IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO 147/05
In the matter between
TRANSNET LIMITED First Appellant
INTER WASTE (PTY) LTD Second Appellant
and
SA METAL MACHINERY COMPANY (PTY) LTD Respondent
________________________________________________________________________
CORAM: HOWIE P, ZULMAN, CAMERON, MLAMB O JJA,
NKABINDE AJA
________________________________________________________________________
Date Heard: 2 November 2005
Delivered: 29 November 2005
Summary: Promotion of Access to In formation Act 2 of 2000 – unsuccessful
tenderer requesting details of successful tenderer’s price composition – information
in possession of public body that a warded contract – s 36 (1)(c), meaning of ‘could
reasonably be expected ’ – whether court ha s discretion u nder s 82 to refuse access
even if grounds in ss 36 and 37 not established.
________________________________________________________________________
J U D G M E N T
________________________________________________________________________
HOWIE P
2
HOWIE P
[1] The appellant, Transnet Limite d, the wholly State-owned national
public transport company, has a number of trading divisions. One of them,
National Ports Authority of South Africa (NPASA), invited tenders for a two
year contract for the removal of galley waste from ships in Cape Town
harbour. The successful tenderer wa s Inter Waste (Proprietary) Limited.
Another tenderer was SA Metal Mach inery Company (Proprietary) Limited
(the respondent).
[2] Some time after the award of the tender the respondent wrote and
asked NPASA for copies of various documents. One of them was Inter
Waste’s completed tender document. The request was made in terms of the
Promotion of Access to Information Act, 2 of 2000 (the Act). NPASA wrote
back and said that the document s ought contained information comprising
trade secrets or financial, commercial, scientific or technical information
belonging to Inter Waste and declined access in the absence of more specific
details of the information which the respondent wanted. The respondent’s
letter in reply stated that it wished no information such as that which
NPASA mentioned, merely the inform ation to which it was entitled. It
accordingly requested the completed tender document but with deletion of
any of the categories of informati on referred to by NPASA. Eventually
3
NPASA forwarded Inter Waste’s entir e tender documentation but with
certain details material to the calcu lation of the tender price deleted from
that portion of the documentation whic h specified the prices and provisional
quantities on the strength of which the tender price was made up.
[3] After fruitless correspondence the re spondent’s reaction was to apply
to the High Court at Cape Town for an order in terms of the Act directing
the appellant to furnish it with the completed schedule of prices ‘without
deletions’. The appellant and Inter Wast e were cited as respondents. Inter
Waste did not oppose. It confined its elf to providing the appellant with
information supporting the contention th at disclosure had been justifiably
withheld by NPASA. The appellant inco rporated that information in its
opposing affidavit.
[4] The learned Judge in the Court be low (Blignault J) granted an order
substantially as sought. (He omitted th e words ‘without deletions’ but what
he ordered to be produced was a c opy of the completed schedule submitted
by Inter Waste to the appellant. Obviously that schedule would not have had
deletions.) The appeal is with his leave.
[5] In calling for tenders NPASA supp lied tenderers with a schedule of
printed tender documents together with an accompanying ‘Notice to
Tenderers’. Some of the documents were intended for completion by the
4
tenderer. One was a final agreement in draft. Another was headed ‘Schedule
of Prices and Provisional Quantities’. Th e schedule divided the contract
work into four items and required de tails in respect of each item. The
material part of the printed form was laid out in a block as follows:
Item Description Unit Qty Rate Total
1
2
3
4
Minimum monthly charge for provision
of service …. Placing, moving and
emptying of bins of 2m 2 each …. Up to
800 “services”
Additional charge per service in excess of
800 “services” provided for in item 1.
(Estimated average number of additional
services/month = 300).
Disinfect bin
(estimate 250 bins/month)
Disposal of waste at dump-site
(Dumping Charge)
(Estimated 2000 cu m/month
Month
Each
Each
Per bin
Metre
24
7 200
6 000
48 000
TOTAL
VALUE ADDED TAX
TOTAL INCLUSIVE OF VALUE ADDED TAX
In completing the form Inter Waste inse rted all details required in the rate
column and the total column.
[6] What NPASA did when furnishing the respondent with a copy of this
schedule was to blank out the contents of the rate column and all totals save
those in the last three lines of the block. In other words it divulged only the
pre-tax total, the value added tax and th e total inclusive of value added tax.
As each item’s expunged total was no mo re than the product of the relevant
5
quantity multiplied by the relevant rate the essential missing information
comprised the rates. What the case is all about is whether their disclosure
would, in effect, cause Inter Waste commercial harm.
[7] In resisting disclosure in the Court below the appe llant relied on the
following provisions of the Act: (i) s 36( 1)(b); (ii) s 36(1)(c); (iii) s
37(1)(a); and (iv) s 82. The first th ree fall under Chapter 4 which specifies
grounds for refusal of access to the records of a public body. The fourth
confers a discretion on a court to which anybody who has been refused
access by the public body may apply for the judicial grant of access. The
contention of the appellant was that the Court a quo should have exercised
such discretion against the responde nt. The meaning of the relevant
provisions is central to the decision of the appeal.
