Judgment : 15 April 2005

Southwood J

This is an application in terms of sections 78 and 82 of the Promotion of Access to Information Act, 2 of 2000 ("the Act") for an order directing the respondent to produce and furnish to the applicant copies of records pertaining to the subsystems to be installed on Corvettes ordered by the Department of Defence for use by the South African Navy.

[2] The applicant is a company which has its principal place of business at Kenilworth, Cape. The applicant carries on business as a designer and manufacturer of software and computer systems for the defence industry. The respondent is the Minister of Defence who is cited in his official capacity.

[3] The applicant tendered for the supply of some of the sub- systems and contends that it was wrongfully excluded as a tenderer for the supply of these sub-systems through significant deviation from lawful tender procedures on the part of the state's representative unfair administrative action and unlawful business practices. Accordingly, on 12 August 2002, the applicant instituted proceedings for damages against the respondent, the Armaments Corporation of South Africa Limited '("Armscor") and African Defence Systems (Pty) Ltd ("ADS").

[4] On 15 January 2002 the applicant requested the Department of Defence in terms of the relevant provisions of the Act to furnish to the applicant information which the applicant categorised under 54 headings. The Department of Defence furnished some of the information requested but refused to furnish the rest. The Department of Defence also refused the applicant's internal appeal in terms of section 75 of the Act. The applicant therefore launched this application.

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I have given serious consideration to making a qualified order in respect of some of the items, in effect giving the respondent another opportunity to consider the question of severance. This was suggested a possibility by the applicant's counsel and echoed by the respondent's counsel who referred to the fact that the Act /is new and there is not much guidance in the few judgments that have been given by the courts. I have decided not to rnake such an order.

As already mentioned the internal appeal referred to the question of severability. This was rejected without reasons by the Relevant Authority. This application also addressed the issue.

Once again the respondent did not deal with it. The Department of Defence clearly has a legal department and free access to legal advice from private practitioners. On analysis the structure of the Act is logical and easy to follow.

There is no dispute that the various exclusions must be given their ordinary meaning. It is quite clear that in every case where access to a record may be refused the question of severance must be considered. The Act spells out what the person refusing access is obliged to do. Furthermore the respondent's affidavits do not suggest strong grounds for refusing access to parts of the documents. And finally, giving the respondent a further opportunity to consider severability would cause another delay which is contrary to the object of the Act to enable persons to obtain access to records of public bodies as swiftly, inexpensively and effortlessly as possible. In these circumstances there is no justification for giving the Department of Defence another opportunity to consider this issue.

Costs

The applicant seeks costs of the application including the costs of two counsel. Both parties were represented by two counsel. The employment of two counsel was clearly justified by the complexity and importance of the issues and by the fact that the Act has not been the subject of many reported judgments.

It was necessary for the applicant to come to court to get appropriate relief - the respondent undertook to furnish some items but failed to do so and only conceded at the hearing that he no longer contested the grant of relief ill respect of other items - but persisted in his objection to the grant of relief in respect of the remaining items.

The applicant has achieved substantial success in the application and is clearly entitled to the costs of the application, including the costs consequent upon the employment of two counsel.

Order

The following order is made: *1

(1) The decisions refusing access to the items listed in Annexure RMY7 to the applicant's founding affidavit as 9, 10, 11, 12, 13, 14, 15, 17, 14, 19, 20, 21, 22, 23, 24, 25, 26, 31, 33, 34, 35, 36, 37, 38, 39, 40, 42, 44, 48 and 52 are set aside.

(2) The respondent is directed to produce to the applicant within two months of this order copies of the records referred to in Annexure RMY7 to the applicant's founding affidavit under items '9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24 (including the covering letter which accompanied the investigation team's draft report to the Department of Defence), 25 (including notices by the Public Protector requiring attendance at the public phase of the joint investigation and notices from the Minister of Defence for authorisation in terms of the Defence Act to testify at the public phase of the joint investigation), 26, 31 (only the briefing papers prepared for the meeting (or briefing session) held by the PCB on 19 August 1999), 33, 34, 35, 34, 37, 38, 39, 40, 42 (the long version only), 44, 48 and 52.

(3) The respondent is ordered to pay the costs of this application, including the costs consequent upon the employment of two counsel.

B.R. Southwood
Judge of the High Court

2005-04-15

Rollover Beethoven.