Brief Summary

Access to Information — Promotion of Access to Information Act — Request for access to tender documents — Applicant sought records related to unsuccessful tender bid — Respondents contended that internal remedies were not exhausted as no formal refusal was issued — Court held that the applicant was not denied access as the information was made available for viewing, and the failure to attend the arranged meeting was not the respondents' fault — Application dismissed.

Comprehensive Summary

Summary of Judgment

Introduction

This was an application in the Eastern Cape Local Division, Bhisho, in which Milani Furnitures sought relief against the MEC, Department of Education, Eastern Cape, the Superintendent-General, Department of Education, Eastern Cape, the MEC, Provincial Planning Treasury, Eastern Cape, and the Head of Department of Provincial Treasury and Planning. The proceedings were framed as a request for a mandatory interdict compelling the respondents to provide access to specific records connected to a public tender.

The matter arose from a tender process initiated by the first respondent, advertised in November 2013, for the manufacture and delivery of furniture for Grade R–12 including pre-primary schools, under Tender No. SCMV6-13/14-0004. The applicant had participated in that process but later learned that its bid had been unsuccessful.

The procedural history reflected protracted correspondence and an attempted invocation of statutory access-to-information mechanisms. After the applicant’s written enquiries and a formal request for access to records did not result in disclosure of the requested adjudication material, the applicant launched these court proceedings. The application was opposed. Argument was heard on 27 August 2015, an order was granted on 28 August 2015, and reasons were furnished on 1 September 2015.

At a general level, the dispute concerned whether the applicant was entitled to obtain access to specified tender adjudication records (including reports, recommendations, minutes, and correspondence) to enable it to evaluate and potentially pursue remedies in relation to the tender award process.

Material Facts

The court treated the core background facts as largely common cause. The first respondent published an advertisement during November 2013 inviting bids for Tender No. SCMV6-13/14-0004, with a closing date of 20 November 2013. The applicant, which manufactured and supplied furniture products, was one of approximately thirty bidders.

In January 2014, the applicant received a document delivered anonymously to its offices. The document purported to be a memorandum from an Independent Bid Adjudication Committee (IBAC) established under the third respondent, and it contained recommendations concerning how the tender award should be allocated. The judgment recorded this event as part of the factual narrative, without treating the memorandum’s substantive content as determinative of the final relief sought in these proceedings.

During October 2014, the applicant received information suggesting that the tender had been awarded and that orders had been placed pursuant to that award. The applicant’s attorneys wrote to the second respondent on 15 October 2014 to verify the information, received no response, and followed up. On 23 October 2014, the applicant was informed that its bid had not been successful. The applicant’s complaint, as recorded by the court, was that the alleged delay in notification deprived it of an opportunity to lodge objections within relevant regulatory timeframes.

On 4 November 2014, the applicant’s attorneys sought an explanation for the lack of timeous notification of the outcome, and asked what steps had been taken regarding the recommendations allegedly contained in the IBAC memorandum. When this correspondence also yielded no response, the applicant invoked the Promotion of Access to Information Act 2 of 2000 (PAIA) and requested records and information relating to the tender award, including minutes, scorecards, and written reasons.

A senior legal administrative officer in the first respondent’s department, Edward Scheun, responded that the information was available but voluminous, and proposed that the applicant make an appointment to view the material and make copies at his office. A meeting was arranged for 3 March 2015. On that date, the applicant’s attorney (Mr Molefe) and the applicant’s directors attended at Scheun’s office and were provided with a box of bid documents from different bidders, but not the specific records sought concerning the selection and adjudication process. The applicant was informed that the missing information was in files that had been uplifted by a Mr Ngaba, described as a director of assets in the first respondent’s department, and attempts to obtain those files were unsuccessful.

It was common cause that on 4 March 2015 Mr Molefe met Scheun again, and Scheun asked for time until Friday, 6 March 2015 to secure the relevant files. It was also common cause that there was an agreement that the parties would meet on 6 March 2015. The applicant’s attorneys then wrote to Scheun, recording that the information provided was not what had been requested and stating that Scheun had requested an extension until 6 March 2015, and asking Scheun to provide times to review the documents on that date.

