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[2014] ZAGPPHC 226
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Mandag Centre For Investigative Journalism and Another v Minister of Public Works and Another (67574/12) [2014] ZAGPPHC 226 (29 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER 67574/12
In
the matter between:
MANDAG
CENTRE FOR INVESTIGATIVE
JOURNALISM
...................................................................................................
FIRST
APPLICANT
BHARDWAJ,
VINAYAK
.............................................................................
SECOND APPLICANT
and
MINISTER
OF PUBLIC
WORKS
................................................................
FIRST
RESPONDENT
INFORMATION
OFFICER:
DEPARTMENT
OF PUBLIC
WORKS
...................................................
SECOND
RESPONDENT
and
AMICUS CURIAE
THE SOUTH AFRICAN
HISTORY ARCHIVE TRUST
THE
DEMOCRATIC GOVERNANCE AND RIGHTS UNIT
JUDGMENT
TLHAPI
J
[1]
This is an application brought in terms of section 78(2) read with
section 82 of the Promotion of Access to Information Act
2 of 2000
(‘PAIA’). The applicant seek an order in the following
terms:
“
1.
Declaring that the decision by the respondents to refuse the
applicants
request
for access to information(as defined in the Founding Affidavit
attached hereto in terms of the Promotion of Access to Information
Act 2 of 2000 (“PAIA”) is unlawful and unconstitutional.
2.
Reviewing and setting aside the refusal of the applicants’
request in terms of section 11, section 78 and section 81 of
PAIA.
3.
Directing the respondents to supply the applicants with a copy of the
requested records within 15 days of granting of this order.
4.
Directing the respondents to pay the costs of this application.”
The
application was opposed.
[2]
There were two further applications for the admission as amicus
curiae by the South African History Archive Trust (‘SAHA’)
and the Democratic Governance and Rights Unit (‘DGRU’).
The parties consented to their admission. I have also read
their
founding affidavits and am of the view that the issues they have
addressed shall be of assistance to the court.
BACKGROUND
TO THE APPLICATION
[3]
On 6 July 2012 a request in the manner and form prescribed by PAIA
was made for access to information, to records on the expenditure
by
the Department of Public Works (‘the Department’) under
the first respondent (‘the Minister), of at least
R248 million
spent on the upgrade of the Nkandla Estate of the President of the
Republic of South Africa, Mr Jacob Gedleyihlekisa
Zuma (“the
Nkandla Estate). The request read:
“
records
in documentary form which:
1.
Pertain to the procurement by the State of
goods or services to improve,upgrade, alter add to or secure the
Nkandla Estate of the
President.
2.
Relate in whole or in part to the financial
implication of the above; and
3.
Were created during period May 2009 to
present.
These
records will include in particular, any documents evidencing:
a.
needs assessments/motivations;
b.
budgetary availability;
c.
bid evaluations and outcomes; and contracts
awarded and their values.
For
the purpose of this request the Nkandla Estate is defined as: the
immovable property and improvements within and including the
perimeter of the property at Nkandla owned by or under the control
of the President; and any improvements outside the perimeter
of the
same property but aimed at facilitating the functioning of the
property or the President’s security, well-being or
performance
of his duties.
We
note that while the Act under certain circumstances allows
information to be withheld, among other reasons for the protection
of
individuals under (section 38), the Act also imposes a duty (section
28) to sever and provide information which can reasonably
be severed
and does not contain information which cannot be disclosed.’
[4]
The request was refused by the then Acting Director-General, Ms
Mandisa Fatyela-Linde by letter dated 13 August 2012, on grounds
that
information on the Nkandla Estate was protected under the ‘
National
Key Point Act
102
of 1980 (‘the NKP Act’), the
Protection
of Information
Act
84 of 1982 (‘the PI Act’) , the
Minimum
Information Security
Standard
s,
(‘the MISS’) and other relevant security prescripts of
the State Security Agency’.
[5]
The applicants contended that the grounds relied upon for refusal
were not grounds in terms of PAIA and, that none of the legislations
relied upon prohibited access to the records or prohibited the
disclosure of the records sought by them. Furthermore, that the
reasons given for the refusal were flawed in that no reference was
made to the request for information being decided in terms of
PAIA
(
section
25
(1)(a); that the reasons for refusal did not contain the provisions
of PAIA relied upon in such refusal (
section
25(3)(a); that the
refusal failed to state that the applicant (
the
requester
) could
lodge an internal appeal (
section
25 (3)(c).
