MEC for Roads and Public Works Eastern Cape and Another v Intertrade Two (Pty) Ltd (047/05) [2006] ZASCA 33; 2006 (5) SA 1 (SCA) (27 March 2006)

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[2006] ZASCA 33
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MEC for Roads and Public Works Eastern Cape and Another v Intertrade Two (Pty) Ltd (047/05) [2006] ZASCA 33; 2006 (5) SA 1 (SCA) (27 March 2006)

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IN
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
Case
No. 047/2005
In the
matter between:
THE MEC
FOR ROADS AND
PUBLIC
WORKS, EASTERN CAPE First Appellant
THE
CHAIRMAN OF THE PROVINCIAL
TENDER
BOARD, EASTERN CAPE Second Appellant
and
INTERTRADE TWO (PTY) LTD
Respondent
CORAM: HOWIE P, FARLAM, HEHER, VAN HEERDEN JJA et
MAYA AJA
HEARD: 23
FEBRUARY 2006
DELIVERED: 27
MARCH 2006
Summary:
Promotion
of Access to Information Act 2 of 2000
s 7(1)
– whether tenderer
instituting application for review in terms of uniform
rule 53
against public body that had called for tenders is precluded from
seeking order for production of documentation relating to the tender
adjudication which allegedly falls, in part, outside the ambit of the
record referred to in uniform
rule 53(1)(b)
– whether documentation
‘requested’ prior to the commencement of review proceedings in
terms of
s 7(1)
of PAIA.
Neutral citation: MEC for Roads & Public Works v
Intertrade Two (Pty) Ltd [2006] SCA 34 (RSA)
JUDGMENT
MAYA
AJA:
MAYA AJA:
[1] This appeal concerns the right of an unsuccessful
tenderer who has instituted review proceedings in terms of uniform
rule 53
against the public body that called for tenders, to obtain
information relating to the tender adjudication process from such
body.
[2] The respondent, Intertrade Two (Pty) Ltd
(‘Intertrade’), is a supplier and repairer of mechanical and
electrical plant and
equipment. It instituted application proceedings
in the Bhisho High Court (Dhlodhlo ADJP) seeking various forms of
relief, inter
alia, the review of the appellants’ tender process
,
in which it was a tenderer
,
on the
grounds of irregular conduct on the part of the appellants’
officials. In addition to the record envisaged by
rule 53(1)(b)
,
Intertrade requested a wide range of documents relating to the tender
process to enable it properly to formulate its case. The appellants
raised a question of law in terms of
rule 6(5)(d)(iii)
, challenging
the validity of the procedure adopted by Intertrade. The objection
was aimed at Intertrade’s request for additional
documents on the
basis that its invocation of
rule 53
confined it to the production of
only those documents falling within the ambit of the record envisaged
by the rule. The appellants
contended that s 7 of the Promotion of
Access to Information Act 2 of 2000 (‘PAIA’) precluded Intertrade
from demanding such
additional documents before it had exhausted its
procedural remedies under both rules 53 and 35(12). Dhlodhlo ADJP
dismissed the
objection and granted the relief sought. The appellants
appeal against that order with his leave.
[3] The facts on which Intertrade based its application
were not in dispute. In March 1997 the first appellant (‘the
department’)
awarded a tender to Intertrade’s corporate
predecessor for a two year contract for preventative maintenance and
repairs of plant
and equipment at various provincial hospitals in the
Eastern Cape. Prior to the expiration of the contract, the parties
agreed to
extend it for a further one year period on the same terms.
Similar extensions followed until 31 March 2003. After the expiry of
the
initial contract in March 1999, the department had, in three
successive tender processes, invited tenders for the contract in
different
formats in an attempt to include other suppliers.
Intertrade was the only tenderer on each occasion but the contract
was not awarded.
This occurred again in 2002 despite the department’s
recommendation in favour of Intertrade. The second appellant (‘the
Tender
Board’) rejected the recommendation and instructed the
department to ‘rephrase the tender specifications’ - which had in
fact
been done in the previous processes - and re-advertise the
tender to accommodate other service providers. The tender was once
again
not awarded.
