South African History Archive

January 2003

This case, decided by Judge Willie Hartzenberg in the Pretoria High Court on 25 November 2002, is notable as the first decided judgment on the Promotion of Access to Information Act (PAIA).  It is also notable and has attracted a great deal of public attention because of its subject-matter: South Africa’s controversy-dogged 1999 arms deal.¹  Opponents and sceptics of the arms deal have welcomed the decision as a victory.  ‘The court judgement’, according to Noseweek, ‘is a dramatic demonstration of what the Constitution means to citizens faced with oppressive government action’.²  The losing side -- the Auditor-General, Public Protector and National Prosecutor -- has been somewhat less enthusiastic about the judgment and has entered an application for leave to appeal against it.³

Putting aside the considerable political interest of the decision, what are its legal implications?  Principally, and not unexpectedly for the first PAIA decision to be made, the case has more important things to say about procedure than it does about substance.  But, before getting to that conclusion a brief rehearsal of the facts is needed. 

The arms deal and its aftermath

Accusations of kickbacks, conflicts of interest and other shenanigans attended the ‘Strategic Defence Package’ (SDP) almost from the time that is was first announced.  In November 2000, the Auditor-General, the Public Protector and the National Director of Public Prosecutions were, at the suggestion of Parliament's Standing Committee on Public Accounts, appointed as a joint commission to investigate the propriety of the entire SDP. They conducted the investigation and reported to Parliament in November 2001.⁴  Some of the allegations that were investigated were made by C^²I^² Systems (Pty) Ltd, a developer and supplier of software and computer systems for defence applications. C^²I^² had tendered unsuccessfully to supply components of naval computer systems as part of the procurement phase of the SDP.  In essence, C^²I^²’s complaint was that, for various technical reasons, its bid was superior and should have been successful and that it had been the victim of unfair treatment.  The Joint Report ended up concluding that while there had been ‘irregularities and improprieties’ in the conduct of certain officials, there was no evidence of improper and unlawful conduct ascribable to the government.⁵  Some, but not all, of C^²I^²’s allegations were found to be justified, but the Joint Report did not recommend undoing the award of the naval computer system subcontract.⁶

The request

The Access to Information Act request that is the subject of the judgment was made on 20 November 2001 by C^²I^² to the Auditor-General.  The company requested the following records:

All draft versions of the Joint Report;
All ‘audit files’ concerning this matter from 1 January 1998 to 20 November 2001;
All correspondence concerning this matter between the Auditor General's office and the Department of Defence from 1 January 1998 to 20 November 2001;
All correspondence concerning this matter between the Auditor General's office and the Public Protector's office from 1 January 1998 to 20 November 2001.⁷

The request was undoubtedly a ‘fishing expedition’, aimed at bringing to the surface documentation that would assist in the civil claim that Richard Young, MD of C^²I^² had announced his intention of bringing.⁸  But even if this was the purpose of the request, it is, of course, legally irrelevant.⁹  Section 7 of the Act only prevents use of the request mechanism for purposes of obtaining documentation that could be obtained by means of discovery proceedings in civil and criminal proceedings that have already commenced.  This case illustrates the utility of the PAIA for prospective litigants.  There is nothing to prevent the Act being used to obtain information for purposes of litigation against the public sector that is merely contemplated but that has not yet begun.¹⁰  As Hartzenberg J ultimately held,

 [b]efore a litigant has instituted proceedings and even if he wants to institute proceedings he is . . . not prohibited from invoking the provisions of the Act to get access.  One of the objects of the Act must be that citizens can get information regarding wrongs perpetrated against them to enable them to hold the wrongdoers accountable in a court of law.  To interpret the Act that everybody who contemplates legal action is prohibited from requesting access will be to render the Act nugatory for the very purpose for which it is promulgated.¹¹ 

The grounds of refusal

The Auditor-General informed the applicant on 18 January 2002 that the request had been refused.  Three grounds were provided for the refusal.  The first can be referred to as the ‘volume’ ground.  The request allegedly covered so many records that the work entailed in processing it would ‘unreasonably divert our resources from our core business’.¹²  The second was the ‘confidentiality’ ground.  The documents, according to the Auditor-General, ‘contain information that was supplied in strict confidence by various third parties’.  Moreover, the ‘need to obtain information from various sources to enable us to carry out our function in the public interest may be jeopardised by our disclosure of information supplied in confidence’.¹³  The third ground was the ‘defence secrets’ ground.  ‘The documents’, so the explanation went, ‘contain detailed information relating, inter alia, to the defence and security needs of the Republic and . . . their disclosure . . . may prejudice the position of the Republic in that regard’.¹⁴ The company responded by launching a court application for access to the records a month later. 

