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[2018] ZAKZDHC 19
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Siyakhuphuka Investment Holdings (Pty) Ltd v Ports Regulator of South Africa Transnet SOC and Others (5520/2016) [2018] ZAKZDHC 19 (21 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE NO 5520/2016
In
the matter between:
SIYAKHUPHUKA
INVESTMENT HOLDINGS
(PTY)
LTD
Applicant
and
PORTS
REGULATOR OF SOUTH AFRICA
First
Respondent
TRANSNET
SOC
Second
Respondent
MINISTER
OF PUBLIC ENTERPRISES
MINISTER
OF TRANSPORT
Third
Respondent
Fourth
Respondent
Coram:
Koen J
Heard:
4 May 2018
Delivered:
21 May 2018
ORDER
The
following order is granted:
1.
The First Respondent is directed, within 10 (ten) days after the date
of the service of this order on its attorneys, to produce
the
“
separate confidential report
” sent by it to the
Minister of Transport on 15 September 2016, referred to in paragraph
30 of the affidavit sworn to by Mr
A Ngcobo on behalf of the First
Respondent on 9 May 2017;
2.
The First Respondent is directed to pay the costs of this
application, such costs to include the costs of senior counsel.
JUDGMENT
KOEN
J
INTRODUCTION
[1]
The Applicant has in the past successfully operated a cargo terminal
and container freight station at the outskirts of the port
at
Richards Bay. Its operations later turned to logistical services.
Identifying an opportunity, it subsequently submitted an application,
as required by the relevant legislation, to the Second Respondent
(Transnet SOC) for the development of a container operation on
an
undeveloped site at the port of Richards Bay. When that application
was unsuccessful (per the decision of the Second Respondent,
dated 30
April 2009), it then lodged a complaint with the First Respondent
(the Ports Regulator). The First Respondent is established
in terms
of s 29 of the National Ports Act 12 of 2005 (‘the Act’)
and is an organ of state.
[1]
A panel of the First Respondent heard the Applicant’s complaint
on 5 and 6 March 2015 and 6, 7 and 8 May 2015. It handed
down its
Record of Decision on 15 July 2015 dismissing the complaint.
Thereafter, and in response to correspondence from the Applicant,
the
First Respondent on 8 March 2016 communicated to the Applicant that
it had not and did not intend to comply with s 30(5)
[2]
of the Act by reporting to the Minister.
[3]
The Second Respondent (in its division Transnet National Ports
Authority) subsequently on or about 23 March 2016 seemingly decided
to approve a container terminal or container handling facility at the
port of Richards Bay to be operated by Transnet Port Terminals
(another division of the Second Respondent).
[2]
On 9 June 2016 the Applicant launched proceedings (‘the
review’) claiming inter alia the following relief:
‘
1. The decision of
the Second Respondent taken on or about 23 March 2016 to ‘approve’
a container terminal or container
handling facility at the port of
Richards Bay to be operated by the Second Respondent is reviewed and
set aside;
2. It is declared that,
if the Second Respondent intends to design, construct, rehabilitate,
develop, finance, maintain or operate
a container terminal or
container facility or provide services relating to such terminal or
facility at the port of Richards Bay,
it is obliged to follow a
procedure that is fair, equitable, transparent, competitive and cost
effective in terms of
section 56(5)
of the
National Ports Act.
3. The
decision of the
Ports Regulator communicated to the Applicant on 8 March 2016 in
terms of which the Ports Regulator indicated that
it had not and did
not intend to comply with
section 30(5)
of the
National Ports Act,
which
obliges the Regulator to report “
whenever necessary …
to the Minister on any matter realting to the application or purposes
of this Act
” is reviewed and set aside;
4. The Port Regulator is
directed to report to the Minister in terms of section 30(5) in
respect of its findings in Record of Decision
(RC 2010/04/0017) of 15
July 2015 and, in particular, its finding that “”
it is
questionable whether, due to the above factors, the Respondent can
make an independent, unbiased, bone fide decision regarding
such a
proposal including whether same should go out on a section 56 process
or not”
and its further finding that “
the current
situation is creating both legal and regulatory uncertainty. An
assumption and prima facie observation is being
created that an
environment exists (in the container terminal industry in South
Africa) where Transnet SOC Ltd is possibly being
treated more
favourably, deriving an unfair advantage over other transport
companies.”
The decision of the Ports Regulator of South
Africa (“
Ports Regulator
”) of 15 July 2015 in
Record of Decision (RC2010/04/0017) dismissing the Applicant’s
complaint against the Second Respondent’s
rejection of the
Applicant’s proposal is reviewed and set aside.
5. The decision of the
Ports Regulator of South Africa (“Ports Regulator”) of 15
July 2015 in Record of Decision (RC2010/04/0017)
dismissing the
Applicant’s complaint against the Second Respondent’s
rejection of the Applicant’s proposal is
reviewed and set
aside.
