IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISON, CAPE TOWN)
In the matter between:
RAYMOND JOSEPH
NATHAN GEFFEN
GROUNDUP NEWS NPC
and
THE HEAD, DEPARTMENT OF SOCIAL DEVELOPMENT
GAUTENG
Coram: SHER J et HOLDERNESS J
Heard: 5 September 2025
[REPORTABLE]
Case no: A145/2025
First appellant
Second appellant
Third appellant
Respondent
Summary: Administrative law- Promotion of Access to Information Act 2 of 2000
('PAIA'). Appeal against the grant of a limited order of disclosure made in an application
in terms of sections 78 and 82. Requirements for reliance on s 36(1 )(b) as a ground
for refusal of disclosure and the public interest override in terms of s 46(b), discussed.
Where an applicant's request for information from a public body complies with the
procedural requirements of the Act it must be granted disclosure of such information,
unless the holder thereof discharges the onus of showing that its refusal to disclose is
justified in terms of a valid ground for refusal set out in Chp 4 of Part 2 of PAIA. To
resist disclosure in terms of s 36(1 )(b) it is necessary for the holder to show not only
that the information constitutes financial or commercial information of a third party, but
also that its disclosure would be likely to cause harm to the commercial or financial
interests of the third party. In casu not shown that the disclosure of bank account
2
details of third-party, non-profit organizations which received social grants from the
State, constituted such information. Held that in any event, in terms of s 46(b) public
interest in the disclosure of such information clearly outweighed the harm
contemplated by s 36(1 )(b). Magistrate held to have erred in not granting the orders
sought for the general disclosure of information and appeal accordingly upheld.
ORDER
On appeal from: The Magistrate's Court, Wynberg.
1. The appeal is upheld with costs.
2. The order which was made by the magistrate of Wynberg on 7 November
2024 in case no.12060/2024 is set aside and replaced with the following:
'1. The respondent is directed to provide the applicants, within 30 days from
date of this order being served on her, with a copy of all documents and
information wh ich is in the possession of the Gauteng Department
of Social Development ('the GDSD '), pertaining to grants and grant
recipients for each of the financial years between and including 2014
and 2024, including but not limited to information relating to:
1.1 All grant transfers made by the GDSD to The Beauty
Hub Academy non-profit organization ('NPO ');
1.2 All service-level agreements (including all Transfer Payment
Agreements) between the GDSD and The Beauty Hub
Academy NPO ;
1.3 All budget documentation related to grant transfers made by the
GDSD to all NPOs ;
1.4 A list of all transfers of grants made by the GDSD to NPOs.
2. The respondent shall be liable for the costs of the application.'
JUDGMENT DELIVERED (VIA EMAIL) ON 5 DECEMBER 2025
3
SHER J (HOLDERNESS J concurring):
1. This is an appeal against an order which was made by the magistrate of
Wynberg, in an application which was brought in terms of the Promotion of
Access to Information Act1 ('the Act'), whereby the appellants sought certain
declaratory relief and a directive that the respondent, the head of the
Department of Social Development in Gauteng, should supply them with all
documents and information in her possession pertaining to social grants that
were paid out to non-profit organisations ('NPOs '), over the 10 year period
between 2014 and 2024. Even though the application was not opposed the
appellants were only partially successful, as the magistrate granted them only
a limited order of disclosure.
2. The application was brought by the 1 st appellant, Mr Raymond Joseph, a
leading freelance journalist who won several prestigious awards for
investigative journalism in 2021 and 2022,2 for a series of articles which he
wrote under the aegis of the 3rd appellant, the owner of the online news portal
GroundUp , in which he exposed wholesale corruption in grant funding at the
National Lotteries Commission.
The relevant facts and circumstances
3. The background which gave rise to the application before the magistrate is as
follows. In April 2023 the Gauteng Department of Social Development ('the
GDSD ') made known that it intended making drastic budget cuts, in the order
of approximately R418 million (which were later reduced to R233 million), to
social grant funding it provided to non-governmental organizations who
supplied social services to indigent, disabled and vulnerable persons.
Approximately 450 such NPO 's, which operated community care, health and
drug rehabilitation centres and homeless shelters, were reliant on the funding
to sustain their activities.
4. In December 2023 Mr Joseph received a tipoff from confidential sources that
despite these budget cuts, grants to certain NPOs were not being reduced. He
' Act 2 of 2000.
