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[2016] ZAGPPHC 90
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South African Pork Producers Organisation v National Council of Societies for the Prevention of Cruelty to Animals (A171/2015) [2016] ZAGPPHC 90 (18 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A171/2015
18/2/2016
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
DATE:
18/2/2016
In
the matter between:
THE
SOUTH AFRICAN PORK PRODUCERS
ORGANISATION APPELLANT
And
THE
NATIONAL COUNCIL OF SOCIETIES FOR THE
PREVENTION
OF CRUELTY TO
ANIMALS RESPONDENT
JUDGMENT
Fabricius
J,
1.
This is an appeal against
the whole of the judgment delivered by Phatudi J on 5 November 2014,
leave having been granted by the
Court a quo.
2.
The Appellant sought
access to certain documents in terms of s. 78 and 82 of the
Promotion
to Access to Information Act, 2 of 2000 (herein after “the
Act”),
which application was denied by the Respondents.
3.
The relevant facts are
straight forward: a complaint had been lodged by a member of the
public with the Respondent, and pursuant
thereto an inspection was
conducted by a senior inspector of the Respondent at the Applicant’s
piggery, a commercial pig-farm
in the Limpopo Province, and a member
of the Applicant. Following such investigation, the Applicant
requested six records held
by the Respondent, but prior to the
proceedings five of those records were provided, and one was refused,
which formed the subject
matter of the application before the Court a
quo. It appears that the Respondent contemplated whether or not to
institute criminal
proceedings and as a matter of logic, at such
proceedings, the identity of the complainant and the nature of the
complaint would
have been in the public eye. Respondent thereafter
decided not to institute such proceedings, and then relied on the
grounds referred
to in s. 37 (1) (b) and 44 (2) (a) of the
Act
.
It is clear from the Respondents Answering Affidavit and the judgment
of the Court a quo, that the Respondent in essence relied
on the
argument that the complaint was given in confidence, and that the
disclosure thereof could probably be expected to prejudice
the future
supply of similar information, and that it was accordingly in the
public interest that similar information should continue
to be
supplied. Respondent was also of the view that the complaint could
not be redacted so as to hide the identity of the complainant.
4.
The Act was promulgated
as a result of the provisions of
s. 32 of the Constitution of
the Republic of South Africa
, which affords everyone the
right of access to any information held by the State. However, it is
also clear that s. 36 makes provision
for a limitation clause, and
accordingly the
Act
does contain limitation clauses, a
number of which are contained in chapter 4 of the
Act
.
The procedural requirements of the
Act
were met by the
Appellant, and therefore the onus shifted onto the Respondent to
show, on a balance of probabilities, that its
grounds of refusal
raised to prevent access to the relevant record were justified.
See:
Section 81 of
the Act
and the
President of the Republic of South
Africa and Others v M & G Media Ltd
2011 (2) SA 1
(SCA)
.
5.
Section
37 (1) (b)
reads as follows:
“Subject to sub-section (2), the information officer of a
public body may refuse the request for access
to a record of the body
if a record consists of information that was supplied in confidence
by a third party, the disclosure of
which could reasonably be
expected to prejudice the future supply of similar information, or
information from the same source:
and if it is in the public interest
that similar information or information from the same source, should
it be supplied”.
The provisions of sub-section 2 do not apply
in the present instance.
Section 44
(2) (a)
reads: “Subject to
sub-section (4), the information officer of the public body may
refuse a request or access to a record
of the body if the disclosure
of the record could reasonably be expected to jeopardise the
effectiveness of the testing, examining
or auditing procedure or
method used by a public body”. The provisions of
sub-section 4 also do not apply in the present
instance.
The standard required in
order to accept the grounds of refusal raised by a Respondent is to
be determined objectively. In relation
to both grounds of refusal
relied upon by the Respondent herein, it would thus be required of
the Respondent to show objectively
and on a balance of probabilities
that if the record were to be disclosed, there would be a “reasonable
expectation”
that the harm sought to be avoided may occur.
See in this context:
Transnet Ltd and Another v SA Metal Machinery Company (Pty) Ltd
[2006] 1 All SA 352
(SCA) at par. 31, 40 – 43
.
6.
The redacted form of the
complaint had not initially been requested. The reason for refusal by
the Respondent is primarily based
on the provisions of s. 37 (1) (b)
and it was also dealt with on this basis by the learned Judge in the
Court a quo.
The purpose of this
sub-section is stated to be to protect the flow of confidential
information to public bodies.
See:
Currie and
Klaaren, the Promotion of Access to Information Act Commentary (2002)
at p.155
.
There are three parts to
the enquiry: whether the record consists of information supplied in
confidence by a third party, if disclosure
could reasonably be
expected to prejudice a supply of similar information or information
from the same source, and if it is in
the public interest that
similar information should continue to be supplied. Evidence of a
reasonable expectation of confidentiality
is what is required to
classify the information as having been supplied in confidence. In
its Answering Affidavit the Respondent
stated that it does, and all
Societies for the Prevention of Cruelty to Animals are obliged to
treat all complaints received as
confidential, as is evidenced by its
own Code of Ethics. The relevant portion of this Code provides that
“under no circumstances
should a complainant’s name or
other details be divulged except for the purposes of a prosecution”.
As regards the prejudice
to the supply of future information, it was submitted by the
Respondent that it follows as a matter of
course that if persons who
have complaints about animal cruelty learn that their identity or
information pertaining to the complaint,
made to the Respondent or
any SPCA, could be disclosed upon request by any person, there would
be a reasonable expectation that
the future supply of information
would be prejudiced or jeopardised.
