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[2009] ZAGPPHC 201
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Erf 16 Bryntirion (Bty) Ltd v Minister of Public Works (11375/08) [2009] ZAGPPHC 201 (18 June 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
CASE
NO: 11375/08
DATE:
18/06/2009
IN
THE MATTER BETWEEN
ERF
16 BRYNTIRION (PTY) LTD
…..............................................
APPLICANT
AND
THE
MINISTER OF PUBLIC
WORKS
........................................
RESPONDENT
JUDGMENT
SERITI
J
A.
INTRODUCTION
[1]
This matter came to Court by way of an application in terms of Rule
30A of the Uniform Rules of Court. According to the notice
of
application in terms of Rule 30A the applicant is seeking an order in
the following terms:
"1.
Ordering the respondent to deliver a full and complete record in
terms of Rule 53 of the proceedings sought to be reviewed
and set
aside, in particular:
1.1.
the three legal opinions referred to at page 42 of the record of
proceedings delivered by the respondent on 12 August 2008;
1.3.
a complete unedited copy of the Preliminary Design Report on the
Security and Electronic Systems: November 2004 as referred
to at page
42 of the record delivered by the respondent..."
B.
BACKGROUND
[2]
The applicant is the owner of a property situated at Erf 16,
Bryntirion Estate Pretoria on which property there is a residential
home. The applicant bought the property approximately in 1997 and
over the years, the residential home was renovated and improved.
[3]
During September 2005 the Department of Public Works informed the
applicant that it intends purchasing the property of the applicant,
and the applicant had no intention of selling the property. On or
about 3 January 2008 the respondent took a decision to expropriate
the applicant's immovable property mentioned above.
[4]
On 28 February 2008 the applicant launched an application to review
and set aside the decision to expropriate its immovable
property. The
respondent was called upon to dispatch to the Registrar of this Court
the record of the proceedings and decision
sought to be set aside
together with reasons that by law is required to give or desires to
give.
[5]
In order to comply with Rule 53 the respondent made available record
of the proceedings accompanied by two affidavits, one attested
to by
her and the other attested to by Mr Ronnie Kasrils, the then Minister
for Intelligence Services of South Africa. In her affidavit,
she
stated that after being requested to file the record of proceedings
with the Registrar, as some of the issues contained in
the record
relate to national intelligence and security, she referred the said
documents to the Minister of Intelligence Services.
A document titled
"Department of Public Works, Bryntirion Estate Preliminary
Design Report" on the security and the electronic
systems ("the
Bryntirion Report") was edited by the Minister of Intelligence
Services.
[6]
The Minister of Intelligence edited the said report as he was of the
opinion that the public disclosure of some of the information
contained in the report, will compromise security of inter alia
Presidential residence, Presidential Guest House and houses of
some
of the Cabinet ministers. The said report was compiled in
consultation with the South African Police Service and the National
Intelligence.
[7]
The documents that were placed before her to enable her to take the
decision to expropriate the property were legal opinions,
correspondence between the Department and the applicant's attorneys
and the consultants report. She obtained the legal opinions
in order,
as she puts it, "to satisfy myself concerning the legal issues
arising out of the possible expropriation ... I obtained
the legal
opinions to understand my legal rights and the legal position
pertaining to the impasse in acquiring the expropriated
property on
amicable terms."
[8]
The record she disclosed contains all the correspondence, consultants
reports and the edited Bryntirion Report. She did not
disclose the
unedited Bryntirion Report and the legal opinions as she said they
are privileged documents.
[9]
As a result of the security concerns raised by the Minister of
Intelligence Services, she has disclosed the "Bryntirion
Report"
in edited form in order to allow the applicant to see parts of the
report, the disclosure of which would not pose
any security threat.
[10]
The respondent further alleges that it is her mandate to ensure that
public institutions, of which Bryntirion Estate is one,
are secured
from any threat, including threats that would prejudice national
security. She has independently considered the Bryntirion
Report and
came to the conclusion that same needs to be edited. The Minister of
Intelligence also came to the same conclusion after
reading the said
report.
[11]
The Minister of Intelligence Services deposed to a supporting
affidavit. In the said affidavit he states that he was sent inter
alia the consultants reports. The Bryntirion Report represents a
comprehensive analysis of the security status of the Bryntirion
Estate and the proposed measures to improve the security of the
Estate.
He
further states that the Bryntirion Report allows a reader to
determine the vulnerability of the security of the Estate and enables
the reader to assess the strengths or weaknesses of the proposed
enhanced security. The disclosure, in an unedited form of the
Bryntirion Report will compromise the security of the business of the
state. After reaching the above conclusion, he personally
edited the
Report in such a manner as to allow the applicant to see as much as
possible of the Report, but at the same time, not
compromise security
of the State.
C.
FINDINGS
[12]
In the written heads of argument, the applicant contends that the
legal opinions are not privileged and in the alternative,
if they are
privileged applicant contends that its rights in terms of sections 32
and 33 of the Constitution and in terms of Rule
53 should have
precedence over the respondent's claim to privilege. It is also
submitted on behalf of the applicant that it is
entitled to the
unedited Bryntirion Report in order to enable the applicant to
protect its rights.
Our
law recognises the principle that communication between legal advisor
and client is privileged if the legal advisor was acting
in a
professional capacity at that time. See Sv Safatsa & Others
1988
1 SA 868
(AD) at 885J-886G; Mandela v Minister of Prisons
1983 1 SA
938
(AD) at 957H-958A.
