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[2020] ZASCA 56
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South African History Archive Trust v South African Reserve Bank and Another (17/19) [2020] ZASCA 56; [2020] 3 All SA 380 (SCA); 2020 (6) SA 127 (SCA); 2020 (12) BCLR 1427 (SCA) (29 May 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 17/19
In the
matter between:
THE
SOUTH AFRICAN HISTORY
ARCHIVE
TRUST APPELLANT
and
THE
SOUTH AFRICAN RESERVE BANK FIRST
RESPONDENT
THE
GOVERNOR OF THE
SOUTH
AFRICAN RESERVE
BANK,
L KGANYAGO SECOND
RESPONDENT
Neutral
citation:
The South African History
Archive Trust v The South African Reserve Bank and Another
(Case
no 17/19)
[2020] ZASCA 56
(29 May 2020)
Coram:
CACHALIA, MBHA and SCHIPPERS JJA and MOJAPELO and GORVEN
AJJA
Heard
:
3 March 2020
Delivered:
This judgment was
handed down electronically by circulation to the parties'
representatives by email, publication on the Supreme
Court of Appeal
website and release to SAFLII. The date and time for hand-down is
deemed to be 10h00 on 29 May 2020.
Summary:
Promotion of Access to Information Act 2 of
2000
– request for records of certain persons – refusal
of request –
Section 47
applied to records of two persons –
failure of information officer to take reasonable steps to inform
them of request –
access refused –
Section 49(2)
invoked
to make decision – decision to refuse access
ultra
vires
– reviewed and set aside and
compliance with
section 47
directed prior to making decision;
Refusal
of access by public body – review of refusal – grounds
for refusal sourced in chapter 4 – no basis made
out for
refusal – decision to refuse reviewed and set aside –
access to records to be granted.
ORDER
On
appeal from:
Gauteng Division of the High
Court, Johannesburg (Matojane J, sitting as court of first instance):
1 The appeal is upheld with costs, including the costs
of two counsel where used.
2 The order of the court of first instance is set aside
and the following order is substituted:
‘
(a) It is declared that the decisions of the
respondents to refuse access to the records requested by the
applicant in respect of
the late Brigadier Blaauw, Mr Robert Hill and
Mr Vito Palazzolo in its request for information in terms of the
Promotion of Access
to Information Act 2 of 2000 (PAIA) dated
1 August 2014 are unlawful and in conflict with the
provisions of PAIA.
(b) The decisions to refuse such access as regards the
requested records in respect of the late Brigadier Blaauw, Mr
Palazzolo and
Mr Hill are reviewed and set aside.
(c) The respondents are directed to provide to the
applicant the requested records in respect of the late Brigadier
Blaauw.
(d) The respondents are directed to notify Mr Palazzolo
and Mr Hill of the request concerning records relating to them in
accordance
with s 47 of PAIA within 10 calendar days after
service of this order on them, and thereafter to comply with the time
periods
and provisions in Chapter 5 of PAIA.
(e) The respondents are directed to pay the costs of
this application, including the costs of two counsel where used.’
JUDGMENT
Gorven
AJA (Cachalia, Mbha and Schippers JJA and Mojapelo AJA concurring)
[1]
The appellant is a non-governmental organisation.
Researchers from the Open Secrets Project are collecting material for
a book.
The book plans to deal with apartheid era procurement
practices and public accountability. It will include analysis of
abuses of
the financial rand, corruption and foreign exchange
transactions under apartheid. This falls within the scope of
information archived
by the appellant and made available to the
public. The research to be undertaken requires documents from that
era.
[2]
To this end, on 1 August 2014, the appellant
lodged a request with the respondents (the SARB)
[1]
under the Promotion of Access to Information Act 2 of 2000 (PAIA).
[2]
It requested access to records
[3]
relating to:
‘[A]ny evidence obtained by the bank at any time as part of
investigations into any substantial contravention of, or failure
to
comply with, the law in terms of significant fraud (including fraud
through manipulation of the financial rand dual currency,
foreign
exchange or forging Eskom bonds), gold smuggling or smuggling of
other precious metals from 1 January 1982 to 1 January
1995 in
relation to the following persons’:
(a) The late Mr Giovanni Ricci;
(b) The late Mr Stephanus Petrus (Fanie) Botha (former Minister of
Labour/Manpower);
(c) Brigadier Johan Blaauw (believed to be dead);
(d) Mr Paul Ekon;
(e) Mr Robert Hill;
(f) Mr Vito Palazzolo;
(g) Mr Craig Williamson; and
(h) Dr Wouter Basson.
[3]
The SARB failed to respond timeously but later
positively refused access to the records. It stated that it was
unable to locate
any records for five of the named persons. As
regards the remaining three persons, namely the late Brigadier
Blaauw, Mr Robert
Hill and Mr Vito Palazzolo, the request was
refused.
[4]
This prompted an application by the appellants to
the Gauteng Division of the High Court, Johannesburg, based on
s 78(2).
