Brümmer v Minister for Social Development and Others (CCT 25/09) [2009] ZACC 21; 2009 (6) SA 323 (CC) ; 2009 (11) BCLR 1075 (CC) (13 August 2009)

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Brümmer v Minister for Social Development and Others (CCT 25/09) [2009] ZACC 21; 2009 (6) SA 323 (CC) ; 2009 (11) BCLR 1075 (CC) (13 August 2009)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 25/09
[2009] ZACC 21
STEFAANS
CONRAD BRÜMMER Applicant
versus
MINISTER
FOR SOCIAL DEVELOPMENT First Respondent
DIRECTOR-GENERAL
OF THE DEPARTMENT
OF
SOCIAL DEVELOPMENT
Second Respondent
MINISTER
FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Third
Respondent
with
SOUTH
AFRICAN HISTORY ARCHIVES TRUST First Amicus Curiae
SOUTH
AFRICAN HUMAN RIGHTS
COMMISSION Second
Amicus Curiae
Heard
on : 26 May 2009
Decided
on : 13 August 2009
JUDGMENT
NGCOBO J:
Introduction
These
proceedings involve three applications. The first is an
application for leave to appeal directly to this Court against
the
decision of the Western Cape High Court (the High Court) refusing
condonation. The High Court refused to condone the applicant’s

non-compliance with the 30 day limit which
section 78(2)
1
anc" HREF="#sdfootnote1sym">
1
of the
Promotion of Access to Information Act, 2000
2
(PAIA) prescribes for lodging applications to court. The second is
an application for confirmation of the order made by the
High Court
declaring invalid
section 78(2).
The third application is by the
South African Human Rights Commission (the Commission) for its
admission as amicus curiae.
These applications arise from a
request by the applicant, Mr Brümmer, a journalist, for
certain records held by the Department
of Social Development (the
Department).
The
confirmatory proceedings raise three interrelated questions
concerning the enforcement of the constitutional right of access
to
information held by a public body. The first is whether the
provisions of
section 77(4)
read with
section 77(5)(c)(i)
or the
provisions of
section 78(2)
govern applications to court to
challenge a decision refusing access to information held by a
public body.
3
The second question, which arises only if the provisions of
section 78(2)
govern applications to court, is whether the 30 day
limit prescribed by
section 78(2)
is consistent with sections 32
and 34 of the Constitution. The third question, which arises only
if section 78(2) is inconsistent
with the Constitution, is the
appropriate relief.
Background
Mr
Brümmer, a journalist, seeks access to certain information
held by the Department under the provisions of PAIA.
4
The information relates to a government tender that the Department
is alleged to have awarded to IT Lynx Consortium (the consortium).

The applicant alleges that he requires this information in order to
report accurately and properly on an article that he is
writing.
The information requested by the applicant comprises “records
which pertain directly and indirectly to the
State Information and
Technology Agency (Pty) Ltd (SITA) tender no 0082/2001 (‘Tender
82’) for the design, development
and implementation of a
grant administration system.” Tender 82 is the subject
matter of the litigation between the
consortium and SITA, the
Minister for Social Development (the Minister) and the Minister for
Finance.
The
Director-General of the Department, who considered the request in
the first instance, refused the request on various grounds.
One of
the grounds advanced for refusal was that the information sought
was the subject of civil litigation between the Department
and the
consortium. Elaborating on this ground of refusal, the
Director-General informed the applicant, amongst other things,
that
“the Department has reasonable grounds to expect that the
disclosure of the records will lead to publications by
the media,
the Mail & Guardian in particular, which could prejudice or
impair the fairness of the trial or the impartiality
of the
adjudication of the IT Lynx Claim under case number 21290/05 . . .
.”
On
appeal to the Minister, the application suffered the same fate.
The Minister refused access to the information on the basis
that
the Department had reasonable grounds to expect that the disclosure
of the records would lead to publication in the media,
the
Mail
& Guardian
in particular, which could prejudice or impair
the fairness of the trial or the impartiality of the adjudication
of the IT
Lynx matter under case number 21290/05. In refusing the
information, the Minister relied upon the provisions of section
39(1)(b)(iii)(ee)
of PAIA.
5
The
applicant thereafter instituted review proceedings in the High
Court under section 78(2) of PAIA. He sought, amongst other

things, an order setting aside the decision to refuse information
and an order directing the Minister to furnish him with the

information sought. But as his application was brought well after
the 30 day limit prescribed in section 78(2), he also sought
an
order condoning his non-compliance with the 30 day limit. The
applicant contended that the decision to refuse him access
to the
information sought constituted an unjustifiable and unreasonable
limitation of his right of access to court, as well
as his right of
access to information and therefore violated those rights.
The
Minister and the Director-General resisted the application
maintaining, first, that the review application should have been

brought under section 77(4) read with section 77(5)(c)(i) which
gives the applicant 60 days to bring an application challenging

refusal of access to information. Second, they contended that the
High Court had no power to condone non-compliance with the
time
limit prescribed in section 78(2). They also opposed the
application for condonation on the merits on the ground that
the
case for condonation had not been made out. They maintained that
the decision refusing access to the information sought
had been
properly taken under the provisions of section 39(1)(b)(iii)(ee).
The
point taken by the Minister that the High Court did not have the
power to condone non-compliance with the 30 day limit in
section
78(2) triggered an amendment to the notice of motion which
introduced a constitutional challenge to section 78(2).
This
challenge was conditional upon the court upholding the point taken
by the Minister. This challenge necessitated the
joinder of the
Minister for Justice and Constitutional Development as the third
respondent. The Minister for Justice and Constitutional

Development did not enter the fray on whether the High Court has
the power to condone non-compliance with section 78(2) and,
if so,
whether the applicant had made out a case for condonation. Instead
he limited his submissions to the challenge to the

constitutionality of section 78(2), maintaining that the section
does not limit any of the constitutional rights contended
for by
the applicant, and if it does, that the limitation is reasonable
and justifiable. I shall refer to the Minister for
Social
Development, the Minister for Justice and Constitutional
Development and the Director-General collectively as the

respondents.
During
the hearing in the High Court a further amendment was introduced.
This time the constitutional challenge to section
78(2) was
conditioned upon the court finding that it had the power to
condone, but refusing condonation on the basis that the
applicant
had not made out a case for condonation. This amendment appears to
have been prompted by the concession by the respondents,
made in
the course of the hearing, that the High Court had the power to
condone non-compliance with section 78(2).
The
High Court held that it had the power to condone non-compliance
with the provision of section 78(2). However, it refused

condonation holding that the applicant had not provided a
satisfactory explanation for the delay and that the applicant had

no prospects of success in the underlying review. It found that
the Minister had demonstrated that releasing the information
sought
would prejudice the trial or otherwise be unfair to the trial. The
High Court was referring to the litigation between
the Department
and the consortium. In the event, the High Court dismissed the
application for condonation and ordered the
applicant to pay the
first and second respondents’ costs, including those
consequent upon the employment of two counsel.
This
conclusion led the High Court to accept the invitation extended to
it through the second amendment to the notice of motion,
namely, to
consider the constitutionality of section 78(2) in the event the
application for condonation was unsuccessful on
the merits. It
concluded that section 78(2) was unconstitutional because, in the
first place, the 30 day limit was grossly
inadequate and therefore
limited the right of access to court and, in the second place, this
limitation was unjustifiable under
section 36(1) of the
Constitution.
6
It accordingly declared the provisions of section 78(2)
unconstitutional and referred its order embodying that declaration

to this Court for confirmation. In addition, it ordered the
Minister for Justice and Constitutional Development to pay the