[8] A survey of the materi al in the light of which that meaning has to be
determined must start with s 32(1) of the Constitution. 1 This section confers
upon every person the right of access to a ny information held by the State. It
is an entrenched right in the Bill of Rights. That a juristic person (such as the
1 S 32 reads
‘(1) Everyone has the right of access to –
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the exercise or
protection of any rights.
(2) National legislation must be enacted to give effect to this right, and may provide for
reasonable measures to alleviate the administrative and financial burden on the state.’
6
respondent) is entitled to the right was not in dispute. 2 The Act is the
legislation demanded by s 32(2) of the Constitution. Th e appellant was
formed in terms of s 32 of the Legal Succession to the South African
Transport Service Act 9 of 1989 (the SA TS Act). Pursuant to the SATS Act
the appellant is an institution ‘exercising a public power’ and ‘performing a
public function’. That function includes providing a transport service ‘that is
in the public interest’.3 This brings it within the definition of ‘organ of state’
in s 239(b) of the Constitution 4 and within the definitio n of ‘public body’ in
the Act. 5 Section 8(1) of the Constitution provides that the Bill of Rights
binds an organ of State.
[9] The Constitution also confers an entrenched right to privacy. 6 Once
again it was not disputed that a juristic person (such as Inter Waste) is
2 S 8(4) of the Constitution reads:
‘(4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by the
nature of the rights and the nature of that juristic person.’
3 S 15 (1) of the SATS Act.
4 ‘“Organ of state” means –
‘(a) …
(b) any other functionary or institution –
(i) exercising a power of performing a function in terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power or performing a public function I terms of any legislation, but
does not include a court or judicial officer;’
5 Section 1 defines ‘public body’ as follows:
‘(a) any department of state or administration in the national or provincial sphere of government
or any municipality in the local sphere of government; or
(b) any other functionary or institution when –
(i) exercising a power or performing a duty in terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power or perf orming a public function in terms of any legislation;’
6 ’14. Everyone has the right to privacy, which includes the right not to have –
(a) their person or home searched;
(b) their property searched;
7
entitled to this particular right. And th is court has held that a company has a
right to privacy in respect, for ex ample, of sensitive and confidential
information.7 How the exercise of these competing rights is to be effected
and managed is dealt with in the Act.
[10] The relevant wording of the long title declares that the Act was
enacted to
‘give effect to the constitutional right of acc ess to any information held by the State and
any information that is held by another pers on and that is required for the exercise or
protection of any rights; and to provide for matters connected therewith’.
[11] The preamble recognises the Act’s n eed to give effect to the right in s
32 of the Constitution and, subject to reasonable and justifiable limitation
under s 36, the need to foster transparency and accountability inter alia in
public bodies.
[12] Turning to the relevant individual sections of the Act, one finds in s
2(1) the injunction:
‘When interpreting a provision of this Act, every court must prefer any reasonable
interpretation of the provision that is consistent with the objects of this Act over any
alternative interpretation that is inconsistent with those objects.’
[13] The objects of the Act are set out in s 9. Those presently material are –
‘(a) to give effect to the constitutional right of access to –
(i) any information held by the State …
(c) their possessions seized; or
(d) the privacy of their communications infringed.’
7 Financial Mail (Pty) Ltd v Sage Holdings 1993 (2) SA 451 (A).
8
(b) to give effect to that right –
(i) subject to justifiable limitations , including, but not limited to, limitations
aimed at the reasonable protection of privacy, commercial confidentiality
and effective, efficient and good governance …
(c) …
(d) …
(e) generally, to promote transparency, a ccountability and effective governance of all
public … bodies by including, but not limited to, empowering … everyone –
(i) to understand their righ ts in terms of this Act in order to exercise their
rights in relati on to public … bodies;
(ii) …
(iii) to effectively scrutinise … deci sion-making by public bodies that affects
their rights.’
[14] The words 'the State’ in s 9 are not defined but, as indicated above, 8
‘public body’ is defined in s 1 to mean not only an organ of State but also to
mean ‘inter alia’, a department of State. In other words for ‘State’ in s 9
one really has to read ‘public body’.
[15] Section 11 requires that access to a record 9 of a public body must be
given if the requester 10 complies with all the Act’s procedural requirements
and access is not refused on any ground in Chapter 4.
[16] Every public body has an inform ation officer who is, by definition
relative to a body other than a governme nt department or a municipality, its
8 See footnote (4)
9 ‘Record’ is defined in sec 1. Where presently material it means any recorded information –
‘(a) regardless of form or medium;
(b) in the possession or under the control of [the] public body; and
(c) whether or not it was created by that … body …’
10 ‘Requester’ is defined in sec 1. The wording currently relevant in relation to a public body is ‘any
person … making a request for access to a record of that public body’.
9
chief executive officer. 11 Section 17 requires the public body to designate
deputy information officers and that th ere be as many as are necessary to
render the body as accessible as reasonably possible for requesters.