In
Zuma v National Director of Public Prosecutions & Others
2009 1
SA 1
(CC) at 79 (para [185]) the Court said:
"It
should, however, be emphasised that the common law right to legal
professional privilege must be claimed by the right-holder
or by the
rightholder's legal representative."
[13]
The applicant's counsel during oral argument submitted that there is
no allegation by the respondent that the legal professionals
were
consulted in confidence and consequently the respondent's defence of
legal privilege must fail. I do not agree with this submission.
The
Minister obtained legal opinions, which she used when considering the
expropriation in order to understand the legal implications
of the
step she intended taking. I cannot imagine that she did not consult
her legal advisors in confidence.
There
is no justifiable reason to interpret the provision of Rule 53 in
such a manner that it overrides the well recognised principle
of
legal profession privilege. In HL & H Timber Products v Sappi
Manufacturing 2000(4) All SA 545 (SCA) at p560C-D (para [5])
FARLAM,
AJA, as he then was, said:
"The
presumption against amending or altering the common law no more than
is necessary ... is well known and if Parliament
had intended to go
as far as Nienaber JA suggests there was nothing to prevent it from
making its intention on the point plain."
My
view is that the applicant's reliance on Rule 53 to force the
respondent to disclose the legal opinions is misplaced.
The
respondent's counsel, correctly so, submitted that Rule 53 falls to
be interpreted subject to the common law rights to legal
professional
privilege.
[14]
The respondent refused to disclose the unedited Bryntirion Report on
the basis that such a disclosure might compromise state
security. The
then Minister of Intelligence Services in his affidavit stated that
after considering the said report, he came to
the conclusion that the
disclosure of the Bryntirion Report in its unedited form will
compromise the security of the business of
the State.
In
The South African Law of Evidence - D T Zeffertt, A P Paizes and St Q
Skeen - 2003 (formerly Hoffman and Zeffertt) at 648, whilst
dealing
with State privilege the following is stated:
"...
the position that once applied at common law and which was reflected
by an obiter of Steyn CJ in Van der Linde v Calitz
to the effect that
a properly tendered ministerial objections would be final and
decisive in matters affecting the safety of the
state, its diplomatic
relations with other states and very important executive documents:
the court would be obliged either to
exclude the evidence mero motu
or to accept a properly tendered objection."
[15]
In his heads of argument, the respondent's Counsel summarised the
salient features of a claim of state privilege at common
law as
stated in Van der Linde v Calitz
1967 2 SA 239
(A). The decision to
claim privilege must be made by the political head of the relevant
department and the political head must,
as far as possible, take into
account public interest, give sufficient information to enable the
Court to decide whether it should
exercise its residuary powers.
When
exercising its residuary powers, the Court must do it in such a
manner as to avoid causing the damage that the claim to state
privilege intended to avoid.
[16]
The then Minister of Intelligence Services personally considered the
Bryntirion Report, formed a view that the disclosure thereof
will
compromise the security of the business of the state, edited the
Report and made the edited report available. He further said-
"In
editing the Bryntirion Report, I have attempted to balance the
applicant's right to the information for purposes of his
review, with
genuine security concerns flowing from unedited disclosure. Although
the report has been edited, I have attempted
to ensure that the
applicant can be left in no doubt as to the legitimate concerns which
are at stake and which appear from the
documents forming part of the
record."
[17]
The affidavit of Minister of Intelligence clearly sets out evidence
which demonstrates that the disclosure of the unedited
Bryntirion
Report will compromise the security of the business of the state
including international relations.
I
cannot find any justifiable reason for not upholding the state
privilege claimed by the respondent. In my view, the objection
to
disclose the unedited Bryntirion Report is well founded.
[18]
In the heads of argument, the applicant's counsel further submitted
that the applicant relies on sections 32 and 33 of the
Constitution
to obtain the documents it requires, namely legal opinions and the
unedited Bryntirion Report.
In
order to give effect to the abovementioned rights, Promotion of
Administrative Justice Act 3 of 2000 ("PAJA") and the
Promotion of Access to Information Act 2 of 2000
were promulgated.
In
South African National Defence Union v Minister of Defence
2007 5 SA
400
(CC) at 420A-C (para [52]) O'REGAN, J said the following:
"Accordingly
a litigant who seeks to assert his or her right to engage in
collective bargaining under
s 23(5)
should in the first place base
his or her case on any legislation enacted to regulate the right, not
on
s 23(5).
" See also MEC for Education, KZN v Pillay
2008 1 SA
474
(CC) p488H-489B (para [40]).
The
reliance by the applicant on
sections 32
and
33
is incorrect.
During
oral argument, the applicant's counsel conceded that the applicant
cannot rely on sections 32 and 33 of the Constitution.
[19]
The applicant was correct not to rely on the provisions of
Promotion
of Access to Information Act supra
as
section 33
of the said Act read
with sections 38, 40 and 41 thereof authorises the information
officer of a public body to refuse to disclose
some of the documents
the applicant is seeking disclosure thereof.
[20]
My view is that the applicant has failed to make out a case for an
order in terms of its application in terms of Rule 30A.
The
following order is made:
(a)
The application is dismissed.
(b)
The applicant is to pay costs of this application which costs will
include costs consequent upon the employment of two counsel.
W.
SERITI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
11375-2008
HEARD
ON: 15 NOVEMBER 2008
FOR
THE APPLICANT: N G D MARITZ SC
INSTRUCTED
BY: STEGMANNS INCORPORATED, PTA
FOR
THE RESPONDENT: G J MARCUS SC AND M SHIKHAKHANE
INSTRUCTED
BY: EDWARD NATHAN SONNENBERGS, JHB