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[2022] ZAECMKHC 42
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Smuts N.O. and Others v Member of the Executive Council: Eastern Cape Department of Economic Development Environmental Affairs and Tourism and Others (1199/2021) [2022] ZAECMKHC 42 (26 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
REPORTABLE
Case
no: 1199/2021
In
the matter between:
BOUDEWYN
HOMBURG DE VRIES SMUTS N.O
First Applicant
RIAN
ARNOLD DU TOIT N.O
Second Applicant
CORNELIUS
JOHANNES VAN SCHALWYK N.O
Third Applicant
And
MEMBER
OF THE EXECUTIVE COUNCIL:
First Respondent
EASTERN
CAPE DEPARTMENT OF ECONOMIC
DEVELOPMENT
ENVIRONMENTAL AFFAIRS AND
TOURISM
INFORMATION
OFFICER: EASTERN CAPE:
Second Respondent
DEPARTMENT
OF ECONOMIC DEVELOPMENT
ENVIRONMENTAL
AFFAIRS AND TOURISM
COUNCIL
FOR THE ADVANCEMENT OF THE
Amicus Curiae
SOUTH
AFRICAN CONSTITUTION
JUDGMENT
Govindjee
J
Background
[1]
The applicant is the Landmark Foundation
Trust (‘the Foundation’), a conservation non-governmental
organisation and
registered charitable trust. The Foundation focuses
on effective predator management methods in support of a healthy
ecosystem
and the conservation of endangered species. One of its
projects centres on the rescue and conservation of leopards in the
Western
Cape, Northern Cape and Eastern Cape Provinces.
[2]
The
Threatened or Protected Species Regulations (‘the TOPS
Regulations’)
[1]
lists
leopards as ‘vulnerable species’, meaning that they are
indigenous species facing a high risk of extinction in
the wild in
the medium-term future. Various activities relating to these species
are restricted. This includes hunting, catching,
capturing or killing
any living specimen or translocating any specimen. Section 57 of the
National Environmental Management: Biodiversity
Act, 2004
[2]
(‘NEMBA’) prohibits any person from carrying out a
‘restricted activity’ involving a specimen of a listed
threatened or protected species,
[3]
without a permit issued in terms of chapter 7 of NEMBA.
[3]
The
first respondent is the ‘issuing authority’ responsible
for deciding any application for such a permit. The Foundation
requested the second respondent, as information officer (‘IO’)
of the Eastern Cape Department: Economic Development,
Environmental
Affairs and Tourism (‘the Department’) to provide access
to all applications received and permits issued
by the Department to
trap, kill, hunt or translocate any leopards in or from the Eastern
Cape from 2017 to 3 December 2019. The
request was made in terms of s
18 of the Promotion of Access to Information Act, 2000 (‘PAIA’).
[4]
The information sought included: (a) the name of the applicant; (b)
the kind of restricted activity applied for; (c) the location
where
the restricted activity will take place; (d) the details of the
species involved; and, in the case of translocation, (e)
the location
to which the animal is to be translocated and the identity of the
party receiving the animal. The information requested
was refused,
also on appeal to the first respondent, on the premise that it would
entail the unreasonable disclosure of personal
information of third
parties,
[5]
and on an
interpretation of s 34 of PAIA.
[4]
The Foundation argues that there can be no
reasonable expectation of privacy on the part of the third parties
concerned when considering
the nature of the information requested.
Disclosure would, on that basis, not be unreasonable in the
circumstances. Alternatively,
it claims that the public interest
override provided for in s 46 of PAIA is applicable, so that
disclosure is mandatory.
[5]
The Foundation approached this court in
terms of s 78(2) of PAIA for appropriate relief and has the standing
to do so. Section 82
of PAIA provides that the court hearing an
application may grant any order that is just and equitable, including
the following
orders:
‘
(a)
confirming, amending or setting aside the decision which is
the subject of the application concerned;
(b)
requiring from the information officer or relevant
authority of a public body or the head of a private body to take such
action
or to refrain from taking such action as the court considers
necessary within a period mentioned in the order;
(c)
granting an interdict, interim or specific relief,
a declaratory order or compensation;
(d)
as to costs …’
The legal framework
[6]
The
Constitution of the Republic of South Arica, 1996 (‘the
Constitution’) was adopted as the supreme law, in part,
to lay
the foundations for a democratic and open society.
[6]
Section 1 of the Constitution provides that the country is founded on
various values, including human dignity, the advancement
of human
rights and freedoms and a multi-party system of democratic
government, ‘… to ensure accountability, responsiveness
and openness’.
[7]
The
rights contained in the Bill of Rights affirm the democratic values
of human dignity, equality and freedom. The state must respect,
protect, promote and fulfil these rights.
[7]
Various provisions of the Bill of Rights are relevant for present
purposes, including the right to inherent dignity, the right
to
privacy, the right to a healthy environment and the right of access
to information held by the state.
[8]
All these rights may be limited by laws of general application to the
extent that it is reasonable and justifiable to do so ‘in
an
open and democratic society based on human dignity, equality and
freedom, taking into account all relevant factors’.
[9]
[8]
Legislation
has been enacted to give effect to these rights. For example, PAIA
gives effect to the constitutional right of access
to any information
held by the state.
[10]
It was
enacted, in part, to foster a culture of transparency and
accountability in public and private bodies by giving effect to
the
right of access to information. As its preamble indicates, its
purpose is to actively promote a society in which people have
access
to information to enable them to exercise and protect their rights
more fully and effectively. The Protection of Personal
Information
Act, 2013
[11]
(‘POPIA’)
recognises everyone’s right to privacy and promotes the
protection of personal information processed
by public and private
bodies, amongst other purposes. It does so fully cognisant that the
removal of unnecessary impediments to
the free flow of information
might facilitate economic and social progress within the framework of
the information society.
[12]
POPIA’s preamble indicates that this approach is consonant with
the constitutional values of democracy and openness. The
National
Environmental Management: Biodiversity Act, 2004
[13]
(‘NEMBA’) provides for the management and conservation of
South Africa’s biodiversity within the framework of
the
National Environmental Management Act, 1998
[14]
(‘NEMA’), including the protection of species that
warrant national protection. Legislation which gives effect to
constitutional rights and provides mechanisms for their promotion and
enforcement must be interpreted generously and purposively
and with
due attention to context.
The respondents’
approach
[9]
The respondents accept that the records in
question relate to one aspect of the department’s management
and conservation of
the leopard species. It is also accepted that the
first applicant is a wildlife and environmental conservationist and
researcher,
generally regarded as an expert in human-wildlife
conflict involving leopards. The Foundation advocates strongly
against indiscriminate
lethal control methods and is a vocal
participant in policy and administrative issues affecting predator
conservation, serving
as an environmental watchdog in the public
interest. There is also no dispute that the issuing of the relevant
permits relates
to aspects of the environment and that it implicates
the right to a healthy environment, at least indirectly. The
respondents also
acknowledge that state management in conservation of
threatened and protected species concerns a public interest element,
underpinned
by the Constitution and the statutory framework. To the
extent that such management in conservation may be detrimentally
affected
by the administration of the TOPS permit system, this too
involves a public interest dimension.