[17] This brings me to the Chapter 4 provisions primarily relied on by the
appellant. Sections 36 and 37 deal with the mandatory protection of a third
party’s information, access to certain specified categories of which a public
body’s information officer must refuse access. A third party is defined. In
respect of a request to a public body it means (omitting presently irrelevant
wording) any person other than the requester and the public body.
[18] Sec 36(1), subject to the presently irrelevant provisions of subsec (2),
prohibits access to the following information of a third party:
(a) trade secrets;
(b) financial, commercial, scientif ic or technical information, other
than trade secrets ‘the disclosure of which would be likely to cause
harm’ to the third party’s commercial of financial interests; or
(c) information supplied in confidence by the third party ‘ the
disclosure of which could reasonably be expected’
(i) to put the third party at a di sadvantage in contractual of other
negotiations; or
11 Sec 1. The definition includes ‘equivalent officer or the person acting as such’.
10
(ii) to prejudice the third party in commercial competition.
[19] Section 37(1), in so far as presen tly material, prohibits disclosure if it
would ‘constitute an action for breach of a duty of confidence’ owed to the
third party in terms of an agreement. (There is no doubt the legislature
intended to say ‘constitute grounds for an action’ and must be so
understood.)
[20] Sections 74 to 76 provide for an internal appeal against refusal of
access. (During the exchange of correspondence referred to above the
respondent indicated the intention to ap peal against the appellant’s failure
initially to comply with its request but while the partie s engaged in yet
further correspondence the time to prosecute such appeal expired.)
(21) Sections 78 to 82 provide for applications to court, inter alia by a
requester (such as the respondent) who has been refused access. Sec 81
declares that such application proceed ings are civil proceedings, that the
rules of evidence applicable to civil litigation apply in such proceedings and
that the burden of proof is on the part y that has refused access to show that
refusal was in accordance with the provisions of the Act.
[22] Lastly, s 82 gives the court the pow er to make any order that is just
and equitable. This includes the power to make orders
(a) confirming, amending or se tting aside the refusal decision;
11
(b) requiring the information offi cer to take, or refrain from,
specified action.
(c) granting an interdict, interim or specific relief, a declaratory
order or compensation; and
(d) as to costs.
[23] Turning to the issues on appeal, it must be said at the outset that the
appellant did not persist in its reliance on s 36(1)(b). In effect, therefore, it
accepted that disclosure of the request ed data would not be likely to harm
Inter Waste’s commercial or financial interests.
[24] As to the contested issues, it is convenient to begin with a point raised
by the appellant which is really jurisdictional in nature. It contended that in
an application under s 78 the relevant material on which a court had to make
its decision was limited to such mate rial as was before the information
officer when access was refused. That cannot be right. A court application
under the Act is not the kind of limite d review provided for, for example
under the Promotion of Administrative Justice Act 3 of 2000. 12 It is m uc h
more extensive. It is a civil proceeding like any moti on matter, in the course
of which both sides (and the third party, if appropriate) are at liberty to
present evidence to support their respect ive cases for access and refusal. As
12 That statute is concerned with what it defines as ‘administrative action’, which definition excludes a
decision taken under the Act.
12
the present matter serves to illustrate, the parties’ respective cases in such an
application will no doubt in most instances travel beyond the limited
material before the information officer. 13 That conclusion is reinforced by
the legislature’s having catered for the presentation of evidence and the
resolution of disputes of fact by reference to an onus of proof. Those
provisions would have been unnecessary if the suggested limitation applied.
Moreover it is unlikely that a Court, acting under s 82, would be sufficiently
informed so as to be in a position to make a just and equitable order were the
limitation to apply.
[25] To take the present case as an ex ample once again, it is apparent from
the appellant’s opposing affidavit that after the respondent’s request was
received it was first considered by the appellant’s personnel. After that Inter
Waste was approached to establish its a ttitude to disclosure of the rates. It
was not prepared to consent to their disclosure. Mr Oosthuizen discussed the
matter at length with colleagues in the appellant’s service and ‘having taken
the relevant advice’ refused access. Th ere is no indication that he was then
in possession of the material evid ence which Inter Waste provided for
inclusion in the opposing affidavit. And of course he did not have a detailed
exposition of the respondent’s case. This is not surprising. In the nature of a
13 In this case the person who dealt with the request was NPASA’s Administration Officer, Mr PA
Oosthuizen. He was also the deponent to the opposing affidavit. Whether he was a designated deputy
information officer is not apparent but that was not an issue.
13
public body’s day to day administrative functions one would not envisage an
information officer being able to a ssemble such evidence and conduct such
evaluation as would be necessary pr operly to explore the effects of
disclosure on a third party’s commercial interests. And even if he or she did
acquire full information from the third party it would be only fair to call for
equally full input from the requester. As it is, a requester does not have to
motivate a request. It is for the public body or third party to motivate refusal.
By the same token one cannot imagine that a court hearing a s 78 application
could properly explore the effects of disclosure without evaluating full
evidence from both sides. It could not do so – and do justice – on the flimsy
material that is likely to be the sum total of what is before an information
officer.