[4]
The relief still relevant in this appeal which was sought in the
application was:
‘2 Declaring that the decision of [the SARB] to refuse access
to the records requested by [the appellant] in its request
for
information in terms of the Promotion of Access to Information Act, 2
of 2000 (“PAIA”) dated 1 August 2014 (“the
request”) is unlawful and in conflict with the provisions of
PAIA and the Constitution;
3 Reviewing and setting aside the refusal by [the SARB] of [the
appellant’s] request;
4 Directing [the SARB] to provide the requested records in respect of
Brigadier Blaauw, Mr Ricci, Mr Botha and Mr Hill to [the
appellant]
within 15 (fifteen) days of the grant of this order;
5 Directing [the SARB] to notify Mr Ekon, Mr Palazzolo, Mr Williamson
and Dr Basson within 5 days of the date of this order,
of the
request, in accordance with s 47 of PAIA and thereafter to
comply with the time periods and provisions in Chapter 5
of PAIA;
6 Directing [the SARB] to pay the costs of this application,
including the costs of two counsel;
7 further and/or alternative relief.’
The
application was dismissed with costs by Matojane J, who subsequently
granted leave to appeal to this court.
[5]
In this court, the issues were limited to those
records which related to the late Brigadier Blaauw, Mr Palazzolo and
Mr Hill. The
SARB mounted opposition to the appeal on two bases. The
first was that Messrs Palazzolo and Hill had not been joined in the
application.
The second was that it was justified in its refusal to
provide the records sought.
[6]
It is as well at this point to sketch the
contours of PAIA as it applies to the present matter. It was enacted
to give effect to
s 32(1) of the Constitution,
[5]
which provides inter alia that ‘[e]veryone has the right of
access to . . . any information held by the state’.
[6]
As such, the purpose is to promote transparency.
[7]
The default position is that access to records must be granted unless
chapter 4 of PAIA provides one or more grounds for a refusal.
[8]
Put another way, ‘the disclosure of information is the rule and
exemption from disclosure is the exception’.
[9]
It has been held by the Constitutional Court that, ‘when access
is sought to information in the possession of the State,
then it must
be readily availed’.
[10]
A refusal constitutes a limitation of the right of access to
information. As such, a case must be made out that the refusal of
access to the requested records is justified.
[11]
All public bodies are required to have a designated information
officer (IO) who deals with requests.
[12]
[7]
It can readily be imagined that records sought
from public bodies may contain information about third parties. Such
third parties
would be unaware of the request. Their rights might be
affected if access is given. For that reason, PAIA has been carefully
crafted
to ensure that such a third party is given opportunities to
be heard on the request. Our common law requires that parties must be
informed if a court order affecting them might be granted:
‘because orders granted without notice to affected parties are
a departure from a fundamental principle of the administration
of
justice, namely,
audi alteram partem
.’
[13]
It
is this
audi alteram partem
principle which finds expression in ss 47 to 49.
[8]
The point of departure is s 47, headed
‘[n]otice to third parties’:
‘(1) The information officer of a public body considering a
request for access to a record that might be a record contemplated
in
section 34(1), 35(1), 36(1), 37(1) or 43(1) must take all reasonable
steps to inform a third party to whom or which the record
relates of
the request.
(2) The information officer must inform a third party in terms of
subsection (1)—
(a)
as soon as reasonably possible, but in any event,
within 21 days after that request is received or transferred; and
(b)
by the fastest means reasonably possible.
(3) When informing a third party in terms of subsection (1), the
information officer must—
(a)
state that he or she is considering a request for
access to a record that might be a record contemplated in section
34(1),
35(1), 36(1), 37(1) or 43(1), as the case may be, and describe
the content of the record;
(b)
furnish the name of the requester;
(c)
describe the provisions of section 34(1), 35(1),
36(1), 37(1) or 43(1), as the case may be;
(d)
in any case where the information officer believes
that the provisions of section 46 might apply, describe those
provisions,
specify which of the circumstances referred to in section
46
(a)
in the opinion of the information officer might
apply and state the reasons why he or she is of the opinion that
section 46
might apply; and
(e)
state that the third party may, within 21 days after
the third party is informed—
(i) make written or oral representations to the information officer
why the request for access should be refused; or
(ii) give written consent for the disclosure of the record to the
requester.
(4) If a third party is not informed orally of a request for access
in terms of subsection (1), the information officer must give
a
written notice stating the matters referred to in subsection (3) to
the third party.’
[9]
This means that, when a request is received
concerning a record which might fall under s 34(1), s 35(1),
s 36(1),
s 37(1), or s 43(1), the provisions of s 47
are triggered. The SARB relied on ss 34(1), 36(1) and 37(1) in this
matter, so s 47 was triggered. At this stage, it suffices to say
that this means that the SARB took the view that the records
concerned might contain:
(a) personal information whose disclosure would be
unreasonable; or
(b) commercial information whose disclosure may cause
harm; or
(c) information supplied in confidence which might
breach an agreed confidence or could prejudice the supply of similar
information
or information from the same source where the public
interest requires similar information or information from the same
source
to be supplied in the future.
[10]
The IO of a public body must first consider if a
document to which access is requested might fall under one of those
sections. The
threshold is low, as denoted by the word ‘might’.
If of that view, s 47(1) requires the IO to ‘take all
reasonable steps to inform a third party to whom or which the record
relates of the request’.
[14]
The notice can be verbal or in writing and must contain certain
information, including the right of the third party to consent
or
make representations on the request.
[15]
The third party may then either make written or oral representations
supporting refusal, or consent in writing to disclosure, within
21
days. If the third party obtains knowledge of the request by means
other than s 47(1), they may nevertheless make representations
or so consent.