[10]
The respondents deny that the public
interest requires the disclosure of the records requested. The
usefulness of providing the
applicants with permits issued in the
past, and the relationship between the issue of those permits, the
information contained
in applications and permits, and future
administrative decisions, is questioned. There is no requirement for
a public participation
process in the regulations and this was
inappropriate and unnecessary in the circumstances. It would be
unfeasible, according to
the respondents, for the department to
engage in such an exercise every time it considered an application
for a TOPS permit. The
respondents go so far as to state that
widespread publication of information regarding TOPS permits could
result in the information
being used by criminals for ulterior
motives.
Access to information
and the right to privacy
[11]
‘
Where a society has chosen to accept
democracy as its credal faith, it is elementary that the citizens
ought to know what their
government is doing.’ (Justice P N
Bhagwati, former Chief Justice, Supreme Court of India, 1981).
The
right to access to information is directly related to the cultivation
of an accountable, responsive, and open society, as promised
by the
founding provisions of the Constitution. One of the basic values and
principles governing public administration is transparency,
which
‘must be fostered by providing the public with timely,
accessible and accurate information’.
[15]
As Currie and De Waal have noted, democracy is government by
explanation and accountable government requires dissemination of
information upon which actions and decisions are based.
[16]
[12]
Access
to information is also inevitably linked to the realisation of other
rights guaranteed in the Bill of Rights.
[17]
In this instance, the information required is related to the
constitutional right to a healthy environment. This right encompasses
the broad notions of ‘animal welfare’ and
‘conservation’.
[18]
There are various reasons for this, including the relationship
between animal protection, the environment, and human values.
[19]
Animal welfare is related to questions of biodiversity and thereby
connected with the constitutional right ‘to have the
environment protected, for the benefit of present and future
generations, through reasonable legislative and other measures …
that promote conservation; and secure ecologically sustainable
development and use of natural resources while promoting justifiable
economic and social development.’
[20]
[13]
When
interpreting PAIA, courts must prefer any reasonable interpretation
of a provision that is consistent with the objects of this
Act over
any inconsistent alternative interpretation.
[21]
The objects of PAIA include the following:
[22]
·
To give effect to the constitutional right
of access to any information held by the State;
·
To give effect to that right subject to
justifiable limitations, including, but not limited to, limitations
aimed at the reasonable
protection of privacy, commercial
confidentiality and effective, efficient and good governance;
·
To give effect to that right in a manner
which balances that right with any other rights, including the rights
in the Bill of Rights;
and
·
Generally, to promote transparency,
accountability and effective governance of all public and private
bodies, also by encouraging
scrutiny and participation in
decision-making by public bodies that affects rights.
[14]
It
has been suggested that transparency is a means towards the dual ends
of promoting government accountability as well as public
participation in government.
[23]
Section 11 of PAIA confirms the right to access to records of public
bodies in the following terms:
‘
(1)
A requester must be given access to a record of a public body if –
(a)
that requester complies with all the
procedural requirements in this Act relating to a request for access
to that record; and
(b)
access to that record is not refused in
terms of any ground for refusal contemplated in Chapter 4 of this
Part.
(2) A request
contemplated in subsection (1) includes a request for access to a
record containing personal information about the
requester.
(3) A requester’s
right of access contemplated in subsection (1) is, subject to this
Act, not affected by –
(a)
any reasons the requester gives for
requesting access; or
(b)
the information officer’s belief
as to what the requester’s reasons are for requesting
access.’
[15]
Importantly,
three fundamental principles may be distilled following a purposive
interpretation of the constitutional right to access
to information,
read with PAIA. Firstly, access to information is the norm and PAIA
must be interpreted to promote this objective.
Exemption from
disclosure is the exception.
[24]
As is evident from the wording of s 11, the exercise of the right has
been formulated in peremptory terms once there has been compliance
with formalities and should there be no basis for refusal.
[25]
Secondly, withholding information is permitted only in instances
described in PAIA. These exemptions and grounds of refusal must
be
narrowly construed because they involve limitation of a
constitutional right. While access may be denied where it is clearly
justified, doubts should typically be resolved in favour of
disclosure, and a discretion exercised accordingly.
[26]
Thirdly, the burden of justifying a limitation of a right falls on
the party wishing to do so, and not on the right-holder.
[27]
This is to be discharged on a balance of probabilities by providing
evidence that the record in question falls within the description
of
the ground of refusal that is claimed.
[28]
[16]
PAIA
is, in other words, not merely legislation giving effect to the
constitutional right of access to information. It is a law
of general
application that limits this right in the interests of privacy,
commercial confidentiality and effective, efficient
and good
governance and in order to protect other rights. This is in
accordance with s 32(2) of the Constitution, which provides
that
‘[n]ational legislation … may provide for reasonable
measures to alleviate the administrative and financial burden
on the
state’. PAIA seeks to strike a balance with other competing
rights, including the rights to privacy and dignity.
[29]
[17]
The
right to privacy is, in the words of Madlanga J, singularly important
in South Africa’s constitutional democracy. Invasion
of an
individual’s privacy infringes the cognate right to
dignity.
[30]
The unlawful
disclosure of private facts about a person is one of the ways in
which common law breach of privacy could occur.
[31]
Unlawfulness in that sense is adjudged ‘in the light of
contemporary
boni
mores
and the general sense of justice of the community as perceived by the
Court’.
[32]
Post-Constitution, it is accepted that the right to privacy lays
along the
continuum
described
by Ackermann J in
Bernstein
,
linked to human dignity.
[33]
A
very high level of protection is afforded to an individual’s
personal domain. There even exists an ‘untouchable’
sphere of human freedom that is beyond interference from any public
authority. No justifiable limitation of this ‘most intimate
core of privacy’ may occur. But this inviolable inner sanctum
is construed narrowly. The examples provided in
Bernstein
are
family life, sexual preference and home environment, to be shielded
from erosion by any conflicting community rights. As a person
enters
relationships with persons outside this closest intimate sphere,
their activities acquire a social dimension, the scope
of personal
space shrinks accordingly and their right to privacy becomes subject
to limitation.
[34]
The level
of justification for any limitation of the rights must be judged in
the light of the circumstances of each case, including
the nature and
effect of the invasion of privacy.
[35]
The scope of the right to privacy cannot be defined without
recognising that the content of the right is crystallised by mutual
limitation: ‘its scope is already delimited by the rights of
the community as a whole (including its members)’.
[36]
The scope of a person’s privacy extends only to those aspects
in regard to which a legitimate expectation of privacy can
be
held.
[37]
The nature of
privacy implicated by ‘the right to privacy’ relates only
to the most personal aspects of a person’s
existence; and not
to every aspect within their personal knowledge and experience’.