A factual dispute emerged concerning the events of 6 March 2015. The respondents contended that the files were made available at the agreed venue and that the applicant and its legal representative did not attend, effectively spurning access. The applicant’s position, as accepted in substance by the court’s evaluation of the correspondence, was that Scheun did not respond to the request to provide a specific convenient time for the meeting, which made another aborted meeting foreseeable.

The applicant made a further attempt to secure the records by letter dated 13 March 2015, expressing the view that there was a deliberate attempt to frustrate access and setting a deadline of 17 March 2015, failing which court proceedings would follow. Ultimately, the applicant instituted the present application seeking an order compelling access to specified categories of records, namely committee reports and recommendations, minutes (including meetings between the first and third respondents and IBAC, including a meeting on 24 January 2014), and correspondence sent and received.

Legal Issues

The court was required to determine, first, whether the application was procedurally competent in light of the respondents’ preliminary contention that the applicant had failed to exhaust internal remedies under PAIA, specifically the appeal contemplated by section 78(1) read with section 74, before approaching court for relief under section 82.

Second, the court had to determine whether, on the merits, the applicant was entitled to the relief sought on the basis of a common-law mandatory interdict, including whether the requisites for a final interdict were satisfied.

These questions involved a combination of legal interpretation (the meaning and operation of PAIA’s internal appeal and “deemed refusal” mechanisms), application of law to facts (whether there had been a refusal or deemed refusal, and whether interdict requirements were met), and evaluative judgment about the parties’ conduct and whether the respondents’ stance justified coercive relief and a costs order.

Court’s Reasoning

The court dealt first with the preliminary points. The respondents argued that section 78(1) of PAIA required the applicant to lodge an internal appeal under section 74, and that only after such appeal could court proceedings be instituted under section 82. The court reasoned that the internal appeal contemplated by section 74 is an appeal against a decision refusing access to information. The court further referred to PAIA’s mechanism that a failure to decide a request within 30 days can be treated as a refusal (by reference to section 27 of PAIA, as noted in the judgment).

On the facts, however, the court held that Scheun did not refuse access. Instead, on 23 February 2015 he conveyed a decision making the requested information available, inviting the applicant to attend at his office to view and copy it. The court considered that it could not be said that Scheun should be regarded as having refused the request. The applicant’s difficulty, as the court framed it, arose from the subsequent failure to produce the relevant files on the arranged occasion, including the fact that the key files had been uplifted by another official (Ngaba) and were not then accessible. Because there was no refusal or deemed refusal in the sense contemplated by PAIA’s internal appeal provisions, the court concluded that the contention of prematurity based on section 78(1) could not succeed.

The respondents had also asserted that the information sought was protected under various PAIA provisions. The court observed that this contention was not persisted in during argument and characterised it as spurious and an unsubstantiated conclusion of law. The court’s evaluation was also that the respondents’ conduct in indicating that the information was available undermined any serious reliance on statutory protection grounds.

Turning to the disputed factual issue around the 6 March 2015 meeting, the court analysed the letter that had requested Scheun to provide “times” for the review on that date. Scheun’s explanation was that there was no need to respond to a letter confirming the agreement, but the court considered this unresponsive to the portion of the letter that sought a convenient time for the meeting. In the court’s assessment, absent a response fixing an appropriate time, there was bound to be another aborted meeting, and the court considered it unsurprising that no one from the applicant’s side attended at Scheun’s office on 6 March 2015. The court treated disputes about whether telephone calls were made on the day as not decisive, focusing instead on the lack of engagement to settle a mutually workable time.

On the merits, the applicant elected not to rely on PAIA as the direct cause of action and instead sought relief through a common-law mandatory interdict. The court set out the trite requisites for a final interdict, namely a clear right, an injury actually committed or reasonably apprehended, and absence of another satisfactory remedy, with reference to Setlogelo v Setlogelo 1914 AD 221.