[6]
The applicants launched an internal appeal in terms section 77 of
PAIA on 10 September 2012. When no decision was given by due
date,
that is, within the 30 day period as prescribed by section 77(3) of
PAIA, various communications from 18 to 29 October 2012
were engaged
between Mr Makgoba and Mr Hlabiwa of the Department and attorneys for
the applicants regarding the outcome of the
appeal. The applicants
were informed that the ‘
Minister
was still awaiting senior counsel’s
‘
input’
and later ‘
his
approval’
.
The appeal reiterated the reason for the request and mentioned the
public interest in the ‘
wide
reports that the ‘South African government
was planning to
spend tens of millions of Rand of tax payers money in upgrading the
Nkandla precinct’.
There
was later communication to the applicants that the Minister had
considered senior counsel’s input and had allowed section
77(7)
of PAIA to take effect. The Minister was therefore deemed to have
dismissed the appeal, which resulted in the launch of this
application.
[7]
The applicants contended that the public interest in the information
requested
‘
outweighed
any interest advanced for refusing access to information and in
paragraphs 54 and 55 of the founding affidavit the applicants
stated
the following:
“
54
...
there is manifest and profound
public interest in ascertaining, as a matter of
increasing
urgency, the true extent of public expenditure on the upgrades to
the
Nkandla Estate of the President, and whether such expenditure has
been
undertaken
in accordance with the applicable provisions of the Constitution
and
public procurement laws. The disclosure of the records is essential
to
ensure
respect for the founding constitutional values of government
openness,
responsiveness and accountability, as well as to vindicate the
constitutional
rights of freedom of expression and access to information.
55....Importantly, there is
evidence which suggests that a fair, competitive and
cost-effective
procurement process as required by section 217 of the
Constitution
and the
Public Finance Management Act of 1999
was not
followed
by the respondents......notwithstanding any ground of refusal that
the
respondents
may raise, they are required by
section 46
of PAIA to disclose
the
records concerned. This is so because the disclosure of the record
will
likely
reveal evidence of a substantial contravention of, or failure to
comply
with
the law and, the public interest in the disclosure of the record
clearly
outweighs
the harm contemplated in any ground of refusal which the
respondents
may raise”
According
to the applicants the court may in terms of
section 80
of PAIA
examine any record which was the subject of a refusal of access to
information, which record may not be ‘
withheld
on any grounds’.
[8]
The Director General of the Department, Mr Mziwonke Dlabantu in his
answering affidavit confirmed the declaration of the Nkandla
residence, like the residences of former Presidents and former Deputy
Presidents as a National Key Point, in terms of the
NKP Act.
According to him, relevant observations to the Nkandla residence were
that it was situated in an underdeveloped remote
rural area.
There
was need to invoke special measures to provide essential services
including medical services to the President and his family.
Besides,
the President ‘
receives
VIP protection and is accompanied by a large security detail at all
times’.
After
the inauguration of President Zuma in May 2009 a team of experts
representing the Departments of Police Services (‘SAPS’)
and Defence (‘SANDF’) and State Security Agency (‘SSA’)
reviewed the security circumstances surrounding
the President and,
identified shortcomings in relation to his residence at Nkandla. The
Department became involved in the upgrade
of the Nkandla residence of
the
President
to comply with the recommendations of the security agencies, which
included
1.
a physical security
system;
2.
an evacuation
mechanism;
3.
fire-fighting
capabilities; and
4.
the operational needs
of other national departments including medical facilities and
accommodation
[9]
In November 2012 a task team was appointed by the Minister to
investigate the facts surrounding the security project at the
Nkandla
residence and its findings were released to the public on 27
January 2013. The task team found that:
1.
before his inauguration
President Zuma and his family had already
‘
contracted
an architect and contractor to develop plans or improve his private
houses at his Nkandla residence, that the constructions
were already
underway, having progressed close to completion’ when he was
inaugurated as President;
2.
certain amendments had
to be effected to accommodate the requirements recommended by the
security agents as mentioned above;
3.
that 15 service
providers including consultants were contracted by the Department to
render various services and that proper procurement
procedures were
not followed in relation to goods and services;
4.
that the total cost
paid by the Department amounted to R206 420 644.37
[10]
Among various reasons given in opposing the application Mr Dlabantu
stated
at
Paragraph 32.2:
“
Although
the applicants expressly stated that they did not seek access to any
information
relating to the technical detail of security-sensitive improvements,
it
is clear that the documents sought are so replete with
security-related
information
that they cannot be disclosed without disclosing security-sensitive
information
at the same time. Using the headings in the applicant’s
request, I
set
out below why the applicants disavowal of security-sensitive
information
renders
their request internally contradictory.
32.2
1
Needs assessments/motivations
The
records consist of security assessments by the South African
Police
Services, the Department of Defence and other security
Agencies.......