[26] There is a further consideration to be borne in mind in this regard and
that is that the Act lays down no gui delines as to who should qualify as
deputy information officers. A public body might act responsibly enough in
assigning middle management staff to this task but it would be placing an
undue burden on somebody of that rank to expect him or her to be able to
dispose with the necessary knowledge and experience of the factual and
legal questions to which implementati on of ss 36 and 37 can give rise. The
inference is compelling that the legislature intended those questions to be
14
visited anew by the court hearing a s 78 application. The appellant’s
argument on this point must fail.
[27] Focusing next on the meaning of s 36(1)(c), it was accepted on both
sides that Inter Waste’s tender price and its component details were supplied
to the appellant in confidence. What requires decision is whether the third
party’s contemplated disadvantage and prejudice (which for convenience I
shall call ‘harm’) were such that they ‘could reasonably be expected’. The
respondent submitted that this expre ssion meant (if I may break down the
submission) (i) an expectation whic h a reasonable person could properly
entertain and (ii) an expectation of pr obable harm. The appellant had no real
quarrel with portion (i) of that submission but contended that portion (ii) was
wrong. On the respondent’s argument the expectation had to be one of no
more that possible harm. In advancing this argument counsel for the
appellant set great store by certain stat ements in a review of a provision in
the Canadian Access to Information Ac t which employs virtually the same
wording as the Act. 14 Having referred to the leading Canadian cases the
review turned to Australian authority in respect of similar legislation and
14 Section 20(1), Access to Information Act, SC 1980 – 81 – 82 – 83, c.111, Sch I refers in paras (c) and
(d) to information the disclosure of which ‘could reasonably be expected’ to result in a third party’s
material financial loss or prejudice its competitive position or interfere with its contractual relations. The
review, apparently under governmental auspice, was by a unit referred to as Access to Information Review
Task Force.
15
quoted the following from an Australian judgment 15 in which consideration
was given to the words ‘which would, or could reasonably be expected to,
unreasonably affect’:
‘We are in the field of predictive opinion. Th e question is whether th ere is a reasonable
expectation of adverse effect. It is to that question that the witnesses’ evidence had to be
directed, and their assertions are incapable of proof in the ordinary way. What there must
be is a foundation for a finding that there is an expectation of advers e effect that is not
fanciful, imaginary or contrived , but rather is reasonable, that is to say based on reason,
namely “agreeable to reason; not irrational, absurd or ridiculous”. (Shorter Oxford
Dictionary).’
In the submission of the appellants’ counsel this passage supported the
conclusion that the prospect of harm ha d to be not fanciful but rational, and
it was enough for the prospect to be rational, said counsel, that the
contemplated harm was merely possible, not probable.
[28] In my view this submission flows from a misreading of the quoted
passage. The Australian court was concerned with the degree of expectation,
not the degree of likelihood of resultant ha rm. It therefore fails to assist the
appellant’s case. This view is rein forced by the reviewers’ proceeding
immediately after the quoted passage to summarise the surveyed case law as
requiring ‘convincing evidence of probable material harm’.16
15 Re Actors’ Equity Association of Australia and Australian Broadcasting Tribunal (1985) ALD 584 at
590.
16 It is to be noted that the Canadian review focused on the onus cast on a third party but the same
considerations apply in equal measure to the onus on a South African public body. One should add: and a
South African private body (see s 64(1) of the Act).
16
[29] Another part of the review re lied on by the appellant for the argument
that the possibility of harm is enoug h, is one which comments on the extent
of the burden on a third party to prove the probability of harm. The
reviewers say –
‘A concern with this test [probable harm] is that it may be difficult, if not impossible, for
a third party to produce cogent and convincing evidence that th e harm is probable, rather
than possible, until after the harm has occurred … The fact that the harm does or does not
occur after the fact is not decisive as to whether harm was probable or not and this high
test may place too high an onus on third parties.’
[30] Perhaps part of the problem perceived by the Canadian reviewers
stems from some of their courts’ having used epithets such as ‘cogent’ and
‘convincing’. Some South African judges in cases of advanced vintage were
wont to say, for example, that a par ticular kind of case required the clearest
proof or that a certain onus could on ly be discharged by the clearest
evidence. Later judgments would re spectfully point out that such
terminology did not alter the nature and degree of either the criminal or civil
onus. No doubt one would only ever hold either onus discharged if one
found the evidence to be cogent. The question in a civil case remains
whether the onus bearing litigant has proven its case (or a required element
of its case) on a balance of probability. Whether one refers to the prevailing
evidence as cogent, convincing or me rely sufficiently satisfactory is a
stylistic choice of minimal moment.
17
[31] That brings me to the reviewers’ concern with the difficulty or
impossibility of proving that harm is probable until after it has occurred.
They seem to me to misconceive the onus. Of course, certainty cannot be
established until after the event. However, the party resisting disclosure does
not have to prove a certainty but a probability. Proof of a probability (or,
more accurately, proof of a likely result on a balance of probability) is
something litigants and courts are c oncerned with every day all over the
world. If the reviewers’ problem were real rather than imagined, countless
damages claimants could never succee d in proving probable harm. It is
standard in bodily injury cases, for exam ple, for a plaintiff to have to prove
(and to prove successfully) that a partic ular adverse anatomical consequence
will eventuate at some time in the fu ture with the concomitant need for
future medical treatment.
