facie
,
though open to some doubt, establish that he has a right which access
to the record is required to exercise or protect.”
[55]
[53]
The
meaning of the word “required” has been interpreted as
follows: ‘[i]information can only be required for the
exercise
of a right if it will be of assistance in the exercise or
protection of the right’.
[56]
This meaning was refined in Clutchco (Pty) Ltd v Davis,
[57]
the
Supreme Court of Appeal holding that “required” does not
equal necessity. Rather the test is whether the record
is “reasonably
required” based on the facts of the case, which test must be
understood to “connote a substantial
advantage or an element of
need.”
[58]
[54]
In
Company Secretary of Arcelormittal
v
Vaal Environmental Justice Alliance
[59]
the Supreme Court of Appeal re-emphasised the intersection between
the “required” constraint and the facts of the matter.

The Court added that “the word “required” should be
construed as “reasonably required” in the circumstances.

The court must thus determine whether an applicant has laid a proper
foundation setting out why the document is reasonably required
for
the exercise or protection of his or her rights.
[55]
Similarly,
in My Vote Counts NPC v Speaker of the National Assembly, the
Constitutional Court confirmed that “. . . The
person seeking
access to the information must establish a substantial advantage or
element of need. The standard is accommodating,
flexible and in its
application fact-bound. . . .’
[60]
Definitions
of and distinction between public and private bodies
[56]
A
public body is defined as
a)
any department of state or administration in the national or
provincial sphere of government or any municipality in the local

sphere of government; or (b) any other functionary or
institution when (i) exercising a power or performing a duty in terms

of the Constitution or a provincial constitution; or (ii)
exercising a public power or performing a public function in terms
of
any legislation.
[61]
[57]
The
definition of an “organ of state” in section 239 of the
Constitution correlates with the definition of a “public
body”
in the PAIA. The only difference is that for PAIA a “public
body” does not exclude a court or judicial
officer.
[62]
[58]
A
private body is defined as
a)
a natural person who carries or has carried on any trade, business or
profession, but only in such capacity; (b) a partnership
which
carries or has carried on any trade, business or profession; (c)
any former or existing juristic person; or (d)
a political
party, but excludes a public body.
[63]
[59]
Section
8(1) of the PAIA provides that
a
public body referred to in paragraph (b) (ii) of the definition of
'public body' in section 1, or a private body may be a) either
a
public body or a private body in relation to a record of that body;
and b) in one instance be a public body and in another
instance be a
private body,
depending on whether that
record relates to the exercise of a power or performance of a
function as a public body or as a private
body
(
my
emphasis
).
[60]
Thus,
section 8 of PAIA provides that a body could be a public body in
respect of certain records, and a private body in respect
of other
records. Importantly, to determine whether a particular record was
generated by a public body or private body, an analysis
of the
activity or function exercised by the body when it produced the
record in question is needed.
[64]
[61]
So,
for example, in Transnet Ltd v SA Metal Machinery Company (Pty)
Ltd,
[65]
where an unsuccessful
tenderer requested that Transnet give it access to records reflecting
the successful tenderer’s pricing,
it was accepted that
Transnet acted as a public body in relation to the tender, which
concerned the removal of galley waste from
ships in the Cape Town
harbour. Transnet resisted disclosure, relying on two grounds of
refusal. Whilst I address the nature of
the ground of refusal relied
upon in this case below, it is noteworthy that the Court in SA Metal
held that where Transnet
enters
into a commercial agreement of a public character (the disclosure
which does not involve risk to State security or the safety
of the
public), then “the imperative of transparency and
accountability entitles members of the public, in whose interest
an
organ of State operates, to know what expenditure such an agreement
entails. I therefore fail to see how the confidentiality
clause could
validly protect the successful tenderer’s tender price from
disclosure after the contract has been awarded.”
[66]
[62]
Section
8(2) of PAIA provides further that a request for access to a public
record must be made in terms of section 11 and that
a request for
access to a private record must  be made in terms of section 50.
I have already set out the threshold requirements
for access to
reports whether held by a public or private body.
Grounds justifying
refusal of access
[63]
PAIA
recognises that there are justifiable limitations on the right of
access to information held by both public bodies and private

bodies.
[67]
The grounds
of exemption applicable to both bodies are set out in Chapter 4 of
Parts 3 and 4 of the Act respectively.
[64]
PAIA
includes both mandatory and discretionary grounds for refusal. The
use of the word ‘must’ in the text of the relevant
ground
signifies a mandatory ground of refusal and requires the officer of
the relevant body to refuse access if the grounds provided
in the Act
are established. Discretionary grounds are denoted using ‘may’
and allow the officer of the relevant body
to use their judgment in
determining whether to grant access where the grounds provided in the
Act are established. Such discretion
must be exercised lawfully and
reasonably.
[68]
[65]    Should
I find that Transnet acted as a private body, the respondents assert
that section 65 of the Act
applies. This provision is headed
“
Mandatory protection of certain
confidential information of third party” and provides that
“[T]he head of a private
body must refuse a request for access
to a record of the body if its disclosure would constitute an action
for breach of a duty
of confidence owed to a third party in terms of
an agreement.
[66]
In
relation to a public body, the equivalent ground of refusal is found
in section 37 of the Act. It is headed
‘
Mandatory
protection of certain confidential information, and protection of
certain other confidential information, of third party.’

It provides that:
“
(1)
Subject
to subsection (2), the information officer of a public body –
(a)    must
refuse a request for access to a record of the body if the disclosure
of the record would constitute
an action for breach of a duty of
confidence owed to a third party in terms of an agreement; or
(b)    may
refuse a request for access to a record of the body if the record
consists of information that was
supplied in confidence by a third
party
(i)    the
disclosure of which could reasonably be expected to prejudice the
future supply of similar information,
or information from the same
source; and
(ii)    if
it is in the public interest that similar information, or information
from the same source, should
continue to be supplied.
(2)    A
record may not be refused in terms of subsection (1) insofar as it
consists of information—
(a)    already
publicly available; or
(b)
about
the third party concerned that has consented in terms of section 48
or
otherwise
in writing to its disclosure to the requester concerned.’
I
address the way in which this ground of refusal has been interpreted
below.
Mandatory disclosure
in the public interest
[67]
Any
ground of refusal, whether raised by a public or private body,
or
whether mandatory or discretionary,
is
subject to the public interest override in
PAIA,
with section 46 applying to public bodies and section 70 applying to
private bodies. The wording of the respective sections
is almost
identical. They provide that even where a ground for refusing access
to a report exists, the public interest in that
report will outweigh
the ground of refusal. Two elements must be met. Firstly, it needs to
be established that the disclosure of
the record would reveal
evidence of either a) a substantial contravention of, or failure to
comply with, the law or b) an imminent
and serious public safety or
environmental risk. Secondly, after establishing that the records
falls within one of these categories
of information, it must be
established that the public interest in the disclosure of the record
clearly outweighs the harm contemplated
in the relevant ground for
refusal.
[69]
Burden of proof –
grounds of refusal
[68]
Section
81 of PAIA provides that the burden of establishing that the refusal
of access to information is justified under the provisions
of PAIA
rests on the state or any other party refusing access. As in any
civil proceedings, the evidentiary burden of a balance
of
probabilities must be discharged.
[70]
[69]
The
body refusing access must provide evidence that the contested record
falls within the boundaries of the ground of refusal relied
upon.
Sufficient evidence must be advanced for a court to conclude that, on
the probabilities, the information withheld falls within
the
exemption claimed. It is unacceptable merely to repeat the language
used in PAIA to justify the exemption. It is also inadequate
for a
deponent to state only that a specific exemption applies. Instead,
“sufficient information to bring the record within
the
exemption claimed” must be produced.
[71]
[70]
In
addition, the Constitutional Court in
M
& G Media Ltd
held
that a court should be cognisant that a PAIA application and the
reliance on a ground of justification raises its own unique