In applying these requirements, the court accepted that the applicant had a constitutional right to lawful, reasonable, and procedurally fair administrative action in relation to the tender award process, and a right of access to information held by the state that is required to exercise or protect rights. The court reasoned that these rights could only be meaningfully exercised if the applicant could access the tender adjudication records sought, so as to decide whether to challenge the tender award. The respondents’ conduct in failing to provide the agreed records and in not responding appropriately to correspondence was treated as an interference with the applicant’s ability to exercise those rights, satisfying the injury requirement.

As to alternative remedies, the court held that PAIA did not provide an alternative remedy in circumstances where there was no decision refusing access. The court therefore concluded that the absence-of-alternative-remedy requirement had been met on these facts.

The court also made evaluative findings about the respondents’ conduct. It considered that the litigation could have been avoided and that it had been occasioned by the respondents’ failures to respond to letters and to fulfil the undertaking to make the requested information available after a decision to do so had been taken. The court regarded the respondents’ reliance on technical grounds, in circumstances where they knew what documents were required and did not deny that the documents existed and were in their possession, as reprehensible. On this reasoning, the court concluded that there was no barrier to granting the interdict and no basis to depart from the ordinary rule that costs follow the result.

Outcome and Relief

The court granted an order directing the respondents to make available to the applicant and permit copying of specified records relating to the process leading up to and including the award of Tender No. SCMU6-13/14-0004. The order covered the reports and recommendations of the relevant tender committees (including the Bid Evaluation Committee and Bid Adjudication Committee of the first respondent, and the IBAC of the provincial planning and treasury), the minutes of meetings of the Bid Evaluation Committee, Bid Adjudication Committee and IBAC, the minutes of meetings held between the first respondent and the third respondent’s IBAC (including a meeting held on 24 January 2014), and correspondence sent and received.

The respondents were directed to provide the requested information by Wednesday, 9 September 2015, and were required to notify the applicant in writing of the time and venue for access 24 hours prior to the appointed date.

The respondents were ordered to pay the costs of the application jointly and severally, the one paying the other to be absolved.

Cases Cited

Setlogelo v Setlogelo 1914 AD 221.

Legislation Cited

Promotion of Access to Information Act 2 of 2000, including sections 27, 74, 78(1), and 82.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the application was not premature for failure to exhaust internal remedies under PAIA because there had been no refusal (or deemed refusal) of access to information that would trigger the internal appeal procedure. The court further held that the applicant satisfied the requirements for a final interdict on the facts, given the applicant’s right to information necessary to exercise rights connected to the tender award process, the interference caused by the respondents’ conduct, and the absence of an adequate alternative remedy in circumstances where PAIA’s refusal-based appeal mechanism did not apply.

The court consequently compelled disclosure of specified tender adjudication records and ordered the respondents to pay costs.

LEGAL PRINCIPLES

A final interdict (including in mandatory form compelling performance) requires proof of a clear right, an injury actually committed or reasonably apprehended, and the absence of any other satisfactory remedy, as articulated in Setlogelo v Setlogelo 1914 AD 221 and applied to the facts of the matter.

For purposes of PAIA’s internal appeal structure, the statutory appeal under section 74 (and the limitation in section 78(1) on approaching court) is engaged where there is a decision refusing access to records, including a refusal that arises by operation of PAIA where an information officer fails to decide within the statutory period. Where the information officer has decided to make records available, but access is frustrated by administrative conduct rather than a refusal decision, the internal-appeal prerequisite does not bar court proceedings on the basis advanced.

Where access to state-held records is necessary to enable a party to consider the exercise or protection of rights arising from an administrative procurement decision, and the responsible officials have undertaken to provide access but fail to do so, a court may grant mandatory interdictory relief directing disclosure within a defined timeframe and may make ancillary directions designed to render access practically effective, such as requiring advance notification of the time and venue for inspection and copying.

Milani Furnitures v MEC, Department of Education Eastern Cape and Others (602/14) [2015] ZAECBHC 20 (1 September 2015)