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[2012] ZACC 21
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PFE International Inc (BVI) and Others v Industrial Development Corporation of South Africa Ltd (CCT 129/11) [2012] ZACC 21; 2013 (1) SA 1 (CC); 2013 (1) BCLR 55 (CC) (27 September 2012)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 129/11
[2012] ZACC 21
In the matter between:
PFE INTERNATIONAL INC (BVI)
......................................................
First
Applicant
PFE INTERNATIONAL INC (LIBERIA)
........................................
Second
Applicant
VAN DYCK CARPETS (PTY) LTD
...................................................
Third
Applicant
MEHDY ZARREBINI
........................................................................
Fourth
Applicant
MEHRAN ZARREBINI
........................................................................
Fifth
Applicant
and
INDUSTRIAL DEVELOPMENT CORPORATION
OF SOUTH AFRICA LIMITED
.................................................................
Respondent
Heard on : 14 August 2012
Decided on : 27 September 2012
JUDGMENT
JAFTA J (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J,
Skweyiya J and Van der Westhuizen J concurring):
Introduction
This
is an application for leave to appeal against the judgment of the
Supreme Court of Appeal in which the High Court order granted
in
favour of the applicants was overturned and the applicants were
directed to pay the costs of the appeal. At the heart of the
matter
is the determination of the legislative regime regulating the
exercise of the right of access to information held by the
state
after the commencement of legal proceedings. The applicants contend
that the Promotion of Access to Information Act
1
(PAIA) is the relevant legislation, whereas the respondent claims
that Rule 38 of the Uniform Rules of Court (Uniform Rules)
applies.
The High Court upheld the applicants’ contention
2
but the Supreme Court of Appeal reversed the order based on that
finding and held that access to the requested information may
be
sought in terms of Rule 38.
3
Constitutional and legislative framework
For a
better understanding of the applicants’ claim for access to
information and the respondent’s refusal, it is
necessary at
the outset to outline the legal basis for the claim. The right of
access to information held by the state is guaranteed
by section 32
of the Constitution. It provides:
“
(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.”
The
importance of this right has been explained by this Court in
Brümmer
v Minister for Social Development and Others.
4
In that case the Court said:
“
The
importance of this right too, in a country which is founded on values
of accountability, responsiveness and openness, cannot
be gainsaid.
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’. . . . 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 and freedom to
receive or impart information or ideas.”
5
(Footnotes omitted.)
PAIA
is the national legislation contemplated in section 32(2) of the
Constitution. In accordance with the obligation imposed
by this
provision, PAIA was enacted to give effect to the right of access to
information, regardless of whether that information
is in the hands
of a public body or a private person. Ordinarily, and according to
the principle of constitutional subsidiarity,
claims for enforcing
the right of access to information must be based on PAIA.
6
Section
11 of PAIA gives effect to the right of access to information held
by public bodies. It reads:
“
(1) A
requester must be given access to a record of a public body if—
(a) that requester complies with
all the procedural requirements in this Act relating to a request for
access to that record; and
(b) access to that record is not
refused in terms of any ground for refusal contemplated in Chapter 4
of this Part.
(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.”
However,
access to information held by bodies such as Cabinet and the courts
cannot be sought in terms of PAIA because this Act
does not apply to
those bodies. Section 12 of PAIA provides:
“
This
Act does not apply to a record—
(a) of the Cabinet and its
committees;
(b) relating to the judicial
functions of—
(i) a court referred to in
section 166 of the Constitution;
(ii) a Special Tribunal
established in terms of section 2 of the Special Investigating Units
and Special Tribunals Act, 1996 (Act
74 of 1996); or
(iii) a judicial officer of such
court or Special Tribunal;
(c) of an individual member of
Parliament or of a provincial legislature in that capacity; or
(d)
relating to a
decision referred to in paragraph (gg) of the definition of
‘administrative action’ in section 1 of the
Promotion of
Administrative Justice Act, 2000 (Act 3 of 2000), regarding the
nomination, selection or appointment of a judicial
officer or any
other person by the Judicial Service Commission in terms of any law.”
Apart
from information in possession of public bodies listed in section
12, PAIA does not apply to information sought for the
purposes of
civil or criminal proceedings, if the request for access is made
after the commencement of proceedings and access
to that information
is provided for in another law. This is the position irrespective of
whether the information is held by a
public or private body.