challenges. Firstly, the facts upon which the exemption is justified
are invariably within the knowledge of the holder of information.

Consequently, the requester may need to use a bare denial to counter
the facts raised by the holder justifying refusal of access.
Because
a bare denial will normally not be sufficient to raise a genuine
dispute of fact, the
Plascon-Evans
[72]
rule requires that the application be determined on the factual
allegations made by the party refusing access. Secondly, a holder
of
information who has to rely on the contents of the record to justify
the exemption claimed, will be prevented from doing so
by virtue of
sections 25(3)(b) and 77(5)(b) of PAIA, which preclude any reference
to the content of the record in order to support
a claim of exemption
[73]
[71]
Courts
are therefore empowered by section 80(1) of PAIA to call for
additional evidence in the form of the contested record to test
the
validity of the exemption claimed.
[74]
It is to this section which I now turn.
Section 80(1) –
Judicial Peek
[72]    Section
80(1) of PAIA provides: “Despite this Act and any other law,
any court hearing an application,
or an appeal against a decision on
that application, may examine any record of a public or private body
to which this Act applies,
and no such record may be withheld from
the court on any grounds.”
[73]
Section
80(1) was drafted as an override provision that may be applied
despite the other provisions of PAIA and any other law.
[75]
[74]
In
M
& G Media Ltd
,
after analysing relevant foreign law as to when section 80 should
apply, the Court concluded that “[J]udicial peek facilitates

the responsible exercise of the judicial function where courts may be
lacking the material necessary to responsibly determine whether
the
record falls within the exemption claimed.”
[76]
The situation is complicated though, because section 80 does not list
the circumstances in which a court may exercise its power
to examine
the record.
[75]
The
power to view the record is nonetheless a discretionary one, which
must be exercised judiciously, with due regard to a) the
importance
of the right of access to information in the constitutional project
and b) any difficulties the parties may face in
meeting the relevant
threshold tests entitling or refusing access. In short, the provision
enables a court to review the record
independently to adjudicate the
validity of the request and “provides legislative recognition
that, through no fault of their
own, the parties may be constrained
in their abilities to present and refute evidence”.
[77]
[76]
As
to the relevant standard for the exercise of its discretion, the
position is that the court should consider whether there is
a
possibility of injustice caused by the difficulties faced by parties
in access to information disputes. And, in assessing whether
there is
potential for injustice, a court should implement section 80(1) only
when it would be in the interests of justice to do
so (which
necessarily requires an analysis of the public interest, and
specifically whether the argument for non-disclosure applies
or
not).
[78]
[77]    It
will generally be in the interests of justice to invoke section 80
where there is doubt, emerging
from the unique evidential limitations
in access to information disputes, as to whether an exemption is
rightly claimed. This may
be the case where, through no fault of
either party, the evidence presented is insufficient to allow the
court to determine responsibly
whether access is permitted.
[78]
Ultimately,
the underlying aim of section 80 is to ensure that courts are not
“forced into the role of mere spectators in
an adversarial
process that, because of the nature of access to information claims,
may not produce the factual record necessary
for courts to execute
their judicial function responsibly”.
[79]
The discretion to exercise a judicial peek is thus a critical tool
enabling courts to assess claims asserting claims of non-disclosure

independently and uphold the constitutional right of access to
information.
[80]
The section 7
argument: Does PAIA apply to the Mavana Report?
[79]
It
is not disputed that the Mavana Report was available to the
applicants during the Labour Court and Bargaining Council
Proceedings.
[81]
The
applicants have also not explained why discovery of the Report was
not requested during such proceedings (apart, that is, from
general
incompetence on the part of their union representatives during such
proceedings).
[82]
[80]
Whilst
the applicants claim that the Mavana Report relates to a conspiracy
at Transnet when they were dismissed, and that it is
in the public
interest, having being prepared by a forensic investigator,
[83]
and having served for consideration before a parliamentary
committee),
[84]
the applicants
seeks access to the Report to challenge their dismissal from
Transnet.
[85]
[81]
The
applicants’ motivation is irrelevant, however, when considering
whether the Mavana report falls within the scope of section
7 of PAIA
as a record to which PAIA does not apply. Section 7 will exclude a
record from PAIA’s ambit only when all three
of its
requirements are met.
[86]
These are that
a)
the record is requested for the purpose of criminal or civil
proceedings; (b) the record is requested after the commencement

of such criminal or civil proceedings; and (c) the production of
or access to that record for the purpose referred to in paragraph
(a)
is provided for in any other law.
[87]
[82]
The
question is whether these three requirements have been met here. The
enquiry is complicated by the fact that the cases involving
the
applicants’ dismissal from Transnet were finalised in 2017,
whereas this application was launched in 2022, with the initial
PAIA
request lodged in 2020. The question, in other words, is whether
section 7(1) can be used to exclude a requested record from
PAIA’s
ambit
after
the
relevant court proceedings to which the records relate have been
finalised (
my emphasis
).
[83]
This
point was not addressed in detail in argument by either party. The
applicants did not deal with the issue at all and the respondents

asserted merely that section 7(1), specifically section 7(1)(c)
applies, because the applicants were free to use the rules of
discovery to obtain the Mavana Report during their earlier
proceedings and chose not to do so. I was not referred to specific
authority
to support the argument, other than
PFE
International Inc
(BVI),
[88]
to which I refer to in more detail below.
Also,
it was only in oral argument that I was informed which “law”
would permit the applicants to access the Mavana
Report during the
various Labour Court and Bargaining Council proceedings.
[89]
[84]    It
is thus necessary to determine how section 7(1) has been applied in
other cases and whether its provisions
should be interpreted to
exclude a record that was available during prior proceedings, but
which was not requested at the time.
[85]
The
records in
PFE
International Inc
(BVI)
were requested to enable the applicants to respond to a Request for
Particulars for Trial in a matter which was already pending.
[90]
The respondents argued that because access to the records was
requested for the purpose of pending civil proceedings, the
applicants
should have used a
subpoena
duces tecum
in
terms of Rule 38(1) of the Uniform Rules of Court and that the
records did not fall within the ambit of PAIA by virtue of the