6. The Applicant’s
appeal is referred back to the Ports Regulator for reconsideration
taking into account this court’s
findings and the Ports
Regulator’s own findings regarding the “
blurred lines”
and “
unfair advantage”
between Transnet SOC
Ltd. and Transnet Port Terminals.
7
. The Applicant
is granted leave to introduce new and up to date references, evidence
and studies to support its appeal before the
Ports Regulator in its
redetermination of its appeal.
8. The First and Second
Respondents are to pay the costs of the application including the
costs of two counsel and such costs are
to be paid jointly and
severally by any other Respondent who opposes this application.
9. Further and/or
alternative relief’
The
Applicant would be entitled within ten days of the Registrar making
the record available to it, ‘to deliver a notice and
accompanying affidavit, amending, adding to or varying the terms of
the Notice of Motion and supplementing the founding affidavit’.
[3]
The First Respondent has elected not to participate in the review. It
abides by the court’s decision.
[4]
Pursuant to the obligation in terms of rule 53(1)(b) requiring the
First and Second Respondents ‘…to dispatch to
the
Registrar of this Court the record of the proceedings in respect of
the three decisions sought to be reviewed together with
such reasons
as it might in law be required or desire to give or make …’,
the First Respondent on 19 August 2016 delivered
a record comprising
13 volumes, with a 14
th
volume containing alleged
confidential material which it has agreed may be released to the
Applicant’s attorneys after a
confidentiality agreement has
been signed.
[5]
In response to correspondence exchanged to determine whether a report
to the Minister in terms of s 30(5) exists that would
be relevant to
the issues which arise in the review, a letter was received by the
Applicant’s former attorneys from the First
Respondent’s
attorney dated 15 February 2017 which recorded the following in the
second paragraph thereof:
‘
We are instructed
that insofar as the annual meeting of the Regulator for the 2015/2016
year, the matter of Siyakhuphuka was reported
on as finalized. The
nature of the meeting did not allow for deliberation of the matter,
but we are instructed that a separate
confidential report dealing
with the issue was sent to the Minister of Transport on 15 September
2016. This is the report contemplated
in
section 30(5)
of the
National Ports Act. This
is a confidential report to the Minister,
and we are not authorised to release this. We reiterate however that
we do not believe
this forms part of the record before our client as
decision maker’.
[4]
[6]
The Applicant thereafter on 20 April 2017 filed a
rule 30A
notice
contending that the record supplied is inadequate. It reads:
‘
TAKE NOTICE
that the First Respondent has failed to comply with the
provisions of
Rule 53
(1) (b) in that it has failed to produce all
documents comprising the record in respect of the “
decision
of the Ports Regulator communicated to the Applicant on 8 March 2016
in terms of which the Ports Regulator indicated that
it had not and
did not intend to comply with
section 30(5)
of the
National Ports
Act, which
obliges the Regulator to report ‘whenever necessary…
to the Minister on any matter relating to the application or purposes
of this Act.”
TAKE NOTICE FURTHER
that the First Respondent failed to produce as part of the record
(and pursuant to a regime of confidentiality if it so desires)
the
“
separate confidential report dealing with the issues [of
the non-corporatisation of Transnet] was sent to the Minister of
Transport
on 15 September 2016”,
and which is alleged by
the First Respondent in correspondence of 15 February 2017 to be “
the
report
contemplated in
section 30(5)
of the
National Ports
Act&rdquo
;.
’
[7]
This notice was responded to by way of an affidavit by Mr Aubrey
Ngcobo, a member of First Respondent who was also a member
of the
panel which had considered the Applicant’s complaint. He inter
alia:
(a) Records that the
record filed ‘is the full record of the decision referred to in
paragraphs 5 and 6 concerning the Record
of Decision dated 15 July
2015, and that the Regulator’s reasons appear therein…’;
and
(b) Acknowledges that on
2 March 2016 the Applicant’s former attorneys wrote to the
First Respondent setting out various provisions
of the Record of
Decision, section 30 of the Act and Directives, and which then
continued to record –
‘
8.
We assume that, since a reasonable period of time has now elapsed
since the Port’s Regulator’s record of decision
was
handed down, the Ports Regulator has reported to the Minister in
terms of
section 30(5)
of the
National Ports Act. We
request a copy
of such report.
9. If the Ports Regulator
has
not
reported to the Minister in terms of section 30(5) of
the Act, we require confirmation of this’.
(c) Confirmed the
contents of a letter from the First Respondent’s legal manager
dated 8 March 2016 in reply to the Applicant’s
former attorneys
aforesaid letter which recorded:
‘
Insofar
as the Complaint lodged by Siyakhuphuka as well as the Regulator’s
subsequent Record of Decision thereon is concerned,
no separate
report was prepared to highlight this issue as this is not required.’