[16]
If consent is given, access to the records may not be withheld.
[17]
[11]
If a decision is made to afford access despite
representations to the contrary, notice must be given to a third
party who made representations
and must state:
‘
(a)
adequate reasons for granting the request,
including the provisions of this Act relied upon;
(b)
that the third party may lodge an internal appeal or
an application, as the case may be, against the decision within 30
days
after notice is given, and the procedure for lodging the
internal appeal or application, as the case may be; and
(c)
that the requester will be given access to the record
after the expiry of the applicable period contemplated in
paragraph
(b)
, unless such internal appeal or application
with a court is lodged within that period.’
[18]
[12]
As can be seen from these provisions, third
parties have the right to be notified of a request, if reasonable
steps taken by the
IO would achieve this. They then have the right to
make representations opposing disclosure or to consent thereto in
writing. If
consent is given, the IO has no discretion to refuse
access. Even if a third party is not notified, they may make
representations
or so consent if they become aware of the request.
If, despite representations to the contrary, the request is granted,
any third
party who made representations has the right to be notified
of the outcome and of the right of internal appeal available to them.
If that fails, the third party has the right to approach a court
under s 78(3).
[19]
[13]
If the third party acts timeously in taking all
of the steps to oppose access under PAIA, the records are not to be
released to
the requester until the submissions have been considered
and a decision made.
[20]
This applies to the initial decision, to a decision on internal
appeal, to the outcome of an application under s 78(2) and
the
determination of any appeal or appeals from the application. Finally,
if a decision is made to refuse access, and the requester
proceeds
with an application to court to review that decision, rule 3(5)
(a)
promulgated under PAIA
[21]
requires the IO or head of the body to give notice of such
application to the third party concerned and to attach a copy of the
application papers.
[22]
PAIA is thus astute to afford third parties the right to
audi
alteram partem
at every point of the process.
All of this stems from compliance by the IO with s 47.
[14]
Decisions on requests to which s 47 applies
can be made only under s 49(1) or s 49(2). This is of
critical importance.
The former provides:
‘The information officer of a public body must, as soon as
reasonably possible, but in any event within 30 days after every
third party is informed as required by section 47—
(
a
) decide, after giving due regard to any representations
made by a third party in terms of section 48, whether to grant the
request
for access;
(
b
) notify the third party so informed and a third party not
informed in terms of section 47(1), but that made
representations
in terms of section 48 or is located before the
decision is taken, of the decision; and
(
c
) notify the requester of the decision and, if the requester
stated, as contemplated in section 18(2)(
e
), that he or she
wishes to be informed of the decision in any other manner, inform him
or her in that manner if it is reasonably
possible, and if the
request is–
(i) granted, notify the requester in accordance with section 25(2);
or
(ii) refused, notify the requester in accordance with section 25(3).’
[15]
The action which sets in motion a decision under
s 49(1) is thus the informing of a third party under s 47.
This is why
s 49(1) refers to a third party having been
‘informed
as required
by section 47’.
[23]
Section 49(1) also allows a decision where the third party has
not been informed but has ‘made representations in terms
of
section 48 or is located before the decision is taken’.
[24]
This is so that the
audi alteram partem
principle is applied if a record might fall within one of s 34(1),
s 35(1), s 36(1), s 37(1) or s 43(1).
[16]
A decision made under s 49(1) requires one
or both of two actions to have taken place:
(a) A third party must have been informed ‘as
required by section 47’; or
(b) A third party, despite not having been so informed,
must have nevertheless made representations.
If
the third party has not been so informed and if no representations
have been received, the provisions of s 49(1) do not
apply and
the IO is not empowered to make any decision in terms of that
section.
[17]
Once third parties have been informed, there are
three possible courses of action open to them. They may consent in
writing, in
which case access must be given. If they do not consent,
they may make opposing representations which must be weighed before a
decision is made. Finally, they may neither consent nor make
representations. A decision can still be made by the IO in this
instance.
This is made clear by s 49(1)
(a)
,
which provides for a decision ‘after giving due regard to any
representations’. The word ‘any’ allows
for a
decision where notice has been given but no representations are
forthcoming.
[18]
Under s 49(1), accordingly, a decision is
required if either representations have been made or if none have
been made after
the third party has been informed. In other words,
third parties do not have a power of veto over the decision of the
IO. Their
representations must simply be given the weight that they
deserve. The only veto in the hands of a third party is to take away
the power of the IO to make a decision by consenting in writing.
Access to the records must then be given.
[19]
PAIA recognises, however, that it may well not be
possible to inform all third parties, despite taking reasonable steps
to do so.
A decision must still be made in those circumstances. As a
result, s 49(2) was enacted:
‘If, after all reasonable steps have been taken as required by
section 47(1), a third party is not informed of the request
in
question and the third party did not make any representations in
terms of section 48, any decision whether to grant the request
for
access must be made with due regard to the fact that the third party
did not have the opportunity to make representations in
terms of
section 48 why the request should be refused.’
This
provides the one exception to the requirements in PAIA which provide
for
audi alteram partem
.
Section 49(2) empowers an IO to make a decision without the
third party having had an opportunity to be heard. But the exception,
as with all exceptions to the
audi alteram
partem
principle, must be narrowly construed.
The default position at common law and under PAIA is that, if a
decision is to be made which
affects the rights of a person, that
person must be given an opportunity to be heard on the matter.