32.2
2
Budgetary availability
There
was no specific budget allocated for the security upgrades to
the
Nkandla residence. In this regard, funds were sourced from other
prestige
projects that were underutilising the funds that had been
allocated
to them. Accordingly, there are no records reflecting the
budget
available for this project.
32.2.3
Bid
evaluations and outcomes
All
the documents under this heading deal with the technical detail of
what
the prospective bidders were proposing to do and the detail of
what
was agreed upon would be done.......these documents contain
security-sensitive
information.
32.2.3
Contracts
awarded and their values
Each
contract awarded contains details of what the successful service
provider
was required to do......contains extensive security-related
detail
which cannot be disclosed without compromising the security
arrangements
at the Nkandla residence.”
The
Department was opposed to the inspection of the records in terms of
section 80 of PAIA.
[11]
Certain disclosures of the identities of several service providers in
Parliament and, the announcement by the Minister of his
intention to
table the task team’s report necessitated the filing of a
supplementary replying affidavit. It was contended
by the applicants
that the respondents in opposing the application relied squarely on
an ‘
absolute
prohibition on disclosure which they
contended flows from
the very nature of the requested records i.e security sensitive and
non-severable’.
The
Minister’s disclosure of the report to public representatives
in Parliament contradicted reliance on the absolute prohibition
on
disclosure.
[12]
Subsequently the Minister instructed his special advisor, Mr Phillip
Sobi Masilo (‘Mr Masilo’) to revisit the documents
in
possession of the Department and which fell within the scope of
applicants’ request for access to information, in order
to
determine whether it was possible to severe security-sensitive
information from the documents in compliance with section 28
of PAIA.
Having examined 42 (forty-two) separate files and after consulting
with the SAPS, SANDF and SSA the Department tendered
the following
documents:
1.
Bid adjudication
minutes;
2.
Contracts between the
Department and various service providers for work on Phase 1 (high
security) and Phase 2 (low risk) of the
Nkandla security upgrade;
3.
Invoices submitted to
the Department by contractors;
4.
Progress payment
advices; variation order motivations;
5.
Final accounts; and
6.
Internal memoranda of
the Department dealing with requests for funds and reallocation of
funds.
The
documents represented all work done on the Nkandla Estate up to date
of the tender, which all amounted to R 210 505 255.90.
A
list of service providers and a schedule on the tendered documents in
each of the forty two files examined was annexed. The State
Attorney
was tasked with making copies of these documents for the applicants.
It
was also mentioned that some of the documents were redacted to a
limited extent to remove ‘
references
of security sensitive information and did not include any information
on payments to service providers’
.
The documents not tendered were listed as all those which carried a
security classification and marked ‘
Top
Secret’.
The
said documents related to recommendations on the type of security
installations, information on how to secure the perimeter
of the
residence against intruders;
information
and sketches and or maps disclosing location and all security related
measures.
[13]
The applicants filed an affidavit in response, the purpose of which
was tooutline the issues which remained in dispute and
necessitated
deliberation at the hearing scheduled for November 2013. The
applicants contended that there were deficiencies in
the documents
disclosed;
.‘Several
documents could not be located among documents; several disclosed
documents were incomplete in that there were
missing
pages or attachments; in some where meetings were referred to no
minutes could be located in the disclosed documents and
the disclosed
documents were confined to communications among the Department’s
middle and lower management, consultants and
contractors, and
although such records refer to a higher level of communication,
deliberation and decision –making i.e so
called “top
management”-the disclosed documents did not include any records
generated at that level”
.
A letter to the Department dated 29 July 2013 detailing these
deficiencies followed. Mr Masilo responded on 6 August 2013 ‘stating
that he had “
listed
all of the documents in possession of the Department ...relating to
the Nkandla security upgrade
”
that
some of these documents “
cannot
be disclosed due to the sensitive nature of their content
”
while others may “
have
inadvertently not been madeavailable”
but
would be disclosed after analysis by him.