7
Background and legal history
The
following facts are common cause. The first and second applicants –
PFE International Inc (BVI) and PFE International
Inc (Liberia) –
are companies in the PFE group of companies which carried on various
businesses, including the manufacturing
of carpets. The fourth and
fifth applicants, Messrs Mehdy Zarrebini and Mehran Zarrebini, are
directors of the first and second
applicants. The third applicant,
Van Dyck Carpets (Pty) Ltd, is a member of the PFE group.
In September 2001, the first applicant purchased 45% of the shares
in South African Fibre Yarn Rugs Limited (SAFYR) from the
respondent, the Industrial Development Corporation of South Africa
(IDC), which held 98% of the shares in the company. As a result
of
the acquisition, the fourth and fifth applicants became directors of
SAFYR while they continued as directors of the first
applicant. The
first applicant, through Messrs Zarrebini, acquired shares in Van
Dyck Carpets.
Subsequently,
SAFYR instituted proceedings in the High Court, seeking an order
directing the applicants to transfer those shares
to it. SAFYR
asserted that Messrs Zarrebini, in their capacity as its directors,
owed it a fiduciary duty. They acquired the
shares in the applicant
in breach of that duty. These proceedings were referred to trial and
pleadings were filed. After the
close of pleadings, SAFYR requested
further particulars for trial. It sought information based on the
allegations made in the
plea filed by the applicants.
The
applicants did not furnish the particulars but, acting in terms of
PAIA, requested access to the records of the IDC. When
they received
no response, they launched the present application in the High
Court. The applicants invoked section 11 of PAIA
to enforce their
right of access to information held by the IDC, which is a public
body. The purpose for which access to records
was required appears
in the founding affidavit. In relevant part it reads:
“
[T]he
information necessary to respond to some of the particulars requested
[by SAFYR] . . . is contained in the documents requested
. . . and
the information in those documents and records is peculiarly within
the knowledge of the Respondent in the sense that
in order to respond
to the Request for Further Particulars for Trial the applicants
require access to the documents requested .
. . so as to be able to
obtain the necessary information . . . [T]he Applicants also require
access to the information and records
to prepare for trial but:
as the Respondent is not a
party to the application, it cannot be compelled to make discovery;
the identity of the particular
books and records is within the peculiar knowledge of the Respondent
and cannot be identified for
the purpose of a subpoena
duces
tecum
.”
In
opposing the relief sought, the IDC contended that since access to
the relevant records was requested for the purposes of civil
proceedings which were already pending in the High Court, the
applicants should have sought the relevant information by means
of a
subpoena
duces tecum
, issued in terms of Rule 38(1)(a)
of the Uniform Rules. Relying on section 7(1) of PAIA, the IDC
argued that PAIA does not apply.
The
High Court considered the issue that required determination to be
whether, in terms of section 7(1),
8
the application of PAIA to the present case was excluded. Having
construed the section, the High Court identified conditions
which
must be satisfied before the application of PAIA could be excluded.
It held that one of those conditions is that access
to the
information sought must be provided for by another law. The Court
examined Rule 38(1) to determine whether it met this
condition.
Based on its interpretation of the text of the Rule, the High Court
held that a subpoena may be issued in terms of
that Rule only after
a trial date has been fixed. As the date was still to be set in this
matter, it held, the rule could not
be invoked. Accordingly, the IDC
was ordered to give the applicants access to the requested
information.
On
appeal, the Supreme Court of Appeal agreed with the High Court that
all three conditions listed in section 7(1) must be met
before PAIA
is rendered inapplicable. But it differed with the High Court on
whether Rule 38(1) constitutes the “other
law” envisaged
in the section. Having determined the purpose of section 7(1), the
Supreme Court of Appeal proceeded to
interpret Rule 38(1), and held
that there was “no reason why a party should not serve a
subpoena duces tecum
at any stage of the procedure”.
9
Having
held that the purpose of section 7(1) is to exclude the application
of PAIA in matters regulated by court rules, the Supreme
Court of
Appeal held that the information sought by the applicants must be
obtained in terms of Rule 38(1), and consequently
all three
conditions of section 7(1) were met. The Supreme Court of Appeal
reversed the order issued by the High Court and replaced
it with an
order dismissing the application with costs.
In this Court
The
first issue to be decided is whether leave to appeal should be
granted. There can be no doubt that the matter raises a
constitutional
issue. It concerns the exercise of the right of
access to information, a right entrenched in the Bill of Rights.
This is the
first occasion on which this Court is asked to determine
the legislative regime applicable to a request for access to
information
required for pending court proceedings. In view of the
importance of the right of access to information, it is desirable
that
this Court should adjudicate the case. Moreover, there are
prospects of success. Two courts have reached divergent outcomes on
the same issue. In these circumstances I am satisfied that it is in
the interests of justice that leave to appeal be granted.