[20]
The exception allowed under s 49(2) thus
arises only if:
(a) All reasonable steps were taken to notify
a third party; and
(b) Despite such steps, the third party was not
informed; and
(c) The third party did not make representations in
terms of s 48.
Only
if all three of these apply is an IO empowered to make a decision
under s 49(2). This exception applies only where it
has not been
possible to give effect to the
audi alteram
partem
rule despite all reasonable steps
having been taken to give notice. It clearly cannot and does not
apply if the IO has not taken
all reasonable steps to inform the
third party concerned.
[21]
In the present matter, the SARB claims to have
acted under s 49(2) in making the decision to refuse access to
records concerning
Mr Palazzolo. It simply says that it acted under
s 49 in respect of Mr Hill. As has been shown above, it could
not have done
so under s 49(1) because Mr Hill was not ‘informed
as required by s 47’. Neither did Mr Hill make any
representations.
The SARB must therefore also have purported to make
the decision under the provisions of s 49(2). Neither of them
was informed
of the request and neither of them made representations
under s 48. The question is, therefore, in both of their cases,
whether
the SARB ‘took all reasonable steps to inform’
them. If not, the SARB was not empowered by the provisions of s 49(2)
to make a decision on the request. The conditions for making such a
decision would not have been present. Any decision made would
thus
have been
ultra vires
PAIA as the enabling legislation.
[22]
It is common ground that the SARB did not give
notice to either of them. In the answering affirmation, the SARB
explained the reason
for its decision not to give notice under s 47:
‘At the relevant time, Mr Ellis was under the impression that
both Mr Hill and Brig Blaauw had passed away, and that Mr Palazzolo
was incarcerated somewhere in Italy. In the premises, Mr Ellis
considered that it would be unreasonable to expect from the SARB
to
cause notices to be delivered to the remaining individuals, as
contemplated in section 47 of PAIA.’
The
simple fact of the matter is that the affirmation does not say that
Mr Ellis, or anyone else, took any steps at all. It states
simply
that he ‘was under the impression’ as to the persons
concerned. It is this impression which made him consider
‘that
it would be unreasonable’ to give notice under s 47(1). No
indication is given as to how he arrived at the
impression he formed.
In effect, the SARB decided to take no steps at all. It excused
itself from this peremptory requirement on
the basis that to require
it to do so ‘would be unreasonable’. By no stretch of the
imagination can it be said that,
without evidence of any steps taken
at all, all reasonable steps were taken to inform them. There was
simply no compliance with
s 47(1).
[23]
The failure to do so is exacerbated by the later
conduct of the SARB. After the launch of the application, by letter
dated 15 April 2016,
the attorneys for the SARB indicated
that the point would be taken that the three persons concerned had
not been joined as parties
to the application. This prompted a
response dated 22 April 2016. In it, the appellant pointed
out that the SARB had
been obliged to take all reasonable steps to
inform Messrs Palazzolo and Hill under s 47(1). It accordingly
called on the
SARB to do so at that stage and indicated that, if it
did not do so, the appellant would include a prayer for such relief
in an
amended notice of motion.
[24]
This prompted a reply dated 28 April 2016:
‘[C]ompliance by our clients with the provisions of the
Promotion of Access to Information Act 2 of 2000 (“PAIA”)
(including section 47 of PAIA) cannot and does not obviate the
obligations placed on your client in terms of the Uniform Rules.
For
the avoidance of doubt, we, however, confirm that our clients have
consistently complied and continue to comply with the provisions
of
PAIA in so far as the provisions relate to our clients …’
The
SARB, after being given the opportunity to comply even at that stage,
simply reiterated that it would raise the point of non-joinder
if the
appellant did not join ‘the relevant individuals’ in the
application.
[25]
In the answering affirmation, delivered after
this exchange, the SARB said:
‘... since the launching of these proceedings, Werksmans
managed to trace Mr Palazzolo’s whereabouts to a prison in
Spoleto, Italy and caused a copy of the application to be provided to
him in terms of rule 3(5) of the PAIA Rules ... The
SARB has
taken the stance that Mr Palazzolo should be joined to the
proceedings to the extent that the relief sought by the applicant
affects Mr Palazzolo’s interests.’
Notice
under rule 3(5), with the application attached as required, was
given to Mr Palazzolo and his legal representative in
Sicily. This
was done by registered post sent from a legal firm in Spoleto on 16
May 2016. Similarly, notice to Mr Hill was
delivered by email on
29 April 2016.
[26]
This means that a week after being invited to
comply with s 47, albeit belatedly, the SARB elected not to do
so but rather
to take the point of non-joinder. This constituted a
cynical disregard of its obligations. It was clearly no longer under
the impression
that Mr Palazzolo could not be contacted or that Mr
Hill was dead. There was also clearly no difficulty in complying with
s 47(1)
at that stage. As a result, the appellant amended its
notice of motion to include the relief sought in prayer 5 after
the
decision refusing access to the records of Messrs Hill and
Palazzolo had been reviewed and set aside. This relief was for an
order:
‘Directing the respondents to notify Mr Ekon, Mr Palazzolo, Mr
Williamson and Dr Basson within five days of the date of the
order,
of the request, in accordance with s 47 of PAIA and thereafter
to comply with the time periods and provisions in Chapter
5 of PAIA.’