[38]
[18]
POPIA
reflects contemporary
boni
mores
and gives further expression to the appropriate balance to be struck.
The processing of personal information by public bodies must
take
cognisance of the right to privacy. But this is subject to
justifiable limitations that are aimed at protecting other rights
and
important interests and bearing in mind the need to remove
unnecessary impediments to the free flow of information, including
personal information.
[39]
[19]
The
right to privacy and the right to access to information are both
constitutional rights. Both rights may be reasonably and justifiably
limited. As indicated, and as
Mr
Blumberg SC
for
the applicants pointed out, PAIA and POPIA each promote both the
rights and give expression to various limitations. There is
no
constitutional challenge to their provisos before this court.
[40]
The dispute requires determination in terms of the existing
principles or rules of ordinary statutory law, properly interpreted
with reference to the values contained in the Bill of Rights and
through its prism.
[41]
When
interpreting the relevant provisions of PAIA and POPIA, the spirit,
purport and objects of the Bill of Rights must be promoted.
[42]
The South African context and the constitutional goals of a
transitioned and transformed society based on democratic values,
social
justice and fundamental human rights must be appreciated.
[43]
Significantly, this has implications for instances where two or more
interpretations of a legislative provision are possible. A
court must
prefer the reading of a statute that ‘better’ promotes
the spirit, purport and objects of the Bill of Rights,
even if
neither interpretation would render the provision
unconstitutional.
[44]
[20]
Specific
limitations on the right of access to information emerge from the
exemptions to disclosure contained in chapter 4 of PAIA,
entitled
‘Grounds for refusal of access to records’. The purpose
of this chapter is to ‘protect from disclosure
certain
information that, if disclosed, could cause material harm to, amongst
other things: the defence, security and international
relations of
the Republic; the economic interests and financial welfare of the
Republic and commercial activities of public bodies;
and the
formulation of policy and taking of decisions by public bodies in the
exercise of powers or performance of duties conferred
or imposed by
law’.
[45]
Unless one of
the specially enumerated grounds of refusal applies, information held
by the state or public entity must be disclosed
in further of the
right to information.
[46]
If a
request is refused, the IO must provide adequate reasons for this,
with reference to the pertinent provisions of PAIA, thereby
discharging the burden on the state created by s 81(3) of PAIA.
[47]
It is therefore crucial to determine if any justifiable ground for
refusal is applicable. The only ground raised is that referred
to in
s 34 of PAIA. The question is whether the respondents have put
forward sufficient evidence to conclude, on the probabilities,
that
the information withheld falls within the exemption claimed.
[48]
[21]
Before
considering that question, it must be noted that there are further
statutory considerations applicable, in furtherance of
the audi
alteram partem principle.
[49]
Section 47(1) of PAIA provides that the IO of a public body
considering a request for access to a record that might be a record
contemplated in s 34(1), amongst other sections, must take all
reasonable steps to inform a third party to whom the record relates
of the request.
[50]
When doing
so, the IO must, inter alia, state that they are considering such a
request, describe the content of the record, furnish
the name of the
requester and highlight the possible application of s 46 of PAIA
(mandatory disclosure in the public interest)
if appropriate. The
third party must be afforded 21 days to consent or make
representations to the IO as to why the request for
access should be
refused.
[51]
Those
representations may be oral or in writing, or the third party may
give consent for the disclosure of the record to the requester.
[52]
The IO must then decide whether to grant access as soon as possible,
but no later than 30 days after every third party has been
informed
in terms of s 47. The third party and requester must be notified of
the decision.
[53]
The meaning of
‘unreasonable disclosure of information’ in s 34 of PAIA
[22]
The
crux of this dispute turns on the proper interpretation of s 34 of
PAIA. An IO of a public body ‘must refuse a request
for access
to a record contemplated in section 34(1) … unless the
provisions of section 46 apply’.
[54]
Section 34(1) reads as follows:
‘
Subject
to subsection (2), the information officer of a public body must
refuse a request for access to a record of the body if
its disclosure
would involve the unreasonable disclosure of personal information
about a third party, including a deceased individual.’
[23]
It
is common cause that s 34(2) finds no application in the present
instance.
[55]
That being the
case, a textual interpretation of the balance of s 34(1) suggests
that an IO of a public body is given the power
to refuse a request
for access to a record of that body. To exercise that power, the IO
must determine whether disclosure of the
information involves
‘unreasonable’ disclosure of personal information about a
third party. If the disclosure would
involve unreasonable disclosure
of personal information about a third party, the request for access
to the record must be refused.
The flip side of this enquiry would be
the non-refusal of a request that did not involve the ‘unreasonable’
disclosure
of such personal information.
[24]
Considered
purposively, this interpretation appears to give effect to the
careful balance to be struck between the right of access
to
information and the right to privacy. Disclosure of a record of a
public body that would involve dissemination of third-party
personal
information must be refused if the disclosure would be unreasonable.
The right to access to information must prevail if
disclosure of the
personal information was reasonable in the circumstances. This is
concordant with an ‘open democratic society’
founded on
constitutional values such as human dignity, the advancement of human
rights and freedoms, accountability, responsiveness
and openness.
[56]
[25]
The
respondents advanced a different interpretation. They suggest that
the effect of s 11 of POPIA is that objection, by a third
party, to
the distribution or dissemination of personal information results in
an IO being prohibited from granting access. Considering
POPIA’s
protection of personal information, s 33 of PAIA demands that an IO
must refuse a request for access to a record
contemplated in s 34(1)
of that Act, unless the provisions of s 46, relating to mandatory
disclosure in the public interest, apply.
The IO had to make a
decision on ‘reasonableness’ based on limited
information.
[57]
Viewed from
that perspective, it was argued that the IO’s view that the
disclosure of the personal information of the third
party would be
unreasonable was unassailable. A similar argument was advanced in
respect of the first respondent’s decision
on appeal.
[26]
There are various difficulties with this
interpretation. It ignores the inclusion of the word ‘unreasonable’
in s 34(1)
and the existence of s 34(2) of PAIA. It elevates the s 46
public interest override to the sole situation in which access to a
record containing personal information about a third party should be
granted. That interpretation may have been appropriate had
the word
‘unreasonable’ not appeared in s 34(1), and if s 34(2)
had been omitted. In that case, s 33(1) and s 34(1),
read together,
would compel an IO to refuse a request for access to a record
contemplated in s 34(1) purely if ‘its disclosure
would involve
the disclosure of personal information about a third party’,
unless the provisions of s 46 applied. There would
be no need for
third parties to be notified and to make any representations, in
terms of ss 47 and 48 of PAIA, as to why the request
should be
refused. Absurdly, it might even result in automatic refusal of a
request in circumstances where the third party would
have consented
to disclosure. This would be because the request
must
then be refused when disclosure of the record would include personal
information about a third party in circumstances where the
public
interest override was not triggered.