[32] Apart from reliance on the Canad ian review, the appellant’s counsel
sought to enlist in aid a statement by Greenberg J in Kaplan and Fineman v
R (1933 Justice Circulars para 636). That case involved the alleged offence
by two insolvents of having contracted debts over a specified amount prior
to sequestration ‘without any reasonable expectation’ of being able to
discharge them.
17 The statement in question reads:
17 The offence was created by s 139(4) of the previous Insolvency Act 32 of 1916
18
‘Now, in asking oneself whether they had a reasonable ex pectation of being able
to discharge those debts, one must guard against the mistake of being wise after
the event, of looking at the position today; looking at the result and deciding as in
fact they have failed to pay their debts, they ought to have realised at the time that
they would not be able to pay their debts. One must try to put oneself in the
position of a reasonable man and ask oneself whether the facts could have
conveyed to them the possibility that they might not be able to pay their debts.’
18
[33] Counsel emphasised the use of the word ‘possibility’ in that statement
and proceeded to argue that it justified the conclusion that a reasonable
expectation (assuming it to correspond to something that could reasonably
be expected) was one which entailed the contemplation of an outcome that
was merely possible. I disagree.
[34] To understand the statement of Gr eenberg J in context one must bear
in mind that the 1916 provision, unlike s 135(3) of the present Insolvency
Act,19 placed the onus on the prosecution in all circumstances to show that
accused did not have the required reas onable expectation of being able to
pay their debts. In determining whethe r the onus was discharged the learned
Judge was concerned, firstly, to cau tion against reasoning by way of
hindsight and, secondly, to explain how one had to determine whether the
18 This statement of Greenberg J was referred to in the judgement in R v Vather and Another 1961 (1) SA
350 (A) at 358B-D as having been cited by the appellants’ counsel in that case. It was not commented on
favourably or unfavourably. It seems to have been assumed to be correct. The statement was again cited,
this time with implied approval, in S v Scheepers 1972 (4) SA 604 (A) at 606B-C. It was relied on in S v
Ostilly and Others (1) 1977 (4) SA 699 (D) at 728H-729A.
19 The current statute is the Insolvency Act 24 of 1936. Section 135(3) also places the onus generally on
the prosecution but in the case of debts incurred within six months of sequestration it places the onus on the
accused to establish the required reasonable expectation.
19
prosecution had discharged the onus of showing that a professed expectation
of future solvency was in fact not r easonably founded. The reasoning in the
quoted passage was in no way focu sed on the question whether the
expectation itself meant the contemplation of a mere possibility of future
ability to pay as against the probability of such ability. Indeed, nothing in the
repealed or current sections indicates that the proper interpretation of the
words ‘expectation of being able to discharge’ is ‘expectation of possibly
being able to discharge’. The required expectation is clearly one which has
to contemplate future ability to pay as a fact. This is reinforced by the
Afrikaans text of s 135(3) which us es the words ‘’n redelike verwagting …
dat hy (die) skuld … sal kan vereffen’ (the expectation that he will be able to
pay the debt).
[35] Where possible inability to pay doe s become relevant is, as the quoted
passage demonstrates, in relation to the question whether a professed
expectation was based on reasonable gr ounds. That inevitably involves the
enquiry whether an accused foresaw at the material tim e the reasonable
possibility of future inability to pay. If the facts establish th at foresight then
the accused’s expectation of ability to pay will not have been reasonable.
That will be so whether it is for the State to establish the foresight or for the
20
accused to establish its absence. 20 I conclude, therefore, that the appellant’s
case derives no support from the quoted statement of Greenberg J.
[36] It may be mentioned that further reference to the insolvency statutes
reveals their use of the very words in issue in a provision criminalising the
failure by an insolvent to keep a proper record of his transactions including
all such books (clearly setting out such transactions) as he ‘can reasonably
be expected to have kept’. There can be no doubt that that expectation
entails the contemplation as a fact, not a possibility, of the keeping of the
necessary books.
[37] Counsel for the respondent relie d in the present connection on the
Canadian Appeal Court cases of Re Canada Packers Inc and Minister of
Agriculture; Romahn Intervenant and Re Saint John Shipbuilding Ltd and
Minister of Supply and Services .21 As indicated above, the Canadian statute
requires refusal of disclosure of information wh ich could reasonably be
expected to result in various forms of commercial harm. In the former case
(at 256) it was held that the governing verb in the relevant provisions was
‘expected’. In the light of what was said to be a clear statement of principle
in the statute that government information should be available to the public
20 Cf S v Ostilly and Others (1) 1977 SA 699 (D) at 728H-729A
21 Canada Packers: (1988) 53 DLR (4th) 246 (FCA); Saint John Shipbuilding: (1990) 67 DLR (4th) 315
(FCA). Both cases were cited with approval in the unreported judgment of Southwood J in CC 11 Systems
(Pty) Limited v Lekota NO (Case 23554/2002 TPD)
21
and that exceptions to the public ri ghts of access should be ‘limited and
specific’ it was decided that the exp ectation concerned was of probable
harm. In a footnote reference was made to an earlier Canadian case in which
it was said that ‘reasonable expecta tion … implies a confident belief’.