(d) Added in relation to
such report that ‘(t)he Regulator is under no obligation to do
so’, explaining that section
30(5) requires a report to the
Minister ‘on any matter relating to the application of the
purposes of this Act “
whenever necessary or required by the
Minister
” (My emphasis)’
(e) Nevertheless added:
‘
For
completeness sake I record that the Regulator does report to
the Minister on its performance and functions on an annual
basis, and
does raise confidential matters with the Minister from time to time
arising from the Regulator’s compliance monitoring
function.
The “
separate confidential report
”
is one such report. I reiterate that no such report has been
made concerning the Applicant’s complaint, and
the
aforementioned report does not mention the Applicant, nor any other
relevant issue of merit on which the panels Record of Decision
in was
based
,
and
the “
separate confidential report”
is thus irrelevant to the
record.’
[8]
This affidavit resulted in the Applicant on 22 May 2017 filing
a Notice in terms of rule 35(12) requiring the First Respondent ‘to
produce, make available for inspection and permit copies to be made
of the ‘separate confidential report’ sent to the
Minister of Transport on 15 September 2016 and which was referred to
in paragraph 30 in the affidavit … dated 9 May 2017.’
[9]
It is not disputed that the report in question is a document referred
to in an affidavit filed by the First Respondent. When
the report was
not produced, the present application was launched claiming the
following relief:
‘
1.
Declaring the failure of the first respondent to comply with the
provisions of Rule 35 (12) of the Uniform Rules of Court to
be
unlawful.
2. Directing the first
respondent within 10 (ten) days after the date of this order to
comply with the provisions of Rule 35(12)
and to produce the
documentation referred to in the applicant’s Rule 35(12) Notice
that was served on the first respondent
on 22 May 2017
3. Granting the applicant
further or alternative relief; and
4. Ordering the first
respondent to pay the costs of this application, including the
costs of two counsel’.
THE
APPLICANT’S ARGUMENT
[10]
Briefly stated, the Applicant submits that although the report was
‘sent to the Minister of Transport on 15 September
2016’,
which is subsequent to the record of decision of the First Respondent
which is sought to be reviewed, there is no
indication when it came
into existence (that information falling squarely within the
knowledge of the First Respondent). Accordingly,
it could conceivably
form part of the record of the decision and therefore should be
furnished.
[11]
It requests this court to go behind the oath of the deponent who
stated that the report ‘does not concern the Applicant,
its
complaint nor any other relevant issue of merit on which the record
of decision is based’. The Applicant argues forcefully
in
favour of constitutional openness and transparency. It further
submits that these also underpin the request in terms of rule
35(12)
that the report must be produced for inspection and copying, not only
for the Applicant’s benefit, but also for the
benefit of the
Court in the context of the main review application, so that it may
decide the matter on all the facts.
THE
FIRST RESPONDENT’S ARGUMENT
[12]
Briefly stated, the First Respondent submits that as the report was
sent on 15 September 2016, it must presumably have been
created
around that time and therefore could not possibly have featured as
part of the record relating to the Record of Decision
taken on 15
July 2015. Accordingly it contends that the entire record relating to
its decision has been filed as Mr Ngcobo has
stated under oath.
[5]
Insofar as the application is based on the provisions of rule 35(12),
it maintains in its answering affidavit that the reference
to the
report is not in an affidavit or pleading relating to the review,
that it (the First Respondent) is no longer a party to
the review as
it has sought to abide by the outcome of the review, that the
contents of the report is confidential, and that in
any event, the
report is not relevant to the review.
[13]
During argument, Mr Dickson SC for the First Respondent stated that
the First Respondent will not persist with the argument
that it is no
longer a party to the review. That concession is fairly made as the
First Respondent clearly remains a party even
if it has elected to
abide by the court’s decision. Further, Mr Dickson stated that
the confidentiality argument would not
be relied upon. That
concession is also made correctly, as no evidential basis has been
laid in the answering affidavit of the
First Respondent for any
finding that the contents of the report is confidential.
[6]
The high water mark on confidentiality was the deponent’s
conclusion that in his opinion the contents of the report was
confidential.
[14]
The only ground persisted with by the First Respondent in opposition
to the application in argument was that the report was
not relevant.
DISCUSSION
[15]
Recently the Constitutional Court had occasion in
Helen
Suzman Foundation v Judicial Services Commission
[7]
to consider what is meant by the following two points:
(a)
The record of a decision. At para 17 the CC held as follows
(references omitted):
‘
What forms part of
the rule 53 record? The current position in our law is that – with
the exception of privileged
information – the record
contains all information relevant to the impugned decision or
proceedings.
Information is relevant if it throws light on the
decision-making process and the factors that were likely at play in
the mind of
the decision-maker
. Zeffertt and Paizes make a
comment on the exclusion of evidence on the grounds of privilege.
