First, Second and Third Respondents; Heads of Argument

1.      During the years 1998 to 2001 the acquisition of the Strategic Defence Package (“SDP”), the cost of which was initially R30,3 billion, which has since escalated, was highly topical. The furore has largely dissipated.

2.      During or about August 1998 the Cabinet approved the SDP. Thereafter a number of doubts, criticisms and allegations of impropriety were raised by a number of interested parties, notably in Parliament. The First Respondent performed a high level review, which found its way to the Standing Committee on Public Accounts. The entire process which followed thereon was fraught with political intrigues and developments. Disquiet persisted, and it was obvious that the entire matter called for a proper investigation.

3.      During November 2000 the First, Second and Third Respondents were appointed as a joint commission to investigate the propriety of the entire SDP. This in itself did not occur without intense public debate, caused mainly by the exclusions of the erstwhile Heath investigation unit. Nevertheless, the First, Second and Third Respondents undertook their commission with fortitude, and eventually presented their joint report to Parliament on 14 November 2001. The report was accepted and approved by Parliament.

4.      

4.1     A material part of the SDP was the acquisition of four Corvettes for the South African Navy. The Applicant’s interest lay in the combat suites for the Corvettes as a contender for the contract for the supply of the computer-based information management system. The Applicant had a second interest, having been a contender for the supply of the computer-based system management system whose main function is to monitor the health status of the various systems comprising the combat suite.

4.2     Although the cost of the combat suites represents roughly 2% of the overall SDP, the tender  amounts of the Applicant remain very substantial. In respect of the information management system it was some R42 million and in respect of the system management system some R30 million.

4.3     Both the tenders of the Applicant failed. On 12 August 2002 the Applicant issued summons in this Honourable Court against the Minister of Defence, Armscor and ADS in which substantial amounts in damages are claimed, arising from the failure of the two aforesaid tenders. Allegations of gross misconduct and corruption in the assessment and award of the tenders are made, but these do not call for consideration or analysis in the present matter.

4.4     Nevertheless, the combined summons is a very comprehensive document. It is evident that the Applicant was able to formulate its claims with the required particularity without access to the documents, the provision of which in terms of the Promotion to Information Act, No. 2 of 2000 (“the PAIA”) underlies the present application.  Proof of the relevant allegations in the action instituted by the Applicant is a different matter. To this end the Applicant may very well require access to documents, copies of which served before the First, Second and Third Respondents in their investigation. The relevance of these matters will appear below.

5.      The Applicant made representations to the First, Second and Third Respondents, and also took part in the public phase of the investigation. The entire Chapter 11 (pp 290 - 346) of the Joint Report deals with the allegations and complaints by the Applicant.

6.      On 28 November 2001 the Applicant applied to the First Respondent in terms of the provisions of Section 11 of the PAIA for the following information and documentation :

1. All draft versions of the final report of the joint investigation into the Strategic Defence Packages;
2. All audit files concerning this matter from 1 January 1998 up to the date of the request;
3. All correspondence concerning this matter between the Auditor-General’s office and the Department of Defence from 1 January 1998 up to then;
4. All correspondence concerning this matter between the Auditor-General’s office and the Public Protector’s office from 1 January 1998 up to then.

7.      In his letter dated 18 January 2002 the First Respondent refused the request and provided the following three reasons :

“(i)    The number of documents requested is too vast. We do not have the resources or capacity to go through the contents of each and every document and evaluate the information contained thereon. The work involved in carefully going through the vast quantity of documentation and processing your request would substantially and unreasonably divert our resources from our core business. Request is therefore refused in terms of section 45(b) of the Act.

(ii)   The documents contain information that was supplied in strict confidence by various third parties. The bulk of the information and documentation was supplied after their confidentiality was guaranteed. We are unable to breach our undertaking. Further, the nature of our work and 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 suppled in confidence. The request is therefore refused in terms of section 37 of the Act.

(iii)  The documents contain detailed information relating, inter alia, to the defence and security needs of the Republic and, apart from having been supplied in confidence, their disclosure may also prejudice the position of the Republic in that regard. The request is therefore refused in terms of section 41(a) of the Act.”