Confirming what was held in Canada Packers the Court in Saint John
Shipbuilding added that setting the threshold at the point of probable harm
was warranted by the context and the whole statute.
[38] In their commentary on the Act Currie and Klaaren discuss the
difference between ‘likely’ in s 36(1)(b) and ‘could reasonably be expected’
in s 36(1)(c).22 They say both provisions require that harm will be a probable
result but that the test in (c) is less stringent and this indicates a lesser degree
of probability than ‘likely’. They consider that the effect of ‘reasonable’ is to
indicate a ‘moderate’ or ‘fair’ probabi lity as opposed to ‘likely’ which
implies a ‘strong’ probability.
[39] Clearly (c) in s 36(1) requires something less than ‘likely’.
Significantly it avoids ‘possible’ or ‘possibly’. One could conclude therefore
that what was intended was some thing between a probability and a
possibility. It is understandable, ther efore, that the authors opt for a
moderate probability. However, that necessarily involves elevating ‘likely’
22 Iain Currie and Jonathan Klaaren, The Promotion of Access to Information Act Commentary at 102-3.
22
in (b) to mean strong probability in or der to explain the difference between
(b) and (c).
[40] In my view an interpretation th at involves the use of degrees of
probability creates the potential for confusion and could well lead to
problems in the practical application of the legislation to concrete cases.
“Probable’ is a word well known in the law. It should bear the same meaning
in all situations absent indications to the contrary. The same considerations
apply to the equivalents of ‘probability’, ‘likely’ and ‘likelihood’. The
question remains whether the results sp ecified in (c) were intended to be
probable, not merely possible, consequences.
[41] My conclusion is that the legislature intended that those consequences
should be probable. I say so for two reasons. The first is a linguistic one.
Leaving aside ‘reasonably’ and focusi ng on ‘could … be expected’, the
Oxford English Dictionary states the following in regard to the use of ‘can’
with ‘expect’ (we have the words here in the subjunctive mood):
‘4. To look forward to (an event), regard (it) as about to happen; to anticipate
the occurrence of (something whether good or evil). Also, to “look for”, anticipate
the coming of (a person or thing) …
5. In sense 4 with various additional notions.
a. In combination with can, with expressed or implied negation, this
vb often = “to look for with reason or likelihood, or withou t great risk of
disappointment”’.
23
What can be expected is accordingly the contemplation of something that
will, not might, happen. If we say we are expecting somebody this evening
we mean that we think that person will be coming, not merely might be.
[42] It follows that the difference betw een (b) and (c) of s 36(1) is to be
measured not by degrees of probabil ity. Both involve a result that is
probable, objectively considered. The di fference, in my view, is to be
measured rather by degrees of expectati on. In (b), that which is likely is
something which is indeed expected. This necessarily includes, at least that
which
would reasonably be expected. By c ontrast, (c) speaks of that which
‘could reasonably be expected’. The results specified in (c ) are therefore
consequences (i) that could be expe cted as probable (ii) if reasonable
grounds exist for that expectation.
[43] The second reason is context. In line with the Canadian statute and the
Canadian cases, I consider that consid eration of the long title, preamble,
objects and content of the relevant se ctions of the Act, read with the
Constitution, demonstrate that government information must be available to
the public as a matter of right. That is the basic rule. To cater for third
parties’ rights to privacy there are ex ceptions to the rule. They are limited
and specific. ‘Probable’ makes it more di fficult to refuse disclosure than
‘possible’ and favours the rule rather than the exceptions. On the other hand
24
‘could’ in s 36(1)(c) rather than ‘would’ is a concession to a third party’s
right. This interpretation achieves the necessary proportionality in balancing
the competing rights. To require the consequences in (c) to be mere
possibilities would favour the third party unduly. It would demand an
interpretation in conflict with the injunction in s 2(1) of the Act.
[44] I have not overlooked the ar gument for the appellant that the
information in issue originated from a third party not from government but
for the reasons given above that consideration is amply provided for by the
provisions of ss 36 and 37.
[45] Turning to the factual grounds for the refusal unde r s 36(1)(c), the
appellant adopts the information supplie d to it by Inter Waste (as well as
some of the latter’s phraseology). Brie fly summarised, the case for refusal
was this. The rate for each item of serv ice tendered for was the ‘co-efficient
of constant and variable factors’. Those that were constant were, roughly
speaking, common to all competing tend erers such as labour and fuel. The
variable factors were those peculiar to Inter Waste. They included its profit
margins, gearing, costs of infrastructure and assessment of what the work
would involve. Such costs can vary from one tenderer to another but the
variable of special sensitivity to Inter Waste was its prediction as to what the
contract work would entail ie the quant ities of waste to be removed, the
25
frequency of removal, the number of bins required a nd how the capital cost
of the bins (which would be specific to the contract) would be treated. The
exercise of assessing all this in a dvance required knowle dge, experience,
expertise and research. By performing this exercise a tenderer was enabled
to weight the pricing of each item. An example was offered in respect of
items 1 and 2. (As the reproduced ex tract from the Schedule of prices and
quantities shows item 1 was a minimum monthly charge for up to 800
removals and item 2 was an additiona l charge for every removal over 800.)