applicant’s costs, including those consequent upon the
employment of two counsel.
The
present proceedings are a sequel.
Proceedings
in this Court
In
this Court the applicant seeks the confirmation of the order of
invalidity. He is also seeking leave to appeal directly
to this
Court against the order of the High Court refusing to condone his
non-compliance with section 78(2). The respondents
are resisting
both applications.
The
South African History Archives Trust (SAHA), a non-governmental
organisation, applied for and was admitted as amicus curiae.
One
of the objectives of SAHA is to collect, preserve and catalogue
material of historical, contemporary, political, social,
economic
and cultural significance. It also promotes the accessibility of
archival materials to the general public. It describes
itself as
“an independent NGO archive dedicated to documenting and
supporting the struggles for justice in South Africa.”
It
entered the fray and joined the side of the applicant contending
that the 30 day period in section 78(2) is in conflict
with
sections 32 and 34 of the Constitution. In addition, it drew to
our attention the difficulties associated with bringing
court
applications under section 78(2). These difficulties will be
referred to later in this judgment.
Shortly
before the hearing, the Commission launched an application for
admission as amicus curiae. This application, which
consisted of
two volumes, contained amongst other things, the Human Rights
Development Report for the period 2007/2008, a draft
Human Rights
Development Report 2008/2009 and the South African Human Rights
Commission Audit Report for the period January
to April 2008. The
Chief Justice issued directions dealing with the filing of
opposition, if any, to the application by the
Commission and the
filing of written argument by the Commission and the response
thereto.
The
respondents opposed the application. The respondents did not have
the opportunity to respond to either the Commission’s

application, or the material submitted by the Commission under Rule
31.
7
Nor did they have the opportunity to respond to the written
submissions of the Commission. In these circumstances, the

respondents’ opposition to the application was
understandable.
It
will be convenient to deal with these applications in the following
order: first the application by the Commission for admission
as
amicus curiae; then the application for leave to appeal directly to
this Court; and finally, the application for confirmation.
Application
for admission as amicus curiae
Regrettably,
time constraints compelled the Commission to launch its application
for admission as amicus curiae in terms of
Rule 10 of the Rules of
this Court shortly before the hearing. Under Rule 10(5) an
application for admission as amicus curiae
“shall be made not
later than five days after the lodging of the respondent’s
written submissions or after the
time for lodging such submissions
has expired.” This time limit flows from the requirement in
Rule 10(7) that an amicus
should not repeat any matter set forth in
the argument of the other parties but should raise new contentions.
It is implicit,
if not explicit, from this requirement that an
applicant for admission as amicus may only launch an application
after all the
parties have lodged their written argument.
In
this case the respondents’ written submissions were due on 19
May. These proceedings were set down for hearing on
Tuesday 26
May. This left the Commission with very little time to consider
the submissions by the parties and to decide whether
there were any
contentions that had not been raised by the parties that would be
helpful to the Court. Despite these severe
time constraints, the
Commission acted promptly. It lodged its electronic version of the
application on Friday 22 May followed
by the printed version and
its written submissions on Monday 25 May. This procedure is in
accordance with our Rules. The
Commission has therefore complied
with the Rules. While the respondents complained about the
lateness of the application,
I did not understand them to contend
that the application was launched outside of the time limit set out
in the Rules.
The
question for determination is whether the Commission has complied
with the requirements for admission as amicus. We have
previously
set out the principles that govern the admission of an amicus
curiae.
8
In
Fose v Minister of Safety and Security
, a case dealing
with Rule 9, the predecessor to the present Rule 10, this Court
held:
“
It is clear from the
provisions of Rule 9 that the underlying principles governing the
admission of an
amicus
in any given case, apart from the fact
that it must have an interest in the proceedings, are whether the
submissions to be advanced
by the
amicus
are relevant to the
proceedings and raise new contentions which may be useful to the
Court. The fact that a person or body has,
pursuant to Rule 9(1),
obtained the written consent of all parties does not detract from
these principles; nor does it diminish
the Court’s control
over the participation of the
amicus
in the proceedings,
because in terms of subrule (3) the terms, conditions, rights and
privileges agreed upon between the parties
and the person seeking
amicus
status are subject to amendment by the President.”
9
(Footnote omitted.)
And
in
Ex Parte Institute for Security Studies
, in relation to
Rule 10 we reiterated these principles, saying:
“
These principles are
whether the submissions sought to be advanced are relevant to the
issues before the Court, will be useful
to the Court and are
different from those of the other parties. As Rule 10(7) indicates,
the submission should raise new contentions
and should ‘not
repeat any matter set forth in the argument of the other parties’.
It is the duty of this Court,
in the exercise of its discretion, to
ensure that these principles are satisfied before a person can be
admitted as an
amicus
. Where these principles are not
satisfied, a person cannot be admitted as an
amicus
. It
follows therefore that this Court is not bound to admit a person who
has obtained written consent of all the parties. .
. . Nor does the
fact that a person was admitted as an
amicus curiae
in the
Court below matter.”
10
As
these passages indicate, the fact that an applicant for admission
as an amicus has obtained written consent of all the parties
is not
decisive.
11
This Court may refuse to admit such an applicant where the
underlying principles referred to above are not satisfied. Nor
is
the fact that the applicant was admitted as an amicus in the court
below conclusive.
12
This is so because this Court has a discretion whether or not to
admit a person as an amicus and this discretion must be exercised

in the light of the principles that govern the admission of an
amicus. As we explained in
Ex Parte Institute for Security
Studies
:
“
It is true that Rule
10(2) read with Rule 10(4) may appear to be suggesting that a person
who has obtained a written consent contemplated
in Rule 10(1) need
not make an application for admission as an
amicus
. These
subrules must be read in the light of Rule 10 as a whole, in
particular, the underlying principles governing the admission
of an
amicus.
As pointed out above, this Court has a discretion
whether or not to admit a person as an
amicus
and that
discretion must be exercised in the light of the principles that
govern the admission of an
amicus.
The fact that a person
has obtained the required written consent neither detracts from nor
diminishes the control which this
Court exercises over the admission
of persons as
amici.
”
13
Whether
the Commission should be admitted as an amicus therefore depends on
the interest that it has in the issues before us
and the
contentions that it seeks to advance.
The
interest the Commission has in the issues before us, which concern
the proper application of the provisions of PAIA, cannot
be
gainsaid. The Commission is one of the state institutions that was
established under the provisions of section 181 of the
Constitution
in order to strengthen our constitutional democracy.
14
It is an independent institution that is subject to the
Constitution and the law. The Constitution imposes on it duties to

promote respect for human rights and a culture of human rights;
15
to promote the protection, development and attainment of human
rights;
16
and to monitor and assess the observance of human rights in our
country.
17
The right of access to information is a right guaranteed by our
Constitution.
In
the context of this case, PAIA imposes additional duties on the
Commission, including compiling a guide on how to use the

provisions of PAIA and submitting annual reports to the National
Assembly dealing with, among other things, particulars of
the
number of requests for access received; the number of requests for
access granted; the number of internal appeals lodged
with relevant
authorities; and the number of applications made to every court and
the outcome of such applications.
18
The Commission is unquestionably an important constitutional body
with the task of advancing and protecting human rights in
our
country, including the right of access to information.
The
contentions that the Commission wishes to advance differ from those
advanced by the other parties in one fundamental respect.
The
Commission contends that section 78(2) also limits the freedom of
expression that is guaranteed in section 16(1)(a) of
the
Constitution as well as the right to receive and impart information
guaranteed in section 16(1)(b) of the Constitution.
It argues that
the High Court and the respondents, in assessing the applicant’s
request for access to information, ignored
the right to freedom of
expression of the press and other media and the applicant’s
right as well as that of other members
of the public to receive or
impart information or ideas. While section 16 is raised in the
applicant’s papers, the applicant
did not advance any
argument in support of section 16 rights. SAHA does not deal with
this aspect in its written submissions.
The
remaining question then is whether, in the exercise of our
discretion, we should admit the Commission as amicus curiae.
The
only hurdle besetting the Commission’s pathway to admission
as an amicus curiae is prejudice to the respondents.
But this
hurdle is not insurmountable. Indeed, in the course of argument,
counsel for the respondents very properly conceded
that the only
conceivable prejudice to the respondents was their inability to
deal with the issues raised by the Commission
in their oral
argument, but that this prejudice could be cured by allowing the
respondents the opportunity to lodge their response
to the
application by the Commission and further written argument dealing
with the issues raised by the Commission in its written
arguments.
Accordingly,
the respondents and the applicant were afforded the opportunity to
respond to the Commission’s application
and to lodge written
arguments in response to the Commission’s written argument.
The respondents have since done so.
This has removed the last
obstacle to the admission of the Commission as amicus curiae.
Under these circumstances, the Commission
should be admitted as
amicus curiae.
Application
for leave to appeal
The
applicant is seeking leave to appeal directly to this Court against
the order of the High Court refusing condonation. The
issue of
condonation is connected with a decision on whether the applicant
is entitled to access to information held by the
Department and to
seek judicial redress in the event of a refusal of access to
information sought. The application thus concerns
the right of
access to information guaranteed in section 32 of the Constitution
as well as the right of access to courts which
is guaranteed by
section 34 of the Constitution. The application therefore raises a
constitutional matter.
The
applicant’s right of access to information and his right of
access to court are issues for determination in the confirmatory