That comment must surely be of relevance
even to the exclusion of
privileged information from a rule 53 record. After all, the content
of a rule 53 record is but evidentiary
in nature. The authors say
that in the case of privileged information, the exclusion is based on
the recognition that the general
policy that justice is best served
when all relevant evidence is ventilated may, in some cases, be
outweighed by a particular policy
that requires the suppression of
that evidence. The fact that documents contain information of a
confidential nature “does
not per se in our law confer on them
any privilege against disclosure”.’ (my underlining)
(b)
And regarding relevance. At paras 25 and 26 it commented as follows
(references omitted):
‘
[25] The JSC
submitted that
relevance should be determined with reference to
the pleaded case. I do not agree. Rule 53 envisages the possibility
of a review
applicant supplementing the papers, including the very
cause of action, upon being furnished with the record. That much is
plain
from the fact that an applicant may supplement not only the
affidavits, but also the notice of motion. That means an applicant
may add to or subtract from the grounds of review. Then, if
information could be excluded on the basis of being irrelevant to the
pleaded case, this would negate a substantial part of the purpose of
the rule 53 record. What must be disclosed is information
relevant to
the impugned decision. Unsurprisingly, a review applicant may not
have pleaded certain issues that bolster her or his
challenge exactly
because she or he was not aware of their existence
.
[26] It is helpful to
point out that the rule 53 process differs from normal discovery
under rule 35 of the Uniform Rules of Court.
Under rule 35 documents
are discoverable if relevant, and relevance is determined with
reference to the pleadings.
So, under the rule 35 discovery
process, asking for information not relevant to the pleaded case
would be a fishing expedition.
Rule 53 reviews are different. The
rule envisages the grounds of review changing later. So, relevance is
assessed as it relates
to the decision sought to be reviewed, not the
case pleaded in the founding affidavit
.’ (my underlining)
[16]
The Applicant further submits that the adequacy of a record of a
decision giving rise to a review and the relevance of a document
sought to be discovered must now be assessed against the general
background of the Constitutional rights to inter alia information
and
just administrative rights and the Constitutional values of openness
and transparency in an open and democratic society. That
is
undoubtedly so and I fully endorse the various dicta to which I was
referred by the Applicant some of which are briefly recounted
below.
[17]
Litigation is aimed at establishing the truth. In
Stein
Brothers v Dawood and another
[8]
it was stated that ‘the object of all litigation is to arrive
at the truth and at a fair, just and expeditious solution’.
Similarly in
S
v Wessels
[9]
the Court stated that: ‘… if the courts are prevented
from arriving at the truth there can be no justice’.
Particularly in regard to organs of state, the State is not an
ordinary litigant. Heightened duties of accountability and
transparency
rest on an organ of state
[10]
which bears additional obligations to ensure that the principle of
open justice is upheld. It is meant to be an exemplar of transparency
and constitutional accountability flowing from section 7(2),
[11]
section 165(4)
[12]
and section
195
[13]
of the Constitution.
As Cameron J remarked in
MEC
for Health, Eastern Cape v Kirland Investments (Pty) Ltd t/a Eye &
Lazer Institute
[14]
‘
there is a higher
duty on the State to respect the law, to fulfil procedural
requirements and to tread respectfully when dealing
with rights’.
Likewise
in
Kalil
NO and others v Mangaung Metropolitan Municipality and others
[15]
the Supreme Court of Appeal commented:
‘
where,
as here, the legality of their actions is at stake, it is crucial for
public servants to neither be coy nor to play
fast and loose
with the truth. On the contrary, it is their duty to take the court
into their confidence and fully explain the
facts so that an informed
decision can be taken in the interests of the public and good
governance
.’
[18]
It is unquestioningly so that access to information is an important
aspect under our Constitution, particularly under sections
32 and 34
which guarantee access to information and the right to a fair
hearing. Litigants are entitled to access information under
the
control of another party cited in the litigation.
[16]
Not surprisingly then Cameron J said in
Van
Niekerk v Pretoria City Council
,
which dealt with a claim brought under s 23 of the interim
Constitution (the precursor to s 32 of the Constitution) that:
‘
In
my view, s 23 entails that public authorities are no longer permitted
to “play possum” with members of the public
where the
rights of the latter are at stake. Discovery procedures and
common-law claims of privilege do not entitle them to roll
over and
play dead when a right is at issue and a claim for information is
consequently made. The purpose of the Constitution,
as manifested in
s 23, is to subordinate the organs of State…
to
a new regimen of openness and fair dealing with the public
.’
[17]
[19]
Similarly in
Department
of Transport and Others v Tasima (Pty) Limited
,
[18]
the Constitutional Court confirmed that when it comes to litigation,
‘a state organ … bears extra constitutional
obligations’. And in
Kirland
Investments
,
[19]
it was held that a court will:
‘
insist
on due process, from which there is no reason to exempt government.