2
' Act 2 of 2000.
2
Including the Nat Nakasa, Vodacom Journalist of the Year and Taco Kuiper Investigative Journalism
Awards .
4
was commissioned by the 2nd appellant, the editor of GroundUp, to conduct an
investigation, from which it appeared to him that the GDSD was not complying
with the terms of the Social Development Sector Funding Policy, published by
the National Department of Social Development in 2023.3
5. In two articles he wrote, which were published by GroundUp early in 2024, Mr
Joseph noted that in contrast to numerous other NPOs whose funding had been
slashed, two of them, The Beauty Hub Academy NPO (which offers training in
hairdressing and beauty therapy) and Daracorp (which trains small-scale
farmers}, had together received almost R114 million in social grant funding, of
which some R56 million had been paid out in the financial year that the budget
cuts were made. The extraordinarily large grants, made notwithstanding the
implementation of severe budget cuts, raised Mr Joseph's suspicions as to
possible malfeasance or irregularity.
6. Pursuant to the articles 3rd appellant assembled a team of journalists, which
included Mr Joseph, to investigate the GDSD social grant system in depth. On
28 March 2024 Mr Joseph lodged an application with the GDSD's information
officer, in which he requested that he be provided with a copy of all documents
and information in its possession pertaining to grant transfers made by it to, and
service level agreements concluded with, The Beauty Hub Academy NPO , as
well as all documents and information pertaining to the departmental budgets
for social grant transfers to NPOs in the financial years 2014 to 2024, together
with a list of the transfers that were made in those years.
7. On 9 May 2024 he received a letter from the respondent in which he was curtly
informed, without any reasons being provid~d. that after careful consideration
the Department had 'elected' to decline his request. He was of the view that the
letter did not constitute a valid notice of refusal of his request because, contrary
letter did not constitute a valid notice of refusal of his request because, contrary
to certain provisions4 of the Act it did not set out adequate reasons for the
refusal and did not state that an appeal could be lodged against it, either
internally or to the Information Regulator. Consequently, he warned that in the
event that the 3rd respondent did not comply with the Act by 17 May 2024, he
would lodge a complaint against her with the Information Regulator.
3 Following its review of the previous Policy on Financial Awards to Service Providers, which was
introduced in 2004.
4 Sections 25(3)(a) and (c).
5
8. On 20 M ay 2024 he received a response from the then acting head of the
GDSD , in which he was informed that his request had been declined in terms
of s 36( 1 )(b) of the Act, on the basis that if the information he sought was
provided there was a risk it would expose financial and commercial information
i.e. the 'banking details etc' (sic) of NPOs which were funded by the Department
over the period concerned. However, if he believed that his request had been
refused 'unjustifiably' he was at liberty to submit an internal appeal against it
within 60 days. On 3 June 2024 he duly filed an appeal. In terms of the Act5 the
Department was required to provide him with a decision on it within 30 days,
but, although it acknowledged receipt thereof it never did so. In the
circumstances the appeal is to be regarded as having been dismissed.6
9. On 20 July 2024 Mr Joseph, supported by the 2nd and 3rd appellants, made
application to the Wynberg Magistrate's Court in terms of ss 78 and 82 of the
Act, for an order declaring the department's refusal of his request and its
deemed dismissal of his appeal, to be unlawful, and directing it to supply him
with the information he had requested. The application was not opposed.
10. After hearing argument the magistrate handed down a judgment in wh ich she
held that the appellants had made out a case for the relief which they sought.
But, despite this, and despite noting that the application was not opposed and
the only version before her was that which was put up by the appellants and
that she should consequently 'let' the Constitution and the Act 'take effect', she
held that a limited disclosure order should be granted, directing the respondent
to only provide the appellants with the documents and information requested
by them in relation to The Beauty Hub Academy NPO. She refused the relief
sought in respect of the general body of NPOs who had received funding from
the respondent, on the basis that the request which was made in this regard, in
the respondent, on the basis that the request which was made in this regard, in
terms of paragraphs 3.1.3-3.1.4 of the notice of motion, lacked 'specifics',
which, she held, were 'important', as there was a statutory obligation on the
Department to notify the NPOs concerned of the request.