proceedings that are before us. And on the view I take of the
decision to refuse condonation, and, in particular, in the light
of
the order of the High Court declaring section 78(2) invalid, the
application for leave to appeal directly to this Court
bears
prospects of success. In all the circumstances, I consider it to
be in the interests of justice that the applicant be
allowed to
appeal directly to this Court against the decision of the High
Court refusing him condonation and ordering him to
pay costs of the
application.
The
High Court considered first whether it had the power to condone
non-compliance with the 30 day period in section 78(2).
Having
found that it did, it then considered whether the applicant had
made out a case for condonation. It concluded that
the applicant
had not made out a case for condonation and accordingly refused the
application for condonation with costs.
At the invitation of the
applicant, foreshadowed in his second notice of amendment, the High
Court went on to consider whether
the 30 day limit in section 78(2)
was consistent with the Constitution. It was not, it concluded.
The effect of this conclusion
is that in considering the
application for condonation the High Court applied a provision
which it concluded was unconstitutional.
Its consideration of the
application for condonation was, in these circumstances, rendered
an academic exercise.
The
proper course for the High Court to have followed was first to
consider the constitutionality of section 78(2). If it had

concluded that it was unconstitutional, as it did, that should have
been the end of the matter. The issue of condonation would
not
have arisen. And the High Court should have made no order on the
application for condonation. The High Court should have
put the
applicant to an election: to either argue that the provisions of
section 78(2) are unconstitutional, or accept that
section 78(2) is
not unconstitutional and argue that he is entitled to condonation.
A litigant should not be allowed to blow
hot and cold. It is
impermissible for a litigant to ask a court to apply the provisions
of a statute and, if this yields adverse
results, then to ask the
court to declare the statute unconstitutional. It is however
permissible to urge a court to adopt
a particular construction of a
statute, and, if it should find that the statute is incapable of
the construction contended
for, then to contend that the provision
is unconstitutional.
As
it turned out, the High Court’s extensive discussion of
condonation was unnecessary. It follows that the order of
the High
Court refusing condonation must be set aside. So too must the
order for costs relating to condonation. In the event,
the
applicant is entitled to leave to appeal directly to this Court
against the refusal of condonation and the appeal must
accordingly
be upheld. In view of the conclusion I reach on the issue of the
constitutionality of section 78(2) below, it
is not necessary to
consider condonation further at this stage.
With
the application for leave to appeal being out of the way, I now
turn to the confirmatory proceedings.
The
issues presented
There
are three interrelated questions in these confirmatory proceedings:
Which
provisions of PAIA govern applications to court to challenge a
decision refusing access to information?;
If
applications to court are governed by section 78(2), then is the
30 day limit in section 78(2) inconsistent with the Constitution?;
If
the 30 day limit is unconstitutional, what is the appropriate
relief?
The
statutory provisions that govern applications to court
The
provisions that govern applications to court must be determined in
the light of the scheme of PAIA for dealing with appeals
against
decisions of relevant authorities. This scheme emerges from
sections 77 and 78.
The
relevant provisions of section 77 are subsections (4), (5) and (6)
which provide:
“
(4) The relevant
authority must, immediately after the decision on an internal
appeal—
(a)
give
notice of the decision to—
(i) the appellant;
(ii) every
third party informed as required by section 76(1); and
(iii) the requester notified
as required by section 76(7); and
(b)
if
reasonably possible, inform the appellant about the decision in any
other manner stated in terms of section 75(1)
(d)
.
(5) The
notice in terms of subsection (4)
(a)
must—
(a)
state
adequate reasons for the decision, including the provision of this
Act relied upon;
(b)
exclude, from such reasons, any
reference to the content of the record;
(c)
state
that the appellant, third party or requester, as the case may be,
may lodge an application with a court against the decision
on
internal appeal—
(i) within 60 days; or
(ii) if
notice to a third party is required by subsection (4)
(a)
(ii),
within 30 days
after notice is given, and the
procedure for lodging the application; and
(d)
if
the relevant authority decides on internal appeal to grant a request
for access and notice to a third party—
(i) is not
required by subsection (4)
(a)
(ii),
that access to the record will forthwith be given; or
(ii) is so
required, that access to the record will be given after the expiry
of the applicable period for lodging an application
with a court
against the decision on internal appeal referred to in paragraph
(c)
,
unless that application is lodged before the end of that applicable
period.
(6)
If
the relevant authority decides on internal appeal to grant a request
for access and notice to a third party—
(a)
is not required by
subsection (4)
(a)
(ii), the information officer of the body
must forthwith give the requester concerned access to the record
concerned; or
(b)
is so required, the
information officer must, after the expiry of 30 days after the
notice is given to every third party concerned,
give the requester
access to the record concerned, unless an application with a court
is lodged against the decision on internal
appeal before the end of
the period contemplated in subsection (5)
(c)
(ii) for lodging
that application.”
Section
78 provides:
“
(1) A requester or third
party referred to in section 74 may only apply to a court for
appropriate relief in terms of section
82 after that requester or
third party has exhausted the internal appeal procedure against a
decision of the information officer
of a public body provided for in
section 74.
(2) A requester—
(a)
that has been
unsuccessful in an internal appeal to the relevant authority of a
public body;
(b)
aggrieved by a
decision of the relevant authority of a public body to disallow the
late lodging of an internal appeal in terms
of section 75(2);
(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); or
(d)
aggrieved by a
decision of the head of a private body—
(i) to refuse a request for
access; or
(ii) taken in terms of section
54, 57(1) or 60,
may, by way of an application,
within 30 days apply to a court for appropriate relief in terms of
section 82.
(3) 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; or
(c)
aggrieved by a
decision of the head of a private body in relation to a request for
access to a record of that body,
may,
by way of an application, within 30 days apply to a court for
appropriate relief in terms of section 82.”
The
parties’ contentions and the High Court’s findings on
the applicable statutory provision
The
applicant contended that section 78(2) governs applications to
court. As I understand the applicant’s argument, it
is as
follows: there is a conflict between, on the one hand, the
provisions of section 77(5)(c)(i), and, on the other hand,
the
provisions of section 78(2). These provisions prescribe different
time limits for launching applications to court. These
provisions
are irreconcilable. Upon a proper construction, section 77(4) read
with section 77(5)(c)(i) does no more than tell
the relevant
authority what information should be set out in the notice to the
requestor who has been unsuccessful in an internal
appeal. Section
77 does not therefore purport to set time limits for launching
applications to court. That is a function
of section 78. This
argument is markedly different from the submissions made in the
application for confirmation.
19
In
the High Court and in this Court the respondents contended that
applications to court are governed by sections 78(2) and
77(5)(c).
They submitted that the provisions of section 77(5)(c)(i) are
applicable where the relevant authority has notified
the requestor
of the decision on an internal appeal and there is no third party
involved. In that event, the respondents argued,
the requestor has
60 days within which to launch an application to court. Where
notice is given to a third party, a court
application must be
launched within 30 days as required by section 77(5)(c)(ii). This
30 day period, the respondents argued,
is the same as that which is
provided for in section 78(2). The respondents submitted that
section 77(5)(c)(ii) does not therefore
prescribe a time limit that
is different from, or in conflict with, section 78(2).
The
High Court found that there appears to be a conflict between the
provisions of section 77(5)(c)(i) and 78(2).
20
It held that “section 78 is a self-contained provision which
exhaustively governs applications for relief in terms of
section
82.”
21
It reasoned that section 78(2) governs relief sought in terms of
section 82 while section 77(5)(c) governs relief which falls