On the contrary, there is a higher duty on the state
to respect the
law, to fulfil procedural requirements and to tread respectfully when
dealing with rights. Government is not an
indigent or bewildered
litigant, adrift on a sea of litigious uncertainty, to whom the
courts must extend a procedure-circumventing
lifeline. It is the
Constitution's primary agent. It must do right, and it must do it
properly
.’
[20]
The Courts can only function effectively and the administration of
justice served if all material evidence is made available
to the
parties during preparation. Section 165(4) of the Constitution
imposes a positive duty and obligation on the State
to assist the
Courts to place relevant and material evidence before a court and to
ensure,
inter
alia
,
their effectiveness. Sachs J held in his concurring judgment in
Matatiele
Municipality v President of the Republic of South Africa and
others
[20]
that
‘
the
Constitution requires candour on the part of government. What is
involved is not simply a matter of showing courtesy to the
public and
to the courts, desirable though that always is. It is a question of
maintaining respect for the constitutional injunction
that our
democratic government be accountable, responsive and open.
Furthermore, it is consistent with ensuring that the courts can
function effectively, as s 165(4) of the Constitution requires’.
[21]
So called possum-playing or anything which amounts to its equivalent,
must be discouraged. In
National
Energy Regulator of South Africa and Another v Borbet SA (Pty) Ltd
and Others, Eskom Holdings Soc Limited and Another v
Borbet SA (Pty)
Ltd and Others
[21]
the SCA unanimously held:
‘
One further aspect
requires brief consideration. State owned enterprises have to resist
the impulse to immediately resist constitutionally
permissible
judicial scrutiny. This includes resistance to making information
available that rightly belongs in the public domain.
After all, they
are, through the State, owned by the nation. I appreciate that there
might well be commercial confidentiality that
attaches to certain
commercial contracts but the default position should be to make
information available subject to justifiable
redaction. It is a pity
that Eskom and NERSA did not, in the early stages when it was evident
that litigation would follow, adopt
that attitude.’
[22]
The First Respondent accordingly has a duty to ‘assist and
protect the courts to ensure the independence, impartiality,
dignity,
accessibility and effectiveness of the courts.’
[22]
SHOULD
THE REPORT HAVE BEEN FURNISHED AS PART OF THE RECORD
[23]
Although one might assume that the report would have been created
shortly before it was sent to the Minister on 15 September
2016, that
might not necessarily be so, particularly as the complaint was heard
by the panel of the First Respondent on 5 and 6
March 2015 and 6, 7
and 8 May 2015, and the decision was only handed down more than two
months later on 15 July 2015. It is within
the knowledge of the First
Respondent as to when the report was created, and the deponent could
easily have disclosed that fact
to this court. It failed to do so.
Whether that was deliberate or inadvertent is irrelevant. On what is
placed before this court
I cannot exclude the possibility that the
report to the Minister might have existed at the time the decision
was taken.
[24]
Having regard to the contents of the second paragraph of the letter
from the First Respondent’s attorney dated 15 February
2017, in
addition and more importantly perhaps, the report appears to contain
information which, in the words of the Constitutional
Court, might
‘throw light on the decision-making process and the factors
that were likely at play in the mind of the decision-maker.’
[23]
Mr Dickson has submitted that this letter must be viewed in the
context of being a reply apparently to a letter from the Applicant’s
attorneys dated 15 February 2017, which is not contained in the court
papers. Whilst the letter no doubt is such a reply, the paragraph
quoted above in my view stands as a separate recordal of the factual
position and must be construed for what it seeks to convey.
The
letter leaves little doubt at a prima facie level that ‘the
matter of Siyakhuphuka was reported as finalized’,
that the AGM
‘did not allow for deliberation on the matter’ (which
must be a reference to the Siyakhuphuka matter),
and that the
‘separate confidential report dealing with the issue’
(which in the context of that paragraph must be
a reference to the
Siyakhuphuka matter) ‘was sent to the Minister of Transport on
15 September 2016… (being)…
the report contemplated in
terms of
section 30(5)
of the
National Ports Act&rsquo
;.
[25]
Given the wider parameter of documents forming part of a record to
include documents which might ‘throw light on the
decision-making process and the factors that were likely at play in
the mind of the decision-maker,’ it seems to me on probability
that the report on what has been placed before me should form part of
the record of the decision.
[26]
Further, and given the contradiction between the contents of the
above letter and the allegations under oath that the report
allegedly
has nothing to do with the Applicant, this is an appropriate instance
where this court should go behind the allegations
under oath in the
affidavit of the First Respondent that the report does not mention
‘…any other relevant issue of
merit …and …
is thus irrelevant to the record’.
[27]
On that basis the report should have been disclosed as part of the
record pursuant to the provisions of
rule 53.
SHOULD
THE REPORT BE PRODUCED PURSUANT TO
RULE 35(12)
[28]
Further, and even if I was wrong in that regard, the report should
also have been produced pursuant to the request in terms
of
rule
35(12).