exclusion in section 7(1) of PAIA. It was common cause that the first
two requirements of section 7(1) of PAIA had been met. The
issue
before the Court was whether Rule 38(1) fell within the ambit of
section 7(1)(c) of PAIA and constituted a “law”
which
entitled the applicants to access to the records.
[91]
In answering this question, the Court confirmed that Rule 38(1) was
to be interpreted generously to enable the applicants to obtain

access to the records requested as part of the civil proceedings.
Such an interpretation meant that Rule 38(1) entitled the applicants

to access the same documents requested under PAIA and that the Rule
accordingly amounted to a “law” as contemplated
by
section 7(1)(c) of PAIA. Thus, the applicants could not rely on PAIA
to obtain access to the records.
[92]
[86]
In
Mahaeeane v Anglogold Ashanti Limited,
[93]
a matter dealt with by the Supreme Court of Appeal, a class action
had been launched against the respondent for damages sustained
by
current and former mineworkers after contracting silicosis arising
from their employment. Although also formerly employed by
the
respondent and also ill with silicosis, the appellants were not
listed as members of the original class in the certification

application (some 56 current and former employees were, in fact,
listed). The certification application was granted, but was subject

to an appeal.
[94]
[87]
Whilst
the appeal was pending, the appellants requested access to various
records held by the respondent in terms of section 50(1)
of PAIA
(request for records held by a private body), stating that they were
included in the group of persons to which the class
action related.
Their attorney testified that the records were required to enable him
“
to
assess and advise the [appellants]: Whether or not the respondent
complied with the general duty of care owed by it to the [appellants]

to provide and maintain a safe and healthy work environment for its
employees as stipulated in section 5 of the [Mine Health and
Safety
Act 29 of 1996] (the MHSA).”
[95]
[88]
The
respondent claimed that the appellants were purposefully omitted from
the class action to avoid the ambit of section 7(1) of
PAIA and that
the PAIA application was merely “a stratagem to obtain
discovery in advance for the class action.”
[96]
In support, the respondent added that the requested records were
required for the class proceedings which had already commenced
and
that the discovery rules provide for the production of the records
requested.
[97]
In any
event, according to the respondent, the appellants had not met the
threshold test in section 50(1) of PAIA for access
to records held by
a private body.
[98]
[89]
In
relation to the interplay between sections 50(1) and 7(1) of PAIA,
the Supreme Court of Appeal held that the appellants bore
the onus of
proving that the request fell within section 50’s ambit.
[99]
If discharged, only then would the question of whether the records
were excluded by section 7(1) of PAIA arise. The case
in
casu
,
of course, is different – the applicants request Transnet for
access to the Mavana Report in its capacity as a public body
and
specifically refute the allegation that the Mavana Report was created
merely for private employment relations.
[90]
In
regard to the section 50(1) analysis, the Mahaeene Court referred to
the decision in Unitas Hospital v Van Wyk,
[100]
and held that the appellants’ request did not meet the
requisite threshold because the records were not requested to enable

the appellants to formulate their claim. Instead, the records were
requested to evaluate the prospects of the success of the claim,
with
the discovery process enabling this objective.
[101]
In any event, even though the appellants were not listed in the
certification of the class action, they were included in the class,

and the certification process constituted the commencement of the
proceedings between the parties.
[102]
The appellants were thus not entitled to the records requested
because a) they had not discharged the onus in section 50(1); and
b)
section 7(1) applied – proceedings had commenced, which
proceedings entitled the appellants to obtain access to the requested

records through the discovery process.
[91]    Whilst
helpful, neither of these cases correlate with the scenario presented
in casu
– that is a request for access to a report
relevant to proceedings finalised at least two years before the PAIA
request was
launched and which was available at the time of the
proceedings.
[92]
Although
the decision in
Competition
Commission of South Africa v Standard Bank of South Africa Ltd;
Competition Commission of South Africa v Waco Africa
(Pty) Ltd
[103]
does
not deal with such scenario, it provides some guidance as to how
section 7(1) should be interpreted in such a case.  Here,
the
Constitutional Court was required to assess the relationship between
section 7(1) of PAIA and the rules of the Competition
Tribunal
regulating discovery in cases where a
complaint
of anti-competitive behaviour had been referred by the Commission to
the Tribunal. The Court confirmed the principle that
the objective of
section 7 and its equivalent in other legislative instruments is to
ensure that PAIA’s requests do not disrupt
or interfere with
court proceedings where the discovery rules also permit access to
documents relevant to the case.
[104]
The Court reiterated that if PAIAwere  to apply in such cases,
it
“
would
be disruptive to court proceedings.”
[105]
[93]    Given
the objective of section 7(1), that its ambit should be restrictively
interpreted to facilitate
the right to access to information, and
that PAIA itself dictates in section 2 that the Act is to be
interpreted in a manner that
gives effect to PAIA’s objectives,
as set out in section 9, I find that section 7(1) does not apply on
these facts and in
respect of already concluded proceedings.
Certainly, a request for access to a record after court proceedings
have been finalised
cannot disrupt such proceedings. Another factor
to consider is that only the Second Applicant’s case was dealt
with substantively,
whereas the other applicants’ cases were
not submitted in time and were dismissed on this basis.
[94]    This
means that I now need to determine whether the Mavana Report was
produced by Transnet as a public
body or as a private body and,
accordingly, which threshold test for access should be applied.
The status of Transnet
in relation to the Mavana Report – public body or private body?
[95]
Transnet
is an State Owned Company (SOC) and can act as both a public and
private body for the purposes of PAIA.
[106]
It will act as a public body when it a) exercises a power or performs
a function in terms of the Constitution or a provincial Constitution

or b) it exercises a public power or performs a public function in
terms of any legislation.
[107]
[96]
Transnet
will be regarded as a private body for PAIA purposes when it acts in
a way that does
not
amount to the exercise of a public power or the performance of a
public function authorised by legislation
and
it produces a record in relation to such function.
[97]
The
crucial issue therefore is
whether
Transnet produced the Mavana Report in the exercise of a power or
performance of a function as a public body or in its capacity
as a
private body. This question must be answered with reference to the
nature of the activity or function exercised by the body
when
it generated the record in question
,
[108]
and thus, Transnet’s functions. Put another way, the enquiry is
whether the function to which the record relates is a public
or
private function.
[109]
[98]
The
answering affidavit endeavours to explain the nature of both the ICAS
and Mavana Reports and the circumstances in which these
reports were
produced. Whilst it deals in detail with the ICAS Report,
[110]
it does not contain the same level of detail about the Mavana Report.
[99]
The
nature of the ICAS Report is elaborated upon in the section where
reliance is placed on section 63 of PAIA (Mandatory Protection
of
Privacy of a Third Party) as a ground of refusal. Here, we are
informed that ICAS is a corporate entity, named ICAS Employee
and
Organisation Enhancement Service Southern Africa (Pty) Ltd (or ICAS
for short) and that it operates as an Employee Assistance
Programme
provider. It supports the promotion of employee health and
well-being.
[111]
In 2018
Transnet asked ICAS to conduct sessions with randomly selected
employees at the Port of Ngqura site to identify and understand
“key
issues of concern in the employment relationship” from an
employee perspective.
[112]
The ICAS Report was produced as a result. Its front page clearly
indicates that it is a confidential document, with the employees