The legal principles
5 Section 77(3)(a).
6 Section 77(7).
6
11. As is evident from its preamble and objects clause7 and as was confirmed in
SA History Archive Trust,8 the Act was passed to give effect to the constitutional
right9 of access to information which, inter alia, is held by the State.10 The Act
recognises that the right is not an unfettered one and is subject to justifiable
limitations aimed at the 'reasonable' protection of privacy, comme rcial
confidentiality and 'effective, efficient and good governance'.11
12. In M & G Media12 the Constitutional Court noted that the right aims to give effect
to our founding constitutional values of 'accountability, responsiveness and
openness'. In this regard, in its preamble the Act recognises that our previous
system of government was marked by a 'secretive and unresponsive culture' in
public bodies which often led to an abuse of power and human rights violations,
and in contrast to this the Act aims to foster a culture of transparency and
accountability, and to promote the establishment of a society in wh ich people
have effective access to information, with a view to enabling them to express
and protect their rights. To this end, in Brummer 13 the CC held that one of the
basic principles governing public adm inistration was transparency, which
should be fostered by providing the public with 'timely, accessible and accurate'
information. These sentiments are echoed14 in the objects w hich the Act aims
to achieve, wh ich include promoting transparency, accountability, and effective
governance, by establishing mec hanisms and procedures w hich enable access
7 Section 9(a)(i).
8 SA History Archive Trust v SARB & Ano 2020 (6) SA 127 (SCA) para 6.
9 Section 32(1) of the Co nstitution.
10 As well as to any information held by a private body or person, insofar as it may be required for the
exercise or protection of any right.
,, Section 9(b)(i). Thu s, unless the 'public safety', 'public interest' or 'disclosure of a substantial
contravention of the law' overrides ins 46(a) and (b) apply, certain information wh ich is held by a 'public
body' i.e. by a department of state, is either not subject to disclosure or its disclosure may, in defined
instances, be refused. This includes information the disclosure of which could reasonably be expected to
endange r the life or physical safety of a person (s 38(a)) or 'unreasonably' disclose their personal
information (s 34(1 )) or which is confidential to them (s 37(1 )), or which contains trade secrets or
'financial, commerci al, scientific, or technical' information of a 3rd party (s 36(1 )(a)-(b)). Certain taxpayer
records held by the SA Revenue Services (s 35(1 )), and information pertaining to the prevention,
detection, investigation and prosecution of criminal offences (s 39 (1 )), as well as information the
disclosure of which is likely to prejudice the defence, security and international relations of SA (ss 41 (1 )
(2)) or to m aterially jeopardize its economic interests and policies or its financial welfare or commercial
activities (ss 42(1 )-(2)), may in certain instances also be refused.
12 President of the Republic of SA v M & G Media Ltd (2011] ZACC 32; 2012 (2) SA 50 (CC) para 10.
•• Brummer v M inister for Social Deve lopment (2009] ZACC 21; 2009 (6) SA 323 (CC) para 62; confirmed in
Arena Holdings (Pty) Ltd t/a Financial Mail & Ors v SAAS & Ors (2023] ZACC 13; 2023 (5) SA 319 (CC) para
65.
1• Sections 9(d)-(e).
7
to be obtained to records which are held by the State, as 'swiftly, inexpensively
and effortlessly' as is reasonably possible.
13. The constitutional right of access to information in turn, the CC has held,15 is
crucial to the constitutional right to freedom of expression, 16 which includes
freedom of the press and other media, who play a vital role in our democracy
by informing the public how government is run.17
14. Section 11 of the Act provides that a person who requests information which is
held by a public body must be given access to it, if they have complied with the
procedural requirements stipulated and access is not refused in terms of any
ground for refusal contemplated in Chapter 4 of Part 2 of the Act. These grounds
are set out in sections 34 to 44 of Chapter 4. The ground of refusal on which
the respondent sought to rely is that set out ins 36(1 )(b). In SA History Archive
Trust 18 the SCA confirmed that in light of the wording of s 11 the 'default
position' is that access to information which is held by public bodies must be
given, unless a valid ground of refusal exists in terms of the provisions of
Chapter 4. Consequently disclosure is the rule and exemption from it the
exception.
15. As a result, as also provided for in the Act,19 the onus lies on the holder who
refuses to disclose information which is in its possession, to show that the
ground of refusal it seeks to rely on falls within the purview of one or other of
the statutory exemptions in Chapter 4, by laying out a proper factual and legal
basis for it.20 There is no onus on the requester to show that the information
which it seeks does not fall within the exclusionary terms of the statutory
provision the holder seeks to rely on.