outside the ambit of section 82.
22
The High Court based its reasoning on the absence of the reference
to section 82 in section 77.
23
It accordingly concluded that section 78(2) was applicable as the
applicant was seeking relief in terms of section 82.
24
The
scheme of PAIA
Part
4 of PAIA deals with “Appeals against Decisions”. The
scheme of PAIA is to deal separately with internal appeals
and with
applications to court to challenge decisions on internal appeals.
To this end it has two chapters. One deals with
internal appeals
and the other with applications to court. Chapter 1 deals with
“Internal Appeals against Decisions
of Information Officers
of Certain Public Bodies” in sections 74 to 77. These
sections deal with the “right of
internal appeal to [the]
relevant authority”,
25
the manner of lodging internal appeals,
26
giving notice to and representations by other interested parties,
27
and decisions on internal appeals.
28
Section 77(4) requires the relevant authority to give notice of
the decision on an internal appeal to the appellant, third
parties
involved and where the requestor was not an appellant, to the
requestor. Section 77(5) deals with the contents of
the notice
under section 77(4).
Chapter
2 of Part 4 of PAIA deals with applications to court. It comprises
sections 78 to 82. Section 78(1) provides that
a requestor or a
third party seeking relief in terms of section 82 may only do so
after exhausting the internal appeal procedures
provided for in
PAIA. Section 78(2) provides that a requestor who “has been
unsuccessful in an internal appeal to the
relevant authority of a
public body . . . may, by way of an application, within 30 days
apply to a court for appropriate relief
in terms of section 82.”
There is a similar provision in section 78(3) which deals with an
unsuccessful third party.
Section 79 deals with the procedure for
lodging applications to court. It requires the Rules Board for
Courts of Law to make
rules of procedure for dealing with
applications in terms of section 78.
29
Section 80 deals with the disclosure of records for examination by
the court hearing the application. Section 81 deals with
the
nature of the proceedings under section 82 and classifies them as
civil proceedings and deals also with the applicable
rules of
evidence and the burden of proof. The final provision is section
82 which deals with the powers of a court hearing
the application.
The
confusion in this scheme is introduced by the requirement in
section 77(5)(c)(i) that the notice “must . . . state
that
the appellant . . . may lodge an application with a court against
the decision on internal appeal . . . within 60 days”.
In
addition, this provision contemplates that the notice by the
relevant authority will also state “the procedure for
lodging
the application” to court. This provision purports to
prescribe the period within which an application to court
may be
made by a requestor who is unsuccessful in an internal appeal.
That this is so is apparent from the provisions of section

77(5)(d)(ii) which, in dealing with the granting of access to
records on appeal, provides that “the record will be given

after the expiry of the applicable period for lodging an
application with a court against the decision on internal appeal
referred to in paragraph (
c
)”. I am therefore unable
to agree with the view expressed by the High Court that section
77(5)(c)(i) deals with decisions
other than those contemplated in
section 82.
The
result is that there is a conflict between the provisions of
sections 77(5)(c)(i) on the one hand, and, on the other hand,
the
provisions of section 78(2). These two provisions are incapable of
being harmonised. The question is which of the two
governs
applications to court. Section 77(5)(c) prescribes 60 days or 30
days, as the case may be, as the period for lodging
applications to
court, depending on whether notice to a third party is required,
and contemplates that the relevant authority
will indicate to the
requestor “the procedure for lodging the application[s]”
to court. These are matters that
are specifically dealt with by
section 78(2) and section 79 of Chapter 2 of Part 4.
The
legislature, by enacting Chapter 2 of Part 4 and dedicating it to
applications to court, intended that applications to court
should
be governed by the provisions of this chapter. In my view section
78(2) must prevail. This section is part of Chapter
2 which deals
specifically with applications to court. The purpose of section 78
is to deal with applications for relief in
terms of section 82.
Section 78(2) is therefore the primary provision which governs
applications to court. Section 77(5)(c)(i)
which purports to
prescribe a 60 day limit does not detract from the primacy of
section 78(2) as the provision that governs
applications to court.
The purpose of section 77 is to deal with the manner of handling
internal appeals and communicating
decisions on internal appeals to
requestors and third parties. Its primary purpose is not to deal
with applications to court.
It must accordingly yield to section
78(2). This is a matter to which I return later when I deal with
the appropriate order
to be made.
The
conclusion by the High Court that section 78(2) governs
applications to court and prescribes 30 days as the period within

which an application for review in terms of section 82 must be
launched, must therefore be upheld. Section 78(2) does not

stipulate precisely the date when the period of 30 days begins to
run. It seems to me that the period must begin to run from
the
date when the requestor receives notice of the decision on internal
appeal. The question is whether the period of 30 days
prescribed
by section 78(2) is consistent with sections 32 and 34 of the
Constitution. It is to that question that I now turn.
The
constitutionality of section 78(2)
The
challenge to section 78(2) is directed at the 30 day period within
which an application to court may be launched. The applicant
and
the amici contended in the first place, that this limits the right
of access to court guaranteed in section 34 and the
right of access
to information guaranteed in section 32, and, in the second place,
that this limitation is not reasonable and
justifiable under
section 36. For their part, the respondents contended that the 30
day limit does not offend the Constitution.
Any harshness it might
otherwise have is ameliorated by the power to condone
non-compliance with the 30 day time limit. If
the time limit
constitutes a limitation on the right of access to court, the
limitation is minimal in the light of the ameliorative
attribute
that the unlimited power to condone brings to this section, argued
the respondents. And this renders any limitation
reasonable and
justifiable.
The
High Court found that the 30 day period is “grossly
inadequate to enable an ordinary applicant” to approach
a
court for relief.
30
It held that the fact that there is an opportunity for condonation
matters not, what does “is the adequacy of the opportunity

and not what he may do in order to retrieve the lost opportunity.”
31
It therefore held that section 78(2) constitutes a limitation of
the right of access to court which is guaranteed in section
34
32
and that this limitation is unreasonable and unjustifiable.
33
This
Court has on at least four occasions considered the
constitutionality of time bar provisions, as these provisions are
sometimes called.
34
On three of those occasions, the Court considered statutory
provisions containing a time limit and, in the fourth case it

considered a clause in an insurance contract containing a time bar.
The
principles that emerge from these cases are these: Time bars limit
the right to seek judicial redress. However, they serve
an
important purpose in that they prevent inordinate delays which may
be detrimental to the interests of justice. But not
all time
limits are consistent with the Constitution. There is no hard and
fast rule for determining the degree of limitation
that is
consistent with the Constitution.
35
The “enquiry turns wholly on estimations of degree.”
36
Whether a time bar provision is consistent with the right of
access to court depends upon the availability of the opportunity
to
exercise the right to judicial redress.
37
To pass constitutional muster, a time bar provision must afford a
potential litigant an adequate and fair opportunity to seek