This was clearly the
Respondent’s primary reason, it was dealt with on that basis by
the Court a quo, and in my view it is
the crux of the appeal before
us. In the same vein it was submitted by the Respondent that it is in
the public interest that similar
information should continue to be
provided in order that cruelty to animals could be detected, punished
and hopefully prevented
and the objects and functions of the
Respondent, and SPCA’s in general, fulfilled. Given the
Respondent’s lack of resources,
it relies heavily on the public
to report instances of alleged animal cruelty and it would prove
extremely difficult to do so were
people to decline to lay a
complaint due to concerns of intimidation, victimisation or other
repercussions. Again, this is clearly
set out in the Respondent’s
Answering Affidavit, and can actually not be disputed in my view. In
the context of the provisions
of s. 44 (2) (a) it was submitted that
it is reasonably foreseeable that the Respondent’s ability to
perform its statutory
mandate would be jeopardised by disclosing the
complaint against the piggery, essentially for the same reasons that
apply in connection
with the provisions of s. 37 (1) (b).
7.
It is clear from the
judgment read as a whole in the light of the affidavits before the
Court, that the learned Judge found that
the Respondent’s
refusal to provide the information sought, was mainly to protect the
identity and the information of the
person who submitted a complaint.
The identity of the relevant complainant alone was never found to be
the sole reason to prevent
disclosure, but only the main reason. Not
only was the complainant’s identity referred to, but also the
information that
the person provided. It is clear from the judgment
read as a whole that the Court had regard to and accepted the
reasoning of the
Respondent’s Chief Executive Officer who, in
the Answering Affidavit said the following:
7.1
The record consists of
information supplied in confidence by a third party;
7.2
Disclosure of complaints
made to the Respondent or local SPCA’s could reasonably be
expected to prejudice the future supply
of similar information from
persons wishing to remain anonymous and that it is in the public
interest that similar information
continue to be supplied so as to
further the Respondent’s statutory objective;
7.3
By disclosing information
about the complaint, one of the main sources of the Respondent’s
information, being tip-offs, is
likely to be jeopardised and the
Respondent’s obligations threatened;
7.4
The Respondent’s
rules and Code of Ethics published in terms thereof prevent
disclosure of the complainant’s name or
any other details
except for purposes of a prosecution;
7.5
Actions which a person in
respect of whom a complaint has been made to the Respondent or local
SPCA may well receive public attention,
at least within the small
community in which the relevant piggery operated (Vaalwater), and
dissuade other concerned businesses
from laying complaints, thus
damaging the SPCA’s reputation and limiting its effectiveness;
7.6
There would accordingly
be a decrease in the number of complaints made to the Respondent and
other SPCA’s if the complainant’s
information were to be
disclosed.
8.
It is also clear from the
Answering Affidavit that the confidentiality of the complainant was a
paramount concern of the Respondent,
and it is clear that it
expressly stated that
any
information relating to the
complainant would jeopardise the Respondent’s work. It is also
clear from the Replying Affidavit
that these concerns and issues were
not disputed by the Appellant, and could not be so disputed.
9.
I have already stated
that the onus to justify the refusal rested on the Respondent and in
this context the Constitutional Court
in the
M & G Media
case
supra,
said the following at par. 25: “Ultimately,
the question whether the information put forward is sufficient to
place the record
within the ambit of the exemption claimed will be
determined by the nature of the exemption. The question is not
whether the best
evidence to justify the refusal has been provided,
but whether the information provided is sufficient for a Court to
conclude,
on the probabilities, that the record falls within the
exemption claimed”. It was also submitted by the Respondent
that the
threshold has been met, that it was decided on this basis by
the Court a quo, and that there was no merit in the appeal. I agree
with that submission. It appears clearly from the Respondent’s
Answering Affidavit and the judgment of the Court a quo that
this is
the case.
10.
One question remains, and
that is whether or not the relevant record should have been made
available to the Applicant in the light
of the provisions of s. 28 of
the
Act
. This section obliges public bodies to first
determine whether a ground of refusal applies to the record requested
and if so, to
determine whether the protected information can
reasonably be severed from the remainder of the record. If it can be,
the remainder
must be disclosed. Respondent indicated in its
Answering Affidavit that it is the identity and details of the
complainant and the
information of the complainant that it sought to
protect. In the present instance the totality of the complaint could
not be redacted.
11.
In the light of the
above, which goes to the root of the matter, it is not necessary to
deal with other grounds of appeal raised
by the Appellant herein,
which are at best peripheral and at worst red herrings.
12.
Accordingly, the
following order is made:
The appeal is
dismissed with costs
.
_____________________________
JUDGE H.J FABRICIUS
JUDGE OF THE GAUTENG HIGH
COURT, PRETORIA DIVISION
I Agree
______________________________
JUDGE
W. R. C. PRINSLOO
JUDGE OF THE GAUTENG HIGH
COURT, PRETORIA DIVISION
I
Agree
___________________________
JUDGE
N. RANCHOD
JUDGE OF THE GAUTENG HIGH
COURT, PRETORIA DIVISION
Case
number: A171/15
Counsel
for the Appellant: Adv
J. C. Prinsloo
Instructed
by: Gildenhuys Malatji Inc
Counsel
for the Respondent: Adv
S. Freese
Instructed by: Marston
Taljaard
Date
of Hearing: 10 February 2016
Date
of Judgment: 18 February 2016 at 10:00