[27]
It is apparent that the sections in
question cannot be interpreted in a way that completely negates the
inclusion of the word ‘unreasonable’.
The absence of any
textual link between s 46 and the question of reasonableness adds to
the difficulty in accepting the argument
advanced. There is similarly
nothing in ss 33 or 34 to support an interpretation that the only
time that personal information about
a third party may be reasonably
disclosed is when the requirements of s 46 have been met. Not only
would this conflict with a proper
textual interpretation of PAIA, it
would circumvent the purpose of the Act itself by only enabling
disclosure of records containing
any
personal information in the limited
circumstances contemplated in s 46 of PAIA. The consequences would be
serious. The role and
discretion of an IO would be watered down, the
rationale for notification to third parties would be questionable and
the requester
seeking access to information held by a public body
would inevitably have to satisfy the onerous s 46 requirements to
obtain access
simply because the record contained some personal
information. The right to privacy would be elevated to such an extent
that access
to information held by a public body would likely become
the exception, rather than the norm. The right to access to
information
would be diminished accordingly.
[28]
The
inclusion of the word ‘unreasonable’ in s 34(1) of PAIA
changes the position completely and points the way to an
interpretation of that Act that is consistent with the underpinning
constitutional right. The IO, who is a senior figure,
[58]
is tasked with fulfilment of a particular set of functions given the
wording of chapter 4 of PAIA. They must consider a request
for access
to a record of a public body. They must determine whether disclosure
of the record involves disclosure of personal information
about a
third party, or if any of the other grounds for refusal of access to
records is applicable. When considering a request
for access to a
record that might be a record in s 34(1), all reasonable steps must
be taken to inform a third party to whom the
record relates of the
request.
[59]
Due regard must
be given to any representations made by a third party in terms of s
48.
[60]
Assuming that only s
34 is of relevance, the IO must decide whether the record consists of
information enumerated in s 34(2). For
example, a third party may
have consented in writing to disclosure of their personal information
to the requester. In that event,
the record may not be refused. In
cases where s 34(2) is inapplicable, a decision must be made whether
the disclosure of information
about a third party contained in the
record requested would be reasonable or unreasonable. If the IO
considers that disclosure
would be unreasonable in the circumstances,
the request for access to that record must be refused, unless the
provisions of s 46
apply. The third party and requester must be
notified of the decision.
[61]
If the request for access is refused, the requester must be notified
in compliance with the requirements of s 25(3) of PAIA, including
the
reasons which caused the records to fall within the ambit of s 34(1),
and provided with information about the right to lodge
an internal
appeal.
[62]
[29]
The
interpretation proffered results in an outcome consistent with the
objects of PAIA. It finds strong support in a recent decision
of the
SCA, a decision of this court and in academic writing. As will be
demonstrated, it is also possible to read POPIA accordingly.
In
SA
History Archive Trust
,
Gorven JA responded to the SA Reserve Bank’s approach of
relying upon the protection of personal information as a basis
for
refusing disclosure in terms of s 34(1), in the following terms:
[63]
‘
But
s 34(1) provides: … It is clear that the prohibition requires
that the disclosure of personal information would be
unreasonable
.
Not all personal information is protected from disclosure. It depends
on the facts. If an IO decides that the disclosure would
be
unreasonable, two aspects must be dealt with. First, it should be
asserted that the disclosure would be
unreasonable
.
Secondly, some facts which cause the records to fall within the ambit
of the section should be put up in support. The SARB did
neither …
in those circumstances, the SARB could not have recourse to s 34(1) …
Finally, the SARB sought
to invoke the provisions of s 46 to prevent access in respect of all
the records sought … [but]
the ‘public interest
override’ [only] relates to records which, in the present
matter, are found to fall within the
provisions of s 34(1) …
Only if one or more of these sections apply to a specific request
does s 46 come into play. If none
of them applies, there is no basis
to refuse access and the two factors, including the “public
interest override”,
need not be considered.’ (Own
emphasis).
[30]
Similarly,
this court considered the proper approach to interpretation of PAIA,
and s 34 in particular, in
Centre
for Social Accountability
.
[64]
In that matter, Alkema J considered s 34(1) independently from s 46
of PAIA, holding that the section had to be interpreted by
having
regard to the content of the constitutional rights to privacy and
dignity, and their limitation.
[65]
The learned judge also noted that the interpretation of the
subsection involved consideration of the definition of ‘personal
information’ in s 1 of PAIA. Significantly, the focus was
placed on the meaning of the words ‘the unreasonable disclosure
of personal information’, as used in s 34(1) of PAIA.
[66]
The court applied a two-part test for establishing a reasonable
expectation of privacy, linking this test to determining whether
the
information in question was protected by the constitutional right to
privacy.
[67]
The point made,
with direct reference to s 34(1) of PAIA, was the following:
[68]
‘ …
personal
information which may be reasonably disclosed is not recognised by
society as personal, and no longer enjoys the protection
of the right
to privacy under s 14 of the Constitution. In this sense, such
information falls outside the scope of protectable
information,
notwithstanding that such information may be personal in nature …
So, the starting point of an enquiry of this
nature must always be to
first determine whether the information, which is sought to be
protected by the right to privacy, falls
within the legal and
constitutional realm of privacy. If not, then
caedit
quaestio
, and the further question as
to what stage it loses its protection does not arise.’
[31]
Applying
the two-stage test drawn from
Bernstein
,
the court concluded that the respondents failed on both legs, and had
not discharged ‘the onus of proving that the information
is
either “personal information” or that its disclosure
would be “unreasonable” within the meaning of these
expressions in s 34(1).’
[69]
[32]
As
indicated, the relevant provisions of POPIA may be interpreted to
accord with this reading of s 34. That Act makes it clear that
the
right to privacy includes a right to protection against the
unlawful
dissemination of personal information. A ‘data subject’
is defined in POPIA as the person to whom personal information
relates. Data subjects enjoy the right to have their personal
information processed in accordance with the conditions for the
lawful processing of personal information.
[70]
This includes the right to object, on reasonable grounds relating to
their particular situation to the processing of their personal
information.
[71]
‘Processing’
is defined to include ‘dissemination by means of transmission,
distribution or making available
in any other form …’
[72]
The eight conditions for the lawful processing of personal
information, as referred to in chapter 3 of POPIA, are
accountability;
processing limitation; purpose specification; further
processing limitation; information quality; openness; security
safeguards;
data subject participation.
[73]
[33]
It
is the duty of a ‘responsible party’ to ensure that there
is compliance with these conditions, ‘at the time
of the
determination of the purpose and means of the processing and during
the processing itself’.
[74]
A ‘responsible party’ is defined to mean a public or
private body or any other person which, alone or in conjunction
with
others, determines the purpose of and means for processing personal
information.