 The ‘volume’ ground

Ultimately, the respondents’ case turns (and fails) on its first ground of refusal -- the diversion of resources allegedly entailed by the need to examine and prepare for disclosure or refusal each of what turned out to be 135 000 pages of documentation.  In the circumstances, little weight can be put on the second and third ground which are no more than blanket refusals, undercut by the logic of the Auditor-General’s reliance on s 45.  It is of course completely implausible that each and every page of the 135 000 pages contains information covered by either s 37 or s 41.  Even if there was sensitive information throughout the body of records, the Auditor-General was required by s 28 to consider severing (ie, masking) the sensitive information and disclosing the remainder.  But, by admitting that he did not have the resources to examine the documents for purposes of disclosure under the Act, the Auditor-General was in effect admitting that he had not applied his mind to the other two grounds of refusal or to the possibility of severance.

So the Auditor-General’s case had to stand or fall on the s 45 ground.  In this regard, there had been some important developments since the commencement of litigation in February 2002.  In its replying affidavit, the Auditor General noted that he possessed around 135 000 copied pages of documents of many different types.  The investigation had covered as many as 700 000 pages and included documents that the Auditor General had examined at other government departments and that remained in their possession.  The Auditor General argued that ‘the very broadness of the request renders it practically impossible for me to have complied with the request’.¹⁵  The Auditor General then went through the different categories of documents and noted which section of the Act applied.  In its written reply to this affidavit, C^²I^² Systems for the first time limited its request considerably.  It dropped the request for the correspondence and reduced the records requested to the drafts of the Joint Report, and those records that related to the ‘de-selection’ of C^²I^² Systems, the selection of the successful contractor, and to the alleged conflict of interest of a particular government official.  The respondents objected to this reduction of the scope of the original request, but in terms that were rapidly dismissed by Judge Hartzenberg, 

Mr Maritz for the first respondent in an ingenious argument asks for the dismissal of the application on the following basis : He says that when the first respondent informed the applicant that it was entitled in terms of section 45(b) of the act to refuse the request (the volume objection), the applicant should have brought a new request in terms of section 18 for access to the reduced record.

I do not agree. Section 81(3) if the Act provides that there is an onus on the party claiming that the refusal of a request for access complies with the provisions of the Act. Furthermore, in terms of Section 9 some of the objects of the Act are to give effect to the constitutional right of access to any information held by the State, and to establish voluntary and mandatory mechanisms which enables persons to obtain access to records of public and private bodies as swiftly, inexpensively and effortlessly as reasonably possible. Moreover, section 2(1) of the Act provides that when interpreting a provision of the Act the court must prefer a reasonable interpretation consistent with the objects of the Act over an alternative interpretation inconsistent therewith. . . . The procedure which Mr Maritz wants the court to sanction is slow, expensive and cumbersome. Moreover the first respondent knows very well what documents the applicant require, does not deny that it is in possession thereof but proffers a reason why it is not necessary for it to go and look at them. A new section 18 request will not give any new information to the first respondent to alleviate the obligation imposed upon it by statute.¹⁶

In other words, the respondents’ position was that, once informed about the volume of records being requested, the applicants should have withdrawn their request and made a new and more circumscribed request by filling in an s 18 form and starting the entire process again.  Hartzenburg J’s instincts are correct in rejecting this argument, but he misses the best reason for holding this.  Section 19 of the Act puts an onus on public bodies to assist requesters with complying with the formalities of an AIA request.  The idea behind the provision is that a public body faced with a request that does not comply with the technicalities of the Act or that does not identify the record sought with sufficient precision cannot simply throw up its hands and refuse to deal with it on the grounds of s 45.  This must mean that there is a duty to assist a requester to tailor a request that is too voluminous to something more manageable.¹⁷   

The result of Hartzenberg J’s holding was that C^²I^²’s  original request had been legitimately tailored in the course of the proceedings to what the parties referred to as the ‘reduced record’.¹⁸  This effectively removed the sting from the Auditor-General’s s 45 ground of refusal. It also meant the logically inevitable defeat of the refusals on the other grounds of confidentiality and defence secrets. The Act requires bodies to disclose records unless information in those records is covered by one or more of the grounds of refusal listed in the Act.  If there is information in a record that is not to be disclosed, the holding body is required to consider whether the sensitive portions can be practicably severed from the remainder, and to disclose the remainder.  This can only mean that each record must be considered separately, and that a general or blanket refusal to disclose an entire body of records because of sensitive information contained in only some of those records is not permitted by the Act.¹⁹  However onerous, the requirements of the Act had to be considered in respect of each of the records that had been requested:

The approach of the respondents, even in respect of the reduced, record makes it impossible to evaluate if the respondents justifiably claim privilege in respect of documents and if portions thereof are not to be given access to. In the result I agree with . . . [counsel for the applicant] that the only objection which has in fact been raised is the volume objection. If regard is had to the media coverage which this matter enjoyed and the prominence of the members of the joint commission this is certainly a case where maximum access is necessary to dispel any suspicion of a cover-up. It is not good enough to hide behind generalities. If it means that the first respondent has to employ extra staff it must be done.²⁰

Draft reports -- the application of s 44

The holding quoted immediately above could have disposed of the case.  However, the court went on to deal with arguments that had been raised in the course of the proceedings about the application of s 44.  The s 44 objection was along the lines that the drafts of the Joint Report sought as part of the ‘reduced request’ were protected by s 44(1)(a) (opinions, advice, consultations preliminary to the making of a decision by a public body), s 44(1)(b) (inhibiting candid internal discussion by public bodies) and s 44(2)(c) (drafts of officials of public bodies).  The objection was rapidly disposed of:

The applicant argues that if he was de-selected as supplier due to political pressure or some impropriety a comparison between draft reports and the final one may indicate that is what happened. Conversely if there was no impropriety the very same comparison will prove that. That raises the question what the object of section 44 is. It was submitted that it is not to hamper a public body in its administration and formulation of policy and to guard against the supply of confidential information prematurely. Senior and junior officials must be able to talk freely about the development of policy matters and their interaction at a stage before finalisation should not at that stage be accessible. Opportunistic entrepreneurs should not be allowed to obtain information along this route which give them an unfair advantage over their rivals. In my view it does not deal with historic situations. The joint report has been finalised and accepted by Parliament. At this stage the draft reports are only of historic importance and cannot obstruct the joint commission in its work. In my view they are no longer protected by the provisions of section 44.²¹

Besides the fact that the s 44 point need not have been considered at all (the logical consequence of the earlier observation that ‘the only objection which has in fact been raised is the volume objection’), this holding is a little too sweeping to be helpful for cases other than this one.  The purpose of s 44, viewed generally, is to promote candid internal discussion and deliberation of issues by public bodies.  Public officials should not have to work in a fishbowl, censoring their preliminary and possibly ill-conceived first thoughts on a question because of the possibility of future disclosure.  This justification which lies behind s 44(1)(a)’s ground for withholding what can be called ‘pre-decisional’ material certainly applies with greater force to disclosure of information about opinions and advice before a final decision is made or final report published.  But that is not to say that the justification will fall away in all cases once the decision has been made.  The trouble with Hartzenberg J’s interpretation is that it makes the ground simply non-applicable once a decision has been finalised.  Certainly, s 44(1)(b) has no application in this case.  The ground protects the ‘thinking process’ of a public body from the inhibiting effect of premature disclosure.  The disclosure of such records after a decision has been taken cannot reasonably be expected to frustrate the deliberative process of a public body since it will occur after the deliberation has taken place.²²

As for s 44(2)(c) (drafts of officials), the interpretation that s 44 as a whole ‘does not deal with historic situations’ is not accurate.  The purpose of the sub-ground and the reason why is confined to drafts of officials is to protect individual interests, as opposed to the interests of the public body as a whole (the purpose of s 44(1)(a) and (b)).  Individuals should be free to propose drafts and make recommendations to their superiors without the fear that the draft will ultimately be disclosed and that they will be shown to be out of step with the final policy or decision made by their department.²³  The ground can therefore apply with equal force both before and after the decision has been finalised.  In any event, it seems clear that the drafts referred to in the C^²I^² request are not drafts proposed by individual members of the bodies engaged in the investigation, but the official drafts of the bodies themselves. 

Procedure and substance

Ultimately, putting aside the skirmishing about the volume of records requested, the substantive objections of the Auditor-General to disclosure of the material are that some of it is held under obligations and expectations of confidentiality, and that some of it contains defence secrets.²⁴  But because of use of the s 45 ground, the decision does not really confront those substantive objections.  Nevertheless, the court’s order is extremely interesting and innovative.  In addition to being ordered to provide records relevant to the allegations of influence in the selection of tender recipients, the respondents were ordered to provide within forty days all draft copies of the Joint Report, all records to which it had no objection, and a list of the records to which it did object with a description of the document or record; the basis for the objection; and an indication if the objection related to the whole document or only to portions thereof and if so, to which portion.  The court’s order for the respondents to come forward with a list of documents is similar to the standard Vaughn index in USA FOIA practice.²⁵  This case’s greatest legacy may therefore be one of procedure.  While the procedure remains as yet untested, it may be possible in terms of South African civil procedure to obtain such a ‘C^²I^² Systems list’ without resort to a court order.

South African History Archive

January 2003