An assessment
(a) Ad the Sec~y
16. In its introductory paragraphs the Sector Funding Policy recorded that its
overarching goal was to facilitate the provision of integrated, comprehensive
and sustainable social development services to people who needed them,
and sustainable social development services to people who needed them,
15 Brummer n 13 para 63.
16 Section 16 of the Constitution.
" Brummer, Id.
18 Note 8 para 6, with reference to M & G M edian 12 para 9.
19 Section 81 (3)(a).
20 M & G n 12 para 15; BHP Billiton PLC Inc v De Lange 2013 (3) SA 571 (SCA) para 25.
8
especially those who were most vulnerable, by setting parameters for the
budgeting and equitable distribution of funds to entities who provide such
services in partnership with government.
17. In the preamble to Chapter 9 it noted that, previously, transfers to NPOs and
other entities had not been managed transparently, and the purpose of its
review of the previous policy21 was therefore to ensure accountability for the
allocation and use of public funds. Thus it considered the publication of
information relating to grant transfers to be an 'essential mechanism ' for
improving transparency and accountability.
18. To this end, a 'complete' database of all 'TPA's' i.e. 'transfer payment
agreements' which were entered into with NPOs and other entities, was to be
kept by each provincial departmental website, 22 which database was to be
'open to the public'. National and provincial 'DSDs ' (Departments of Social
Development) were also required to publish, on their respective websites,
information pertaining both to forthcoming grant transfers for the following
financial year, 23 as well as in respect of those made in the past.24
19. In this regard each department was required to publish, annually, the names of
each NPO or ·other entity' to whom forthcoming transfers were to be made and
the services provided by and amounts to be allocated to them, as well as the
total grant allocations which were to be made per municipality and per category,
programme and project of social welfare service. In similar vein, in relation to
past transfers national and provincial DSDs were required to publish similar
particulars, within 30 days from the end of each quarter, including the names of
N POs , the nature of the services rendered by and the 'budgeted allocations'
made to them, as well as details pertaining to 'transfer payments' made to them,
including the dates and amounts of the payments, and whether there had been
any deviation from the agreed payment schedule.25 Within 3 months from the
any deviation from the agreed payment schedule.25 Within 3 months from the
end of each financial year the national and provincial DSDs were also to publish
a reconciliation for each NPO or entity, which reflected the transfers paid over
to them during that year, together with an account of how those transfers were
21 Vide n 3.
22
Clause 9.2. 1 of the Sector Funding Policy.
23 Id, clause 9.2.2.
2• Id, clause 9.2.3.
2s Id.
9
expended i.e. utilized, and particulars as to any unspent or recouped
amounts.26
20. The stated purposes of publishing this information were to inform communities
'what public funds' i.e. how much social grant funding, NPOs and other entities
would be receiving, before the start of each successive financial year,27 to keep
NPOS and the general public 'updated' regarding the ongoing payment of social
grant transfers, and to enable the national DSD to monitor compliance by each
provincial DS D with the transfer payment arrangements stipulated in the
Policy.28
21. In addition, to enable the national DSD to monitor compliance with the Policy
an annual analysis was to be carried out (of the level at which provincial
governments had funded their DSDs , allocated their social services budgets
and complied with the funding standards set out in the Policy), which was to be
published on the national DSD website. In addition, every 5 years there was to
be a review of departmental compliance with the Policy, with recommendations
as to how it could be revised and how each province could strengthen its
implementation, which was also to be published by the national DSD .
22. At the end of Chapter 9 it was reiterated that the purpose of publishing all this
information was to ensure transparency and accountability in the use of transfer
payments and the management of social grant processes, and to enable the
national DSD to monitor provincial departmental compliance.29
23. From the aforegoing, it will be apparent that the Policy encourages
transparency and requires the publication of a large amount of information
pertaining to the payment of social grants, and the information wh ich was
requested by Mr Joseph was information which wou ld, and should, have been
kept by the GDSD as part of this, and a lot of it should also have been published
on its website, at least since 2023. Thus, in summary , the GDSD was obliged
in terms of the Sector Funding Policy to publish, for every following year from
in terms of the Sector Funding Policy to publish, for every following year from
2023, its annual budget of intended grant allocations to each and every NPO
or other entity, and to publish at the end of each quarter, details as to past
"'Clause 9.2.4.