8.      In prayer 1 of the Notice of Motion access is sought to substantially (sic) the same documents that are reflected in the application of 28 November 2001.

9.      

9.1     It is submitted that the First Respondent’s letter of 18 January 2002 complies in all respects with the provisions of Section 25(3) of the PAIA.

9.2     Chapter 2 of Part 4 of the PAIA deals with applications to Court. Section 81 provides that the procedure is civil and casts a burden upon the First Respondent to prove that his refusal of the request for access complies with the provisions of the PAIA. It is submitted that this would be the usual burden of proof on a preponderance of probability.

9.3     Section 82 of the PAIA provides as follows :

        “The Court hearing an application may grant any order that is just and equitable, including orders    

1. confirming, amending or setting aside the decision which is the subject of the application concerned;         
2. requiring from the information officer or relevant authority of a public body or the head of a private body to take such action or to refrain from taking such action as the Court considers necessary within a period mentioned in the order;        
3. granting an interdict, interim or specific relief, a declaratory order or compensation; or
4. as to costs.”

10.     

10.1    Before turning to the grounds of refusal advanced by the First Respondent there are two preliminary matters which have to be addressed.

10.2    In terms of prayer 1.1 of the Notice of Motion the Applicant requires access to “all draft versions of the report submitted to Parliament...”.

10.3    Section 44(2)(c) of the PAIA provides that access to a record may be refused if the record contains a preliminary, working or other draft of an official of the public body in question. It is conceded that the First Respondent did not refer directly to this provision in his letter of 18 January 2002, but it is submitted that there could be no objection to the First Respondent having amplified his reasons, as he has done in his replying papers. The object of the provision is obviously not to inhibit public bodies in the preparation of official documents. Upon a proper construction of this section it would appear that the discretion is aimed at a refusal of the entire record on the ground that it contains draft documents. It appears that the intention of the legislature is that draft documents are not subject to disclosure per se, but that their presence may give rise to a refusal to disclose the record as a whole. In a proper case draft documents could notionally be excised from a record, which could render the disclosure of the record  unobjectionable. However, that eventuality does not arise in the present matter.

10.4    In the alternative, it is submitted that there can be no objection to the First Respondent having amplified his reasons for refusal of the request, as he has done in his answering affidavit. In this regard there is nothing to suggest that the First Respondent has exercised his discretion in an unlawful manner, or that he has fallen foul of the provisions of the PAIA. It is therefore submitted that prayer 1.1 of the Notice of Motion cannot be granted.

11.     

11.1    The second preliminary issue involves the fact that the First, Second and Third Respondents admittedly undertook an investigation into executive acts by the State and its bodies which had already taken place.

See : Para 6.2, p 57

11.2    In his answering affidavit the First Respondent sets out that all documentation in the possession and control of the respective bodies of State remained so during the entire investigation conducted by the First, Second and Third Respondents, and that they were allowed access thereto under strict conditions of control. They never took custody of any of the documents in questions, but they were allowed to take copies.

 See : Para 6.3, p 57

11.3    It is submitted that upon any interpretation of the PAIA no access is provided for to copies of documents held by one official body, where the original documents are held by one or more other public bodies. The entire scheme of the PAIA is directed at original documents held or originated by a public body.  

11.4    The mere fact that one official body has taken copies of documents in possession of another official body does not render the copy subject to disclosure or access in terms of the PAIA. Of necessity it would remain incumbent upon the requester to address any request for access in terms of the PAIA to the official body that holds the document(s) in question. Any other interpretation would render the mandatory and discretionary powers of refusal to information  or documents in terms of the PAIA virtually ineffectual and incapable of implementation.

The First Reason Advanced By the First Respondent :

12.     