[75]
The
processing of personal information is not completely taboo. Section 9
of POPIA provides that personal information must be processed
lawfully and in a reasonable manner that does not infringe the
privacy of the data subject. Personal information may only be
processed
if, given the purpose for which it is processed, it is
adequate, relevant and not excessive.
[76]
Section 11 of POPIA reads as follows:
‘
(1)
Personal information may only be processed if –
(a)
the data subject … consents to
the processing;
(b)
processing is necessary to carry out
actions for the conclusion or performance of a contract to which the
data subject is party;
(c)
processing complies with an obligation
imposed by law on the responsible party;
(d)
processing protects a legitimate
interest of the data subject;
(e)
processing is necessary for the proper
performance of a public law duty by a public body; or
(f)
processing is necessary for pursuing
the legitimate interests of the responsible party or of a third party
to whom the information
is supplied.
(3) A data subject may
object, at any time, to the processing of personal information –
(a)
in terms of subsection 1
(d)
to
(f)
, in
the prescribed manner, on reasonable grounds relating to his, her or
its particular situation, unless legislation provides
for such
processing …
(4) If a data subject has
objected to the processing of personal information in terms of
subsection (3), the responsible party may
no longer process the
personal information.
[34]
Section
11(4) must be read in the context of the section. Personal
information must be lawfully processed in terms of POPIA and
data
subjects may indeed object to the dissemination of their personal
information by a responsible party. But the objection must
be based
‘on reasonable grounds’. It seems apparent that section
11 of POPIA permits the processing of personal information,
despite
the objection of a data subject, if, for example, processing is
necessary for the proper performance of a public law duty
by a public
body or processing is necessary for the pursuit of the legitimate
interests of a third party to whom the information
is supplied.
[77]
As with the analysis of PAIA, the crux of matter turns on the
question of reasonableness, which requires evaluation by the
responsible
party. Section 11(4) can only be read to mean that a
‘reasonable’ objection by a data subject to the
processing of
their personal information will result in that
information not being processed.
Have the respondents
discharged the burden?
[35]
The
burden of establishing that a refusal of access to information is
justified under the provisions of PAIA rests on the state
or on any
other party refusing access.
[78]
That burden must be discharged on a balance of probabilities.
[79]
In these proceedings, a court is not limited to reviewing the
decisions of the IO or the officer who undertook the internal appeal.
It decides the claim of exemption from disclosure afresh, engaging in
a
de
novo
reconsideration of the merits of the matter.
[80]
In exceptional cases, courts resort to taking a ‘judicial peek’
at the refused record, when the affidavits provided
by the state are
insufficient for a responsible
de
novo
decision.
[81]
Given the
information requested and the approach advanced for refusal, there is
no need to invoke the provisions of s 80 of PAIA
to do so in this
instance. In my view there is sufficient material presented to enable
this court to make a responsible decision,
on the probabilities, as
to whether the record requested should continue to receive protection
from disclosure.
[82]
[36]
The
decision in
M&G
Media
confirms that it is for the party claiming that it has complied with
the provisions of PAIA in refusing a request for access to
demonstrate this on a balance of probabilities. It remains relevant
that a constitutional right is implicated and that access to
information disputes of this kind are not purely private in nature,
given the potential public interest.
[83]
The refusal of access must itself be reasonable. The mere say-so of
the IO or recitation of the words of PAIA to justify refusal
has been
held to be insufficient.
[84]
The party seeking to justify refusal of access is obliged to put
forward sufficient evidence for a court to conclude, on the
probabilities,
that the information withheld falls within the
exemption claimed. This approach flows directly from PAIA’s
purpose to give
effect to the constitutional right to access to
information.
[85]
The nature of
the exemption claimed is also relevant in determining whether
sufficient information has been provided to justify
the refusal.
[86]
[37]
The
answering affidavit makes it clear that the department does not issue
permits to kill or hunt leopards for recreational purposes.
During
the period in question, the department received 14 applications,
other than from the applicants, relating to specific leopards
and
issued 11 permits.
[87]
Access
was granted to the relevant documentation relating to the applicants
themselves. The respondents rely on their interpretation
of ss 33 and
34 to justify the refusal of the request for the balance of
information. As indicated, their approach was founded
on the
constitutional right to privacy, the non-consent on the part of the
affected third parties and the inapplicability of the
s 46 grounds
for disclosure.
[38]
The subject matter of the application for
access to information involved permits issued in relation to a
vulnerable indigenous species
facing a high risk of extinction in the
medium-term. The application was brought by the Foundation for
purposes of obtaining information
relevant to the management and
conservation of the leopard species. It is accepted that state
management in conservation of threatened
and protected species
invokes a public interest dimension. The right of access to
information is closely linked to the cultivation
of an accountable,
responsive and open society and to the realisation of other
constitutional rights, including the right to a
healthy environment.
Animal welfare and conservation form part of this right. Access to
information is the norm, rather than the
exception.
[39]
Applicants
for permits seek to perform a restricted activity. Determinations
whether to grant a permit application may affect the
environment
significantly.
[88]
A decision
to issue or refuse a permit or to issue it subject to conditions,
must be consistent with, for example, any applicable
provisions of
NEMBA, the national environmental management principles and the
Promotion of Administrative Justice Act, 2000
.
[89]
The national environmental management principles apply throughout the
country to the actions of all organs of state that may significantly
affect the environment.
[90]
These principles serve as guidelines by reference to which any organ
of state must exercise any function when taking any decision
in terms
of NEMA or any statutory provision concerning the protection of the
environment.
[91]
The
principles guide the interpretation, administration and
implementation of NEMA, and any other law concerned with the
protection
or management of the environment.
[92]
NEMA confirms that the environment is held in public trust for the
people, that the beneficial use of environmental resources must
serve
the public interest and that the environment must be protected as the
people’s common heritage.
[93]
Importantly, one of the established principles accepts that
‘decisions must be taken in an open and transparent manner, and
access to information must be provided in accordance with the
law’.
[94]
[40]
Given
the nature of a request for a permit to perform a restricted
activity, and its potential impact on a vulnerable species, that
application process has acquired a social dimension outside the
private domain.
[95]
Consequently, it cannot be said that a reasonable expectation of
privacy exists in relation to such an activity. Nor would
contemporary
boni
mores
accept any such expectation as objectively reasonable.
[96]
[41]
That being the case, disclosure of the
information in question does not involve the unreasonable disclosure
of personal information
about a third party. Disclosing the
information, bearing in mind the broad environmentally-related
purposes which underpin the
request, is consistent with a society
based on constitutional values such as accountability, responsiveness
and openness. To borrow
from the language in
Centre
for Accountability
, the personal
information contained in the applications and permits falls outside
the legal realm of privacy, does not enjoy constitutional
protection
from disclosure and may be reasonably disclosed to the applicants in
the circumstances. That also puts paid to any suggestion
that the
information should be disclosed in a redacted fashion. Put
differently, the objection against disclosure cannot be said
to be on
reasonable grounds given the legitimate pursuit of information linked
to conservation and management of a vulnerable species
and the
constitutional right to a healthy environment.