[4] In September 2003, the department invited tenders,
valid for 90 days, for four contracts – two for mechanical and
electrical
work (‘the ME contracts’) and two for laundry and
kitchen repairs and maintenance (‘the LK contracts’) at
provincial hospitals
in certain municipal districts. Intertrade was
the only tenderer for the ME contracts and one of two tenderers for
each of the LK
contracts. When the Tender Board did not make a
decision on the tenders within the stipulated time, Intertrade
complained to it and
to the department in a number of letters. In its
reply, the department expressed surprise that Intertrade had not been
awarded the
contracts. Intertrade then wrote to the Premier of the
Province, subsequently cited as one of the respondents in the court
a
quo
, seeking his intervention. The Premier asked the Provincial
Strategy Planning Division (the PSPD) to investigate the matter. In
its
report to the Premier in March 2004, the PSPD had expressed
dismay at the undue delay, referring to its ‘desperation and
frustration
after having had no appropriate response’ from the
relevant officials. It also raised concern at the death of patients
and other
problems which had resulted from the failure to maintain
the relevant hospital equipment. At a related meeting of the relevant
heads
of department, it was apparently concluded that Intertrade had
not been treated fairly and the Premier apparently expressed the view
that the contracts should have been awarded to it.
[5] The 2004 national elections, which brought a new
minister for the department and a new Premier in the province, appear
to have
interrupted the process. In May 2004, the department informed
Intertrade in writing that one of its tenders had not been approved
because it was overpriced. This raised suspicion on the part of
Intertrade that its tender prices had been tampered with after the
closure of tenders as its prices as tendered had been lower than the
tender estimates on submission. Strangely, this departmental
communication was subsequently telephonically withdrawn by one of the
department’s officials without explanation. Having informed
Intertrade that it had decided to award one of the LK contracts to
the other tenderer concerned (who was also cited as a respondent
in
the court
a quo
), the department then requested Intertrade to
extend the validity of its tenders in respect of both LK contracts.
Intertrade agreed
to do so. In a bizarre turn of events, Intertrade
was at this stage approached by a woman who offered to get its
tenders approved
in return for a 10 per cent stake in the contracts.
Intertrade rejected the offer out of hand. More time elapsed and a
decision was
still not made. Further entreaties to the new Premier
elicited no response.
[6] Finally, on 27 July 2004, Intertrade, through its
attorneys, wrote to the department and the Tender Board formally
enquiring,
amongst other things, whether the relevant tenders had
been awarded. It further requested the identity of the successful
tenderer,
written reasons for the decision and copies of specified,
wide-ranging documents concerning the tender process relative to the
four
contracts in the event that its tender bids had been
unsuccessful. The department subsequently provided Intertrade with a
disjointed
bundle of documents relating only to some of the tenders.
Some of the documents were undated and others were incomplete
extracts
of minutes apparently relating to relevant proceedings. It
appeared from some that the tender estimates of the Intertrade’s
competitors
were extremely low and unrealistic. The relevant tender
documents were, however, withheld, as were most of the documents
requested
by Intertrade. This included a document emanating from the
Premier which, in essence, directed that the contracts be awarded to
Intertrade
and which employees of Intertrade had seen during a visit
to the department. A further letter addressed by Intertrade’s
attorneys
to the department and the Tender Board requesting the
outstanding documents went unanswered. Intertrade then launched the
review
application.
[7] It was common cause that the appellants had
purported to produce a record for purposes of rule 53 in the court
a
quo
where a judgment on the review proceedings is still pending.
Prior to the hearing of the appeal, the appellants filed a ‘notice’
listing which of the documents, as requested in Intertrade’s notice
of motion, they contended did not form part of the rule 53
record.
These are:
‘1. minutes of all
other departmental meetings and relevant committee meetings at which
the tenders in relation to the contracts
were considered and
evaluated;
2. all correspondence,
interoffice memoranda and other documents relating to the tenders and
the award or non-award or postponement
of the award of the contracts
during the period August 2003 to date;
3. all directives or
recommendations or correspondence issued by the Premier of the
Eastern Cape (past or current) relating to the
award or non-award of
the contracts;
4. any costing
exercises in relation to contracts produced by the First and Second
Respondents [appellants] or provided to such Respondents;
and
5. extracts of the
tender documents of the Fourth and Fifth Respondents [Intertrade’s
co-tenderers] in respect of contracts 1893
LK and 1894 LK which
relates to their costing of their tenders and setting out their rates
and how their tender prices are made up.’
[8] Section 32 of the Constitution confers upon every
person a general and unqualified right of access to any information
held by
the state and its organs. It then requires the enactment of
national legislation to give effect to the right, which legislation
‘may
provide for reasonable measures to alleviate the
administrative and financial burden on the state’. PAIA is that
legislation. The
right to obtain information is conferred also,
albeit for the limited purpose of litigation, by uniform rules 53 and
35, which regulate
review proceedings and the discovery procedure,
respectively.