judicial redress for a wrong allegedly committed.
38
It must allow sufficient or adequate time between the cause of
action coming to the knowledge of the claimant and the time
during
which litigation may be launched. And finally, the existence of
the power to condone non-compliance with the time bar
is not
necessarily decisive.
It
follows from the above that not all statutory provisions that limit
the time during which litigation may be launched fall
foul of the
right to seek judicial redress. Each provision must therefore be
“scrutinised to see whether its own particular
range and
terms are compatible with the right which [section 34] bestows on
everyone” to seek judicial redress.
39
The question therefore is whether the 30 day limit in section
78(2) allows a requestor an adequate and fair opportunity to
bring
an application to court against a decision on an internal appeal.
This provision does not say, but I think the case
must be
approached on the footing, that the period of 30 days is calculated
from the date when the requestor has notice of
the decision of the
internal appeal. The sufficiency or adequacy of the opportunity
which the 30 day limit affords the requestor
to exercise the right
of access to court must be determined in the light of the steps
that a requestor who has been unsuccessful
in an internal appeal
would have to take before launching an application in court.
The
first step is to consider the reasons for refusal of access to
information. The next step is to seek legal advice on prospects
of
success. This step is necessary because litigation is costly and
time consuming. And courts should not be burdened with
frivolous
or vexatious litigation as this may attract an adverse order for
costs against a litigant. Litigation should not
be undertaken
lightly. Legal advice is therefore crucial to the decision making
process. But seeking legal advice and deciding
to undertake
litigation require funds. Not all persons, certainly, not all
individuals have a separate budget for litigation.
Raising funds
for litigation may further delay litigation. Preparing the
necessary papers will invariably contribute to the
delay. Does the
period of 30 days afford the requestor an adequate and fair
opportunity to launch the application in the light
of these steps?
SAHA’s
experience in this regard is illuminating. It will be recalled
that this is an NGO which collects, preserves and
catalogues
material of historic, contemporary, political, social and economic
nature. Since 2001 it has made over 1 000 requests
for information
from various government departments. It has brought 11
applications to court arising out of these requests.
In all these
applications it had to seek condonation because the applications
were launched “a significant time after
the expiry of the 30
day period.” SAHA has outlined the difficulties associated
with complying with the 30 day limit
in section 78(2). The delays
arise from having to seek legal opinion on prospects of success;
securing legal representatives;
getting funding; securing approval
and authorisation from its board of trustees who are scattered all
over the country; and
limitation of funds.
If
an NGO faces these difficulties in meeting the 30 day limit, I
think it is fair to expect that individuals will have even
greater
difficulty in complying with this time limit. The applicant’s
predicament in this case bears testimony to this.
Both NGO and
individual requestors have a critical role to play in ensuring that
our democratic government is accountable,
responsive and open.
Indeed, the Constitution contemplates a public administration that
is accountable
40
and requires that “[t]ransparency must be fostered by
providing the public with timely, accessible and accurate
information.”
41
Thus the public and the NGOs must be encouraged and not obstructed
in carrying out their civic duties.
Section
78(2) has the effect, in my view, that many of the requestors whom
it hits are not afforded an adequate and fair opportunity
to seek
judicial redress. They are left with too short a time within which
to launch an application to court. The existence
of the power to
condone does not save it. What matters, as our jurisprudence makes
plain, is the availability of the real
and fair opportunity to
exercise the right to seek judicial redress in order to vindicate
the right of access to information.
As the affidavit filed on
behalf of SAHA illustrates, requestors will almost always have to
apply for condonation in order
to exercise their right to seek
judicial redress in order to enforce their right of access to
information. This shows the
absence of an adequate and fair
opportunity to seek judicial redress.
Section
78(2) therefore limits the right of access to court. And it also
limits the right of access to information guaranteed
in section 32
of the Constitution.
The
question which arises then is whether section 36(1) countenances
this limitation.
42
Justification
In
assessing whether the limitation imposed by section 78(2) is
reasonable and justifiable under section 36(1), regard must
be had
to, among other factors, the nature of the right limited; the
purpose of the limitation, including its importance; the
nature and
extent of the limitation; the efficacy of the limitation, that is,
the relationship between the limitation and its
purpose; and
whether the purpose of the limitation could reasonably be achieved
through other means that are less restrictive
of the right in
question. Each of these factors must be weighed up but ultimately
the exercise is one of proportionality which
involves the
assessment of competing interests.
43
Where justification rests on factual or policy considerations, the
party contending for justification must put such material
before
the court.
44
In the present case it was therefore incumbent upon the
respondents who are defending section 78(2) to submit not only the

legal argument but also place requisite factual material and policy
considerations in support of reasonableness and justification.
The
respondents did not place any factual material either before the
High Court or this Court in support of justification.
In his
answering affidavit, the Minister for Justice and Constitutional
Development advanced four submissions in support of
justification.
First, he submitted that strict time limits are necessary to
relieve public bodies of administrative and financial
burdens that
may flow from a delay in bringing a court application; second, the
limitation does not take away the applicant’s
right of access
to information but “simply requires an applicant to act
swiftly” in enforcing his or her rights;
third, the
limitation is tailored to achieve its purpose and is thus less
restrictive; and finally, a requestor is entitled
to deem his
request or internal appeal to have been refused after a lapse of
the prescribed period.
45
No new submissions were advanced during oral argument.
The
nature and the importance of the right of access to court speak for
themselves and require no elaboration. In
Chief Lesapo
we
said the following concerning the right of access to court:
“
The right of access to
court is indeed foundational to the stability of an orderly society.
It ensures the peaceful, regulated
and institutionalised mechanisms
to resolve disputes, without resorting to self help. The right of
access to court is a bulwark
against vigilantism, and the chaos and
anarchy which it causes. Construed in this context of the rule of
law and the principle
against self help in particular, access to
court is indeed of cardinal importance.”
46
As
I have held above, section 78(2) has a dual limitation; it limits
not only the right to seek judicial redress, but in effect
also the
right of access to information by imposing a very short time period
within which a person seeking information must
launch litigation.
The importance of this right too, in a country which is founded on
values of accountability, responsiveness
and openness, cannot be
gainsaid.
47
To give effect to these founding values, the public must have
access to information held by the state. Indeed one of the
basic
values and principles governing public administration is
transparency. And the Constitution demands that transparency
“must
be fostered by providing the public with timely, accessible and
accurate information.”
48
Apart
from this, access to information is fundamental to the realisation
of the rights guaranteed in the Bill of Rights. For
example,
access to information is crucial to the right to freedom of
expression which includes freedom of the press and other
media
49
and freedom to receive or impart information or ideas.
50
As the present case illustrates, Mr Brümmer, a journalist,
requires information in order to report accurately on the
story
that he is writing. The role of the media in a democratic society
cannot be gainsaid.
51
Its role includes informing the public about how our government is
run, and this information may very well have a bearing
on
elections. The media therefore has a significant influence in a
democratic state. This carries with it the responsibility
to
report accurately. The consequences of inaccurate reporting may be
devastating. Access to information is crucial to accurate

reporting and thus to imparting accurate information to the public.
But
at the same time the importance of time bar provisions cannot be
denied. Delays in litigation hamper the interests of justice.

Documents may be lost. Witnesses may disappear. Memories of
witnesses may fade. These provisions prevent inordinate delays
in
litigation that may undermine the interests of justice. Vital
evidence might be lost in the process. As this Court pointed
out
in
Mohlomi
, “[i]nordinate delays in litigating damage
the interests of justice. They protract the disputes over the
rights and
obligations sought to be enforced, prolonging the
uncertainty of all concerned about their affairs.”
52
However,
it seems to me that different considerations apply to a time bar
such as the present one that limits access to court
to enforce the
right of access to information. In the first place here we are
concerned with the right of access to information
held by a public
body. PAIA is therefore concerned with access to existing
documents presently held by the state. Litigation
over whether the
requestor is entitled to the information will therefore, seldom, if
ever, involve the evidence of witnesses.
The problem of the
availability of witnesses will therefore rarely, if ever, arise.
So too is the related concern of fading
memories of witnesses.
In
the second place, it is not clear what financial and other burdens
a reasonable time limit will impose. What is required
is that the
requestor must be allowed an adequate and fair opportunity to seek
judicial redress after an unsuccessful internal
appeal. The
respondents did not provide any evidence to suggest that allowing a
requestor an adequate and fair opportunity
to seek judicial redress
will impose any additional significant burden on the public body
than that it had already incurred
by keeping the records up to the
point when information is requested. In these circumstances the
argument based on administrative
and financial burdens cannot be
sustained.
One
cannot overlook the time limits provided in other statutes. They
provide a yardstick against which to measure the limitation
imposed
by section 78(2).
Section 7(1)
of the
Promotion of Administrative
Justice Act, 2000
53
(PAJA) was enacted into law on 2 February 2000. This was about the
same time that PAIA was enacted into law. PAJA allows
a person who
wishes to institute review proceedings 180 days after the
conclusion of internal remedies or after the person
was informed of
administrative decisions sought to be taken on review. The
Institution of Legal Proceedings Against Certain Organs of State
Act, 2002
54
allows a person who wishes to sue the state six months from the
date on which the debt becomes due subject to notice with the