12.1    This reason is founded in the provisions of Section 45(b) of the PAIA.

12.2    The power to refuse is discretionary, and is so categorised by the words “may refuse”.

12.3    As to the exercise of a judicial discretion, the following was stated in Ontvanger van Inkomste, Loebows en ‘n Ander v De Meyer N.O. 1996 (4) SA 13 (SCA) at 28B :

“Ons het hier te make met die uitoefening van ‘n regterlike diskresie van die tipe waar inmenging slegs geregverdig is as bevind kan word dat

‘the Court a quo has exercised its discretion capriciously or upon a wrong principle, that it has not brought its unbiased judgement to bear on the question or has not acted for substantial reasons’”.

12.4    It is submitted that the power to intervene in the discretion exercised by the First Respondent does not differ substantially from the nature of the power described in the quoted passage.

See in this regard :

Administrator Transvaal and Furs Investments v Johannesburg City Council 1971 (1) SA 56 (AD) at 79H-80H.

12.5    It is further submitted that the powers of intervention by the Court in matters of an exercise of a discretion have been largely left unaffected by the present constitutional dispensation.

See :   Pharmaceutical Manufacturers of SA : In re : Ex Parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) at 695E-6964, 699F-698H.

12.6    It is further submitted that the provisions of Section 81(3) have not brought about a change in the prevailing legal position. In terms of that provision the burden is cast upon the First Respondent of establishing that the refusal “complies with the provisions of this Act”. But this does not mean that this Honourable Court is at large to replace the discretion exercised by the First Respondent with its own discretion. It merely means that the burden rests upon the First Respondent to prove that he exercised his discretion honestly, fairly and reasonably.

13.     

13.1    The enquiry as to the validity of the exercise of the discretion by the First Respondent must relate to the factors set out in Section 45(b). The work involved in processing the request must have the character of substantially and unreasonably diverting the resources of the public body.

13.2    The grounds upon which a request must or may be refused are manifold and comprehensive. On the face of it, every document forming part of a record must be considered to ascertain whether there would be any valid objection to furnishing the information or documents requested. If this were not so, the provisions of the PAIA would be rendered nugatory to a large extent. It is therefore submitted that the phrase “the work involved in processing the request” should bear an extended meaning so as to encompass the act of considering the request.

13.3    Notably Sections 37 (protection of confidential information) and 41(1)(a) (defence secrets) of the PAIA are relevant. The entire investigation conducted by the First, Second and Third Respondent related to arms procurement by the Government. As a general statement the specifics of armaments traditionally fall beyond the public domain. On the face of it, every document called for scrutiny so as to decide whether there would be a valid objection to the  document being made public.

13.4    It is precisely this exercise that would have “substantially and unreasonably diverted the resources” of the First Respondent.

13.5    After all is said and done, the decision to grant the access applied for or not remains within the discretionary powers granted to the First Respondent. In particular he knows his staff compliment, what their capabilities are, what his workload and responsibilities entail, what his  priorities are, as well as the extent of the record and the work required to deal with the request for access in a responsible manner.

13.6    The First Respondent has dealt with all the last mentioned factors comprehensively. Viewed objectively, all the factors alluded to and contentions advanced by the First Respondent in this regard are valid and reasonable. That being so, the Fist Respondent was entitled, in exercising his discretion, to reject the Applicant’s request in the manner which he did.

        See : Paras 6 - 10, pp 57 - 67.

13.7    From the Applicant’s replying papers it is evident that the validity of the First Respondent’s decision is recognised. The magnitude of the request for access can hardly be gainsaid. The Applicant has therefore sought to limit the extent of the request in an attempt (in the view of  the Applicant) to bring it within manageable proportions.

        See : Paras 11- 13, pp 516 - 518.

14.     

14.1    To the latter attempt the First Respondent has raised several objections, which it is submitted, are all valid.

        See : Para 2, pp 591 - 593.

14.2    The recognition by the Applicant, at least by necessary implication, of the validity of the objection raised by the First Respondent in terms of Section 45(b) of the PAIA in fact brings an end to the present application. The Applicant availed itself of a request of a general nature relating to all documentation comprising the entire investigation conducted by the First, Second and Third Respondents. The Applicant now opts for a limited specified request relating only to its own interest in the matter, viz the information management system and the system management system of the combat suites of the Corvettes. This is a brand new request, which differs toto cäelo from the request considered by the First Respondent.