[14]
On 8 August 2013 the applicants sought further clarification to Mr
Masilo’s letter:
“
-
whether
the respondents’ reference to “ documents in possession
of the Department
(emphasis
added) included any documents in the possession of the Ministry of
Public Works;
-whether
the reference to documents “related to the Nkandla security
upgrade (emphasis added included all documents related
to other (i.e.
non-security) aspects of the Nkandla upgrades;
-whether
any person had conducted a comprehensive audit of all of the
documents held by the Department to determine whether they
fell
within the applicants’ request, and if not what process was
followed;
-whether
the respondents could exclude the possibility that relevant documents
may have been omitted from the files that were examined
by Mr Masilo;
and
-whether
the respondents contend that those documents referred to in the
disclosed documents but absent from Mr Masilo’s list
do not
exist or cannot be located for any reason, and if so, whether the DG
would be prepared to provide an affidavit to that effect
in
accordance with section 23 of PAIA”
[15]
The respondents advised applicants’ attorneys that Mr Masilo
and the Department’s KwaZulu-Natal Provincial Office
(‘the
KZN office’) had conducted a review of the documents in Mr
Masilo’s possession and that several documents
that had been
erroneously omitted would be provided to applicants shortly. A
further letter of the 30 August 2013 explained that
all documents
relating to the Nkandla upgrade which were examined by Mr Masilo were
those documents filed at the KZN office which
was tasked with
managing the project and which were sent to his office at the
Ministry in Pretoria. Attached was a colour
coded schedule
addressing the deficiencies complained about:
1.
colour green --
documents tendered but mistakenly omitted (‘omitted documents’)
2.
colour yellow –
documents which appear to have once existed but now cannot be located
(‘lost documents’)
3.
colour red - documents
containing security sensitive information which
cannot
be redacted (‘withheld documents’)
4.
colour blue –
documents of which Mr Masilo ‘
has
been unable, despite his best efforts, to confirm the existence’
(‘undetected
documents’)
[16]
According to the applicants the missing documents referred to
documents in a schedule annexed to letter of 29 July 2013 ‘
SA4’,
which was cross
referenced to Mr Masilo’s list; to documents in ‘
SA6’
in the disclosed
documents which were not tendered and, to documents which Mr
Masilo was unable to locate. The applicants
contended that the said
documents
‘must’
have existed or been ‘
beyond
doubt (and certainly beyond a balance of probabilities)
in the possession of the Department.
Record of the existence of these documents they contended could be
inferred in the first and
second disclosures and, in leaked document
‘
RA6’
annexed to the
replying affidavit. A few examples were given among them, ‘
SA12’
dated 10 January
2011 where it was recorded “
A
meeting was held with Deputy Minister Bogopane-Zulu and DDG: ICR, PM
& PS on 21 December 2010 in which she confirmed that
the
Principal indicated that he does not want other contractors on site
in Phase 11 opposed to Phase 1
and,
where in the second disclosure reference was made to an
internal memorandum from the DG to the Minister with the subject
‘
Requesting
assistance in the relocation of neighbouring [sic] families from
their old houses to newly build [sic] accommodation.”
In
it the Minister is asked “
request
the Principal to intervene in expediting the relocation of the
families in order that the State may continue with security
works
......the families had not relocated, thus posing a risk that the
deadlines as given by the Principal ...may not be met”.
The applicants submitted that the
missing documents fell within their request and that the respondents
were obliged to disclose
them or justify fully in terms of PAIA why
they could not be disclosed. The applicants persisted in the prayers
sought in the Notice
of motion.
[17]
Mr Masilo, in a further answering affidavit averred that he had been
part of the task team appointed by the Minister during
October 2012,
to investigate allegations of corruption relating to the Nkandla
security upgrade which had surfaced in the media.
On 12 November 2012
the task team travelled to KZN. According to Mr Masilo he met with
the project manager Mr Rindel who was based
at the regional office of
the Department in KZN. The purpose of the meeting was to
collect all documents relating to the
Nkandla security project
including those in possession of the contractors. Mr Rindel kept
working files of each contract/component
of the project. The
principal agent appointed by the Department (Minenhle Makhanya
Architects), the consulting engineers
(Ramcom) and, the quantity
surveyors (R&G) also kept records on projects in which they were
involved. Mr Rindel caused the
documents relating to each completed
project, except for the records of site meetings and contractors
meetings to be filed in the
archives of the registry of the KZN
office and, no documents were kept at the Head Office of the
Department or the Ministry. The
documents collected were those
referred to as the 42 files consisting of over 12 000 documents.
Two sets of copies of the
documents were made, one for the task team
and the other for the Public Protector who had advised the Minister
on 5 November 2012,
that she too was investigating the Nkandla
security upgrade.
[18]
Mr Masilo submitted that the tendered documents in excess of 12000,
copies of which were provided to the applicants were reported
upon in
publications of the Mail and Guardian newspaper of 5 and 12
July 2012. Furthermore, that the applicants had not taken
issue with
any of the security sensitive documents that were withheld. Another
search was conducted for the missing documents and
a
further
disclosure of site meetings of June 2011 and January 2012 was
annexed. Mr Masilo submitted that despite best efforts on
the part of
the respondents the documents in colour coded yellow and blue in the
second disclosure cannot be located. He
contended that the
applicants’ attack on the missing documents related to a
limited number of documents and had gone
beyond the order
sought in the notice of motion and that the applicants had crossed
“
the line
between a legitimate request in terms of PAIA and abuse of the Act”.