involved having agreed to participate openly in the sessions on the
basis that their confidentiality would be honoured.
[113]
The deponent to the respondents’ affidavit adds that Transnet
is in possession of the Report, that she has read it, and that
she
can confirm that it does not deal with the applicants’
dismissal. She asserts that the Report relates the experiences
of the
interviewed employees at Transnet and their attitude towards
Transnet, as employer.
[114]
[100]
Following
this explanation, the applicants conceded that they were not entitled
to access to the ICAS Report.
[115]
[101]
The
answering affidavit only devotes two short paragraphs to the Mavana
Report – immediately after explaining the circumstances
under
which the ICAS report was commissioned and produced.
[116]
All that is disclosed is that the Mavana Report (like the ICAS
Report) was “produced pursuant to an agreement of
confidentiality
between Mr Mavana and Transnet”; that the
Report “is for management information and internal discussion
purposes only”
and that “the report was prepared solely
for purpose of reportion (sic) of the findings / observations and may
not be used
for any other purposes.”
[117]
The deponent does not state that Transnet is in possession of the
Report or that she has read the Report. The deponent also does
not
disclose what issues the Report addresses. There is no indication
about whether any employees participated in group-based sessions

leading to the production of the Report and, if so, whether these
employees have consented to its disclosure. The fact that the
Report
was prepared for management information and internal discussion only
does not take the matter much further (that is to show
that it
concerned employee-related matters only), especially given the
applicants’ allegations about the nature of the Mavana
Report
in their founding affidavit.
[102]
To
aggravate matters, later on, when replying to the specific
allegations about the Mavana Report in the founding affidavit, the

deponent to the answering affidavit merely denies that the Mavana
Report addresses an alleged conspiracy at Transnet, or irregular

conduct on the part of Transnet’s officials,
[118]
or the “circumstances giving rise to the dismissal of the
Applicants.”
[119]
Additional facts supporting the denial are not provided.
[103]
Whilst
I accept that the deponent to the affidavit had to deal with both the
ICAS Report and the Mavana Report in her answering
affidavit, and
that the facts were somewhat convoluted by virtue of the nature of
the two reports involved, the public / private
body debate and the
entire sequence of events, which commenced with the applicants’
dismissal in 2017, it is the respondents
who allege that Transnet
acted as a private body in relation to the production of the Mavana
Report and they must prove this allegation.
This approach accords
with the general tenor of the Act and sections 78 and 81
thereof.
[120]
It also ensure
that the objects of the Act and that the constitutional value of
accountability underpinning the right to access
to information is
promoted.
[121]
[104]
I
am thus not satisfied that the respondents have produced sufficient
evidence to convince me that the Mavana Report indeed deals
with
confidential employee matters and that it was produced by Transnet in
its capacity as a private body.
[105]
My
conclusion is supported by a consideration of Transnet’s status
as an SOC and the fact that it acts in the public interest,
as a
custodian of South Africa’s ports, rail and pipelines.
[122]
[106]
The
National Ports Authority (NPA) is a division of Transnet. The NPA’s
main function is to own, manage, control and administer
ports to
ensure their efficient and economic functioning, which includes a
lengthy list of functions, such as providing port infrastructure,

maintaining the sustainability of the ports and their surroundings;
regulating and controlling pollution and the protection of
the
environment within the port limits; and ensuring that South Africa
fulfils her international obligations relevant to ports.
These
are all clearly public functions and, when the NPA fulfils these
types of functions, it acts as a public body.
[123]
[107]
However,
the NPA requires human capital and must employee people to fulfil its
functions. The question is then whether it acts as
a public or
private body in relation to employment matters, which would include
the termination of an employee’s employment.
[108]
The
courts have developed various tests to determine when an organ of
state or SOC will act as a private body as opposed to as a
public
body.
These
include a consideration of
the
source, nature and subject-matter of the power the body exercises
when it performs the function; whether the function involves
the
exercise of a public duty; the level of discretion and autonomy
available to the body when performing the function or activity;
and
the level of state control and funding involved in relation to the
function or activity.
[124]
[109]
The
judgment in Chirwa v Transnet
[125]
is valuable in determining whether Transnet acts as a private or
public body in relation to employment matters. Here, the
Constitutional
Court was tasked with determining whether the
dismissal of a public sector employee gave rise to concurrent actions
in both labour
and administrative law and thus whether the High Court
had concurrent jurisdiction with the Labour Court.
[126]
The law on the point was not settled at the time, with different
views (both academic and judicial) existing as to whether the

dismissal of
public
sector employee by an organ of state involved the exercise of public
power and thus constituted administrative action
in
terms of the Promotion of Administrative Justice Act (PAJA).
[127]
To address this problem, the Chirwa majority
[128]
held that although Transnet, as a public entity and a “creature
of statute”,  exercised a public power and function
when
dismissing an employee,
[129]
the exercise of that power alone was not  “
decisive
of the question whether the exercise of the power in question
constitutes administrative action”.
[130]
This had to be answered with reference to the meaning of
administrative action in section 33 of the Constitution, a crucial
factor
being the nature of the function (plus its subject matter)
that is performed.
[131]
In relation to the dismissal of an employee, the majority held that
the subject matter of the power involved is the termination
of the
contract of employment (
in
casu
for
poor work performance), with the source of the power being the
employment contract between the employee and Transnet.
The fact
that Transnet is a creature of statute and an organ of state did not
detract from the reality that, in terminating the
contract of
employment, Transnet exercised a contractual power, which did not
constitute administration or administrative action.
[132]
[110]
It
is as a result of this judgment that, for the purposes of PAIA, that
employment matters of organs of state have generally been
classified
as private matters, as opposed to public ones.
[133]
[111]
Transnet
is thus correct when it asserts that when requesting a record
generated in relation to the employment and subsequent dismissal
of
the applicants (or any other employee), a requester would usually
need to frame the request in terms of section 50 of the Act
–
that is, as a request to access the record/s of a private body.
[134]
[112]
This
does not mean, however, that the Mavana Report should automatically
be treated as one created by Transnet in its capacity as
a private
body. In other words, the generation of the Mavana Report, and the
function which Transnet fulfilled at the time, must
be determined
with reference to the purpose or reason why the Report was
commissioned and its contents. The fact that it may relate
to the
employment of the applicants or any other employee is a factor to
consider, but it is not the only factor.
[113]
In
support of the claim that Transnet acted as a private body in
relation to the production of both the ICAS and Mavana Reports,
the
respondents point to Transnet’s PAIA Manual, Annexure G to the
answering affidavit. They state that the Manual sets out
the
distinction between Transnet acting as a public body versus Transnet
acting as a private body. It then assists the requester
to determine
in which capacity Transnet acts in relation to a record
requested.
[135]
The
requester is told to consider the nature of Transnet’s conduct
and the power it exercised when producing the record (whether
a
public power is exercised or whether a public function in terms of
any legislation is performed).
[136]
In relation to employee related matters, such as disciplinary
proceedings, the requester is specifically informed that Transnet
generally
does
not exercise a public power and will be regarded as a private body
(
my
emphasis
).
[137]
These allegations accord entirely with the Manual.
[114]
But,
then the respondents go further. They add that both the Reports
requested by the applicants fall within the category of “employee