This
prayer was before the court of first instance when the application
was argued.
[27]
Can it then be said that the SARB took ‘all
reasonable steps to inform’ the two persons of the request? On
the most
generous approach imaginable, the answer is a resounding
‘no’. This means, quite simply, that the SARB was not
empowered
to make any decision under s 49(2). One of the prior
requirements, or empowering provisions, to allow for any decision to
be made under that section, had not been met. The SARB accordingly
acted
ultra vires
s 49(2). The decision to refuse access to the documents
concerning Messrs Hill and Palazzolo thus lacks a valid legal basis.
[28]
It follows that this decision should have been
reviewed and set aside by the court of first instance. And prayer 5
of the amended
notice of motion should have been granted. It was
framed to include only Mr Palazzolo. Mr Hill should also have been
included on
the basis that the appellant also asked for further or
alternative relief. The decision concerning him lacks validity for
precisely
the same reasons.
[29]
But, says the SARB, the application is fatally
defective since Messrs Hill and Palazzolo were not joined as
respondents. It was
necessary to do so. The application should be
dismissed without further ado.
[30]
The test for joinder of necessity was restated by
Brand JA in
Bowring NO v Vrededorp Properties
CC
:
[25]
‘The substantial test is whether the party that is alleged to
be a necessary party for purposes of joinder has a legal interest
in
the subject-matter of the litigation, which may be affected
prejudicially by the judgment of the Court in the proceedings
concerned...’
The
question is therefore whether Messrs Hill and Palazzolo might be
prejudicially affected by a judgment on the application.
[31]
As has been clarified, the application does not
reach the point where any relief granted could have a prejudicial
effect on them.
The only relief competent on the papers which
concerns them is the grant of an order in terms of paragraph 5 of the
amended notice
of motion, after reviewing and setting aside the
decision of the SARB. The relief which should have been granted
concerning the
request is that, prior to any decision being made,
they must be afforded the
audi alteram partem
rights contained in ss 47 to 49. A decision that the SARB is
obliged to do so before any competent decision is made by it
can in
no way prejudicially affect their legal interests. It simply restores
the
status quo ante
prior to the decision concerning them. It was not necessary to join
them in the application for that relief.
[32]
It remains to consider the request concerning the
late Brigadier Blaauw. In order to do so, I shall briefly analyse the
reliance
by the SARB on various sections of PAIA which they say
justified the refusals. It is useful to include the refusals
concerning
Messrs Palazzolo and Hill since there is some overlap.
[33]
Chapter 4 begins with a section on the
interpretation of the provisions that follow. The chapter contains
exceptions to the rule
that access to records must be granted. They
constitute the
numerus clausus
of circumstances in which access may or must be refused. Unless they
apply, access must be given in furtherance of the default
position of
transparency and access.
[34]
The initial general complaint of the SARB was
that the request was vague and could thus not be given effect to.
But, despite this
complaint, the IO said that he understood the
request to mean:
‘[R]ecords obtained by the SARB through formal investigations
recorded in the register of investigations conducted by the
FinSurv
Department
[26]
into significant fraud (in the context of contraventions of exchange
control regulations), to the extent that the records relate
specifically and directly to the listed persons.’
And
when the SARB went about identifying records, it identified those
containing evidence obtained through formal investigations
into
contraventions of exchange control regulations. This is clearly what
was intended by the somewhat clumsily worded request,
as was
confirmed by the appellant in argument before us.
[35]
The search through the records did not identify
any investigations into five of the persons named in the request. It
did identify
investigations during the period in question into those
three persons dealt with in this appeal. These are recorded in what
was
referred to as the red book. In that book, investigation V.136
relates to Mr Palazzolo. The records gathered in it are contained
in
one lever arch file. Investigation B.266 relates to the late
Brigadier Blaauw. The records comprise two standard and one small
lever arch file. Investigation H.164 relates to Mr Hill. The
investigation threw up 43 archive boxes, each with an average of five
lever arch files.
[36]
Some comment must be made on the overall approach
taken by the SARB. I think it is fair to say that the answering
affirmation is
long on stock phrases which merely repeat parts of
this chapter of PAIA. The affirmation falls woefully short on fact,
detail or
proper application of the provisions of PAIA. It must be
borne in mind that, under s 47, the test was whether the records
to which access was requested ‘might’ fall within one of
the exclusionary sections of PAIA. At the stage of deciding
whether
or not to actually refuse access, however, the test is totally
different. The SARB had to establish that the records did
meet the
criteria to refuse access on one of the grounds set out in PAIA.
[37]
For each of the persons concerned, the SARB gave
the stock answer that the records ‘constitute personal
information [concerning
the named person and are], therefore,
protected from disclosure in terms of section 34(1)’. But
s 34(1) provides:
‘Subject to subsection (2), the information officer of a public
body must refuse a request for access to a record of the
body if its
disclosure would involve the unreasonable disclosure of personal
information about a third party, including a deceased
individual.’
[27]
It
is clear that the prohibition requires that the disclosure of
personal information would be unreasonable. Not all personal
information
is protected from disclosure. It depends on the facts. If
an IO decides that the disclosure would be unreasonable, two aspects
must be dealt with. First, it should be asserted that the disclosure
would be unreasonable. Secondly, some facts which cause the
records
to fall within the ambit of the section should be put up in support.