[42]
On
this basis, disseminating the information requested to the
applicants, including the personal information contained therein,
also cannot be unlawful in terms of POPIA. Any suggestion that making
the information available to the applicants might result
in further
dissemination, so that there may be a greater poaching threat, is
speculative. The burden has not been discharged on
the probabilities,
there is no need to consider the public interest override,
[97]
and the applicants are entitled to relief in terms of
s 82
of PAIA.
[43]
It might be added that there may be a
simple way for an IO to address such issues in future.
Section
34(2)
(b)
of PAIA contemplates the situation where individuals providing
information to a public body are informed, before the information
is
provided, that this forms part of a class of information that would
or might be made available to the public. In such situations,
the IO
may not refuse a request for access to a record containing such
information.
Relief
[44]
The
court may grant any order that is just and equitable.
[98]
The amicus curiae submitted that the department’s approach to
considering and granting applications for permits was
unconstitutional
in that it excluded any form of public
participation. It also suggested that information of the kind
requested should automatically
be made available, rather than
requiring a PAIA application for access. This was different to the
relief claimed by the applicants,
who deliberately avoided a frontal
challenge to the procedure followed by the department in determining
TOPS applications, and
who confined themselves to relief in terms of
PAIA.
[45]
The
role of an amicus is to draw the attention of the court to relevant
matters of law and fact to which attention would not otherwise
be
drawn.
[99]
In the recent
decision in
AmaBhungane
Centre for Investigative Journalism
,
[100]
Madlanga J, on behalf of the majority of the Constitutional Court,
noted the following:
‘
[110]
The third amicus … contends that the High Court order is too
narrow … It urges us to amend the order to add
that RICA is
unconstitutional also to the extent that it fails to prescribe proper
procedures to be followed … Essentially,
the third amicus is
lodging its own appeal. Ordinarily (and I use this word guardedly),
an amicus participates in proceedings to
raise ‘new contentions
which may be useful to the Court’ … A court’s task
is to determine the dispute
presented to it by the parties. It stands
to reason then that the assistance to it must relate to the
determination of that dispute.
Adding a different dispute –
like an additional appeal – not litigated by the parties is not
assistance with the dispute
before the court. If anything, that
amounts to burdening the court with something else to determine. That
is not what
rule 10
and the
In re
Certain Amicus Curiae Applications
statement of law envisage.
[111] Therefore, it seems
to me that it is not in the interests of justice to entertain the
issue raised by the third amicus …’
[46]
As in
AmaBhungane
Centre for Investigative Journalism
,
the main issue raised by the amicus is of particular importance,
highlighting the role of proper public participation in the TOPS
permitting process and in environmental protection. Compelling as the
argument may be, the parties understandably did not focus
on the ins
and outs of this issue, which is concerned with information sharing
and public participation prior to the issue of a
TOPS permit. The
thrust of the parties’ dispute remained on the proper
interpretation of the applicable legislation, and
the tension between
access to information and the protection of personal information. The
consequence is that the parties did not
fully ventilate the issue
brought to the fore by the amicus. For example, the practicalities
and difficulties of full public participation
whenever a TOPS
application is considered was not canvassed. Different forms of
public participation, including creative and practically
workable
options that might be appropriate, were also not detailed by the
parties. It is therefore not in the interests of justice
to engage
with the issues raised by the amicus in further detail, or to make a
broad finding or declaratory order in this regard.
As
Mr
Nepgen
, for the respondents, argued,
such an outcome could also have far-reaching implications and
warrants comprehensive treatment.
[47]
In
Paul
,
[101]
the court highlighted subrules 3(5) and (6) of the PAIA Rules for
Procedure for Application to Court in terms of the Act.
[102]
It noted that the scheme of PAIA is such that there is no basis for
citing the relevant appeal authority in a court application
in terms
of s 78, and that any relief sought against that authority should not
be granted. The focus must remain on the IO.
[103]
Following that decision, it is only necessary to set aside the
decision of the second respondent and order that individual to grant
access to the information contained in the PAIA request.
Costs
[48]
The applicants have been successful in
their application and are entitled to their costs. The matter
involved a level of complexity
given the interplay between PAIA and
POPI in the context of NEMA, NEMBA and the Constitution. The
respondents did not suggest otherwise.
This complexity is sufficient
to warrant the costs of two counsel.
Order
[49]
The following order will issue:
1.
The second respondent’s decision, as
conveyed to the applicants on or about 17 February 2020, to refuse
the Landmark Foundation
Trust’s request for access to
information made in terms of
section 18
of the
Promotion of Access to
Information Act, 2000
, on or about 19 September 2019 (‘the PAIA
request’) is set aside.
2.
The second respondent is directed to
provide the Landmark Foundation Trust with access to the following
records (as requested under
the PAIA request) within fourteen days:
2.1
All applications received and all permits issued by the Department of
Economic Development and
Environmental Affairs of the Eastern Cape
Provincial Government to trap, kill, hunt or translocate any leopards
in or from the
Eastern Cape, in terms of the Threatened or Protected
Species Regulations (GNR 152 in GG 29657 of 23 February 2007) from
2017 to
3 December 2019.
3.
The second respondent shall be liable for
the applicants’ costs including the costs of two counsel.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard:10
JUNE 2022
Delivered:26
JULY 2022
Appearances:
Applicant’s
Counsel :
Adv M Blumberg SC and Adv M Adhikari
Cape Bar
Instructed
by :
BDLS Attorneys
Attorneys for the
Applicants
60
Second Avenue
Newton Park
Gqeberha
Email:karien@bdlsattorneys.co.za
C/O
Wheeldon Rushmere & Cole
119 High Street
Makhanda
Tel: 046
622 7005
Email:meghan@wheeldon.co.za
Respondent’s
Counsel:
Adv J Nepgen
Gqeberha
Instructed
by :
The State Attorney
Mrs Botha
Attorneys for the First
and Second Respondents
29
Western Road
Central
Gqeberha
Tel:
060 983 9263/041 585 792
Email:Michel.botha@gmail.com
C/O
Whitesides Attorneys
53 African Street
Email:barrow@whitesides.co.za
Makhanda
Amicus
Curiae’s
Counsel
:
Adv AC Moorhouse
Gqeberha
Instructed
by:
Webber Wentzel Attorneys
Attorneys for Amicus
Curiae
90
Rivonia Road, Sandton
Johannesburg,2196
Tel:
011 530 5238
Email:Odette.geldenhuys@webberwentzel.com
C/O
Netteltons Attorneys
118A High Street
Makhanda
Tel:
046 622 7149
Email:
ilze@netteltons.co.za
[1]
GNR
152 in GG29657 of 23 February 2007.
[2]
Act
10 of 2004.
[3]
A
‘listed threatened or protected species’ is a critically
endangered species, endangered species, vulnerable species
or
protected species specified as such in the list published in GN R151
in GG29657 of 23 February 2007 by the Minister of Environmental
Affairs and Tourism (‘the Minister’) in terms of s 56 of
NEMBA.