14.3    It can hardly be contended that the First Respondent is called upon to entertain and consider the “new” request within the confines of the present application. This Honourable Court certainly has no jurisdiction in the matter. The Honourable Court cannot entertain prayer 1.2 of the Notice of Motion, because for all practical purposes it has been ditched. Before the First Respondent has been afforded the opportunity of considering the “new” request (on the assumption that it is a valid request), the Honourable Court has no function to fulfill. The Honourable Court cannot step into the shoes of the First Respondent, as it were, to consider the “new” request.

14.4    The “new” request has also manifestly not been brought in terms of the provisions of the PAIA. It is incumbent upon the Applicant to describe the precise nature and extent of the request with sufficient clarity so as to enable the First Respondent to consider it. Should the request be within manageable proportions, there is no reason why it could not be duly and properly considered by the First Respondent.

14.5    It has become evident that the Applicant has a substantial body of information regarding its particular interest in the SDP. It has also become evident that the Applicant has known all along that the documents required by it relate to its particular interest  in the Corvettes only. On the face of it the Applicant must have been able to formulate a request directed at its particular interest. This conclusion is strengthened by the fact that the Joint Report deals comprehensively with the matters at hand.

14.6    In paragraph 1 of his letter of 10 January 2002 the First Respondent made his objection plain (pp 47 - 48). Confronted with this reaction, one must contemplate the reaction of a reasonable and judicious applicant in the position of the Applicant.

        It must also be taken into account that in terms of the provisions of subsections 11(1) and 11(3) of the PAIA, the reasons for the request for access are not relevant. It is submitted that a reasonable applicant would have realised immediately where the shoe pinched, and would have sought to bring the request within manageable proportions, either by bringing a fresh application, or tempting the existing one. Instead of doing so, the Applicant brought the present application in which the original open-ended request was persisted in. Belatedly, in the reply, the Applicant is seeking to do what it should have done at the outset.

14.7    Furthermore, on 1 August 2002 the First Respondent wrote to the Applicant (through their respective attorneys) inviting the Applicant to withdraw the present application, to lodge a fresh application in terms of the PAIA, reflecting the Applicant’s true need for access to documents and information, which the First Respondent undertook  to consider duly and properly (pp 598 -599). The invitation was declined. That being the case, there is no basis upon which the First Respondent may be compelled by order of this Honourable Court to do that which the First Respondent has already tendered to do, and which was declined (p 600). The prayers in the Notice of Motion have also remained unchanged.

14.8    It is further submitted that it is trite that an applicant in motion proceedings is not permitted to seek to make out a cause of action in the replying papers.

14.9    The latter is not a mere technical objection. The present application was issued on 18 February 2002. The opposing affidavit was filed on 2 April 2002. The replying papers were only filed on 1 July 2002. On 12 August 2002 the Applicant instituted an action for damages referred to above under Case Number 21785/02 in this Honourable Court. Because of the provisions of Section 73U Section 7 of the present application has become largely academic. The Applicant must of necessity have the full rights of discovery in terms of the PAIA is obviated. The Applicant would also be entitled to summons witnesses duces tecum to prove records and documents.

14.10   Earlier on reference was made to the formulation of the Applicant’s claims in the action, as opposed to the burden of proving its claims. In paragraphs 155 of the particulars of claim the Applicant refers to the present application, but does not allege that it was embarrassed in the proper formulation of its claims. That being the case, coupled with the very comprehensive remedies available to a litigant to have relevant evidence adduced, the present applicant has become purely academic.

The Second Ground of Refusal :

15.     

15.1    This ground related to the provisions of Section 37(1) of the PAIA and is twofold.

The terms of subsection (a) are mandatory (leaving no discretion) and provides that a public body “must refuse a request for access to a record of the body if the disclosure of the record would constitute an action for breach of a duty of confidence owed to a third party in terms of an agreement” (underling added).