provision of condonation for the late giving of the notice.
55
Now
the constitutionality of
section 7(1)
of PAJA and
section 3(2)
of
the
Institution of Legal Proceedings Against Certain Organs of
State Act is
not before us. Therefore, I express no opinion on the
constitutionality of these provisions as they may come before us on

a future occasion. These provisions, however, show what Parliament
considers as an adequate and a fair opportunity to institute

proceedings against the state. These provisions are less stringent
and detrimental to the interests of the requestor than
the
provisions of
section 78(2).
There is no reason to doubt that the
period of 180 days that has been determined for reviews under PAJA
would serve the government’s
interests equally and,
therefore, adequately in applications brought to challenge a
decision on internal appeal. The submission
that the 30 day period
is less restrictive of the rights of the requestors cannot
therefore be sustained. Nor do the deeming
provisions of
section
77(7)
help the respondents.
56
The
respondents also submitted that all that
section 78(2)
does is to
tell the requestor to act swiftly. This is an understatement. As
SAHA’s experience amply demonstrates, it
is almost impossible
to comply with the 30 day limit in practice. The result is that
requestors are compelled to incur additional
costs by making
applications for condonation for non-compliance with the 30 day
time limit. The time limit in
section 78(2)
therefore places an
additional hurdle in the way of a requestor who wishes to challenge
a decision on internal appeal. Apart
from this, there is no reason
why people who seek information should be compelled to act more
swiftly than other litigants.
No evidence has been placed before
us to justify requiring requestors to exercise their rights to seek
judicial redress under
extreme pressure of time or risk the
uncertainty of an application for condonation. There was no
suggestion that applications
to court under
section 78(1)
have a
special attribute that requires litigants to act swiftly.
I
conclude, therefore, that the limitation imposed by
section 78(2)
on the right to seek judicial redress and the right of access to
information cannot rightly be said and has not been shown
to be
reasonable and justifiable in the light of the option readily
available to Parliament of emulating
section 7
of PAJA. It
follows, in my judgement, that
section 36(1)
does not countenance
the intrusion and
section 78(2)
is therefore inconsistent with
sections 32 and 34 of the Constitution.
What
remains to be considered is the form of relief, the question to
which I now turn.
Remedy
The
constitutional defect in section 78(2) lies in that portion which
requires a potential litigant to launch proceedings within
30 days.
Consistently with section 172(1)(a) of the Constitution, a
declaration to that effect must be made. The defective
portion of
section 78(2) must be struck down. That leaves the question
whether this portion of section 78(2) should be struck
down with
immediate effect or whether its life should be prolonged until
Parliament cures the defect in the provision.
It
is ordinarily undesirable that the defective portion should
continue to be operative until the defect in it is cured. To
do so
would be to perpetuate unconstitutionality and the difficulties
that potential litigants face when challenging the refusal
of
access to information. On the other hand, striking down the
provision will mean that section 78(2) is without a time limit

within which applications to court must be launched. Yet it is
clear from the provision that Parliament, whose function it
is to
make law, has determined that there must be a time limit within
which to launch applications to court. And what is more,
I have
found that time limits serve an important purpose, that of
preventing inordinate delays.
Under
section 172(1)(b) this Court has a discretion to make an order that
is just and equitable, including an order limiting
the
retrospectivity of the declaration of invalidity and suspending the
order of invalidity to allow Parliament to cure the
constitutional
defect. What is apparent from the section is that Parliament has
determined that there should be a time limit
within which to bring
applications to court. That time limit must be determined by
Parliament whose task it is to legislate.
To do otherwise may be
to usurp a function reserved for another branch of government. I
think it is just and equitable to
suspend the order of invalidity
for a period of 18 months to allow Parliament to cure the defect in
section 78(2) and determine
a time limit that would be consistent
with the Constitution. The question is whether there should be a
time limit that will
regulate applications to court until
Parliament cures the defect in section 78(2).
Section
32(1) of the Constitution guarantees the right of access to
information “that is required for the exercise or
protection
of any rights”. And the declared purpose of PAIA is to give
effect to this constitutional right. It is implicit
from the
purpose for which the information is required that disputes over
access to information must be dealt with expeditiously.
But in
seeking to achieve expedition, the legislation may not unduly
preclude access to information. There is, in my view,
sufficient
reason for some time limit during which litigation may be launched.
However, that time limit must afford the requestor
an adequate and
fair opportunity to launch a court application.
It
seems to me that it is necessary to put into place an interim
regime that will regulate applications to court. That interim

regime must not be inconsistent with the scheme of PAIA. PAIA
seeks to ensure that applications to court, following an

unsuccessful internal appeal, are brought to court without delay.
The interim limit must therefore bear this in mind. But it
must
also afford the requestor an adequate and a fair opportunity to
lodge a court application. Having regard to the trend
reflected in
other statutes, notably PAJA, it seems to me that a time limit of
180 days would afford a requestor an adequate
and a fair
opportunity to seek judicial redress. It is open to Parliament to
adopt what it considers a suitable time limit.
The
period of 180 days must be calculated from the date when the
requestor receives notification of the decision on internal
appeal.
In addition, the time limit of 180 days must be flexible so as to
allow a court, when the interests of justice demand,
to extend or
condone non-compliance with the period of 180 days. The applicant
launched this application within the period
of 180 days. In these
circumstances, condonation is not necessary and therefore no order
should be made on the applicant’s
application for
condonation.
And,
finally on this aspect, I consider it just and equitable that the
order of invalidity applies, not only to all future requests
for
access to information, but also to all pending applications.
Before
leaving this topic, there is one matter that I should like to draw
to the attention of Parliament. It is a matter to
which I alluded
earlier in this judgment concerning the conflict between sections
77(5)(c) and 78(2). As pointed out earlier,
section 77(5)(c)
requires the relevant authority to give notice of the decision on
internal appeal. This section specifically
requires the notice to
notify the requestor that he or she must lodge an application to
court within the time limits prescribed
in the section. These time
limits, in particular those set out in paragraph 77(5)(c)(i), are
presently in conflict with the
time limits in section 78(2).
Unless the time limits prescribed in section 77(5)(c) are brought
in line with the interim measure
I propose, there will be a
conflict between the interim measure and section 77(5)(c).
It
seems to me that it would be just and equitable, as an interim
measure, that when giving notice contemplated in section 77(4)
read
with section 77(5)(c), the relevant authority should have regard to
the time limit of 180 days that I propose to set out
in the interim
regime. When Parliament considers the time limit that will govern
applications under section 78, it should
give consideration to
harmonising the provisions of sections 77 and 78 and avoid any
conflict in the time limits prescribed
by these sections. Thus
when Parliament seeks to amend section 78(2), it should ensure that
section 77(5)(c) is amended consistently
with it to avoid continued
conflict, since this may infringe the rule of law.
57
But
what then is to become of the applicant’s application for
information held by the respondent?
The
fate of the request for information in this case
The
High Court has so far dealt with the question of the
constitutionality of section 78(2) which it held to be
unconstitutional.
It did not consider the merits of the
application for access to information but instead referred the
order of invalidity to
this Court for confirmation. This was a
cautious approach to take in the event this Court decided not to
confirm but instead
found nothing wrong with section 78(2). The
applicant still needs to be told whether he is entitled to the
information he
seeks. The merits of the application for access to
information, therefore, still have to be considered.
It
is true the High Court expressed some view, albeit a prima facie
one, on the merits of the request for information. It did
this
when it considered the prospects of success in the context of the
application for condonation. As it turned out, its
consideration
of the application for condonation became an academic exercise in
the light of its conclusion that section 78(2)
is unconstitutional.
I have already held that the High Court order refusing condonation
should be set aside, not because condonation
should have been
granted, but because no order should have been made on the
application in the light of the conclusion reached
by the High
Court on the constitutionality of section 78(2). It follows,
therefore, that the merits of the applicant’s
application for
access to information held by the respondents must be considered.
In
all the circumstances, the just and equitable order is to refer the
matter back to the High Court so that it can consider
the merits of
the application for access to information. Given the fact that the
judge who considered the matter in the first
place has already
expressed some view on the merits of the application, albeit in the
context of prospects of success, the
application should be dealt
with by another judge. Accordingly, I propose to make an order to
this effect.
Finally,
concern was expressed during argument about the blanket refusal by
the respondents to allow access to all records sought.
This
concern prompted counsel for the applicant to urge us to consider
issuing guidelines on how public bodies should deal
with requests
for access to information. A compelling argument was addressed to
us concerning the need for public bodies to
provide a list of the
records that they have in their possession and the basis for
refusing access to each record. Our attention
was drawn to a
Pretoria High Court decision in
CCII Systems
.
58
The respondents in that case objected to affording access to some
of the documents without identifying documents which enjoyed