27 C lause 9.2.2.
28 Clause 9.2.3.
29 C lause 9.2.4.
10
'transfer paym ents' i.e. payments of grants made to them. But even before 2023
the GDSD would have prepared budgets for social grant expenditure, so that it
could account to the national D SD and the provincial legislature.
24. Therefore, the request for information pertaining to all grant transfers made to
N POs between 2014 and 2024 was a valid and competent one, as was the
request for all 'budget documentation' for that period. As far as the request for
copies of all 'service level' agreements between The Beauty Hub Academy
NPO and the G D SD is concerned, I understand this to be a request for what
the Policy refers to as 'TPAs' i.e. transfer payment agreements, as it would
otherwise not make sense, seeing that neither of the parties render a service
to the other.
(b) The law applied
25. In the circumstances, given that on the face of it the request for the information
that was sought was proper i.e. procedurally in order and in compliance w ith
the requirements of the Act, the GDSD was obliged to provide it, unless it could
legitimately refuse to do so on the grounds set out in s 36(1 )(b).
26. Section 36(1)(b) provides that the information officer of a public body must
refuse a request for access to a record if it contains financial, commercial,
scientific or technical information30 of a 3rd party. However, there is a caveat to
the exercise of this power: the request can only be refused if the disclosure of
such information 'would be likely to cause harm to the commercial or financial
interests' of the 3rd party. And , as previously pointed out, the onus to show the
likelihood of such harm eventuating rested on the GDSD .
27. In Transnet, 31 the SCA contrasted the degree of proof that is required for a
successful reliance on s 36(1 )(b), with that required for reliance on s 36(1 )(c),
which applies where the information sought is refused on the grounds that it is
confidential i.e. was supplied in confidence by a 3rd party. Whereas the former
confidential i.e. was supplied in confidence by a 3rd party. Whereas the former
provides that a public body may refuse a request for access to information if its
disclosure 'would be likely' to cause harm to a 3rd party's commercial or financial
interests, the latter allows for refusal if it 'could reasonably be expected' that
disclosure would put the 3rd party at a disadvantage in contractual or other
30 Other than trade secrets, which are dealt with in s 36(1 )(a).
31 Transnet Ltd & Ano v SA Metal Machinery Co (Pty) Ltd 2006 (6) SA 285 (SCA).
11
negotiations, or would prejudice it in commercial competition. The SCA held32
that the difference between the harm which is to be shown for the respective
subsections is not to be measured by degrees of probability, as both involve a
result that is probable, objectively considered. Instead, it is to be measured by
'degrees of expectation'. In matters involving s 36(1 )(b) it must be shown that
the harm 'is likely' to occur or is 'indeed expected', whereas in matters involving
a reliance on s 36(1(c) it must be shown that the harm envisaged is a
consequence that 'could reasonably be expected' i.e. that reasonable grounds
exist for such an expectation.33 In Billiton34 this was said to mean that whereas
in the case of the former it must be shown that the harm will be likely to occur,
in the case of the latter it need only be shown that the harm could reasonably
be expected to occur.
28. In his notice of appeal and subsequent application to the magistrate, Mr Joseph
contended that the GDSD 's blanket refusal of disclosure did not properly fall
within the terms of section 36 because35 it could not refuse to disclose the
financial or commercial information of NPO 's insofar as such information was
already publicly available. In this regard NPOs were required to file annual
financial statements (in which the receipt of funds from the GDSD would be
shown as income), and the bank account details of many of them (including
The Beauty Hub Academy NPO ), were openly displayed on their websites.
Furthermore, even if such details were not publicly displayed or available, in
terms of s 46(b) the respondent could not refuse to disclose them as they were
part of the general body of information requested, and public interest in its
disclosure clearly outweighed the harm contemplated.36 The respondent never
countered these submissions.
29. In my view, the ground wh ich was advanced for the refusal to disclose was a
spurious one. I say this for the following reasons. In the first place, I would not
spurious one. I say this for the following reasons. In the first place, I would not
expect that the bank account details of NPOs and other entities eligible to
receive social grant funding, would ordinarily be contained in annual budgets
which are prepared for the purpose of disclosing the intended allocations which
32 Id, para 42.
30 1d.