The example was as follows . If research led to the prediction of 500 to 600
removals per month a tende rer could quote a lower price than for 800 or it
could quote at 800 for item 1 and quote le ss for item 2. On the other hand if
the informed prediction was over 800 th e tenderer could set the item 1 price
at below cost and secure profits by loading its item 2 price. Even assessment
of the price in respect of item 4 (t he dumping charge ) required knowledge
and skill because one had to know the type of material to be removed.
[46] Based on all those considerations the appellant contended that
disclosure of the rates would give th e respondent insight into the fruits of
Inter Waste’s research and enable the respondent to ride on Inter Waste’s
efforts by adjusting its own rates in the light of Inter Waste’s tender.
26
[47] The respondent’s counsel counter ed this contention on a two-fold
basis. The first was that, as a matter of logic, it would be impossible to
deduce Inter waste’s profit margin, for example, simply from knowing its
rates. To do so necessita ted knowing all the other variable and constant
factors to which the appellant refe rred and which it wa s not alleged the
respondent had. On the assumption that all those factors comprised
confidential information, the disclosure of which would harm Inter Waste,
revealing the rates would not amount to such a disclosure in respect of any
of the four items in question.
[48] As regards the price adjustment example based on reference to items 1
and 2, counsel argued that the rates would at most provide a rough indication
of Inter Waste’s prediction of the number of monthly removals. It could not
lead to a precise enough answer to be useful to the respondent. It was
submitted in the alternative, on the assumption that the rates could enable the
respondent to make a precise deduction, the answer obtained could be of no
use to the respondent, either in respect of the tender in question or any tender
called for in respect of a new contract from 2005 onwards.
[49] Plainly that argument is right in so far as the awarded contract is
concerned. The term of that contract began in February 2003 and was due to
end in January 2005. Access was s ought in March 2003. The tender had
27
been awarded in April 2002. One should add that it is not comprehensible
how the respondent could have adjusted its rates in the light of Inter Waste’s
tender. At least pre-award, each tende rer’s tender was confidential in terms
of the tender provisions in the notice to tenderers.
[50] As to whether knowledge of Inte r Waste’s rates (determined in 2001)
could reasonably have been expected to advance the respondent’s ability
effectively to compete with Inter Wa ste for a new contract in 2005, and
concomitantly to cause Inter Waste ha rm in the sense under consideration,
the answer must, in my view, be in the negative. For a new contract
tenderers would have needed data re lative to the period of the awarded
contract. That actual information they could obtain from the appellant, with
or without the aid of the Act. There are no reasonable grounds at all for the
expectation that disclosure of the 2001 rates would cause Inter Waste
probable harm in regard to competition for the award of a new contract in
2005.
[51] Coming now to the appellant’s cas e based on s 37(1)(a), the relevant
provisions of that paragraph (repeat ed for convenience) are that non-
disclosure is mandatory if disclosure –
‘would constitute (grounds for) an action for breach of a duty of confidence owed
to a third party in terms of an agreement’.
28
[52] The notice to tenderers whic h accompanied the issued tender
documentation contained the following sentence:
‘Transnet does not bind itself to accept the lowest or any tender/quotation nor will
it disclose the successful tenderer’s tende r price or any other tendered prices as
this is regarded as confidential information.’
In terms of the eventual written ag reement entered into pursuant to
acceptance of Inter Waste’s tender th e tender documentation, including the
notice and the confidentiality clause ju st quoted, was ma de part of the
agreement.23
[53] The submission of the appellant on this aspect was that disclosure of
the rates, being components of th e tender price, would breach the
confidentiality clause and expose the appellant to an ac tion by Inter Waste
either for damages or at least for cancellation of the contract.
[54] The respondent’s contention was that only the tender price itself was
referred to in the confidentiality cl ause and as Inter Waste had (as was
indeed the case) consented to disclosure of the tender price, the clause was
no longer a bar to disclosure of that sum. The clause therefore never had any
bearing on the schedule of prices and quantities. In any event, so the
contention went, any action for breach of the clause would need to entail
proof of a material breach with or w ithout proof of damages. For the same
23 Clause 2 of the agreement.
29
reason for contending in respect of s 36(1)(c) that there was no probable
harm reasonably to be expected, and mo re importantly because there was no
appeal against the Court’s finding that no harm was likely in respect of s
36(1)(b), disclosure could not realistically expose the appellant to an adverse
judgment for contractual relief.