protection from disclosure and those which did not
.
A
s the High Court found, the
defence was that the documents requested were so voluminous that
the public bodies concerned could
not reasonably be expected to
analyse all the documents in order to identify those which may be
protected from disclosure.
59
The
High Court held that the respondents’ approach made it
impossible to evaluate whether the respondents were justified
in
claiming privilege in respect of the documents and whether access
could not be given to portions of those documents. It
held that
“it is for the respondents to identify the record which is to
be protected and to state concisely why it maintains
that access to
it can be withheld.”
60
Against this background, the High Court ordered the respondents to
list all documents in respect of which they objected to
in terms of
PAIA and to set out “clearly and concisely
(a)
a
description of the document or record,
(b)
the basis for the
objection,
(c)
an indication if the objection relates to the
whole document or only to portions thereof and if so,
(d)
to
which portions.”
61
While
there is much to be said for the order made on the facts in
CCII
Systems
, the question whether a similar order or guidelines
along the lines of the order in that case should be issued on the
facts
of this case, is a matter which concerns the merits of the
applicant’s request for information. It is for the High
Court,
when dealing with the merits of the requests for
information, to consider whether, on the facts of this case, it is
appropriate
to make an order similar to that in
CCII Systems
.
It is not desirable for this Court, which is not seized with the
merits, to express a view on this issue. Accordingly, the

invitation to consider “issuing guidelines” similar to
the order made in
CCII Systems
must be declined.
Costs
That
leaves only the questions of costs. Counsel were agreed that the
applicant is entitled to his costs including costs of
two counsel
in both courts.
Order
In
the event, the following order is made:
The South African Human Rights Commission is admitted as amicus
curiae.
The application for leave to appeal directly to this Court is
granted.
The appeal against the order of the Western Cape High Court, in
case 10013/07, made on 16 March 2009 refusing condonation succeeds

and that order is set aside.
No order is made on the application for condonation for
non-compliance with section 78(2).
The words “within 30 days” in
section 78(2)
of the
Promotion of Access to Information Act 2 of 2000
are declared to be
inconsistent with sections 32 and 34 of the Constitution and
section 78(2) is declared to be invalid for
that reason.
The declaration of invalidity made in paragraph (e) above is
suspended for a period of 18 months from the date of this order
to
enable Parliament to enact legislation to correct the inconsistency
which has resulted in the declaration of invalidity.
Pending the enactment of legislation by Parliament or the expiry of
the period referred to in paragraph (f) above, whichever
occurs
first, the words “within 30 days” in
section 78(2)
of
the
Promotion of Access to Information Act 2 of 2000
shall be
replaced by the words “within 180 days from the date when the
requestor receives notice of the decision.”
Pending the enactment of legislation by Parliament or the expiry of
the period referred to in paragraph (f) above, whichever
occurs
first, a court considering an application contemplated in
section
78(1)
of the
Promotion of Access to Information Act 2 of 2000
shall
have the power to extend or condone non-compliance with the period
of 180 days referred to in paragraph (g) above.
Pending the enactment of legislation by Parliament or the expiry of
the period referred to in paragraph (f) above, whichever
occurs
first, the periods of 60 days and 30 days referred to in
section
77(5)(c)(i)
and (ii) of the
Promotion of Access to Information Act
2 of 2000
, respectively, shall be read as 180 days.
The declaration of invalidity will apply to and govern all future
requests for access to information and to all pending applications

launched under
section 78(1)
of the
Promotion of Access to
Information Act 2 of 2000
which, at the time of this order, have
not yet been finally determined by judgment delivered at first
instance or on appeal
or by a settlement duly concluded.
The application is remitted to the Western Cape High Court for
determination under
section 82
of the
Promotion of Access to
Information Act 2 of 2000
by another judge.
The respondents are ordered to pay the applicant’s costs
including costs consequent upon the employment of two counsel
in
the High Court and in this Court.
Langa CJ, Moseneke DCJ, Cameron J, Mokgoro J, Nkabinde J, O’Regan
J, Sachs J, Skweyiya J and Yacoob J concur in the judgment
of Ngcobo
J.
For the Applicant:
For the
Respondents:
For the
South African History Archives Trust:
For the
South African Human Rights Commission:
Advocate
AA Gabriel, Advocate E Fitz-Patrick and Advocate JP Broster
instructed
by the Open Democracy Advice Centre.
Advocate
MTK Moerane SC and Advocate NH Maenetje instructed by the State
Attorney.
Advocate
N Rajab-Budlender instructed by Rosin Wright Rosengarten.
Advocate
F Snyckers, Advocate K Hofmeyr and Advocate K McLean instructed by
Webber Wentzel.
1
Section 78(2)
is set out in full at [38] below.
2
Act 2 of 2000.
3
The text of these sections is set out in full at
[37] – [38] below.
4
Section 11 of PAIA deals with access to records of public bodies and
information and provides:
“
(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.
(2) A request contemplated in subsection (1) includes a
request for access to a record containing personal information about
the
requester.
(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 reasons are for requesting access.”
5
Section 39(1)(b)(iii) of PAIA provides:
“
The
information officer of a public body—
(b) may
refuse a request for access to a record of the body if—
(iii) the disclosure of the record could reasonably be
expected—
(aa)
to prejudice the investigation of a
contravention or possible contravention of the law which is about to
commence or is in progress
or, if it has been suspended or
terminated, is likely to be resumed;
(bb)
to reveal, or enable a person to ascertain,
the identity of a confidential source of information in relation to
the enforcement
or administration of the law;
(cc)
to result in the intimidation or coercion
of a witness, or a person who might be or has been called as a
witness, in criminal
proceedings or other proceedings to enforce the
law;
(dd)
to facilitate the commission of a
contravention of the law, including, but not limited to, subject to
subsection (2), escape from
lawful detention; or
(ee)
to prejudice or impair the fairness of a
trial or the impartiality of an adjudication.”
6
Section 36 of the Constitution provides:
“
(1) The rights in the Bill of Rights may be
limited only in terms of law of general application to the extent
that the limitation
is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom,
taking into account
all relevant factors, including—
the nature of the
right;
the
importance of the purpose of the limitation;
the
nature and extent of the limitation;
the
relation between the limitation and its purpose; and
less
restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any
other provision of the Constitution, no law may limit any right
entrenched
in the Bill of Rights.”
7
Rule 31 provides:
“
(1) Any party to any proceedings before the
Court and an
amicus curiae
properly admitted by the Court in
any proceedings shall be entitled, in documents lodged with the
Registrar in terms of these
rules, to canvass factual material that
is relevant to the determination of the issues before the Court and
that does not specifically
appear on the record: Provided that such
facts—
are
common cause or otherwise incontrovertible; or
(b) are of an official, scientific, technical or
statistical nature capable of easy verification.
(2) All other parties shall be entitled, within the
time allowed by these rules for responding to such document, to
admit, deny,
controvert or elaborate upon such facts to the extent
necessary and appropriate for a proper decision by the Court.”
8
Fose
v Minister of Safety and Security
[1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC);
In
Re: Certain Amicus Curiae Applications; Minister of Health and
Others v Treatment Action Campaign and Others
[2002] ZACC 13; 2002 (5) SA 713 (CC);
Ex
Parte Institute for Security Studies: In Re S v Basson
[2005]
ZACC 4; 2006 (6) SA 195 (CC).
9
Fose
above n 8
at para 9.
10
Ex Parte
Institute for Security Studies
above n 8 at para 7.
11
Id.
12
Id.
13
Id at para 8.
14
Section 181(1)(b) of the Constitution.
15
Id at section 184(1)(a).
16
Id at section 184(1)(b).
17
Id at section 184(1)(c).
18
Section 84(b)(i)-(xi) of PAIA provides:
“
(b)
in
relation to each public body, particulars of—
the
number of requests for access received;
the
number of requests for access granted in full;
the
number of requests for access granted in terms of section 46;
the
number of requests for access refused in full and refused partially
and the number of times each provision of this Act was
relied on to
refuse access in full or partially;
the
number of cases in which the periods stipulated in section 25(1)
were extended in terms of section 26(1);
the
number of internal appeals lodged with the relevant authority and
the number of cases in which, as a result of an internal
appeal,
access was given to a record or a part thereof;
the
number of internal appeals which were lodged on the ground that a
request for access was regarded as having been refused
in terms of
section 27;
the
number of applications made to every court and the outcome thereof
and the number of decisions of every court appealed against
and the
outcome thereof;
the
number of applications to every court which were lodged on the
ground that an internal appeal was regarded as having been