34 Note 20 para 28.
35 In terms of s 36(2)(a).
36 Section 46(b).
12
are to be made to them for each following year. Nor, as I see it, would bank
account details be provided in the quarterly publication of past payments that
were made in years gone by. In this regard the Policy stipulates only that the
names of the N POs or other entities and the 'allocations' to be made or already
made i.e. the amounts to be paid or already paid to them, need to be disclosed,
and in the latter case, the dates when they were paid over.37 In similar vein, I
do not expect that the bank account details of NPOs and other entities who
receive social grant funding would appear in the annual reconciliations
pertaining to grant payments, which are published by the provincial and national
DSDs.
30. Secondly, whist it is likely that bank account details would be contained in TPAs
(the transfer payment agreements which are entered into by provincial DSDs
with NPOs and other entities), because the Policy expressly provides38 that
TPAs must be published on departmental websites, in a database which 'must'
be open to the public, these details would be publicly available to anyone who
accessed the GDSD database. I would also imagine that, as many of the NPOs
and other entities in the sector also rely on outside donor funding to support
themselves, they would openly publish their bank account details and make
them freely available, so that anyone could donate funds to them.
31. But thirdly, and in any event, even if the bank account details of NPOs and other
entities who receive social grant funding are not generally available to the
public, in my view the public interest in their disclosure outweighs any possible
harm which might accompany it, and therefore in terms of s 46(b) of the Act the
GDSD was obliged to disclose them. To ensure that DSDs , NPOs and other
entities involved in the transfer, receipt and disbursement of social grants are
properly held accountable it is vital that there be full transparency as to the flow
properly held accountable it is vital that there be full transparency as to the flow
of funds between them. To this end it is only where the bank account details of
the recipients of such funds (which are derived from taxpayers), are made
available, that they can be scrutinized in order to ascertain whether they
properly made their way to those in distress and were not diverted or siphoned
off, or fell prey to parasitic 'rent-seekers', as they are commonly known .
37 C lauses 9.2.2 and 9.2.3.
38 C lause 9.2.1.
13
Ensuring that details of the bank accounts into which social grants are to be
paid in terms of TPAs , may be disclosed on request, will act as a safeguard
against those who may be tempted to loot them.
32. In the fourth place, the GDSD failed to discharge the onus of showing that the
disclosure of the bank account details of NPOs or other entities was likely to
cause harm to their commercial or financial interests, as it was required to do
in terms of s 36(1 )(b). Merely making such an averment in its letter of refusal
was not sufficient. As the case law indicates, it was required to show, on some
factual and properly motivated basis, why the simple disclosure of such details
in respect of NPOs or other entities was likely to cause harm to them of the type
envisaged by the section viz harm to their commercial and/or financial interests.
The GDSD offered absolutely nothing in this regard. Considering that entities
who receive social grant funding are commonly non-profit organizations who
exist principally to provide social services to those in need, I cannot see how
their 'commercial or financial' interests, insofar they have any, would be affected
in any adverse way were their bank account details to be disclosed.
33. That brings me to the application before the magistrate. Given the deemed
refusal of the appellants' appeal they were entitled, in terms of s 78(1 ), to make
application to a court with the necessary jurisdiction39 for 'appropriate relief' in
terms of s 82. Section 82 provides40 that the court hearing such an application
may grant any order that is 'just and equitable', including an order 1) confirming,
amending or setting aside the decision which is the subject of the application
2) requiring from the information officer or relevant authority of a public body to
take such action as the court may consider necessary 3) granting an interdict,
interim or specific relief, a declarator or compensation, or 4) an order as to
costs.
interim or specific relief, a declarator or compensation, or 4) an order as to
costs.
34. As is evident, the magistrate granted an order for part of the relief which was
sought viz that in respect of The Beauty Hub Academy NPO and refused the
remainder, on the basis that the orders the appellants sought lacked 'specifics'
which were 'important', as there was a statutory obligation on the GDSD to
notify 3rd parties of the request.
39 As Mr Joseph was domiciled and resident in the area of jurisdiction of the Wynberg magistrate's court, it
had the necessary jurisdiction to hear his application -vide the definition of 'court' ins 1 of the Act.
•0 Section 82(a)-(d).