[4]
Act
2 of 2000.
[5]
The
personal information contained in the issued permits was identified
as follows in the answering affidavit: the name, identity
number,
residential and postal address of the applicant and the identity of
the party from where the leopard are to be captured
or controlled.
[6]
Preamble
to the Constitution of the Republic of South Africa, 1996 (‘the
Constitution’).
[7]
S
7 of the Constitution.
[8]
Ss
10, 14, 24 and 32 of the Constitution respectively.
[9]
S
36(1) of the Constitution. Five factors are specifically mentioned
in this subsection, namely the nature of the right; the importance
of the purpose of the limitation; the nature and extent of the
limitation; the relation between the limitation and its purpose;
and
less restrictive means to achieve the purpose.
[10]
PAIA
was enacted in compliance with the requirements of s 32(2) of the
Constitution.
[11]
Act
4 of 2013.
[12]
Personal
information is defined in POPIA to mean ‘information relating
to an identifiable, living, natural person, and where
it is
applicable, an identifiable, existing juristic person’ and
various examples are provided in s 1 of POPIA to illustrate
what is
encompassed. The notion is also defined in s 1 of PAIA.
[13]
Act
10 of 2004.
[14]
Act
107 of 1998.
[15]
S
195(1)
(g)
of
the Constitution. See
Brümmer
v Minister for Social Development and Others
2009 (6) SA 323
(CC) (‘
Brümmer
’)
para 62.
[16]
I
Currie and J de Waal
The
Bill of Rights Handbook
(6
th
Ed) (Juta) p 692.
[17]
In
Brümmer
,
for example, a journalist required information to ensure accurate
reporting on a government tender that was the subject of pending
litigation. The relationship between access to information and
freedom of expression was emphasised:
Brümmer
supra fn 15 paras 3, 63.
[18]
See
NSPCA
v Minister of Environmental Affairs
and
Others
2020
(1) SA 249
(GP), citing
NSPCA
v Minister of Justice and Constitutional Development and Others
2017 (1) SACR 284
(CC) para 56.
[19]
S
v Lemthongthai
2015
(1) SACR 353
(SCA). Also see the judgment of Navsa ADP in
Company
Secretary, Arcelormittal SA v Environmental Justice
2015 (1) SA 515
(SCA) (‘
Arcelormittal
’)
para 1.
[20]
See
NSPCA
v Minister of Justice and Constitutional Development
2017
(1) SACR 284
para 58, holding that animal welfare and animal
conservation together reflect two intertwined values.
[21]
S
2 of PAIA.
[22]
S
9 of PAIA.
[23]
E
Mureinik ‘Reconsidering Review: Participation and
Accountability’
(1993)
Acta
Juridica
35
as cited in Currie and De Waal op cit fn 16 at p699.
[24]
President
of the Republic of South Africa v M&G Media
2012
(2) SA 50
(CC) (‘
M&G
Media
’)
para 9.
[25]
See
M&G
Media
ibid para 9. There is no suggestion of non-compliance with any
formalities in this instance.
[26]
Currie
and De Waal op cit fn 16 p 708.
[27]
See
s 81(3) of PAIA;
M&G
Media
supra
fn 24 para 13; Currie and De Waal op cit fn 16 p 709.
[28]
M&G
Media
supra
fn 24 paras 23, 32.
[29]
De
Lange v Eskom Holdings
2012
(1) SA 280
(GSJ) (‘
De
Lange
’).
[30]
AmaBhungane
Centre for Investigative Journalism NPC and Another v Minister of
Justice and Correctional Services and Others; Minister
of Police v
AmaBhungane Centre for Investigative Journalism NPC and Others
[2021]
ZACC 3
;
2021 (4) BCLR 349
(CC);
2021 (3) SA 246
(CC) (‘
AmaBhungane
Centre for Investigative Journalism’
)
paras 27, 28.
[31]
Financial
Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another
[1993] ZASCA 3
;
1993
(2) SA 451
(A) at 462F.
[32]
Ibid
at 462G.
[33]
Bernstein
and Others v Bester and Others
[1996] ZACC 2
;
1996
(2) SA 751
(CC) (‘
Bernstein
’).
The concept of privacy has been described as ‘amorphous’
and ‘elusive’: at para 65. Also see
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC) (
Hyundai
)
para 18. On the foundational role of identity in the concept of
privacy, see
Bernstein
para 65.
[34]
Bernstein
ibid
paras 67, 77.
[35]
Hyundai
supra fn 33 para 18.
[36]
Bernstein
supra
fn 33 para 79.
[37]
Ibid
para 75.
[38]
Ibid
para 79.
[39]
Preamble
to POPIA; S 2 of POPIA.
[40]
See
s 5 of PAIA: this Act applies to the exclusion of any provision of
other legislation that
(a)
prohibits or restricts the disclosure of a record of a public body
or private body; and
(b)
is
materially inconsistent with an object, or a specific provision, of
this Act.
[41]
On
indirect application of the Bill of Rights, in general, see Currie
and De Waal op cit fn 16 at pp56-57. Also see
Hyundai
supra fn 33 para 21.
[42]
S
39(2) of the Constitution.
[43]
See
Hyundai
supra fn 33 para 21.
[44]
See
the judgment of Kroon AJ in
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
[2008] ZACC 12
;
2009 (1) SA 337
(CC) (‘
Wary
Holdings
’)
paras 46 and 84. The judgment of Yacoob J in
Wary
Holdings
makes the point that this principle only applies ‘if the
proviso is reasonably capable of having two meanings’.
[45]
See
M&G
Media
supra fn 24 para 11.
[46]
S 11(1) of PAIA.
M&G
Media
supra
fn 24 para 9.
De
Lange
supra
fn 29 para 35. This is so regardless of the reasons for which access
is sought and irrespective of what the organ of state
believes those
reasons to be. The exceptions contained in chapter 4 of PAIA
constitute a numerus clausus of circumstances in
which access may or
must be refused: see
SA
History Archive Trust v SA Reserve Bank
2020 (6) SA 127
(SCA) (‘
SA
History Archive Trust
’)
para 33.
[47]
See
M&G
Media
supra fn 24 para 11.
[48]
Ibid
para 23.
[49]
See
SA
History Archive Trust
supra
fn 46 para 13. The one exception to this is contained in s 49(2) of
PAIA.
[50]
The
IO must inform a third party of this as soon as reasonably possible,
but in any event, within 21 days after the request is
received, and
by the fastest means reasonably possible: s 47(2) of PAIA.
[51]
S
47(3) of PAIA. See paras 8-10.
[52]
S
48 of PAIA.
[53]
S
49(1) of PAIA. Notification of refusal must state adequate reasons
for this and inform the requester about the right to lodge
an
internal appeal, as well as the process for this: s 49(1)
(c)
read
with s 25(3) of PAIA.