AMICUS
CURIAE
SAHA
[19]
SAHA is a Non-Governmental Organisation which collects, preserves and
catalogues materials of historic, contemporary, political,
social
economic and of cultural significance and promotes the accessibility
of these materials to the general public. ‘In
2001 it launched
the Freedom of Information Programme dedicated to using PAIA in order
to test the boundaries of freedom of information
in South Africa
...and to create awareness of compliance with and use of PAIA’.
Since 2001 it has launched over 1800 requests
for information from
predominantly government departments. Arising out of the refusals for
access to information it has launched
numerous applications in the
High Court and as amicus curiae in one Constitutional Court matter.
SAHA’s interest arises out
of the impact the outcome of this
application will have on applications contemplated by it. The purpose
is also to provide statistics
on research conducted by it on requests
for information and, to assist the court in appreciating the
developing trend, the pervasive
culture of secrecy which impacts on
the ‘implementation of PAIA and the enjoyment of the
Constitutional right of access to
information.
[20]
According to SAHA limitations on the right of access to information
was demonstrated in the ‘culture of secrecy pervading
public
bodies; in the nature and the extent of the reliance by the State on
apartheid era legislation’ such as the ‘NKP’
Act
and ‘PI’ Act and, in ‘the misapplication of PAIA’s
security exemptions to withhold information’.
PAIA
requests were routinely met with initial refusal without adequate
reasons; with refusing access to all requested documents
without
complying with the obligation to sever material that may be
disclosed’ (section 28 of PAIA) and without considering
the
public interest override in section 46 of PAIA. Refusals were
withdrawn when litigation is instituted’.
[21]
In illustrating statistics on the trends displayed in the ‘culture
of secrecy were the 159 requests in 2012 administered
by SAHA to
various public and private bodies and of these 102 were outright
refused or no response was received and this equated
to 64% refusal
rate. ‘Out of 11 PAIA requests to the Office of the Presidency
10 were refused’ equating to over 90%
refusal rate. Two
practical examples, the PAIA requests of David Forbes, a filmmaker,
on the amnesty hearings into the murders
of the ‘Cradock 4’
and the entire amnesty application by Eugene de Kock to the
Truth and Reconciliation Commission
(‘TRC’).
[22]
Where apartheid era legislation was relied upon, out of the 1297
requests to public bodies between 2001 and 2011, 79 requests
received
refusals and out of these 16 requests were initially refused in ‘full
or in part on grounds relating to national
security and, this
represented 20% of refusal rate in that period. SAHA appealed in
seven of the 16 requests and in some, documents
were released in out
of court settlements, while judgment in one was outstanding.
Practical examples were, the ’34 boxes
case’ relating to
SAHA’s various requests during 2001 of state records of the
‘TRC’ held by the National
Archives and various requests
between 2001 and 2004 directly to the ‘TRC’ archive.
[23]
SAHA submitted that in terms of the PI Act and the NKP Act, PAIA
applied tothe exclusion of both statutes in as far as they
were
‘materially inconsistent with an object or specific provision
of PAIA; that these statues were to be approached with
caution in
that they were laws ‘made to entrench the apartheid security
state prior to the adoption of the Constitution;
that to the extent
that the statutes were applicable, its provisions be interpreted in
terms of section 39(2) of the Constitution;
and that the
provisions of these statutes imposing civil or criminal
liability have the potential of limiting the right
to access to
information as provided in section 32 of the Constitution.
DGRU
[24]
The DGRU is a specialist research unit based in the Department of
Public Law, at the University of Cape Town. Its primary
research focus is on the relationship between governance and human
rights, transparency and the right of access to information
and it
supports law and policy reform. It seeks to assist the court on the
interpretation of the legislation restrictions based
on national
security that is, the NKP Act, the PI Act and other related
security legislation, in relation to PAIA and in
a manner consistent
with the Constitution and South Africa’s obligation under
international law.DGRU has collaborated with
established advocacy
organisations in South Africa and abroad. Its interest in
this matter relates to its work on access
to information,
accountability and transparency and, to the development of the law
relating to the interpretation of sections 38
and 41 of PAIA. It
supports a narrow interpretation of national security as a ground for
refusing access to information, which
is a position supported also in
foreign case law and by various international organizations.
