Brief Summary

Administrative Law — Promotion of Access to Information Act — Urgent application for access to tender documents — Applicant sought to compel the South African Local Government Association to provide reasons for the award of a tender to a third party and requested access to related documents — Applicant contended that the 90-day period for response under the Promotion of Administrative Justice Act was unreasonably long and sought a reduction to 7 days — Respondents opposed the application, asserting their intent to respond within the statutory period — Court held that the applicant demonstrated urgency and a legitimate interest in the requested information, justifying the reduction of the response period.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an urgent motion application in the Eastern Cape Division of the High Court, East London Circuit Court. The applicant, SKG Africa (Pty) Ltd, sought relief primarily directed at compelling the production of documents and information relating to a tender process, and secondly sought an order to shorten the statutory period within which written reasons had to be furnished for administrative action.

The respondents were the South African Local Government Association (SALGA) as first respondent, and SALGA’s Information Officer as second respondent (cited nomine officio). Sthathu Funding (Pty) Ltd, the successful tenderer, was cited as the third respondent due to its direct and substantial interest, although no substantive relief was sought against it unless it opposed and costs consequences followed.

Procedurally, the application was issued on 16 August 2023, served on SALGA and the information officer on 17 August 2023, and set down in the urgent motion court for 29 August 2023. The matter was opposed by the first and second respondents only. Argument was heard on 28 August 2023, and judgment was delivered on 19 September 2023.

The dispute concerned the applicant’s attempt to obtain (a) written reasons for SALGA’s tender award decision under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), and (b) access to records relating to the tender under the Promotion of Access to Information Act 2 of 2000 (PAIA), for the purpose of assessing whether to institute review proceedings to set aside the tender award.

2. Material Facts

It was common cause that SALGA issued a tender described as a request for the provision of office accommodation for its Eastern Cape office in East London for five years, under Bid No. SALGA/20/2022. It was also common cause that SKG Africa (Pty) Ltd submitted a bid, that the bid closing date was 22 December 2022, and that the applicant was informed on 30 May 2023 that its proposal had not been successful.

On 23 June 2023, SALGA provided the applicant with a screenshot reflecting the award, from which the applicant inferred that the successful bid price was higher than its own. This contributed to the applicant’s stated concern that its bid ought to have succeeded and that irregularities may have occurred.

On 27 June 2023, the applicant’s attorneys addressed correspondence to SALGA explicitly invoking section 5(1) of PAJA (for written reasons) and section 18(1) of PAIA (for access to records). The applicant sought a wide range of documents, including bids submitted, committee agendas/minutes/reports, evaluation and adjudication material, risk analysis and site inspection results, supply chain policy, any appeal process, and the tender award letter. In the same communication, the applicant acknowledged that PAJA ordinarily allows 90 days for the furnishing of reasons, but requested agreement to reduce that period to seven days under section 9(1) of PAJA.

The applicant also submitted a formal PAIA request for access to the record (dated 27 June 2023) and followed up with reminders on 4 July 2023 and later. Respondents eventually indicated that their legal department was handling the request, and on 1 August 2023 the applicant was advised of a contact person. On 8 August 2023, the applicant issued an ultimatum that the information be provided by 11 August 2023, failing which an urgent application would be launched.

The applicant’s case proceeded on the premise that the 30-day period in section 25(1) of PAIA had expired and that, by operation of section 27 of PAIA, the request was deemed refused. The respondents’ opposition emphasised that they intended to provide a substantive response within the 90-day PAJA period; they also contended that much of the requested material implicated third-party records, necessitating engagement under section 47 of PAIA.

The court treated the core background and the existence of the tender, the unsuccessful bid, the subsequent requests, and the timing of the application as largely undisputed, with the principal dispute centring on the applicable statutory timelines, the interaction between PAJA and PAIA in the relief sought, and whether truncation of PAJA’s 90-day period was justified.

3. Legal Issues

The central legal questions the court was required to determine were whether, on an urgent basis, the applicant was entitled to an order compelling production of the requested tender-related documents under PAIA, and whether the court should reduce the 90-day period under PAJA for SALGA to provide adequate written reasons for the tender award decision.

The matter primarily concerned the application of law to largely common-cause facts, specifically the application of PAIA’s access-to-information framework (including statutory time periods and remedies) and PAJA’s reasons framework (including the court’s discretionary power to reduce time periods under section 9(1) where the interests of justice require). It also required an evaluative judgment on urgency, and a discretionary assessment under section 9(1) of PAJA and on costs.

4. Court’s Reasoning

The court accepted that the applicant’s papers “straddled” both PAIA and PAJA, and analysed the relief on the basis that the applicant sought two distinct forms of information: written reasons for administrative action (regulated by PAJA) and access to documents/records (regulated by PAIA). The court emphasised that each statute provides for different procedures and time periods.

On the PAJA component, the court referred to section 5(1) of PAJA, which provides that a person materially and adversely affected by administrative action may request written reasons within 90 days of becoming aware of the action, and to section 9(1) of PAJA, which allows the 90-day period in section 5 to be reduced by agreement or, failing agreement, by a court where the interests of justice so require. The court noted that the applicant’s own correspondence acknowledged SALGA’s ordinary entitlement to the 90-day period, which had not yet expired at the time of litigation, and that the applicant sought truncation largely on the same grounds advanced for urgency.