[54]
S
33(1)
(a)
of PAIA.
[55]
S
34(2) of PAIA reads as follows: ‘A record may not be refused
in terms of subsection (1) insofar as it consists of information
–
a)
about an individual who has consented in
terms of section 48 or otherwise in writing to its disclosure to the
requester concerned;
b)
that was given to the public body by the
individual to whom it relates and the individual was informed by or
on behalf of the
public body, before it is given, that the
information belongs to a class of information that would or might be
made available
to the public;
c)
already publicly available;
d)
…
e)
…
f)
…’
[56]
Preamble
and s 1 of the Constitution.
[57]
The
identity of the requester; a description of the record sought; the
extent and nature of the personal information of third
parties
contained within the record; the representations and objections
received from third parties whose personal information
was contained
within the record sought.
[58]
See
s 1 of PAIA.
[59]
S
47(1) of PAIA.
[60]
S
49(1)
(a)
of PAIA.
[61]
S
49(1)
(b)
and
(c)
of PAIA.
[62]
S
49(1)
(c)
of PAIA. The discretion afforded to the IO in terms of chapter 4 of
PAIA is further evinced by s 33(1)
(b)
.
[63]
SA
History Archive Trust
supra
fn 46 paras 37, 46.
[64]
Centre
for Social Accountability v Secretary of Parliament
2011
(5) SA 279
(ECG) (‘
Centre
for Social Accountability
’).
[65]
Centre
for Social Accountability
ibid
para 61.
[66]
Centre
for Social Accountability
ibid
para 63
et
seq
.
[67]
Firstly,
the objector must establish a subjective expectation of privacy by
establishing that the nature of the information is
covered by the
freedom of identity principle. Subjectively viewed, the information
must be part of the inner sanctum of the private
and personal life
of the individual. Secondly, objectively assessed, society must
recognise the individual’s expectation
of privacy as
reasonable:
Centre
for Social Accountability
ibid paras 72, 75. In applying the test, Alkema J appears to have in
fact intended three steps, also considering the question
of
‘reasonableness’ when gauging the individual’s
subjective expectation: para 74.
[68]
Centre
for Social Accountability
ibid
paras 74, 76.
[69]
Centre
for Social Accountability
ibid
para 81. In case it had erred, the court did go on to consider the
public interest override: para 85. It also concluded that
the
expressions ‘unreasonable disclosure’ in s 34(1) and
‘public interest’ in s 46 were expressions of
the same
constitutional principle, namely the second stage of the legitimate
expectation principle. This required society to
reasonably and
legitimately consider the information to be protectable: para 107.
[70]
S
5 of POPIA.
[71]
S
5
(d)
read with s 11(3)
(a)
of POPIA.
[72]
S
1 of POPIA.
[73]
See
s 4(1) of POPIA. Although the date of commencement of the applicable
sections of the chapter was 1 July 2020, nothing appears
to turn on
this.
[74]
S
8 of POPIA.
[75]
S
1 of POPIA.
[76]
S
10 of POPIA.
[77]
Ss
11(1)
(e)
and
(f)
of
POPIA.
[78]
S
81(3) of PAIA. See
M&G
Media
supra fn 24 paras 13, 14.
[79]
Ibid.
[80]
M&G
Media
ibid
para 14.
[81]
M&G
Media
ibid
paras 39, 42 and 44
et
seq
.
[82]
See
M&G
Media
ibid paras 48 and 49.
[83]
See
M&G
Media
ibid para 33 on the difference between ordinary civil proceedings
and an access to information dispute.
[84]
M&G
Media
ibid
para 22.
[85]
M&G
Media
ibid
paras 23, 24.
[86]
M&G
Media
ibid
para 25. It is equally clear that the relevant material to be placed
before a court in a s 78 application is not confined
to the material
placed before the IO at the time access was refused:
Transnet
Ltd and Another v SA Metal Machinery Co (Pty) Ltd
2006
(6) SA 285
(SCA) para 24.
[87]
Para
34 of the answering affidavits, contrary to a subsequent paragraph
of the answering papers, suggests that 11 applications
were received
and 14 permits issued.
[88]
The
NEMBA defines ‘permit’ to mean a permit issued in terms
of chapter 7 of that Act. Restricted activities involving
specimens
of listed threatened or protected species are regulated by this
chapter. A person may apply for a permit by lodging
an application
on the prescribed form and the issuing authority may make various
decisions in terms of s 88 of NEMBA.
[89]
Act
3 of 2000. See s 88(3) of NEMBA. The TOPS Regulations govern the
issuing of a permit in further detail, including various
matters to
be considered before a permit application is granted or refused.
This includes consideration of whether the restricted
activity in
respect of which the application is submitted is likely to have a
negative impact on the survival of the relevant
listed threatened or
protected species, and any objections to the application: Regulation
10 of the TOPS Regulations. Regulation
19 specifies the information
to be contained in the permit. Regulation 23 provides that an
issuing authority must refuse a permit
application for the transfer,
transport or translocation of a specimen of a listed threatened or
protected animal species to
an extensive wildlife system in certain
circumstances. A person who feels aggrieved by a decision taken
under the TOPS Regulations
enjoys a right of appeal: regulation
55(1) of the TOPS Regulations.
[90]
S
2(1) of NEMA.
[91]
S
2(1)
(c)
of NEMA.
[92]
S
2(1)
(e)
of NEMA.
[93]
S
2(1)
(o)
of
NEMA. ‘Environment’ is defined to mean the surroundings
within which humans exist, including any part or combination
of the
land, water, atmosphere, micro-organisms, plant and animal life and
the inter-relationship among and between them, as
well as the
physical, chemical, aesthetic and cultural properties and conditions
of the foregoing that influence human health
and well-being: s 1 of
NEMA.
[94]
S
2(1)
(k)
of NEMA.
[95]
See
Bernstein
supra
fn 33 para 85.
[96]
Ibid
.
See
Centre
for Social Accountability
supra fn 64 para 73. Also see
Arcelormittal
supra fn 19 para 82 on the principle that there is no room for
secrecy when decisions impact on the environment and implicate
the
public interest.
[97]
See
De
Lange
supra fn 29 para 137, citing I Currie and J Klaaren
Commentary
on the
Promotion of Access to Information Act
(2002
)
at p 108.
[98]
S
82
of PAIA.
[99]
In
re: Certain Amicus Curiae Applications; Minister of Health and
Others v Treatment Action Campaign and Others
[2002]
ZACC 13
para 5.
[100]
AmaBhungane
Centre for Investigative Journalism
supra
fn 30
.
[101]
Paul
v MEC for Health, Eastern Cape Provincial Government and Others and
Related Matters
[2019]
3 All SA 879
(ECM) (‘
Paul
’).
[102]
GNR.1284
of 4 October 2019 (Government Gazette No. 42740).
[103]
Paul
supra
fn 101 paras 32, 33.