records”, as defined in 12.2 of Transnet’s PAIA Manual,
because a) the reports are sought by the applicants, as ex-employees,

who assert to enforce their labour law rights against their former
employer and b) the reports pertain to employment matters. Thus,
the
applicants’ request for access to both records should be
classified as a request for records from Transnet in its capacity
as
a private body because Transnet created the reports in relation to
employee matters and whilst exercising a private power.
[138]
[115]
The
respondents have made out a case to support this argument in respect
of the ICAS Report, but the same is not true in respect
of the Mavana
Report. Here, I agree with the applicants that the respondents have
provided insufficient and inadequate detail about
the nature of the
Report and the reason why it was commissioned to support their claim
that it was generated in respect of private
employee matters.
[139]
There is a distinct difference between the attention given to the
ICAS Report as opposed to the Mavana Report, which lends credence
to
the applicants’ claim that the characterisation of the request
“as an inconsequential internal affair limited to
employee /
employer relations” was an attempt to deflect attention away
from the true nature of the Mavana Report.
[140]
[116]
Moreover,
the respondents’ argument that the Mavana Report must be
regarded as a report generated by Transnet in its capacity
as a
private body simply because the Report is requested by employees who
wish to assert their labour law rights, is not logically
coherent. It
is tainted by “the fallacy of accident”, also known as
the
dicto
simpliciter
,
a common fallacy in legal argumentation.
[141]
The fallacy occurs when a general rule is applied to a specific
situation in which the rule is inappropriate because of the
situation’s
specific facts. It is trite that general rules are
developed
from a consideration of general, common situations. But, when a
situation is exceptional because of its accidents or own
special
facts, an exception to the rule must exist and it is inappropriate to
apply the general rule as a matter of course.
[142]
To avoid the fallacy, the court must consider whether the facts of
the case are distinguishable from the situations that gave rise
to
the general rule in the first place.
[143]
This, of course, requires sufficient facts to be placed before the
court to enable it to do so.
[117]
The
fallacy in the respondents’ argument is as follows – the
respondents assert that the applicants are former employees
of
Transet; they were dismissed from Transnet; their dismissals were
upheld by various labour fora; the applicants now request
access to a
record which apparently addresses the circumstances extant at
Transnet when they were dismissed and may impact on their

reinstatement; the record is thus an employment record and the
general rule applies. The factual situation at play here, however,

appears to be very different to the usual employment type matter and
a case has not been made out to show that the Mavana Report
is an
ordinary employment record. It simply does not follow that
whenever
an employee or ex-employee seeks access to a record held by the body
in an attempt to enforce his or her labour law rights,
that such
record must automatically be treated as one that was generated by a
private body, and thus that the general rule will
always apply
without exception.
[144]
[118]
I
therefore find that the respondents have not discharged the onus of
proving that Transnet acted as a private body in relation
to the
Mavana Report and that the threshold test in section 50 of PAIA
applies to determine if the applicants are entitled to access
to the
Report. This means that I need not ascertain whether or not the
applicants have shown,
prima
facie
,
that they are entitled to access the Report because they require it
to exercise or protect their rights. Instead,
section
11(1) of PAIA applies, namely that when information is requested from
public bodies, a requester must be given access to
the information
requested if a) the requester complies with all the Act’s
procedural requirements for such a request and
b)
access
to that record is not refused by any ground for refusal contemplated
in Chapter 4 of the Act.
[145]
[119]
The
procedural requirements have indeed been met, but Transnet claims
that access to the record should be refused in terms of
a
ground of exemption, namely
“
Mandatory
protection of certain confidential information, and protection of
certain other confidential information, of third party”.
[146]
Ground of refusal
relied upon by Transnet – breach of confidence owed to a third
party in terms of an agreement
[120]
Section
37(1)(a) of PAIA provides that “Subject to subsection (2),
the information officer of a public body – must
refuse a
request for access to a record of the body if the 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”. This is a
mandatory ground of refusal as indicated by
the use of the word
“must” in the provision.
[121]
The
onus of proving that a ground of refusal applies is on the party
relying on that ground to refuse access to the record.
[147]
[122]
Briefly,
the basis upon which Transnet asserts that the Mavana Report is
subject to a confidentiality clause is as follows: the
Mavana Report
was produced pursuant to an agreement of confidentiality between Mr
Mavana and Transnet, with the Report containing
a specific provision
stating that it was produced subject to an agreement of
confidentiality between Mr Mavana and Transnet and
that it should not
be distributed to third parties without the prior consent of Transnet
and Mr Mavana.
[148]
To this
Transnet adds that the “report was prepared solely for purpose
of reportion (sic) of the findings / observations
and may not be used
for any other purposes.”
[149]
Moreover, Mr Mavana’s consent to disclosure of the Report to
the applicants has not been obtained.
[123]
Unlike
the ICAS Report, there is no indication that Transnet employees
participated in interviews to prepare the Mavana Report on
the
condition that their involvement in the generation of the Report
remain confidential.  There is also no disclosure on
the part of
the deponent to the answering affidavit that she has read the Report
and that it indeed contains confidential information
that must be
protected.
[124]
In
M
&G Media Ltd
[150]
the
Court dealt specifically with the sufficiency of the evidence needed
to discharge the onus of proving that a body is entitled
to rely on a
ground of exemption. The Court held that – “
The
proper approach to the question whether the state has discharged its
burden under section 81(3) of PAIA is therefore to ask
whether the
state has put forward sufficient evidence for a court to conclude
that, on the probabilities, the information withheld
falls within the
exemption claimed.”
[151]
This analysis will also depend upon the nature of the exemption
claimed.
[152]
[125]
It
is insufficient for the holder of a record to repeat the language of
the exemption claimed to prove that the exemption applies.
As held in
M
&G Media Ltd, “
The
affidavits for the state must provide sufficient information to bring
the record within the exemption claimed. This recognises
that access
to information held by the state is important to promoting
transparent and accountable government, and people‘s
enjoyment
of their rights under the Bill of Rights depends on such transparent
and accountable government.”
[153]
[126]
When
assessing whether sufficient evidence has been presented, a
deponent‘s assertion that the information is within her
personal knowledge is not enough. The deponent must also explain how
her knowledge was acquired. This is needed to discern the weight
to
be attached to the claims in the affidavit. The crucial factor “is
whether the deponent would, in the ordinary course
of his or her
duties or as a result of some other capacity described in the
affidavit, have had the opportunity to acquire the
information or
knowledge alleged.”
[154]
[127]
In
the same vein, according to the Court, the holder of the information
must put up facts which enable the court to conclude, on
a balance of
probabilities, that the record falls within the ambit of the
exemption claimed to discharge the burden of proof in
terms of
section 81(3) of PAIA.
[155]
The sufficiency of the facts presented must be assessed with
reference to the context, the obligation on public bodies to be open