The SARB did neither. It was conceded in argument
that, in those
circumstances, the SARB could not have recourse to s 34(1). The
decision to refuse access to the records on
this ground was
accordingly reviewable.
[38]
As regards the late Brigadier Blaauw, it was said
that records concerning the company of which he was a director
‘[constitute]
commercial information of the company as
contemplated in section 36(1)
(b)
’.
This section provides:
‘Subject to subsection (2), the information officer of a public
body must refuse a request for access to a record of the
body if the
record contains—
...
(b)
financial, commercial, scientific or technical
information, other than trade secrets, of a third party, the
disclosure of
which would be likely to cause harm to the commercial
or financial interests of that third party…’
There
was no assertion that the disclosure would be likely to cause harm to
the commercial or financial interests of the company,
let alone facts
put up in support of such an assertion. In fact, the SARB excused its
failure to comply with s 47 on the basis
that it would be
unreasonable to expect it to ‘trace the whereabouts of the
company.’ This is an astonishing averment
when official records
which can be easily accessed contain that information. What it does
mean, however, is that the SARB clearly
had no information concerning
the company in question at all. It could accordingly not have come to
any proper view concerning
potential harm. It was likewise conceded
in argument that what had been put up in the answering affirmation
did not place the records
concerned within the ambit of s 36(1)
(b)
.
The decision to refuse access to those records on this basis was
likewise subject to review.
[39]
In regard to Mr Palazzolo and Mr Hill, the stock
answers were:
‘[G]iven the lapse of time, it is not known as to how the
documents came to be in the possession of the SARB, but given
that they comprise mostly of accounting and corporate documentation,
it is likely that these documents were supplied in confidence
to the
SARB or under the provisions of regulation 19 of the Exchange Control
Regulations. I have been advised that, in the absence
of a compelling
public interest override, the SARB may justifiably refuse the
information as contemplated in sections 37(1)
(b)
and/or
42(1)’.
Section 37(1)
(b)
reads:
‘(1) Subject to subsection (2), the information officer of a
public body—
...
(b)
may refuse a request for access to a record of the
body if the record consists of information that was supplied in
confidence
by a third party—
(i) the disclosure of which could reasonably be expected to prejudice
the future supply of similar information, or information
from the
same source; and
(ii) if it is in the public interest that similar information, or
information from the same source, should continue to be supplied.’
[40]
Section 37(1)
(b)
gives rise to a discretionary refusal as opposed to a mandatory one.
The discretion must be based on facts before it can be said
to have
been properly exercised. First, the record must consist of
information which was supplied in confidence by a third party.
Secondly, it must be proved that the disclosure could reasonably be
expected to prejudice the future supply of similar information
or
information from the same source. Thirdly, it must be in the public
interest that such information, or information from the
same source,
should continue to be supplied.
[41]
The first requirement is that the information was
supplied in confidence. There was no unequivocal assertion to this
effect. The
SARB said only that it was ‘likely’ that this
was the case. It did not provide any evidence, even in general terms,
to support even this assertion. On the contrary, the affirmation made
it clear that it could not do so, saying that ‘it is
not known
as to how the documents came to be in the possession of the SARB’.
This demonstrates that its refusal simply arose
from speculation
without enjoying any factual basis.
[42]
The second requirement is that, if the
information were supplied in confidence, the disclosure could
reasonably be expected to prejudice
the future supply of similar
information or information from the same source. No assertion to this
effect was made. In addition,
evidence would be required in general
terms such as that the person or persons concerned were still alive
and could potentially
supply similar information in the future. It
can hardly be contended, for example, that if those who supplied the
information were
dead, the disclosure could prejudice the future
supply from those persons. Once more, the affirmation comes nowhere
near to making
out the case that this requirement was met.
[43]
The third requirement is that it is in the public
interest that similar information or information from the same source
should continue
to be supplied. Again, no assertion to this effect
was made and no evidence put up which could support such an
assertion. If the
information related only to a particular individual
or to transactions which can no longer be entered into such as
financial rand
manipulation, this could not qualify. The SARB, not
knowing the source of the information, once again resorted to a bare
assertion
that the section applies. This is clearly not sufficient.
The provisions of s 37(1)
(b)
cannot be relied upon. This was also conceded in argument. This, too,
rendered the refusal on this ground subject to review.
[44]
The alternative basis was said to arise from
s 42(1), which reads:
‘The information officer of a public body may refuse a request
for access to a record of the body if its disclosure would
be likely
to materially jeopardise the economic interests or financial welfare
of the Republic or the ability of the government
to manage the
economy of the Republic effectively in the best interests of the
Republic.’
The
test is whether a case has been made out that the disclosure of any
information in those records identified by the SARB ‘would
be
likely to materially jeopardise the economic interests or financial
welfare of the Republic or the ability of the government
to manage
the economy’. Once again, an assertion to that effect is
required. In addition, although particularity which would
itself
cause the harm guarded against in the section is not required, some
evidence in general terms should be led which enables
a court to
evaluate whether the ground has been appropriately relied upon. None
was forthcoming on either score. This ground for
refusal was also
correctly abandoned in argument.