[9] As indicated above, the appellants’ central
contention was that Intertrade’s right to access the documents that
it sought
lay in rules 53 and 35(12). Their counsel sketched the
rather circuitous legal route that he submitted Intertrade had to
take. He
argued that Intertrade should first have requested a copy of
the relevant record in terms of rule 53. In the event that some of
the
documents sought fell outside the scope of the record envisaged
in that rule, Intertrade would then have to invoke the discovery
procedure under rule 35(12). If that process did not yield the
desired results, Intertrade could then utilize PAIA to access the
missing documents. Or it could, so the argument went, have reversed
the process and brought a separate application in terms of PAIA
before proceeding on review.
[10] The appellants’ case, which seeks to limit
Intertrade’s right of access to information, rests on s 7(1) of
PAIA. The objects
of the Act are embodied in s 9. They include:
‘(a) to give
effect to the constitutional right of access to-
(i) any information that is held by the State; and
(ii) . . .
(b) to give effect to
that right-
(i) subject to
justifiable limitations, including, but not limited to, limitations
aimed at the reasonable protection of privacy…and
effective,
efficient and good governance; and
(ii) in a manner which
balances that right with any other rights, including the rights in
the Bill of Rights in Chapter 2 of the Constitution.’
[11] It is abundantly clear, therefore, that the
interpretation of the provisions of PAIA must be informed by the
Constitution (see
s 39(2) of the Constitution, which obliges every
court to promote the spirit, purport and objects of the Bill of
Rights when interpreting
any legislation; and see further
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs &
Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 72).
[12] I turn now to deal with s 7(1). It reads:
‘(1) This Act does not apply to a record of a public body or a
private body if –
that record is requested for the purpose of criminal or civil
proceedings;
so requested after the commencement of such criminal or civil
proceedings, as the case may be; and
the production of or access to that record for the purpose referred
to in paragraph (a) is provided for in any other law.’
It is important to note that these jurisdictional
requirements are cumulative – all three must co-exist for the
operation of the
Act to be excluded.
[13] It was not disputed that the appellants fall within
the definition of ‘public body’ in PAIA and that they are state
organs
in terms of the Constitution. It is common cause that the
request for the documents in issue was made prior to the institution
of
the application proceedings and that it was in fact the
appellants’ resistance to disclosure that prompted the request for
the
production of documents contained in the notice of motion. The
appellants’ counsel, however, sought to draw a distinction between
what he termed an informal request, ie Intertrade’s letters of 27
July 2004 and 25 August 2004 and a request contemplated in s
7(1)(b).
As I understood his argument, the letters do not amount to the latter
and only the demand set out in the notice of motion
could be
considered as constituting the request envisaged in PAIA. No
authority was cited to support this submission and I have not
found
any. In my view, there is no merit in the submission and I am
satisfied that Intertrade did make a ‘request’ in terms of
s
7(1)(b) before the institution of its application.
[14] Counsel argued further that the notice of motion in
any event referred to more documents than had been requested before
the proceedings
and that the ‘broader proceedings’ thus confined
Intertrade to the procedural remedies. The items requested for the
first time
in the notice of motion are those listed in paragraph 4 of
the appellants’ abovementioned ‘notice’. In my view, these
documents
are so closely linked to those which had been previously
requested that there is no basis to distinguish them from the other
documents.
[15] Some of the documents sought by Intertrade may not
be obtainable by means of either rule 53 or 35. In
Johannesburg
City Council v The Administrator, Transvaal
(1)
1970 (2)
SA 89
(T), the court described a rule 53 ‘record of proceedings’
as follows (at 91G-92A):
‘The words…cannot
be otherwise construed, in my view, than as a loose description of
the documents, evidence, arguments and other
information before the
tribunal relating to the matter under review, at the time of the
making of the decision in question. It may
be a formal record and
dossier of what has happened before the tribunal, but it may also be
a disjointed indication of the material
that was at the tribunal’s
disposal. In the latter case it would, I venture to think, include
every scrap of paper throwing light,
however indirectly, on what the
proceedings were, both procedurally and evidentially
. A record of
proceedings is analogous to the record of proceedings in a court of
law which quite clearly does not include a record
of the
deliberations subsequent to the receiving of the evidence and
preceding the announcement of the court’s decision. Thus the
deliberations of the Executive Committee are as little part of the
record of proceedings as the private deliberations of the jury
or of
the Court in a case before it. It does, however, include all the
documents before the Executive Committee as well as all documents
which are by reference incorporated in the file before it.’
(My
emphasis.)
Some of
the items listed in the appellants’ abovementioned ‘notice’
may, conceivably, fall outside the scope of the above description.