Merits
The
only issue raised on the merits is whether the Supreme Court of
Appeal was correct in holding that PAIA does not apply to
this case.
The answer to this question turns on the proper interpretation of
section 7(1) of PAIA and Rule 38(1), with a view
to determining
whether this Rule constitutes legislation contemplated in section
7(1)(c).
When
construing section 7(1) it must be borne in mind that the purpose of
PAIA is to give effect to the right of access to information.
On the
contrary, section 7 excludes the application of PAIA. A restrictive
interpretation of the section is warranted so as to
limit the
exclusion to circumstances contemplated in the section only. A
restrictive meaning of section 7(1) will thus ensure
greater
protection of the right.
Section 7(1) provides:
“
This
Act does not apply to a record of a public body or a private body if—
(a) that record is requested for
the purpose of criminal or civil proceedings;
(b) so requested after the
commencement of such criminal or civil proceedings, as the case may
be; and
(c) the production of or access
to that record for the purpose referred to in paragraph (a) is
provided for in any other law.”
It is
plain from its language that the section lays down three conditions
which must be met if the application of PAIA is to be
denied. First,
access to information must be sought for the purpose of civil or
criminal proceedings. Second, the request must
be made after the
commencement of the proceedings. And third, access to the record or
information must be provided for in another
law.
In
determining whether each condition has been satisfied, it is
important to keep in mind the purpose served by the exclusion.
Regarding this, the Supreme Court of Appeal rightly said:
“
The
purpose of s 7 is to prevent PAIA from having any impact on the law
relating to discovery or compulsion of evidence in civil
and criminal
proceedings. In the event that ‘the production of or access to’
the record ‘is provided for in any
other law’ then the
exemption takes effect. The Legislature has framed s 7 in terms
intended to convey that requests for
access to records made for the
purpose of litigation, and after litigation has commenced, should be
regulated by the Rules of Court
governing such access in the course
of litigation.”
10
(Footnote omitted.)
It is
common cause that the first two conditions have been established
here. The dispute relates to condition (c) only. The question
to be
determined is whether Rule 38(1) constitutes “law”
envisaged in section 7(1)(c). The determination of this
narrow issue
depends on the interpretation given to Rule 38(1). As the subrule is
crucial to this enquiry, I consider it necessary
to quote it in
full. It reads:
“
(a)
Any party, desiring the attendance of any person to give evidence at
a trial, may as of right, without any prior proceeding
whatsoever,
sue out from the office of the registrar one or more subpoenas for
that purpose, each of which subpoenas shall contain
the names of not
more than four persons, and service thereof upon any person therein
named shall be effected by the sheriff in
the manner prescribed by
rule 4, and the process for subpoenaing such witnesses shall be, as
nearly as may be, in accordance with
Form 16 in the First Schedule.
If any witness has in his
possession or control any deed, instrument, writing or thing which
the party requiring his attendance
desires to be produced in
evidence, the subpoena shall specify such document or thing and
require him to produce it to the court
at the trial.
(b) Any witness who has been
required to produce any deed, document, writing or tape recording at
the trial shall hand it over to
the registrar as soon as possible,
unless the witness claims that the deed, document, writing or tape
recording is privileged.
Thereafter the parties may inspect such
deed, document, writing or tape recording and make copies or
transcripts thereof, after
which the witness is entitled to its
return.”
If
read literally, the text of the Rule suggests that the process of
issuing a
subpoena duces tecum
can be employed only in
circumstances where attendance of a witness is sought for the
purpose of testifying at a trial. And if
such “witness has in
his possession or control any deed, instrument, writing or thing
which the party requiring his attendance
desires to be produced in
evidence, the subpoena shall specify such document or thing and
require him to produce it to the court
at the trial.” The
subrule goes on to state that any witness who is required to produce
tangible evidence of the types
listed above, must hand it over to
the registrar as soon as possible, unless the witness claims that
the evidence in question
is privileged. Once it is given to the
registrar the parties are entitled to inspect it and make copies.
Invoking
the literal meaning of the subrule, counsel for the applicants
argued that Rule 38(1) does not amount to law contemplated
in
section 7(1)(c) because it authorises the issuing of a subpoena to
secure the attendance of a witness at a trial, for the
purpose of
producing evidence. It was submitted that when the request for
access was made, the applicants did not know whether
the information
sought would constitute evidence at the trial and they could not
tell whether it would be necessary for them
to call the IDC
officials as witnesses at the trial. In any event, counsel
submitted, a trial date was not fixed at the relevant
time.