[55] To my mind the overriding consid eration here is that the appellant,
being an organ of State, is bound by a constitutional obligation to conduct its
operations transparently and accountably.24 Once it enters into a commercial
agreement of a public character like the one in issue (disclosure of the details
of which does not involve any risk, for example, to State security or the
safety of the public) the imperative of transparency and accountability
entitles members of the public, in whose in terest an organ of State operates,
to know what expenditure such an ag reement entails. I therefore fail to see
how the confidentiality clause could va lidly protect the successful tenderer’s
tender price from disclosure after the c ontract has been awarded. Accepting
a need for confidentiality in the pre- award phase, it seems to me that the
intention of the drafter of the notice was no more than that a tenderer should
not be able to know a competing tendere r’s price in that period, hence the
reference to ‘other tendered prices’. In the context of the notice the tender
24 Section 195(1) of the Constitution, paras (f) and (g) read with (2)(b). And see the objects in s 9(e) of the
Act.
30
price contemplated as protected by confidentiality was the total price
without component details. It follows that once the contract was awarded the
confidentiality clause, certainly in so far as the successful tenderer is
concerned, was a spent force and offe red Inter Waste no further protection
from disclosure as regards its tender price. (I refrain from considering the
question whether the clause continued to protect the unsuccessful tenderers.)
[56] Moreover, the agreement, in in corporating the tender documentation
also incorporates the schedule of prices and quantities. The agreement is not
Inter Waste’s document. It is a contr act document to which the appellant, a
public body, is a party. What applie s to public entitlement to know the
contract price applies equally, on the f acts of this case, to the agreement
itself. What is more the tender doc umentation included the agreement in
draft. Inter Waste must have known in advance that its schedule of prices
and quantities would, if it secured the contract, become part of the
agreement and therefore exposed to pub lic scrutiny. Accordingly even if
‘tender price’ in the notice included the schedule the parties’ intention could
never have been to maintain confidenti ality in respect of the rates after the
award. Parties cannot circumvent the terms of the Act by resorting to a
confidentiality clause.
31
[57] It follows that at the time of the respondent’s request the
confidentiality clause provided no reas on to refuse disclosure of Inter
Waste’s rates under s 37(1)(a). This renders it unnecessary, strictly speaking,
to decide whether disclosure of the rates would constitute grounds for an
action for breach of confidentiality. Ho wever, in the circumstances, it is
appropriate to add that the respondent is right in submitting that if disclosure
of the rates would not be likely to cau se the harm referre d to in s 36(1)(b)
(the court a quo’s finding as to which is not appealed against) and could not
reasonably be expected to result in proba ble harm of the kinds referred to in
s 36(1)(c) (which I have f ound to be the case) there is no basis to conclude
that if Inter Waste did indeed sue the appellant for breach of confidentiality
the latter would be at any risk of an adverse finding whether as to material
breach entitling cancellation or as to an award of damages. The appellant’s
case therefore fails in regard to s 37(1)(a).
[58] Turning, finally, to the court’s di scretion in s 82, the appellant’s main
submission entails that despite a public body’s failure to establish its case for
refusal under ss 36 and s 37 it can still be entitled to a discretionary order
dismissing a requester’s application. Th is is not a tenable argument. As the
court a quo observed, it would be remarkab le, to say the least, for the
legislature to lay down detailed provi sions governing refusal of access and
32
then to enable a court by way of an unlimited discretion to confirm refusal
even if the public body failed to ju stify refusal. However, the more
important consideration is this. The pr imary purpose of the Act is to give
effect to the constitutional right of access to State information. The
limitations on that right, in favour of a third party’s right to privacy in
general and commercial confidentiality in particular, are set by ss 36 and 37.
If the public body fails under those sections to justify its refusal of access
there can no longer be anything in the way of the requester’s right to access.
It follows that there can be no such di scretion as that contended for. This
conclusion accords with the aim and objects of the Act. If confirmation were
needed it is provided by the terms of s 11. The power to ‘grant any order that
is just and equitable’ is therefore in tended to enable the court to tailor the
relief to which a successful applicant is entitled.
[59] It remains to deal with the appe llant’s assertion – made in the hope of
a favourable exercise of the supposed discretion – that the respondent had
failed to show any or adequate legitimate reasons for wanting to know the
rates. What is necessary to emphasise here is that once a requester has
complied with the procedural requi rements for access and overcome the
refusal grounds in chapter 4, he or she must be given access. Sec 11 makes
33
that clear. Not only that, s 11(3) makes it equally plain that the requester’s
reasons are not relevant.25
[60] As it is, the respondent maintain s that it requires the rates because it
has in the past, so it alleges, been the victim of irregularities in the award of
contracts by the appellant. Even the per ception, if not the reality, of that
situation would entitle the making of a request given the Act’s object in s
9(e).26
[61] For the reasons given I think that the court a quo was right. The
appeal is dismissed, with costs.
__________________________
CT HOWIE
PRESIDENT
CONCUR:
ZULMAN JA
CAMERON JA
MLAMBO JA
NKABINDE AJA
25 Section 11(3) says:
‘(3) A requester’s right of access contemplated in subsection (1) is, subject to this Act, not affected
by –
(a) any reasons the requester gives for requesting access; or
(b) the information officer’s belief as to what the requester’s reason are for requesting access.’
26 Para [12] above.