and accountable and that the holder of the information may be
constrained by the confidentiality of the record to when asserting

why that record is confidential.
[156]
[128]    As
indicated, these constraints can be overcome by resort to section
80(1) of PAIA, enabling a court
to consider the record itself to
determine whether the ground of refusal relied upon is justified.
[129]    Had
I been asked to determine whether this onus had been discharged in
relation to the ICAS Report,
my conclusion
would have been different. In respect of that Report, the deponent,
as the relevant Information Officer, has set out
detailed facts
explaining why the Report is confidential and why its disclosure
should be protected – not only because of
the confidentiality
clause, but also because confidentiality is needed to protect the
rights of the employees who participated
in the proceedings leading
up to the generation of the ICAS Report. The same is not true for the
Mavana Report. There is no indication
that the Report contains
confidential information of third parties and that section 37(1)(b)
applies. The only indication of any
confidentiality is the
respondents’ claims that Mr Mavana and Transnet agreed that the
Report is confidential and that it
could not be released
without either their prior consent – thus invoking section
37(1)(a) of PAIA. There is also no suggestion
that Mr Mavana has been
approached to request whether he agreed to the disclosure of the
Report.
[130]
In
Transnet
v SA Metal
,
[157]
the Supreme Court of Appeal held that, in order to rely on section
37(1)(a) of PAIA, which provides that non-disclosure of a record
is
mandatory if it would constitute grounds for an action of breach of
confidence owed to a third party in terms of an agreement,
there must
be a
a
risk that if the third party sued for a breach of confidentiality the
information holder could be subject to an adverse finding
for a
material breach entitling cancellation of the agreement or as to an
award of damages.
[158]
The
mere inclusion of a confidentiality clause in a record is not
sufficient to bring the record within the ambit of the ground
of
exclusion.
[159]
This test
was confirmed in SA Airlink  (Pty) Limited v The Mpumalanga
Tourism and Parks Agency.
[160]
[131]
The
respondents have not produced sufficient facts to enable me to
determine whether there is indeed such a risk and have thus not

discharged the relevant onus of proof to show that the ground of
refusal applies on these facts.
Reliance on section
80(1) of PAIA
[132]
I
need only exercise my discretion in terms of section 80(1) of PAIA to
have a judicial peek at the Mavana Report if
there is a
possibility of injustice by virtue of the inherent evidential
difficulties faced by parties in access to information
disputes.
[133]    Given
that the respondents have failed to discharge the onus resting on
them to prove that the Report
falls within the ambit of section
37(1)(a) and that this could have been done, I find that there is no
reason for me to exercise
such discretion.
Order
The following order is
issued:
[1]    That
the Respondents furnish to the Applicants in terms of the
Promotion
of Access to Information Act 2 of 2000
, a copy of the Report compiled
by Forensic Investigator, Owen Mavana, in 2019,
based
on case number BC.NUMSA/TPT(ECP)13623, allegedly referring to the
circumstances leading to the dismissal of the applicants
from the
respondent’s employment (the so-called Mavana report) within 20
days as from the date of service of this order;
and
[2]
That
the First Respondent pay the Applicants’ cost of suit.
JC BOTHA
ACTING JUDGE OF THE
HIGH COURT
Date
heard
: 9 February 2023
Date delivered: 22 March
2024
For the Applicant(s): Adv
Rossi, instructed by Randell & Associates, Gqeberha.
For the Respondent(s):
Adv Mahabeer SC, instructed by Carla Vermeulen Attorneys, Gqeberha
[1]
See para 3.3. of
Transnet’s
Information
Manual issued in term of s14 of the
Promotion
of Access to Information Act 3 of 2000 (PAIA)
and
which is Annexure G to the Answering Affidavit.
[2]
As
defined in s1 of PAIA.
[3]
Act 9 of 1989.
The
SATS Act has been repealed by
s
89
(1)
of
the
National Ports Act
No.
12 of 2005
in
so far as it relates to any provision for the management and
operation of the ports referred to in
Act
No. 12 of 2005
.
[4]
Chirwa
v Transnet
[2007] ZACC 23
;
2008 (4) SA 367
(CC) para 1.
[5]
Act
12 of 2005.
[6]
See
s3(2) of Act 12 of 2005.
[7]
S11
of Act 12 of 2005. See too Transnet’s Information Manual,
which is Annexure G to the Answering Affidavit.
[8]
See paras 1 and
5.1, Answering Affidavit; paras 13 and 16, Founding Affidavit
and
Annexure A to the Answering Affidavit reflecting the employer as
Transnet Port Terminals.
[9]
Para
5.4,
Answering
Affidavit.
[10]
Paras
5.8 and 5.9,
Answering
Affidavit.
[11]
Para
6,
Answering
Affidavit
.
[12]
Para
8,
Answering
Affidavit.
[13]
Act 3 of 2000.
[14]
Para
16, Founding Affidavit.
[15]
Para
16, Replying Affidavit; para 2, Respondents’ Heads of
Argument.
[16]
See
paras 14, 16 and 17, Founding Affidavit and Annexure B thereto;
namely a completed Form A: Request for Access to Record of
Public
Body in terms of PAIA (for both reports).
[17]
Paras
51 and 52, Answering Affidavit.
[18]
Paras
51-52, Answering Affidavit.
[19]
Paras 34-35, Answering
Affidavit.
[20]
See
para 8, Respondents’ Heads of Argument;
PFE
International Inc
(BVI)
v
Industrial Development Corporation of South Africa Ltd
2013
(1) SA 1 (CC).
[21]
Paras
34-35, Answering Affidavit.
[22]
Para
33, Founding Affidavit; para 15, Applicants’ Heads of