If
the literal approach to construing Rule 38(1) was correct, the
argument advanced by the applicants would have merit. But the
Rule
must be generously and purposively interpreted so as to give the
holders of the right the fullest protection they need.
In
addition, section 39(2) of the Constitution plays an important role
in the interpretation of the Rule.
11
In peremptory terms, this section imposes an obligation on all
courts to promote “the spirit, purport and the objects of
the
Bill of Rights”, when interpreting legislation. In
Phumelela
Gaming and Leisure Ltd v Gründlingh and Others
12
this Court observed:
“
A
court is required to promote the spirit, purport and objects of the
Bill of Rights when ‘interpreting any legislation, and
when
developing the common law or customary law’. In this no court
has a discretion. The duty applies to the interpretation
of all
legislation and whenever a court embarks on the exercise of
developing the common law or customary law. The initial question
is
not whether interpreting legislation through the prism of the Bill of
Rights will bring about a different result. A court is
simply obliged
to deal with the legislation it has to interpret in a manner that
promotes the spirit, purport and objects of the
Bill of Rights. The
same applies to the development of the common law or customary law.”
13
(Footnotes omitted.)
The
Supreme Court of Appeal rejected the narrow, literal reading of the
Rule and opted for a construction that promotes wider
access to
information. This construction is also in line with the purpose for
the exclusion of PAIA in cases where access to
information is
regulated by the rules of court. Even before the adoption of the
Constitution in 1994, our courts construed the
rules in a manner
that advanced the process of litigation if the literal reading would
hamper its progress.
In
Trust Sentrum (Kaapstad) (Edms) Bpk and Another v Zevenberg and
Another
,
14
the Cape High Court rejected the argument that it was not competent
for a party to use a
subpoena duces tecum
if the person to
whom it applies was not intended to be called as a witness at a
trial. The Court said:
“
I am,
however, far from satisfied that the witness referred to in Rule
38(1
)(b)
must of necessity be obliged to testify under oath at the trial, for
the following reasons, viz (i) however
bona
fide
a party may be in issuing a subpoena
duces
tecum
on some person to produce a certain document in his possession at the
trial, ie intending to call such person as a witness, it
would be
idle to have him go into the witness-box if both parties were
satisfied with their inspection of the document when handed
to the
Registrar, merely because he had to be a witness; (ii) the Cape
practice did not require the person under a subpoena
duces
tecum
to produce whatever documents he was called on to bring to Court to
produce them under oath in the witness-box . . . and Rule 38(1)
(b)
was beyond doubt introduced into the rules to make the Cape practice
applicable in all the Divisions of the Supreme Court, and
indeed to
streamline that procedure by requiring production (also not under
oath) prior to the trial. It is unnecessary for me
to hold in this
matter that the word ‘witness’ should read ‘person’,
but it seems to me that fully to achieve
what the draftsman of Rule
38(1)
(b)
so sensibly set out to do the word ‘person’ should be
substituted for the word ‘witness’.”
15
The
statement quoted above demonstrates some of the anomalies brought
about by the literal construction of Rule 38. It is difficult
to
imagine how a party that is still to have access to a document can
positively tell that a document would definitely be tendered
as
evidence at the trial. It seems to me that access must precede the
formulation of an opinion regarding whether a particular
document
would have any evidential value at the trial. Limiting the scope of
the Rule to documents that are to be tendered as
evidence and
persons who are going to testify results in an absurdity.
Furthermore, the literal construction would also lead
to the
application of PAIA and Rule 38 to the same case, depending on the
stage of the proceedings. PAIA would apply before the
trial date is
set and Rule 38 afterwards.
Since
the rules are made for courts to facilitate the adjudication of
cases, the superior courts enjoy the power to regulate their
processes, taking into account the interests of justice.
16
It is this power that makes every superior court the master of its
own process. It enables a superior court to lay down a process
to be
followed in particular cases, even if that process deviates from
what its rules prescribe. Consistent with that power,
this Court may
in the interests of justice depart from its own rules.
It is
the flexibility of the interpretation and application of the rules
of court that affords the applicants access to the same
documents
they sought under PAIA. In some cases a mechanical application of a
particular rule may lead to an injustice. For example,
the Supreme
Court of Appeal issued directions dated 28 February 2011 in terms of
which parties are given permission to deliver
applications for leave
to appeal to the Registrar of that Court even if some documents
required by its Rules are outstanding.