[25]
The respondents made certain disclosures, what remains to be
determined are the following issues:
1.
whether the
disclosures made were deficient;
2.
whether the respondents
took all reasonable steps to find the documentsrequested by the
applicants;
3.
whether there are
further ‘top level documents in existence; or
4.
whether there were
reasonable grounds for believing that certain records do not exist;
5.
whether there are
grounds for referral to oral evidence;
A
‘note of hearing’ was filed on behalf of the applicants
prior to the hearing. I do not intend to dwell on criticism
on behalf
of the respondent that it seemed, that the ‘note’ had
changed the focus on the case the respondents had to
meet, that is,
of the ‘missing documents’ as depicted in the papers and
heads of argument that exchanged hands. As
I see it, the ‘note’
charted the route the request of the applicants took from 12 July
2012, the change of stance taken
by the respondents throughout, the
piecemeal disclosures and, the new facts that came to light in the
additional affidavits exchanged,
which may have relevance to
the original request . The ‘note’ is not meant to have me
disregard what has been
presented in bothparties heads of argument.
It served to make me alive to a need for a holistic approach in
dealing with the issues
and, the possibility of me expanding on the
prayers in the notice of motion, by referring the matter to oral
evidence.
[26]
Our Constitution marked an important break with the past. Its
preamble provides for the laying of the foundation of a ‘
democratic
and open society’.
The
foundation of state value is laid down in the Constitution, which
provides for ‘
accountability,
transparency and openness’,
s
1(d); s 41(1)(c). Public administration in every sphere of government
is subject to these values and principles,s 57(1)(b), s
59(1)(b), s
70(1)(b), s 118(1)(b), s 160(7), s195; “
Open
and transparent government and a free flow of information concerning
the affairs of the state is the lifeblood of democracy
”
,
Oriani-Ambrosini v
Sisulu, Speaker of the National Assembly
2012
(6) SA 588
(CC) para 46 foot note 45. Organs of state security and
other security agencies are also subject to these values and
principles.
While the initial reason for non-disclosure was that the
documents sought were replete with security sensitive information,
the
applicants have themselves indicated that they were not
interested in such information. The respondents subsequently made
disclosure
and it was then revealed that the grounds relied upon were
not justified because only a limited number of the documents were
security
related. It was correctly submitted by the DGRU that
reliance on security grounds to deny access to information would have
the
result of undermining constitutional safeguards. It is my view
that our courts are called upon to be vigilant in determining the
legitimacy of the blanket refusals based on security grounds, and
that they are required to interpret security related legislation
in a
manner that will protect the right of access to information as
provided for in the Constitution. In this matter, the subsequent
disclosures have limited my pronouncement on refusals based on
national security grounds, because the respondents no longer rely
on
them.
[27]
For purposes of determining this application it is important to
reiterate why PAIA was promulgated. Section 32 of the Constitution
provides for a right to access to Information:
“
(1)
Everyone has a right
to have access to
(a)
any information
held by the State; and
(b)
any information
held by another person that is required for the exercise or
protection of any right.
(2)
National legislation must be enacted to give effect to this right....
The
preamble of PAIA reads:
“
RECOGNISING
THAT-
*the
system for government in South Africa before 27 April 1994,amongst
others resulted in a secretive and unresponsive culture
in public and
private bodies which often led to an abuse of power and human rights
violation;..
*national
legislation must be enacted to give effect to this right in section
32 of the Constitution;.
AND
BEARING IN MIND THAT-
*the
State must respect, promote and fulfil, at least, all the rights in
the Bill of Rights which is the cornerstone of democracy
in South
Africa;
*the
right of access to any information held by a public or private body
may be limited to the extent that the limitations are reasonable
and
justifiable in an open and democratic society based on human dignity,
equality, and freedom as contemplated in section 36 of
the
Constitution
AND
IN ORDER TO-
*foster
a culture of transparency and accountability in public and private
bodies by giving effect to the right of access to information”
[28]
First, whether or not the respondent made a disclosure satisfying the
provisions of PAIA must in my view be assessed against
the original
request and secondly against what was finally disclosed. The request
pertained to ‘
all
records in documentary form’,
generated
from May 2009, the documents were described and this request
was further qualified, ‘
We
emphasise that our interest is not in the technical detail of
security sensitive improvements, but in the financial implications
of
procurement by the State in respect of Nkandla Estate”.
The
subsequent disclosures and the belief by applicant that the search
was confined to the project managers documents (the
Rindle
documents) and not to a genuine disclosure of all documents even,
those at the Department’s head office, should also
be
considered in light of the responses in the affidavits for the
respondent.