[29]
Although
rule 35(12)
[24]
does
not expressly
[25]
require that
the document referred to in an affidavit must be relevant, it is
established in our case law that the document requested
must be
relevant.
[26]
In accordance
with the recent statement of the law by the Constitutional Court,
‘under
rule 35
documents are discoverable if relevant, and
relevance is determined with reference to the pleadings.’ In
Gorfinkel v Gross,
Hendler & Frank
[27]
the court held:
‘
As
it would not necessarily be within the knowledge of the person
serving the notice whether the document is one which falls within
the
limitations mentioned, the
onus
would be on the recipient of the notice to set up the facts relieving
him of the obligation to produce the document.’
In
Unilever
PLC and another v Polagric
[28]
Thring J concluded on the facts of the matter before him:
‘
It
is clear, in my view, that the applicants have failed to discharge
the
onus
which rests on them of establishing that the documents sought, other
than those sought in para 6 of the notice, are irrelevant.’
The
onus is accordingly on the First Respondent to prove that the report
was irrelevant.
[30]
In the context of discovery of documents (which would extend to
rule
35(12))
Lord Denning likewise observed in
Riddick
v Thomas Board Mills Ltd
:
[29]
‘The reason for compelling discovery of documents in this
way lies in the public interest in discovering the truth
so that
justice may be done between the parties. That public interest is to
be put into the scales against the public interest
in preserving
privacy and protecting confidential information. The balance comes
down in the ordinary way in favour of the public
interest of
discovering the truth, ie in making full disclosure … In order
to encourage openness and fairness, the public
interest requires that
documents disclosed on discovery are not to be made use of except for
the purpose of the action in which
they are disclosed.’
[31]
The Applicant’s application is not only for a review of the
First Respondent’s Record of Decision.
[30]
It also includes inter alia a direction that
‘
(t)he
Applicant’s appeal is referred back to the Ports Regulator for
reconsideration taking into account this court’s
findings and
the Ports Regulator’s own findings regarding the “blurred
lines” and “unfair advantage”
between Transnet SOC
Ltd and Transnet Port Terminals’.
[31]
Underlying
that relief and some of the other relief claimed in the Notice of
Motion is the contention that the Transnet National
Port Authority
(TNPA), a division of the Second Respondent, is unable properly to
adjudicate the Applicant’s application
for a container terminal
at Richards Bay because of the TNPA's relationship with Transnet SOC,
and the failure to have incorporated
Transnet SOC independently from
the TNPA, which it is contended has compromised the TNPA's
impartiality. If the report at the level
of discovery confirms such
partiality thus advancing the Applicant’s case or harming the
respondents’ case, then it
should be disclosed all the more
[32]
as being highly relevant to the issues in the review.
[32]
The First Respondent has been critical of the Applicant’s
application to produce the report pursuant to
rule 35(12)
saying that
at best it is a fishing expedition for a report of which the
Applicant does not know the date it was produced, or the
contents
thereof. That is in my view an unfair categorization of the
Applicant’s case. The report clearly deals ‘with
the
issue’ of the Applicant’s matter. The First Respondent
has described the report as ‘
a confidential Report dealing
with the issue of non-corporatisation of Transnet
’.
[33]
The report is relevant to the issues in the review as pleaded.
[33]
It is also relevant to the issue as to whether the reporting
obligation to the Minister was complied with. It is relevant to a
determination of the legality of the first and second decisions
sought to be reviewed because the reporting under
section 30(5)
is
integrally related to the question of the lack of independence of the
National Ports Authority and the non-corporatisation of
Transnet,
being one of the grounds of review against the first and second
decisions.
[34]
The mere fact that the report was referred to in the affidavit in
response to the
rule 30A
notice, albeit for the sake of
‘completeness’, also carries the implied recognition on
the part of the First Respondent
that it is relevant. As Thring J
commented in
Polagric
:
[34]
‘
Indeed,
from the mere fact that Allchurch has seen fit to refer to these
documents in his founding affidavit it can be inferred,
in the
absence of any clear disclaimer, that they are relevant’
[35]
As part of a ‘belts and braces’ exercise the Applicant
further submitted that even if this court were to find that
it was
not entitled to the relief sought on the basis of
rule 35(12)
that it
is nevertheless entitled to the report on the grounds of fairness.
Reliance was placed on the decision in
Bridon
,
[35]
on the strength of which it was submitted that to deny access would
thwart the right to administrative fairness. In view of the
conclusion to which I have come above I do not intend dealing with
these submissions further in this judgment.