On the PAIA component, the court outlined the statutory purpose of PAIA as giving effect to the constitutional right of access to information. It referenced section 11(1) (right of access to records of public bodies subject to compliance with procedural requirements and absence of grounds of refusal), section 18(2) (procedural requirements for a request), section 25(1) (a decision on a request to be made as soon as reasonably possible and in any event within 30 days, except where third-party notification provisions apply), section 78(2)(c) (court application within 30 days in specified circumstances), and section 82 (the court’s power to grant just and equitable orders, including compelling action). The court accepted that the applicant required the information to decide whether to pursue review proceedings to set aside the tender award and that this fell within PAIA’s functional role in enabling the exercise or protection of rights.

Addressing urgency, the court reasoned that the failure to provide information made it difficult for the applicant to determine how imminent implementation of the tender award was. Nonetheless, it considered that “common sense” suggested that each passing day brought implementation closer, thereby supporting urgency in relation to the applicant’s entitlement to information (subject to valid grounds of refusal). The court accordingly condoned non-compliance with the ordinary rules and treated the matter as urgent under Uniform Rule 6(12) read with Rule 2(2) of the Promotion of Access to Information Rules.

In respect of compelling disclosure, the court concluded that the applicant had complied with PAIA’s procedural requirements for a request for access to records and was justified in approaching the court for intervention. It held the applicant to be entitled to an order compelling production of the requested documents as framed in prayer 4 of the notice of motion, granting relief under section 82 of PAIA.

However, the court was not persuaded that the applicant had shown that it would be in the interests of justice to truncate the 90-day period under PAJA for written reasons. It accepted that respondents had undertaken to provide a substantive response as soon as reasonably possible and within the statutory timeframe, and it declined to reduce that period.

On costs, the court found no basis for a punitive order. Given that the applicant succeeded only in part (obtaining the PAIA production order but not the PAJA truncation order), the court exercised its discretion to direct that each party pay its own costs.

5. Outcome and Relief

The court granted condonation for non-compliance with the ordinary rules and heard the matter as urgent. It ordered SALGA and/or its information officer (alternatively both jointly) to produce, within 48 hours of service of the order, copies of the tender-related documents listed in paragraph 4 of the notice of motion, for inspection and collection by the applicant, in terms of section 82 of PAIA.

The court refused to reduce the 90-day period under section 9(1) of PAJA for SALGA to provide written reasons under section 5(2) as sought in prayer 2 of the notice of motion.

The costs order was that each party pay its own costs.

Cases Cited

No other cases were cited or relied upon in the judgment.

Legislation Cited

Promotion of Administrative Justice Act 3 of 2000.

Promotion of Access to Information Act 2 of 2000.

Constitution of the Republic of South Africa, 1996 (section 163).

Rules of Court Cited

Uniform Rules of Court, Rule 6(12).

Promotion of Access to Information Rules, Rule 2(2).

Held

The court held that, notwithstanding the applicant’s reliance on both PAJA and PAIA, the applicant was justified in seeking urgent court intervention to obtain tender-related documents under PAIA, having complied with PAIA’s procedural requirements and requiring the information to consider the exercise of review rights.

The court held further that urgency was established in relation to the production of the requested information, because delay increased the likelihood that the tender award would be implemented before the applicant could assess and vindicate its rights.

The court held that the applicant did not establish that it was in the interests of justice to truncate the 90-day period under PAJA for furnishing written reasons, and that relief was therefore not warranted.

The court held that the applicant’s partial success justified a neutral costs order, directing each party to bear its own costs.

LEGAL PRINCIPLES

The judgment applied the principle that PAJA and PAIA serve distinct though related constitutional purposes, and a litigant may seek written reasons under PAJA while separately seeking access to records under PAIA, subject to each statute’s procedural and timing requirements.

It applied the principle that a requester who complies with PAIA’s procedural requirements is entitled to access to records of a public body unless a statutory ground of refusal applies, and that the court may grant just and equitable relief under section 82 of PAIA, including an order compelling production of records within a specified time.

It applied the principle that a court may treat a PAIA production dispute as urgent where delay risks practical prejudice to the requester’s ability to exercise rights (including contemplated review proceedings), and that condonation and urgent enrolment may be granted under Uniform Rule 6(12) read with the applicable PAIA rules where the circumstances warrant it.

It applied the principle that shortening the statutory period for furnishing written reasons under section 9(1) of PAJA is discretionary and requires a showing that truncation is in the interests of justice, and that such truncation will not be granted merely because an applicant seeks speed where the administrator undertakes to respond within the statutory timeframe.

It applied the principle that costs are discretionary and that, where a party achieves only partial success, an order that each party bear its own costs may be appropriate in the absence of conduct justifying a punitive order.

SKG Africa (Pty) Ltd v South African Government Association and Others (1282/2023) [2023] ZAECELLC 26 (19 September 2023)