Argument.
[23]
Para
33, Founding Affidavit; para 8, Replying Affidavit.
[24]
Paras
19 and 21, Founding Affidavit;
paras
6, 13, 14 and 36, Replying Affidavit;
[25]
Par
70, Answering Affidavit.
[26]
Paras
33 – 34, Founding Affidavit and Annexure D thereto.
It
is unclear whether “the matter” refers to the Mavana
Report only or other supposed irregularities at Transnet.
However,
it is noteworthy that para 34 of the Founding Affidavit specifically
refers to the ICAS Report, which the applicants
have since conceded
is confidential.
[27]
Para
86, Answering Affidavit.
[28]
Para
8, 35 to 36, Replying Affidavit.
[29]
An issue
still to be determined.
[30]
Para
21, Founding Affidavit
[31]
Paras
67 and 68, Answering Affidavit
[32]
Para
44, Replying Affidavit.
[33]
See
President of the Republic of South Africa v M & G Media Ltd 2012
(2) SA 50 (CC) at
para
42.
[34]
See paras 26-27, Founding
Affidavit and Annexure B thereto.
[35]
Para 26, Founding
Affidavit.
[36]
Para 28, Founding
Affidavit; Annexure C, Founding Affidavit; para 12, Answering

Affidavit.
[37]
Paras 29-30, Founding
Affidavit; para 13, Answering Affidavit.
[38]
Ss 27 and 58 of PAIA.
[39]
Attached
as Annexure G to the Answering Affidavit.
[40]
See
too para 17, Applicants’ Heads of Argument.
[41]
See
Fortuin
v Cobra Promotions CC
2010
(5) SA 288 (ECP).
But
compare MIDI Television v DPP (Western Cape) 2007 (5) SA 540 (SCA).
[42]
President
of the Republic of South Africa v Mail and Guardian 2012 (2) SA 50
(CC).
[43]
2009 (6) SA 323 (CC)
[44]
At paras 62-63. See too,
more recently Competition Commission of South Africa v Standard
Bank
of South Africa Ltd; Competition Commission of South Africa v Waco
Africa (Pty) Ltd
2020 (4) BCLR 429
(CC) paras 10-12 and My Vote
Counts NPC v Minister of Justice and Correctional Services
2018 (5)
SA 380
(CC) paras 19-25.
[45]
PFE International v
Industrial Development Corporation of South Africa Ltd
2013 (1) SA 1
(CC) para 20.
[46]
PFE International para
21
.
[47]
Competition Commission of
South Africa v Standard Bank of South Africa Ltd; Competition

Commission of South Africa v Waco Africa (Pty) Ltd 2020 (4) BCLR 429
(CC).
[48]
At
paras 16-17. See too Unitas Hospital v van Wyk
[2006] ZASCA 34
;
2006 (4) SA 436
(SCA)
paras 21-22, dealing with pre-action discovery.
[49]
PPE International para
18; Competition Commission of South Africa v Standard Bank
of South
Africa Ltd para 17.
[50]
President of the Republic
of South Africa v M & G Media Ltd
2012 (2) SA 50
(CC) para 22,
dealing with access to a record held by a public body.
[51]
2012 (2) SA 50 (CC).
[52]
At para 23.
[53]
S50 of PAIA.
[54]
Cape Metropolitan Council
v Metro Inspection Services (Western Cape) CC
2001 (3) SA 1013
(SCA).
[55]
Claase v Information
Officer, South African Airways (Pty) Ltd
2007 (5) SA 469
(SCA) at
para 8.
[56]
Cape Metropolitan Council
v Metro Inspection Services (Western Cape)
CC
2001
(3) SA 1013
(SCA) para 28.
[57]
2005 (3) SA 486
(SCA) at
para 13.
[58]
Fortuin
v Cobra Promotions CC 2010 (5) SA 288 (ECP).
[59]
2015
(1) SA 515 (SCA) para 50
[60]
At
para 31.
[61]
S
1 of PAIA.
[62]
Mittalsteel
SA Ltd v Hlatshwayo
2007
(1) SA 66
(SCA) at para 8.
[63]
S
1 of PAIA.
[64]
M & G Media Ltd v
2010 FIFA World Cup Organising Committee South Africa Ltd
2011 (5)
SA 163
(GSJ) at
para
149.
[65]
2006 (6) SA 285 (SCA).
[66]
At para 55.
[67]
See
President
of the Republic of South Africa v M & G Media Ltd n50 at
para
11 and PAIA’s preamble.
[68]
Qoboshiyane
NO v Avusa Publishing Eastern Cape (Pty) Ltd 2013 (3) SA 315 (SCA)
at para 12.
[69]
President of the Republic
of South Africa v M & G Media Ltd n50 at para 23.
[70]
President of the Republic
of South Africa v M & G Media Ltd at para 23.
[71]
President of the Republic
of South Africa v M & G Media Ltd at
paras
32-
35.
[72]
See Plascon-Evans Paints
Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) 634G-635D
[73]
President of the Republic
of South Africa v M & G Media Ltd at paras 34-35.
[74]
President of the Republic
of South Africa v M & G Media Ltd at para 36.
[75]
President of the Republic
of South Africa v M & G Media Ltd at
para
39.
[76]
President
of the Republic of South Africa v M & G Media Ltd at
paras
47-48.
[77]
President of the Republic
of South Africa v M & G Media Ltd at
para
42.
[78]
President
of the Republic of South Africa v M & G Media Ltd at
para
42.
The
public has an interest in information held by a public or private
party where that information tis not exempt from its disclosure

being released.
[79]
President
of the Republic of South Africa v M & G Media Ltd at
para
52.
[80]
See
too, the more recent judgment of,
Savoi
v National Prosecuting Authority
[2023] ZACC 38
[23].
[81]
See
paras 19-21, Founding Affidavit;
paras
34-35 and 51-52, Answering Affidavit; para 44, Replying Affidavit
and para 8, Respondents’ Heads of Argument.
[82]
Para
22, Replying Affidavit.
[83]
See para 6, Replying
Affidavit.
[84]
See
paras 14-15,
Replying
Affidavit.
[85]
Para
16, Founding Affidavit; paras 9-17, Replying Affidavit.
[86]
See
Competition
Commission of South Africa v Standard Bank of South Africa Ltd;
Competition Commission of South Africa v Waco Africa
(Pty) Ltd
2020
(4) BCLR 429
(CC) at paras 14-17.
[87]
PFE
International Inc
(BVI)
at paras 20-21.
[88]
2013 (1) SA 1 (CC).
[89]
I
was informed in argument that the Uniform Rules of Court, as
published in terms of Act 59 of 1959, apply to proceedings in the