17
These directions also excuse parties from lodging formal
applications for condonation for not complying with section 21(2) of
the Supreme Court Act, regarding the period within which an
application for leave should be submitted to the Court. It is
therefore
necessary for courts to have the power to adjust the
application of rules to avoid injustices. Moreover, the court rules
are
tailored to facilitate introduction and management of cases
under the courts’ supervision.
18
I agree with the Supreme Court of Appeal that allowing PAIA to apply
in cases such as this would be disruptive to court proceedings.
For
all these reasons, I am persuaded that the Supreme Court of Appeal
held correctly that Rule 38(1) constitutes a law contemplated
in
section 7(1)(c) of PAIA and that as a result PAIA does not apply to
this case.
Costs
Although
this case raises a constitutional issue, it is essentially a
commercial matter. The claim in the trial which is still
to come
before the High Court relates to the transfer of company shares.
Significantly, the present dispute is not about the
denial of the
right of access to information. As construed by the Supreme Court of
Appeal, Rule 38(1) would afford the applicants
access to the same
documents they sought under PAIA. When asked why they pursued an
appeal instead of seeking access to the relevant
information in
terms of Rule 38, their counsel informed this Court that they
considered that the Supreme Court of Appeal was
wrong. In these
circumstances I can think of no reason why the applicants should not
bear the costs.
Order
The
following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed with costs, including
the costs of two counsel.
For
the Applicants:
Advocate
D Shaw QC, Advocate M Harcourt SC, Advocate N Ferreira instructed by
Barkers Attorneys.
For
the Respondent: Advocate P Olsen SC, Advocate H Gani instructed by
Norton Rose South Africa
(incorporated
as Deneys Reitz Inc).
1
2
of 2000.
2
PFE
International Inc (BVI) and Others v Industrial Development
Corporation of South Africa
Ltd
2011 (4) SA 24
(KZD).
3
Industrial
Development Corporation of South Africa Ltd v PFE International Inc
(BVI) and Others
2012 (2) SA 269
(SCA) (
IDC
).
4
[2009]
ZACC 21
;
2009 (6) SA 323
(CC);
2009 (11) BCLR 1075
(CC).
5
Id
at paras 62-3.
6
Mazibuko
and Others v City of Johannesburg and Others
[2009] ZACC 28
;
2010 (4) SA 1
(CC);
2010 (3) BCLR 239
(CC) at para
73. See also
MEC
for Education, KwaZulu-Natal, and Others v Pillay
[2007]
ZACC 21
;
2008
(1) SA 474
(CC);
2008
(2) BCLR 99
(CC) at para 40;
South
African National Defence Union v Minister of Defence and Others
[2007]
ZACC 10;
2007
(5) SA 400
(CC);
2007
(8) BCLR 863
(CC) at para 52; and
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004]
ZACC 15
;
2004
(4) SA 490
(CC);
2004
(7) BCLR 687
(CC) at paras 22-6.
7
See
section 7(1) quoted in [19].
8
For
the full text of this provision see [19].
9
IDC
above n 3 at para 13.
10
IDC
above n 3 at para 9.
11
Section
39(2) provides:
“
When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.”
12
[2006]
ZACC 6; 2007 (6) SA 350 (CC); 2006 (8) BCLR 883 (CC).
13
Id
at para 27.
14
1989
(1) SA 145
(C).
15
Id
at 149F-J. See also section 30(1) of the Supreme Court Act 59 of
1959 (Supreme Court Act) which provides that:
“
A party to civil proceedings
before the court of any division in which the attendance of
witnesses or the production of any document
or thing is required may
procure the attendance of any witness or the production of any
document or thing in the manner provided
for in the rules of court.”
16
Section
173 of the Constitution provides:
“
The Constitutional Court,
Supreme Court of Appeal and High Courts have the inherent power to
protect and regulate their own process,
and to develop the common
law, taking into account the interests of justice.”
17
Practice
Directions: Supreme Court of Appeal
2011 (2) SA 523
(SCA) at paras
1-2, which in relevant part provide:
“
Because of problems
experienced in obtaining orders from registrars in High Courts, the
registrar will, for the time being, accept
applications for leave to
appeal or notices of appeal without the certified copy of the order
as required by rule 6(2)
(c)
or 7(3)
(c).
Instead, a letter from the registrar of the court certifying the
date of the order will be sufficient.
If an application for leave to appeal is filed within
21 court days, instead of within 21 ordinary days as required by s
21(2)
of the Supreme Court Act 59 of 1959, it will, for the time
being, not be necessary for the applicant to apply formally for
condonation
for the failure to comply with that provision.”
18
Bladen
and Another v Weston and Another
1967 (4) SA 429
(C) at 431.