COSTS
[36]
The Applicant has been successful. There is no reason why it should
not be entitled to its costs. During argument the Applicant
was
represented only by Mr Du Plessis SC, although the Applicant’s
heads were signed by him and Ms Pudifin-Jones. She however
excused
herself from the hearing. The Applicant has asked for the costs of
two counsel where so employed. The First Respondent
was represented
by only senior counsel. Stripped to its bare essentials the
application was really an interlocutory one to compel
furnishing of
the record of decision and/or discovery with some broader
constitutional considerations playing a part. It is a matter
of
importance to the Applicant which would justify the employment of
senior counsel. In the exercise of my discretion on costs
I am
disposed to allowing the costs of senior counsel, but not the costs
of two counsel.
ORDER
[37]
Paragraph 1 of the notice of motion is in my view unnecessary and
possibly incorrect.
[38]
The following order is granted:
‘
1.
The First Respondent is directed, within 10 (ten) days after the date
of the service of this order on its attorneys, to produce
the
“
separate confidential report
”
sent by it to the Minister of Transport on 15 September 2016,
referred to in paragraph 30 of the affidavit sworn to by Mr
A Ngcobo
on behalf of the First Respondent on 9 May 2017;
2. The First Respondent
is directed to pay the costs of this application, such costs to
include the costs of senior counsel.’
______________________
Koen
J
APPEARANCES
For
Applicant: Mr M du Plessis SC
Instructed
by: JACQUES ROOS ATTORNEYS
C/O
MESSENGER KING
Ref.:
JI ROOS/S17
For
First Respondent: Mr A.J.Dickson SC
Instructed
by: PKX ATTORNEYS
C/O
GOODRICKES ATTORNEYS
Ref.:
Lizl Coppejans
[1]
The Regulator carries out a number of functions in terms of the Act
including hearing complaints and appeals in terms of the
Act.
[2]
Section 30 of the Act provides: ‘(5) Whenever necessary or
required by the Minister, the Regulator must report to the Minister
on any matter relating to the application or purposes of this Act.’
[3]
The
Minister responsible for the administration of the Act is the
Minister of Transport.
[4]
Following this correspondence, the Applicant requested access to the
Report on the basis that it was clearly relevant to the
main
application and indicated that it would receive the report subject
to a confidentiality-regime. The First Respondent however
then
refused to disclose the Report and contrary to its previous
indications adopted the stance in subsequent correspondence
that the
‘
Regulator
did not make any section 30(5) report that referred to the matter of
Siyakhuphuka or reported on the matter
’.
Thereafter in response to the rule 35(12) notice the First
Respondent however confirmed that the Report does exist, that
it
reports to the Minister on its performance and functions on an
annual basis and does raise confidential matters with the Minister
from time to time, and that the Report forms one such report filed
in terms of section 30(5).
[5]
It is obviously no defence to an application in terms of rule 35(12)
to say “
the
record has been filed
”.
Rule 35(12) deals with an altogether different scenario, namely the
production of a document which is referred to in
an affidavit.
[6]
Schutz AJ held in
Crown
Cork & Seal Co Inc v Rheem South Africa (Pty) Ltd
1980 (3) SA 1093
(W) at 1100A–D that: ‘
[A
conflict arises]
between
the need to protect a man's property from misuse by others, in this
case the property being confidential information,
and the need to
ensure that a litigant is entitled to present his case without
unfair halters. And, although the approach of
a Court will
ordinarily be that there is a full right of inspection and
copying, I am of the view that our Courts have a
discretion to
impose appropriate limits when satisfied that there is a real danger
that if this is not done an unlawful appropriation
of property will
be made possible merely because there is litigation in progress and
because the litigants are entitled to see
documents to which they
would not otherwise have lawful access. But it is to be stressed
that care must be taken not to
place undue or unnecessary
limits on a litigant's right to a fair trial, of which the discovery
procedures often form an important
part. I trust that by holding
what I have I have not opened a new door to interlocutory litigation
or to a flood of ill-founded
objections on grounds of
confidentiality.
Practitioners
would do well to remember that the normal rule is full inspection
.’
Reference can also be made to
Moulded
Components
and Rotomoulding South Africa (Pty) Ltd v Coucourakis and another
1979 (2) SA 457
(W),\ at 466E–F
;
ABBM Printing & Publishing (Pty) Ltd v Transnet Ltd
1998 (2) SA 109
(W) paras 24.3 and 29;
Tetra
Mobile Radio (Pty) Ltd v MEC, Department of Works, and
Others
2008 (1) SA 438
(SCA), paras 14 and 17.
[7]
[2018] ZACC 8.
[8]
1980 (3) SA 275
(W) at 282D.
[9]
1966 (3) SA 737
(C) at 739F. See also
Meyers
v
Marcus
and
another
[2004] 2 All SA 438
(C) para 49.
[10]
Van
Niekerk v Pretoria City Council
1997
(3) SA 839
(T) at 850A-C;
[11]
The duty to respect, protect, promote and fulfil the rights in the
Bill of Rights.