[45]
In addition, recourse was sought to s 45 as
regards the records concerning Mr Hill. The SARB had investigated him
for ‘serious’
fraud and, in fact, instituted forfeiture
proceedings and referred the matter for prosecution. However, Mr Hill
left South Africa
before his trial was concluded. Forty-three boxes
of an average of five lever arch files are in the possession of the
SARB. Thirty
of these contain the records and results of a forensic
investigation into his affairs. These have information filed
systematically
but they are not indexed. They also contain the papers
filed in extradition proceedings and the litigation against the SARB
by
Mr Hill. The SARB claimed that to consider whether access should
be granted, an expert person would be required. This person would
require approximately 131 days to do so. Such persons employed by the
SARB are already ‘overstretched’. This would
constitute a
substantial and unreasonable diversion of the resources of the SARB.
Section 45 reads:
‘The information officer of a public body may refuse a request
for access to a record of the body if—
…
(b)
the work involved in processing the request would
substantially and unreasonably divert the resources of the public
body.’
Given
the finding that the request in respect of Mr Hill must await a
decision by the SARB after the outcome of the s 47 process,
it
would not be appropriate to deal with this response.
[46]
Finally, the SARB sought to invoke the provisions
of s 46 to prevent access in respect of all the records sought.
This provides:
‘Despite any other provision of this Chapter, the information
officer of a public body must grant a request for access to
a record
of the body contemplated in section 34(1), 36(1), 37(1)
(a)
or
(b)
,
38
(a)
or
(b)
, 39(1)
(a)
or
(b)
,
40, 41(1)
(a)
or
(b)
, 42(1) or (3), 43(1) or
(2), 44(1) or (2) or 45, if—
(a)
the disclosure of the record would reveal evidence of—
(i) a substantial contravention of, or failure to comply with, the
law; or
(ii) an imminent and serious public safety or environmental risk; and
(b)
the public interest in the disclosure of the record
clearly outweighs the harm contemplated in the provision in
question.’
This
is referred to as the ‘public interest override’. It
relates to records which, in the present matter, are found
to fall
within the provisions of s 34(1), s 36(1)
(b)
,
s 37(1), s 42(1) and s 45
(b)
.
Only if one or more of these sections applies to a specific request
does s 46 come into play. If none of them applies, there
is no
basis to refuse access and the two factors, including the ‘public
interest override’, need not be considered.
Since it was
correctly conceded in argument that none of the records satisfied the
requirements of any of the named sections other
than possibly
s 45
(b)
, s 46
does not apply. Section 45
(b)
was said by the SARB only to apply to Mr Hill. As indicated, it is
not appropriate to deal with this contention. For present purposes,
accordingly, s 46 cannot be resorted to.
[47]
The appeal must thus be upheld. As regards Messrs
Palazzolo and Hill, the order of the court of first instance
dismissing the application
must be replaced with one in terms of
paragraph 5 of the amended notice of motion. As regards the late
Brigadier Blaauw, the order
of the court of first instance must be
substituted with one directing that access be given to the records
referred to by the SARB
in its answering affirmation.
[48]
The question of costs of both the appeal and the
application must now be considered. The appellant has been
substantially successful,
both in the court of first instance and on
appeal. Access to all of the records was refused. Those concerning
the late Brigadier
Blaauw must be allowed. The review of the
decisions concerning Messrs Hill and Palazzolo also constitutes
success. The blanket
refusal by the SARB on entirely spurious grounds
which do not even assert the elements entitling them to withhold
access supports
a costs order being made against it. That response
has bordered on the obstructive and is certainly not in keeping with
the purpose
of PAIA in its outworking of the provisions of the
Constitution to promote openness and transparency. As was submitted
by the appellant,
the approach was redolent of the dark days of
apartheid, where secrecy was routinely weaponised against a
defenceless population.
The costs must therefore follow the result.
[49]
In the result, the following order issues:
1 The appeal is upheld with costs, including the costs
of two counsel where used.
2 The order of the court of first instance is set aside
and the following order is substituted:
‘
(a) It is declared that the decisions of the
respondents to refuse access to the records requested by the
applicant in respect of
the late Brigadier Blaauw, Mr Robert Hill and
Mr Vito Palazzolo in its request for information in terms of the
Promotion of Access
to Information Act 2 of 2000 (PAIA) dated
1 August 2014 are unlawful and in conflict with the
provisions of PAIA.
(b) The decisions to refuse such access as regards the
requested records in respect of the late Brigadier Blaauw, Mr
Palazzolo and
Mr Hill are reviewed and set aside.
(c) The respondents are directed to provide to the
applicant the requested records in respect of the late Brigadier
Blaauw.
(d) The respondents are directed to notify Mr Palazzolo
and Mr Hill of the request concerning records relating to them in
accordance
with s 47 of PAIA within 10 calendar days after
service of this order on them, and thereafter to comply with the time
periods
and provisions in Chapter 5 of PAIA.
(e) The respondents are directed to pay the costs of
this application, including the costs of two counsel where used.’
_________________________
GORVEN
AJA
ACTING
JUDGE OF APPEAL
Appearances
For
Appellant: G Budlender SC, with him F Hobden
Instructed
by: Lawyers for Human Rights, Johannesburg
Webbers, Bloemfontein
For
Respondents: NGD Maritz SC, with him E Muller
Instructed
by: Werksmans Attorneys, Johannesburg
Symington
De Kok Attorneys, Bloemfontein.
[1]
There are two respondents but they shall collectively be referred to
as the SARB as was done in the papers.
[2]
All references to sections in this judgment are to sections of PAIA
unless otherwise specified.