Labour Court. I was not enlightened as to whether such Rules also
apply to Bargaining Council proceedings.
[90]
PFE
International Inc
(BVI)
at para 11.
[91]
PFE
International Inc
(BVI)
at para 22.
[92]
PFE
International Inc
(BVI)
at paras 31-32. The Court confirmed the judgment of the Supreme
Court of Appeal.
[93]
2017
(6) SA 382 (SCA).
[94]
Mahaeeane
v Anglogold Ashanti Limited at paras 1-2.
[95]
Mahaeeane
v Anglogold Ashanti Limited at para 5.
[96]
Mahaeeane
v Anglogold Ashanti Limited at para 7.
[97]
Mahaeeane
v Anglogold Ashanti Limited at para 7.
[98]
Mahaeeane
v Anglogold Ashanti Limited at para 8.
[99]
The relevant test is to
establish prima facie that access to the record is required
to
exercise or protect the right relied upon.
[100]
[2006] ZASCA 34
;
2006 (4) SA 436
(SCA). See
Mahaeeane
v Anglogold Ashanti Limited at para 12.
[101]
Mahaeeane
v Anglogold Ashanti Limited at paras 22-23.
[102]
Mahaeeane
v Anglogold Ashanti Limited at paras 25-27.
[103]
2020
(4) BCLR 429 (CC).
[104]
Competition
Commission of South Africa v Standard Bank of South Africa Ltd at
paras 195-197.
[105]
Competition
Commission of South Africa v Standard Bank of South Africa Ltd at
para 196.
[106]
S
8 of PAIA.
[107]
See
s239 of the Constitution and the definition of a public body in s1
of PAIA.
[108]
M & G Media Ltd v 2010 FIFA World
Cup Organising Committee South Africa Ltd
2011 (5) SA 163
(GSJ)
paras
149 and 177.
[109]
J Klaaren & G Penfold “Access
to Information” in M Chaskalson et al Constitutional
Law
of South Africa at 62-12.
[110]
See
paras 42-43, Answering Affidavit.
[111]
Para
42, Answering Affidavit.
[112]
Para
43.1, Answering Affidavit.
[113]
Paras
43.2-43.3, Answering Affidavit. See too para 50, stating that the
ICAS Report was procured and produced under absolute confidentiality

and trust and also that the employees involved have not consented to
the Report’s release.
[114]
Para
43.2, Answering Affidavit.
[115]
Para
2, Replying Affidavit.
[116]
Paras
51 and 52.
[117]
See
paras 51-52, Answering Affidavit.
[118]
Para
65, Answering Affidavit.
[119]
Para
70, Answering Affidavit.
[120]
See too Twala v Member of the
Executive Council, Department of Education, Eastern Cape
2016 (2) SA
425
(ECB) at para 12.
[121]
Note
that in
Company
Secretary of Arcelormittal South Africa v Vaal Environmental Justice
Alliance
2015 (1) SA 515
(
SCA)
para 78 the SCA stressed the importance of openness and
accountability in the public sector and that these values align with

PAIA’s objectives.
[122]
The
National Ports Authority (the NPA) is a division of Transnet, with
the government as its sole shareholder. It exercises its
functions
in terms of legislation, namely the
National
Ports Act 12 of 2005
.
Section
2 of the
Act
provides that its objects are
inter
alia
to
promote
and develop “an effective and productive South African ports
industry that is capable of contributing to the economic
growth and
development of our country”. Section 2 must be read with
section 11 of the Act, which sets out the NPA’s
functions.
[123]
S 2
of the
National Ports Act states
its aims.
See
too
s13
, which is headed co-operative governance, and provides that
all organs of state must co-operate with one another to ensure inter

alia the effective management and oversight of all ports.
[124]
See,
for example, I
nstitute
for Democracy in South Africa v African National Congress 2005 (5)
SA 39 (C);
Mittalsteel
SA Ltd v Hlatshwayo
2007
(1) SA 66 (SCA); M & G Media Ltd v 2010 FIFA World Cup
Organising Committee South Africa Ltd 2011 (5) SA 163 (GSJ); and
Khadi
v University of Venda
[2015]
JOL 32942
(LT).
[125]
2008 (4) SA 367 (CC).
[126]
See
paras 19-20.
[127]
Act
3 of 2000. See the judgment of Ngcobo J in
Chirwa
at
paras 127 to 150 where the debate is sketched.
[128]
See
the separate judgment of Ngcobo J, who deals with the administrative
action point in detail. The majority judgment, penned
by Skewiya J,
expressly concur with Ngcobo J on this point.  See paras
72-73.
[129]
At
para 101
[130]
At para 139.
[131]
At paras 138-139.
[132]
At paras 142-145. Note that the
meaning of
the
phrase “public function” or “public power”
was usefully clarified by the minority judgment, penned
by Langa CJ,
holding at para 186 that
“
[
D]etermining
whether a power of function is ‘public’ is a notoriously
difficult exercise. There is no simple definition
or clear test to
be applied. Instead, it is a question that has to be answered with
regard to all the relevant factors, including:
(a) the relationship
of coercion or power that the actor has in its capacity as a public
institution; (b) the impact of the decision
on the public; (c) the
source of the power; and (d) whether there is a need for the
decision to be exercised in the public interest.
None of these
factors will necessarily be determinative; instead, a court must
exercise its discretion considering their relative
weight in the
context.”
[133]
Hence
the wording in Transnet’s PAIA Manual suggesting that requests
for access to records held by Transnet in its private
capacity
should be made in terms of Annexure 3 to the Manual in accordance
with section 53 of PAIA. See para 28 of the Answering
Affidavit and
Annexure G thereto.
[134]
Paras 28-29,
Answering
affidavit.
[135]
Para
28,
Answering
Affidavit.
[136]
To
this extent the Manual reflects the correct legal position. See, for
example,
Mittalsteel
SA Ltd v Hlatshwayo
2007
(1) SA 66
(SCA).
[137]
See
para 6, Answering Affidavit and 6.4 of the PAIA Manual.
[138]
Para
30, Answering affidavit
[139]
See
paras 9-16, Applicants’ Heads of Argument.
[140]
Para
14, Applicants’ Heads of Argument.
[141]
Saunders
(1993) “Informal Fallacies in Legal Argumentation” South
Carolina Law Review Volume 44 at 344 367.
[142]
Ibid.
[143]
Saunders
369.
[144]
Compare
para 28 of the answering affidavit, specifically the highlighted
section dealing with clause 6.4.4 of the Trasnet’s
PAIA
Manual, and para 29.2 of the same affidavit.
[145]
See
De
Lange v Eskom Holdings
Ltd
2012
(1) SA 280
(GSJ) paras 34-35.
[146]
This
is the equivalent ground of exemption to that relied upon by
Transnet should I have found that it generated the report as
a
private body.
[147]
Transnet v SA Metal para 25.
[148]
Paras
51-52, Answering Affidavit.
[149]
See
paras 51-52, Answering Affidavit.
[150]
2012 (2) SA 50 (CC).
[151]
At para 23.
[152]
At
para 25.
[153]
At
para 24.
[154]
At
para 28.
[155]
At
para 32.
[156]
At
paras 33-35.
Plus,
sections 25(3)(b) and 77(5)(b) of PAIA preclude ―any reference
to the content of the record to support a claim of
exemption.
[157]
2006 (6) SA 285 (SCA).
[158]
At
paras 54-55. It is acknowledged that the Court was concerned with a
commercial agreement, but the principle remains the same.
[159]
At para 55.
[160]
2013 (3) SA 112
(GSJ).