[16] Rule 35 is also not without limitations. The
discovery procedure is, even when interpreted purposively ( see, for
example,
Premier Freight (Pty) Ltd v Breathetex Corporation (Pty)
Ltd
2003 (6) SA 190
(SE)), by its nature an extraordinary
procedure in application proceedings, allowed only in exceptional
circumstances, and does not
create an unqualified obligation for a
party from whom discovery is sought to produce the documents. The
appellants could possibly
resist discovery successfully, for example
on grounds of privilege or relevance. If some of the documents sought
by Intertrade cannot
be obtained in terms of rules 53 and 35, this
would mean that without resorting to PAIA, Intertrade would not be
able to gain access
to such documents. In my view, that may
effectively place such documents outside the ambit of s 7(1)(c).
However, in view of my conclusion
in respect of s 7(1)(b), it is not
necessary to decide this point one way or the other.
[17] It has been suggested that the purpose of s 7 is to
prevent PAIA from having any impact on the law governing discovery or
compulsion
of evidence in civil and criminal proceedings (see Ian
Currie & Jonathan Klaaren
The Promotion of Access to
Information Act Commentary
(2002) at pp 52-54) by prohibiting
access, after commencement of litigation, to ensure that ‘litigants
make use of their remedies
as to discovery in terms of the Rules…
and to avoid the possibility that one litigant gets an unfair
advantage over his adversary’
(see
CCII Systems (Pty) Ltd v
Fakie and others NNO
2003 (2) SA 325
(T) para 21). This situation
does not, in my opinion, arise on the facts of this case.
[18] In the view I take of the matter, I therefore
refrain from expressing any opinion on the question whether or not
the right to
obtain information conferred by the rules and PAIA can
be invoked contemporaneously in so far as the documents sought fall
outside
the scope of the record envisaged in rule 53(10)(b) and the
documents covered by rule 35(12) (cf
Institute for Democracy in
South Africa v African National Congress
2005 (5) SA 39
(C) paras
14-19). Suffice to say that s 2(1) of PAIA enjoins courts, when
interpreting the provisions of the Act, to prefer any reasonable
interpretation that is consistent with its objects over any
alternative interpretation inconsistent therewith. From various parts
of PAIA - the long title, the preamble, s 9 and other sections –
those objects are clear, namely, generally to make information
held
by the state (and private bodies) accessible to the public to promote
accountability. The rules themselves were designed ‘to
secure the
inexpensive and expeditious completion of litigation before the
courts’ (see
Federated Trust Ltd v Botha
1978 (3) SA 645
(A)
at 654C-D) and also to ensure a fair hearing and should, where
reasonably possible, be interpreted in such a way as to advance,
and
not reduce, the scope of an entrenched constitutional right (see
D
F Scott (EP) (Pty) Ltd v Golden Valley Supermarket
2002 (6) SA
297
(SCA) para 9; and cf
De Beer NO v North-Central Local Council
and South-Central Local Council
[2001] ZACC 9
;
2002 (1) SA 429
(CC) para 11).
[19] The
wording of s 7(1) is clear and must be given effect to. Whilst the
jurisdictional requirement set out in subsection (1)(a)
has been
established, that set out in subsection (1)(b) has not been met in
the present case. Section 7 cannot, therefore, operate
as a bar to
Intertrade’s request. The appellants’ reliance thereon was
misplaced.
[20] There
is another issue that requires comment. The appellants’ resistance
to Intertrade’s request for documentation on technical
grounds was,
in my opinion, most reprehensible. Important issues are at stake
here. Intertrade seeks to establish the truth about
an
extraordinarily extended tender process to exercise and protect its
rights. The appellants knew precisely what documents it required
from
the outset. They did not raise any impediment which would prevent
them from producing the documents. Neither did they deny that
they
had the documents in their possession. Their response is rendered
more deplorable by the report contained in the department’s
own
correspondence which shows that, whilst they were embarking on
delaying tactics at the taxpayer’s expense, sick and vulnerable
citizens were suffering and children were dying in poorly maintained
hospitals as a direct result of their failure to comply with
their
constitutional obligations.
[21] The nature and extent of a public body’s
obligation where the right of access to information is invoked is
eloquently expressed
in
Van Niekerk v Pretoria City Council
1997 (3) SA 839
(T). There, Cameron J, dealing with a claim brought
under s 23 of the interim Constitution (the precursor to s 32 of the
Constitution)
said at (850A-C):
‘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.’
Had it not
been for the fact the appellants were granted leave to appeal by the
court
a quo
, this court may well have been inclined to make a
special punitive costs order as a mark of its extreme displeasure at
their conduct.
[22] For the above reasons, the conclusion reached by
the court
a quo
was correct. The appeal is dismissed with
costs, including the costs of two counsel.
_________________________
MML
MAYA
ACTING
JUDGE OF APPEAL
CONCUR:
HOWIE P
FARLAM JA
HEHER JA
VAN
HEERDEN JA