15.2    It is objective enquiry whether there is an agreement of confidentiality. The First Respondent has made it plain that all the documents relating to the SDP were made available to the joint  investigation team under conditions of strict confidence. Such documents emanated inter alia from the Department of Defence (comprising the South African Navy), Denel and Armscor.

See : Para 6.3, p 57; para 9.4, p 63.

15.3    The veracity of the First Respondent is hardly open to challenge. On his evidence the need for protection is established. That being the case, the First Respondent had no choice in the matter.

15.4    A difficulty arises as to precisely what “a record of the body means”. If objection could be taken only to the disclosure of portions of a record affected by an agreement of confidentiality, it would have been an easy matter for the legislature to have said so. The matter in which the provision is phrased, leads to the conclusion that, where only part of the record is affected by an agreement of non-disclosure, disclosure of the entire record must be refused.

15.5    The latter interpretation is fortified by the provision of Section 28 of the PAIA as to severability. In terms thereof, on applicable cases, parts of a record which are subject to non-disclosure, may be severed from the remainder thereof. The non-objectionable part would then remain subject to disclosure.

15.6    But here lies the rub. Because of his lack of resources the First Respondent could in practical terms not embark upon the task of separation. The key hereto, in terms of Section 28(1)(b), is that the act of separation must be reasonably capable of being performed. There is no doubt that this risk could not be undertaken by the First Respondent.

15.7    The first part of the second objection raised by the First Respondent therefore remains valid, and affects the entire record.

15.8    The situation may not be the same in regard to the “reduced” record now being required by the Applicant. The objection raised by the First Respondent (as well as the second part of the second objection and the third objection) may remain valid in respect of the “reduced” record. Because of the smaller size thereof it may be that the First Respondent could consider severability. Of necessity the First Respondent should have been afforded the opportunity to apply his mind to these matters. However, because the Applicant has now instituted its claims, these issues have become moot.

16.     

16.1    The second part of the second objection relates to the provisions of Section 37(1)(b) of the PAIA. This relates to the protection of sources of information. By their very nature the offices of the First, Second and Third Respondents are largely dependant upon a free flow of information in their endeavours. The First Respondent has described with sufficient clarity why all sources of information are worthy of protection.

See : Para 9.4, p 63.

16.2    The arguments advanced in regard to the first part of the second objection as to severability and the “reduced” record are also applicable here.

The Third Ground of Refusal :

17.     

17.1    The third objection raised by the First Respondent relates to the broad concept of “defence secrets”, which is provided for in Section 41 of the PAIA.

17.2    There does not appear to be much resistance by the Applicant to the assertion by the First Respondent that the bulk of the record concerns “defence secrets”, which are not subject to public disclosure. There is a real probability that the interests of the State would be severely harmed by any disclosure.

See : Paras 8.1 and 8.2, pp 59 - 61 and paras 9.3 and 9.4, pp 62 - 63.

17.3    The counter argument of the Applicant is that Dr Young has a high top secret security clearance and that the required records would be secure in his hands. Apart from the fact that the Applicant, and not Dr. Young, seeks disclosure, the fact remains that the State, through its responsible bodies, would lose control. The control would be replaced by control by the Applicant, over which the State would have little or no control. It is obvious that such a proposition is entirely on the effectiveness of control over documents. Once control is lost, secrecy goes with it.

17.4    As to severability and consideration of the “reduced” record, the same arguments advanced above apply here.

18.     It is submitted that the First Respondent has justified his refusal to comply with the Applicant’s request in all respects, and that the application should be dismissed with costs.

19.     There remains the matter of the correspondence. It is clear that the First Respondent was embarrassed by the incorrect information given to him by the project leader, Mr Lionel van Toner. The First Respondent rectified the error immediately, and has furnished copies of the relevant correspondence. It is submitted that this is a small issue, which should not affect an award as to costs. However, should the Honourable Court consider it appropriate to make some allowance for the discrepancy, it is submitted that the Applicant should be awarded no more than 10% of the costs of the application.

_______________________
S J Maritz, SC

Chambers,
Pretoria

4 November 2002