14
35. What the magistrate was alluding to, presumably, when making these remarks,
was the obligation which rests on the information officer of a public body, in
terms of s 47(1 ), when receiving a request for access to information which might
be of the kind contemplated in certain of the sections which provide for the
refusal of disclosure, in Chapter 4 of Part 2 of the Act.41 Included amongst these
is section 36(1), the provision relied upon by the GDSD.
36. In terms of s 47(1 ), upon receiving such a request the information officer must
take all reasonable steps to inform 3rd parties (to whom the information relates)
thereof, no later than 21 days after receiving it. in doing so the information
officer must inform them of the name of the requester of the information and the
relevant provision in Chapter 4 which may apply to it i.e. which may protect it
from disclosure. The officer must consequently also inform the 3rd parties that
they may make written or oral representations as to why the request should be
refused, and they may give written consent for the disclosure thereof. In
addition, s 47(1)(d) provides that in any case where the information officer
'believes' that the provisions of s 46 might be applicable, he/she must provide
reasons to the 3rd parties for why he/she is of this opinion and must specify
which of the circumstances referred to in s 46 are involved. In this regard s 46
provides that, notwithstanding the terms of any other provision in Chapter 4, the
information officer of a public body must grant access to a record contemplated
in one of the exclusionary provisions listed (which includes s 36(1 }}, if the
disclosure thereof would reveal evidence of a substantial contravention or
failure to comply with the law, 42 or an imminent and serious public safety or
environmental risk,43 or the public interest in the disclosure clearly outweighs
the harm contemplated by the provision concerned.44
the harm contemplated by the provision concerned.44
37. In SA History Archive 45 the SCA held that the provisions of s 47 are 'triggered'
when a request is received concerning a record which might fall within the terms
of a provision such as s 36(1 ), and the holder of the information which is
contained in such a record is then compelled to take the steps outlined ins 47.
• 1 To wit ss 34(1 ), 35(1 ), 36(1 ), 37(1) and 43(1 ).
•• Section 46(a)(i).
43 Sec tion 46(a)(ii).
44 Sec tion 46(b).
•5 N ote 8 para 9.
15
38. There are a few obvious points to make arising from this. Firstly, there is no
statutory obligation on a requester to inform the information officer of a public
body, of the identity of any 3rd party in respect of whom information is sought
which m ight be protected from disclosure in terms of one or other of the
exclusionary provisions of Chapter 4, nor is the requester obliged to inform the
holder that the information may fall under any such provision(s). In this regard
the legislature has only placed obligations on the holder of the information.
There are understandable reasons for why this is so: the requester will often
not know the identity of any affected 3rd party/parties until the information wh ich
is sought is disclosed. Likewise, the requester may often not know whether the
information which they seek is of the kind referred to in any of the exclusionary
provisions of Chapter 4, especially when their request is framed in wide and
far-ranging terms, which are as broad and general as possible, with a view to
gathering as much information in the net, as possible. Thus, by way of example,
a requester may not know that information which it seeks was supplied in
confidence to the holder thereof and its disclosure may therefore constitute an
action for breach of a duty of confidence which the holder owes to the 3rd party,46
or that the disclosure could reasonably be expected to put the 3rd party at a
disadvantage in contractual or other negotiations, or commercial competition, it
may be involved in.47
39. Secondly, given the statutory obligation which rests on a holder to notify
affected 3rd parties of the request and their right to make representations in
respect of it, the holder can, and must, only decide whether or not to grant it
after properly taking into account, or, as the Act puts it 'after giving due regard
to',48 any representations that are made by the 3rd party/parties, and must duly
notify them of his/her decision in this regard.49
notify them of his/her decision in this regard.49
40. It seems to me that the magistrate failed to appreciate the implications of the
points I have referred to, wh ich are as follows. Firstly, there was no obligation
on Mr Joseph or the appellants to provide 'specifics' of the 3rd parties in respect
of whom they made their request for information, and insofar as the GDSD 's
"
0
Sections 37(1 )(a)-(b).
47 Sections 36(1 )(c)(i)-(ii).
48 Section 49(1 )(a).
49 Sec tion 49(1 )(b).
16
information officer was genuinely of the view that there were 3rd parties i.e.