dismissed in terms of section 77(7);
the
number of complaints lodged with the Public Protector in respect of
a right conferred or duty imposed by this Act and the
nature and
outcome thereof; and
such
other matters as may be prescribed.”
19
In his application for confirmation the applicant contended that
section 77(4) read with section 77(5)(c)(i) governs applications

under section 82. He submitted that the respondents did not comply
with the provisions of these sections which are peremptory.
He drew
attention to the requirement in section 77(5)(c)(i) that the notice
in terms of section 77(4)(a) “must . . . state
that the
appellant . . . may lodge an application with a court against the
decision on internal appeal . . . within 60 days.”
Although
the notice informing the applicant of the decision on internal
appeal stated that he is “entitled to lodge an
appeal with a
court against the decision to turn down the internal appeal”,
it did not tell him that he is required to
do so within 60 days as
section 77(5)(c)(i) requires. The applicant, however, conceded that
this is not the case he sought to
make in the High Court. This line
of argument was not pursued before us. On the view I take of the
matter it is not necessary
to say anything further on this argument.
20
Brümmer v Minister of Social Development and Others
,
Case No 100103/07, 16 March 2009 as yet unreported, at
para
26.
21
Id at para 27.
22
Id.
23
Id.
24
Id.
25
Section 74 of PAIA.
26
Id at s
ection 75.
27
Id at s
ection 76.
28
Id at s
ection 77.
29
I understand that these rules have since been
made but have not yet been published.
30
Brümmer
above n 20 at para 69.
31
Id at para 70.
32
Id at para 62.
33
Id at para 71.
34
Barkhuizen v Napier
[2007]
ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC);
Engelbrecht
v Road Accident Fund and Another
[2007] ZACC 1
;
2007 (6) SA 96
(CC);
2007 (5) BCLR 457
(CC);
Moise
v Greater Germiston Transitional Local Council
[2001]
ZACC 21
;
2001 (4) SA 491
(CC);
2001 (8) BCLR 765
(CC); and
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC);
1996 (12) BCLR 1559
(CC).
35
Mohlomi
above n 34 at para 12. See also
Moise
above n
34;
Barkhuizen
above n 34; and
Engelbrecht
above n 34.
36
Mohlomi
above n
34 at para 12.
37
Mohlomi
above n 34 at para 14. See also
Moise
above n
34;
Barkhuizen
above n 34; and
Engelbrecht
above n 34.
38
Mohlomi
above n
34 at paras 12 and 14.
39
Mohlomi
above n 34 at para 12.
40
Section 195(1)(f) of the Constitution.
41
Id at s
ection 195(1)(g).
42
See above n 6.
43
S v
Manamela and Another (Director-General of Justice
Intervening)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR
491
(CC) at paras 33 and 65;
Mohlomi
above
n 34 at para 15 and
Moise
above n 34 at para 18.
44
Moise
above n 34
at para 19.
45
This is apparently a reference to section 77(7)
read with section 77(3). These provisions provide:
“(3) The
relevant authority must decide on the internal appeal—
as
soon as
reasonably possible, but in any
event within 30 days after the internal appeal is received by the
information officer of the
body;
if a third party is informed of
section 76(1), as soon as reasonably possible, but in any event
within 30 days; or
if notice is given in terms of
section 76(7)—
within five working days after
the requester concerned has made written representations in terms
of section 76(9); or
in any other case within 30 days
after notice is so given.
(7) If the relevant authority fails to give notice of the decision
on an internal appeal to the appellant within the period
contemplated in subsection (3), that authority is, for the purposes
of this Act, regarded as having dismissed the internal appeal.”
46
Chief Lesapo v North West Agricultural Bank
and Another
[1999] ZACC 16
;
2000 (1)
SA 409
(CC);
1999 (12) BCLR 1420
(CC) at para 22.
47
See section 1(d) of the Constitution.
48
Id at section 195(1)(g).
49
Id at section 16(1)(a).
50
Id at section 16(1)(b).
51
In
Khumalo
and Others v Holomisa
[2002]
ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at para 24
this Court held:
“
[i]n
a democratic society, then, the mass media play a role of undeniable
importance. They bear an obligation to provide citizens
both with
information and with a platform for the exchange of ideas which is
crucial to the development of a democratic culture.
As primary
agents of the dissemination of information and ideas, they are,
inevitably, extremely powerful institutions in a
democracy and they
have a constitutional duty to act with vigour, courage, integrity
and responsibility. The manner in which
the media carry out their
constitutional mandate will have a significant impact on the
development of our democratic society.
If the media are scrupulous
and reliable in the performance of their constitutional obligations,
they will invigorate and strengthen
our fledgling democracy. If
they vacillate in the performance of their duties, the
constitutional goals will be imperilled.
The Constitution thus
asserts and protects the media in the performance of their
obligations to the broader society, principally
through the
provisions of s 16.” See also paras 21-2.
52
Mohlomi
above n 34 at para 11
.
53
Act 3 of
2000.
54
Act 40
of 2002.
55
Section 3(2)
of the
Institution of Legal Proceedings Against Certain
Organs of State Act provides
:
“
A notice must—
(a)
within six months from the date on which the
debt became due, be served on the organ of state in accordance with
section 4(1)
; and
(b)
briefly set out—
(i) the facts giving rise to the debt; and
(ii) such particulars of such debt as are within the
knowledge of the creditor.”
56
See above n 45 where
section 77(7)
is quoted.
57
Affordable Medicines Trust and Others v
Minister of Health and Another
[2005]
ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para 108;
South African Liquor Traders
Association and Others v Chairperson Gauteng Liquor Board
[2006]
ZACC 7
;
2009 (1) SA 565
(CC);
2006 (8) BCLR 901
(CC) at para
27.
58
CCII Systems (Pty) Ltd v Fakie and Others NNO
(Open
Democracy Advice Centre, as Amicus Curiae)
2003 (2) SA 325
(T);
Vaughn v Rosen
[1973] USCADC 464
;
484 F 2d 820
(1973).
59
CCII Systems
above n 57 at para 15.
60
Id at para 20.
61
Id at 335I-J.