[29]
It was submitted for the respondents that the disclosure of the
12 000
documents
on 21 June 2013 enabled the applicants to discharge their role as
members of the media to the public. Argument was presented
on the
disclosures bymaking references to the content thereof and to the
reports in the Mail and Guardian on the reports so disclosed
:
‘
Nkandla,
number 1 emerges clear winner; What did Zuma know about the Nkandla
Project’
and
other related reports annexed to the papers. Sight should not be lost
of the fact that while the applicants are said to have
extensively
reported on the documents disclosed they still raised queries
emanating from those disclosures, and as at August 2013
they still
requested the DG to depose to an affidavit in terms of section 23(1)
of PAIA.
After
inspecting the disclosures the applicants submitted that the missing
documents related to all ‘
records
of meetings, communications, deliberations and decisions at the level
of ‘top management’ which referred to
the Minister, the
Deputy Minister, the DG and the DDG including their communications
with the Principal
(President
Zuma).”
[30]
There is no doubt that the implementation of the Nkandla project
ordinarily shall have generated a volume of interrelated documents,
falling within the ambit of the original request. In my view, this
included decisions by ‘
top
management’
relating to ‘
procurement
for goods and services’, ‘financial implications’
‘
budgetary
availability’
referred
to in the request, that is, except for information relating to
‘
security
sensitive improvements’.
.
The Department’s response in the answering affidavit under the
heading ‘
budgetary
availability’
and ‘
contracts
awarded and values’
mentioned
above is, in my view, not acceptable, especially coming from the
Director General, who is the accounting officer in terms
of the law.
Where budgetary details are concerned, he states that there were “
no
records reflecting the budget available for this project’.
[31]
It was correctly submitted for the applicant that the response was in
direct conflict with several laws, to mention but a few
being, the
Constitutional provisions relating to funds appropriated by an Act of
Parliament for the withdrawal of money for expenditure
from National
Treasury
,
s
213(2)(a)
;
the obligation by an accounting officer to report unauthorized
expenditure to Treasury s 38(1) of the PMFA; the obligation by an
accounting officer not to commit a department to any liability “
for
which money has not been appropriated,
s
38(2)” of the PFMA and s 39(1) which requires the accounting
officer to ensure that expenditure of the department
“
is
in accordance with the vote of the department and the main divisions
within the vote”,
and
an accounting officer’s duty to keep full and proper records of
the expenditure of the Department and the duty to properly
account
to treasury in terms of the PFMA, s 40(1)(a) (
keeping
of proper
records)
, s 40(4)(a)
(account towards
anticipated expenditure for the forthcoming
financial year
)
and 40(4)(b) and (c) (
rendering
monthly returns of the Departments expenditure)
;
,
the
obligation to reduce to writing any directive from executive
authority, having financial implications to an accounting officer,
s
64 of the PFMA
;
the
Department’s responsibility when it contracts for goods and
services to do so “
in
accordance with a system which is fair, equitable, transparent,
competitive and cost effective”,
s
217(10 of the Constitution, echoed in s 38(1)(a)(iii) and (iv) of the
PMFA;
The Department
is mandated in terms of section 46 of PAIA to disclose records
in the public interest where evidence would
reveal ‘
a
substantial contravention of, or failure to comply with the law.’
(my underlining)
It
was submitted that even if these excuses regarding the missing
documents were true, the Department would still have to
be
transparent regarding the content of the missing documents and that
the disclosure of such documents still fell within the ambit
of the
original request. I agree with this submission.
[32]
It was argued for the respondent that it was not reasonable to
expect Mr Masilo, Mr Rindel or the DG to explain each
and every
document in the 42 files. The applicants raised no
complaint against Mr Masilo and Mr Rindel regarding the
KZN files.
According to Mr Masilo, Mr Rindel’s team was not part of
meetings with the ‘Minister, Deputy Minister and/or
DG or DDG’.
The complaint was that there was no disclosure of “
top
management” /”top level”
meetings
or decisions. The applicants argued that it was these documents that
had been referred to in the tendered documents that
had not been
disclosed and that no affidavit by the DG complying with section
23(1) of PAIA was provided. For example, the document
that was leaked
to the applicants and referred to in these papers and in the media
was not among the documents that were disclosed
by the Department.
This, in my view, would be more reason to believe that there are
documents in existence which have not been
disclosed. There were no
disclosures from Head Office, Pretoria and no search was conducted
for the missing documents at such office.
[33]
Section 23(1) of PAIA, provides for the process to be followed in the
event that the requested record cannot be found or does
not exist:
“
if all
reasonable steps have been taken to find a record”
the
“
information
officer of the a public body must by way of affidavit or affirmation,
notify the requester ....must give a full account
of all steps taken
to find the record in question or to determine whether the record
exists ...including all communications with
every person who
conducted the search on behalf of the information officer
.”