The
constitutional obligation flowing from section 7(2), while referring
to “the State” imposes the obligation on
both the State
and organs of state – see
Women’s
Legal Centre Trust v President of the Republic of South Africa
2009
(6) SA 94
(CC) paras 17-19;
AllPay
Consolidated Investment Holdings v CEO South African Social Security
Agency
2014
(4) SA 179
(CC) para 49.
[12]
Which imposes a duty on organs of state to ‘assist and protect
the courts to ensure the independence, impartiality, dignity,
accessibility and effectiveness of the courts’.
[13]
Which establishes various principles applicable to all organs of
state including that ‘people’s needs must be responded
to’ and that ‘transparency must be fostered by providing
the public with timely, accessible and accurate information’.
[14]
2014 (3) SA 481
(CC) para 82.
[15]
2014 (5) SA 123
(SCA) para 30.
[16]
See for example
The
MV Urgup: Owners of the MV Urgup v Western Bulk Carriers (Australia)
(Pty) Ltd
1999
(3) SA 500
(C) at 513G-H.
[17]
Van
Niekerk v Pretoria City Council
n10
at 850A-C.
[18]
2017 (2) SA 622
(CC) at para 158.
[19]
Kirland
Investments
n14
para 82.
[20]
2006 (5) SA 47
(CC) para 107.
[21]
[2017] 3 All SA 559
(SCA) para 120.
[22]
Section 165(4) of the Constitution.
[23]
Helen
Suzman Foundation
n7 para 25.
[24]
Rule 35(12) provides: ‘
Any
party to any proceeding may at any time before the hearing thereof
deliver a notice as near as may be in accordance with Form
15 in the
First Schedule to any other party in whose pleadings or affidavits
reference is made to any document or tape recording
to produce such
document or tape recording for his inspection and to permit him to
make a copy or transcription thereof. Any
party failing to comply
with such notice shall not, save with the leave of the court, use
such document or tape recording in
such proceeding provided that any
other party may use such document or tape recording
.’
[25]
Upon a plain reading of the subrule, the principal requirement for
its application is that the pleading or affidavit in question
(here,
the affidavit filed in response to the Rule 30A Notice pertaining to
the inadequacy of the record file) contains a cognisable
reference
to a document or tape recording.
[26]
See
Governing
Body, Hoerskool Fochville and others v Centre for Child Law
2014 (6) SA 561
(GJ) para 25;
Universal
Studios v Movie Time
1983 (4) SA 736
(D) at 748A-C;
Gorfinkel
v Ross, Hendler & Franke
1987 (3) SA 766
(C) at 744A-C and 774F-I.
[27]
Gorfinkel
n26
at 744I-J.
[28]
2001
(2) SA 329
(C) at 340F-G.
[29]
[1977] 3 All ER 677
at 687, the passage has been cited, inter alia,
in
Comair
Ltd v Minister of Public Enterprises and others
2014 (5) SA 608
(GP) para 52;
Republication
Technology Group and others v Gallo Africa Ltd
2009 (5) SA 531
(GSJ) para 7.
[30]
In the main application, the Applicant seeks to review and set aside
three decisions of the First Respondent, namely the decision
of
Transnet's SOC dated 30 April 2009 rejecting its proposal for
container operation at the Port of Richards Bay, the decision
of 15
July 2015 dismissing the Applicant’s complaint against
Transnet's rejection of the proposal, and the First Respondent’s
failure to comply with the provisions of
section 30(5)
of the
National Ports Act 12 of 2005
which places a reporting obligation
‘whenever necessary or required by the Minister, the Regulator
must
report
to the Minister on any matter relating to the application or
purposes of this Act’ (emphasis added). The First Respondent
is required to file the Record of Decision in respect of
all
three
decisions which are challenged, not only the first decision, but
also the alleged failure by the First Respondent to refer the
issue
of the non-incorporation of Transnet to the Minister in terms of
section 30(5) of the Ports Act. The Report refers
to that
issue.
[31]
Para
6 of the notice of motion.
[32]
Discovery of documents in terms of rule 35 has been in
The
MV Urgup
n16 at 513G-H ‘to rank with cross-examination as one of the
two mightiest engines for the exposure of the truth ever to
have
been devised in the Anglo-Saxon family of legal systems. Properly
employed where its use is called for it can be, and
often is, a
devastating tool.’
[33]
I
t
is not necessary, in rule 35(12) proceedings, to show either that
(i) the information sought will necessarily provide a basis
for
challenging the impugned decisions, or that (ii) the information
sought is necessary in order to have those decisions set
aside.
It is sufficient that the Report might assist the Applicant in
advancing its case or harming the Respondent's case.
This is
logically so since an applicant under rule 35(12) cannot possibly
know in advance of having sight of the documents requested
whether
they will provide a basis for challenging the decisions.
[34]
Unilever
v Polagric
n28 at 340G.
[35]
Bridon
International GMBH v International Trade Administration Commission
and Others
2013 (3) SA 197
(SCA), para 32.