NPOs or other entities whose bank details should possibly not be disclosed (on
the grounds that if they were their commercial and/or financial interests might
be effected), he should already have identified them in his database, for him to
have such an apprehension. Thus, the information officer did not need any
'specifics' from Mr Joseph as to the identity of any 3rd parties who might possibly
be affected by the request, as he knew who they might be. Secondly, by the
time when the GDSD 's information officer decided to refuse Mr Joseph's
request he should have complied with his obligation to inform affected 3rd
parties thereof and should have had regard for any representations which they
may have made as to whether the information pertaining to them should be
disclosed or not, as he could not make his decision without giving them such
an opportunity and without considering their representations. But once he made
his decision there was no longer any duty on him to do so.
41 . As is evident, there is no indication in the papers that, after receiving Mr
Joseph's request for information the GDSD 's information officer notified any 3rd
party NPO which might be affected, thereof, and of their right to make
representations. There is also no indication whether, if this was done, any
representations were made by any NPO or other entity. In this regard the letter
of refusal was entirely silent. It did not even state that the decision to refuse
disclosure was made after having regard for any representations that were
made . Given these circumstances, the only inference that can reasonably be
drawn is that the request was simply refused on the basis of the convenient
excuse that if disclosure was granted bank account details of certain NPOs
might be revealed, and this was not a genuine reason for refusal, and there was
no compliance with the peremptory provisions of ss 47(1 )-(3) as to notification
no compliance with the peremptory provisions of ss 47(1 )-(3) as to notification
to affected 3rd parties, and no representations were made by any of them.
42. Thus, in short, the mag istrate misdirected herself materially in refusing the
request for information in respect of the general body of NPOs and other entities
who received funding, on the grounds that she did.
Conclusion
43. In the result, and for the aforegoing reasons, the order which the magistrate
made cannot stand and must be substituted with one directing the respondent
to disclose all of the information which was requested.
17
44. As far as costs are concerned, I was informed that, in the best traditions of the
Bar, the appellants' counsel had acted pro bono in the appeal. However, insofar
as costs were incurred by the appellants in making use of the services of
attorneys to prosecute the appeal, the respondent should be liable for them.
45. I make an order as follows:
45.1 The appeal is upheld with costs.
45.2 The order which was made by the magistrate of Wynberg on 7
November 2024 in case no.12060/2024 is set aside and replaced with
the following order:
'1. The respondent is directed to provide the applicants, within 30
days from date of this order being served on her, with a copy of
all documents and information which is in the possession of the
Gauteng Department of Social Development ('the GDSD '),
pertaining to grants and grant recipients for each of the financial
years between and including 2014 and 2024, including but not
limited to information relating to:
1.1 All grant transfers made by the GDSD to The Beauty Hub
Academy non-profit organization ('NPO");
1.2 All service-level agreements (including all Transfer
Payment Agreements) between the GDSD and The
Beauty Hub Academy NPO ;
1.3 All budget documentation related to grant transfers made
by the GDSD to all NPOs ;
1.4 A list of all transfers of grants made by the GDSD to all
NPOs .
17
44. As far as costs are concerned, I was informed that, in the best traditions of the
Bar, the appellants' counsel had acted pro bono in the appeal. However, insofar
as costs were incurred by the appellan~s in making use of the services of
attorneys to prosecute the appeal, the respondent should be liable for them.
45. I make an order as follows:
45.1 The appeal is upheld with costs.
45.2 The order which was made by the magistrate of Wynberg on 7
November 2024 in case no.12060/2024 is set aside and replaced with
the following order:
'1. The respondent is directed to provide the applicants, within 30
days from date of this order being served on her, with a copy of
all documents and information which is in the possession of the
Gauteng Department of Social Development ('the GDSD '},
pertaining to grants and grant recipients for each of the financial
years between and including 2014 and 2024, including but not
limited to information relating to:
1.1 All grant transfers made by the GDSD to The Beauty Hub
A cademy non-profit organization ('NPO ");
1.2 All service-level agreements (including all Transfer
Payment Agreements) between the GDSD and The
Beauty Hub Academy NPO ;
1.3 All budget documentation related to grant transfers made
by the GDSD to all NPOs ;
1.4 A list of all transfers of grants made by the GDSD to all
NPOs .
2. The respondent shall be liable for the costs of the
application.'
MSHER
Judge of the High Court
2. The respondent shall be liable for the costs of the application.'
MSHER
Judge of the High Court
I agree.
M HOLDERNESS
Judge of the High Court
Appearances:
Appellants' counsel: M De Beer
Appe llants' attorneys: Lionel Murray Schwormstedt & louw (Cape Town)
Respondents: No appearance
18