[3]
A record is defined in s 1 of PAIA:
‘“record” of, or in relation to, a public or
private body, means any recorded information—
(
a
) regardless of form or medium;
(
b
) in the possession or under the control of that public or
private body, respectively; and
(
c
) whether or not it was created by that public or private
body, respectively.’
In
this matter, generally speaking, records exist in the form of
documents.
[4]
Section 78 deals with applications ‘regarding decisions of
information officers or relevant authorities of public bodies
or
heads of private bodies’. The relevant part of s 78(2)
provides as follows:
A requester—
. . .
(c)
aggrieved by a decision of the information officer of a
public body referred to in paragraph
(b)
of the
definition of 'public body' in section 1—
(i) to refuse a request for access; or
(ii) taken in terms of section 22, 26(1) or 29(3) . . .
may, by way of an application, within 180 days apply to a court for
appropriate relief in terms of section 82.’
[5]
Constitution of the Republic of South Africa, 1996. See the
legislative mandate in s 32(2).
[6]
This is expressed in the preamble to PAIA:
‘To give effect to the constitutional right of access to any
information held by the State and any information that is
held by
another person and that is required for the exercise or protection
of any rights; and to provide for matters connected
therewith.’
[7]
This is specifically stated in the preamble:
‘…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;
* actively promote a society in which the people of South Africa
have effective access to information to enable them to more
fully
exercise and protect all of their rights ...’
[8]
Section 11(1) of PAIA reads:
‘(1) A requester must be given access to a record of a public
body if—
(a)
that requester complies with all the procedural
requirements in this Act relating to a request for access to that
record; and
(b)
access to that record is not refused in terms of any
ground for refusal contemplated in Chapter 4 of this Part.’
[9]
President of the Republic of South Africa and Others v M & G
Media Ltd
2012 (2) SA 50
(CC) para 9.
[10]
My Vote Counts NPC v Minister of Justice and Correctional
Services and Another
[2018] ZACC 17
;
2018 (5) SA 380
(CC)
para 23.
[11]
In terms of s 36 of the Constitution.
[12]
See the definition of ‘information officer’ in s 1
of PAIA.
[13]
Per Cachalia JA in
Recycling and Economic Development Initiative
of South Africa NPC v Minister of Environmental Affairs
[2019]
ZASCA 1
;
2019 (3) SA 251
(SCA) para 46.
[14]
Section 47(1).
[15]
Section 47(3).
[16]
Section 48(2).
[17]
See s 34(2)
(a)
, s 35(2), s 36(2)
(b)
,
s 37(2)
(b)
and s 42(5)
(b)
.
[18]
Section 49(3).
[19]
The relevant parts of s 78(3) are:
‘A third party—
(a)
that has been unsuccessful in an internal appeal to
the relevant authority of a public body;
(b)
aggrieved by a decision of the information officer
of a public body referred to in paragraph
(b)
of
the definition of 'public body' in section 1 to grant a request for
access …
may, by way of an application, within 180 days apply to a court for
appropriate relief in terms of section 82.’
[20]
Section 21, which reads:
‘If the information officer of a public body has received a
request for access to a record of the body, that information
officer
must take the steps that are reasonably necessary to preserve the
record, without deleting any information contained
in it, until the
information officer has notified the requester concerned of his or
her decision in terms of section 25 and—
(a)
the periods for lodging an internal appeal, an
application with a court or an appeal against a decision of that
court have
expired; or
(b)
that internal appeal, application or appeal against
a decision of that court or other legal proceedings in connection
with
the request has been finally determined,
whichever is the later.’
[21]
See the Rules of Procedure for Application to Court in terms of the
Promotion of Access to Information Act 2 of 2000
GN R965 in
GG
32622 of 09-10-2009.
[22]
Rule 3(5)
(a)
has since been amended.
[23]
My emphasis.
[24]
Section 49(1)
(b)
.
[25]
Bowring NO v Vrededorp Properties CC and Another
[2007] ZASCA
80
;
2007 (5) SA 391
(SCA) para 21.
[26]
The SARB refers to its Financial Surveillance
Department as the FinSurv Department.
[27]
Subsection (2) does not apply here. It reads:
‘A record may not be refused in terms of subsection (1)
insofar as it consists of information—
(a)
about an individual who has consented in terms of
section 48
or otherwise in writing to its disclosure to the
requester concerned;
(b)
that was given to the public body by the individual
to whom it relates and the individual was informed by or on behalf
of
the public body, before it is given, that the information belongs
to a class of information that would or might be made available
to
the public;
(c)
already publicly available;
(d)
about an individual's physical or mental health, or
well-being, who is under the care of the requester and who is—
(i) under the age of 18 years; or
(ii) incapable of understanding the nature of the request,
and if giving access would be in the individual's best interests;
(e)
about an individual who is deceased and the requester is—
(i) the individual's next of kin; or
(ii) making the request with the written consent of the individual's
next of kin; or
(f)
about an individual who is or was an official of a
public body and which relates to the position or functions of the
individual,
including, but not limited to—
(i) the fact that the individual is or was an official of that
public body;
(ii) the title, work address, work phone number and other similar
particulars of the individual;
(iii) the classification, salary scale, remuneration and
responsibilities of the position held or services performed by the
individual; and
(iv) the name of the individual on a record prepared by the
individual in the course of employment.’