(
my underlining)
It
cannot be concluded that the DG by confirming Mr Masilo’s
affidavit of disclosure, has complied with his obligations under
the
provisions of section 23(1) of PAIA.
[34]
It was argued for the respondents that it was reasonable to conduct a
search for all the documents and of the missing documents
pertaining
to the Nkandla upgrade at the only offices where they were stored,
that is, the KZN regional office of the Department
and, in Mr
Rindel’s office and that reasonable steps had been taken to
place sufficient evidence before the court. In my
view, the
submission that the original request was limited thereby confining
the search to the KZN office is not correct.
The
request preceded the appointment of the task team by the Minister
andthe investigation by the Public Protector. The Minister’s
appointment of the task team to investigate the Nkandla project
cannot be interpreted to mean that he confined the investigation
to
the project manager and the regional office only. My understanding is
that when the Nkandla project was initiated at the instance
of the
SAPS, the SANDF and, other security related organs of government, it
is the Department which was tasked with the implementation
of the
project. The Department allocated funds and had overall control over
the project. Mr Rindel was responsible for the execution
and
supervision over the contractors and service providers of the project
at Nkandla.
Unless
these documents fell within the ambit of documents which should not
be disclosed due to security reasons, all documents pertaining
to the
Nkandla project from May 2009, having relevance to the particular
issues identified in the request must be disclosed.
[35]
The idea or suggestion of the possibility of no record of documents
in writing
or no records being kept pertaining to ‘
top
management’
decisions being available, especially those
records like in this matter that have or might have financial
implications to the Nkandla
project, is a serious indictment against
those in public office who deal with the business of government, and,
this should not
go unchallenged. Failure to keep record or a tendency
to lose documents, or to hide them or to deal with government
business under
a cloud of secrecy where it is not justified or, like
in this matter to confine disclosure to the project managers
documents, in
situations where a government department is taken to
task or where the shoe might pinch certain officials in government,
constitutes
a dereliction of one of the most important obligations on
a government, which is to keep proper records. Such conduct on the
part
of government does not advance the values espoused in our
Constitution, that of a democratic, transparent and accountable
government.
It is in the public interest to keep record in order to
give credence to the business of government itself and to those who
govern.
Record is kept to monitor those vested with the duty to
govern; record is kept to ensure that tax payers money is properly
accounted
for; record is kept to advance access to information as
protected by the Constitution. Records are kept so that such records
are
preserved for posterity in keeping with our national heritage.
The National Archives Act, Act 43 of 1996 and the regulatory scheme
under the said Act and policy developed around the Act, places an
obligation on all government employees from the top to the bottom
to
create proper records, whether these concern casual, ordinary or
classified information, when conducting government business.
[36]
The applicants have requested that the matter be referred to oral
evidence. There is also the request that the records not
disclosed be
examined in terms of section 80 of PAIA, that is, in order to assess
whether they are the subject of disclosure or
not. I am of the view
that at this stage, it would not serve any purpose to either examine
the records or refer to oral evidence
because the respondents have in
my view not completed the exercise of disclosure in terms of the
original request. As I see it,
a referral to oral evidence in order
to subject individuals to cross examination would possibly at this
stage not yield the result.
In my view, clear indication of the
issues to be interrogated must at least be outlined. Unless the
disclosures extend to Head
Office and the DG first reports as he is
required to do in terms of section 23(1) of PAIA, there is
possibility that the court
by referring the matter to oral evidence
might be embarking on a wild goose chase. I take this dim view
because of the dilly dallying
conduct displayed by the respondents in
dealing with this request for access to information.
[37]
In the circumstances I give the following order:
1.
The respondents are
ordered to furnish the applicants with such information outlined in
their request in terms of PAIA by including
documents filed at the
Department’s Head Office in Pretoria within 30 days of this
order;
2.
In as far as the
missing documents are concerned, the Director General of the
Department of Public Works is ordered to comply with
section 23(1) of
PAIA within 30 days of this order;
3.
The respondents are
ordered to pay costs of this application including costs of two
counsel.
__________
TLHAPI
V.V
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON : 05 NOVEMBER 2013
JUDGMENT
RESERVED ON : 06 NOVEMBER 2013
ATTORNEYS
FOR THE 1
ST
APPLICANT : WEBBER WENZEL ATT.
ATTORNEYS
FOR THE 2
ND
APPLICANT : WEBBER WENZEL ATT.
ATTORNEYS
FOR THE RESPONDENTS : THE STATE ATT.