Heads of Argument on behalf of the Applicant

Introduction

1.         This is an application for access to information.

2.         The applicant is a supplier of specialised software and computer systems for defence applications.  It was excluded as the supplier of sub-systems to be installed on Corvettes ordered by the Department of Defence for use by the South African Navy.  It believes the exclusion to have been unlawful.

3.         Those sub-systems formed part of the so-called Strategic Defence Packages ("the SDPs") for the procurement of armaments for the South African National Defence Force.  There was a joint investigation into the SDPs by the first, second and third respondents.  The investigation had a public phase, chaired by the second respondent.  The applicant's managing director, Richard Young ("Young"), who also deposed to the founding and replying affidavits in this matter, testified at those hearings.

4.         On 14 November 2001 the first, second and third respondents completed a report containing inter alia certain findings with regard to the applicant's involvement in the SDPs ("the report").  The report was tabled in Parliament.

Paras 4, 11, 12, 13 and 14 of the founding affidavit, record pp 6 and 8, read with paras 2, 11, 13 and 14 of the answering affidavit, record pp 55, 67 and 68.

5.         The applicant requested the first respondent to furnish it with certain information relating to the matter of the report.  The request was made in terms of the provisions of the Promotion of Access to Information Act 2 of 2000 ("the Act").  The first respondent declined to comply with the request.  He invited the applicant to launch this application.

Para 15 of the founding affidavit, record p 9, read with para 14 of the answering affidavit, record p 68.

The application

6.         The substantive relief which is sought by the applicant in its notice of motion is for the first respondent to provide the applicant with copies of the following documents:

6.1       all draft versions of the report;

6.2       all audit files concerning the SDPs from 1 January 1998 to 20 November 2001;

6.3       all correspondence concerning the SDPs between the first respondent and the Department of Defence from 1 January 1998 to 20 November 2001;  and

6.4       all correspondence concerning the SDPs between the first respondent and the second respondent's office from 1 January 1998 to 20 November 2001.

                        Prayer 1 of the notice of motion, record pp 1-2.

7.         In his answering affidavit the first respondent indicated just how substantial his records in connection with the SDPs are.  The documentation runs to some 225 000 pages.

                        Para 7 of the answering affidavit, record pp 58-59.

8.         Having been made aware of this, the applicant in reply confined its request for access to information to what is called "the reduced record", being that portion of the record relating to the acquisition of the Corvettes, and more particularly –

8.1       the de-selection of the applicant as the supplier of the Combat Suite's Information Management System and the selection instead of the Detexis Diacerto Combat Suite Databus;

8.2       the selection of the supplier of the System Management System, the Navigation Distribution System and the Integrated Platform Management System Simulator ("the IPMS Simulator");

8.3       the role of African Defence Systems (Proprietary) Limited ("ADS") in the supply of the Combat Suite for the Corvettes and its conflict of interest by virtue of its involvement in the supply of the Corvettes at various different levels;  and

8.4       the conflict of interest of Shamin Shaikh (the Chief of Acquisitions in the Department of Defence).

Paras 12 and 13 of the replying affidavit, record pp 502-504.

9.         Save in respect of costs, the Court need no longer concern itself with the relief sought in prayers 1.3 and 1.4 of the notice of motion, which pertain to correspondence between the first respondent, on the one hand, and the Department of Defence and the second respondent's office, on the other hand.

9.1       The first respondent initially alleged that there was no such correspondence.

Para 25 of the answering affidavit, record p 72.

9.2       In reply, the applicant proved that the allegation was incorrect, and invited the first respondent to reconsider the accuracy of his response.

Paras 77-82 of the replying affidavit, record pp 524-526.

9.3       In a rebutting affidavit, the first respondent apologised, and annexed copies of what he suggests (although he does not say so in so many words) is all of the relevant correspondence not yet in the applicant's possession.

Para 4 of the rebutting affidavit, record pp 594-595.

9.4       The statement that the applicant had "sought to set a trap to embarrass" the first respondent is nonsensical.

Para 4.1 of the rebutting affidavit, record p 594.

9.5       There was no reason for the applicant to provide the first respondent with a list of all the documents which it already had in its possession (nor any legal requirement that this be done), nor was such information ever sought by the first respondent.  In terms of the scheme of the Act, it is the state which has a duty of disclosure toward the individual, not the converse.

10.       What the applicant therefore still seeks is access to all draft versions of the report and to the reduced record.

The grounds of opposition

11.       The onus is on the respondents to justify their refusal to give access  (see section 81(3)(a)).  This is also apparent from section 11(1) of the Act, which reads:

                        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.

12.       The first respondent has raised a number of sections of the Act in his attempt to avoid giving the applicant access to information.  In particular, he has relied in his answering affidavit on the following sections:  12, 36, 37, 41(1), 42, 44(1)(a), 44(1)(b), 44(2)(c) and 45(b).  (He has also invoked certain further sections, but not in order to raise a defence.)  Save for section 12 (which insulates cabinet minutes and minutes of ministerial committee meetings from disclosure), all of those sections are to be found in chapter 4.  Chapter 4 in turn is in part 2 of the Act, which concerns access to records of public bodies.  (It is not in dispute that the respondents are to be regarded as public bodies for the purposes of the Act.)

13.       What is immediately apparent from the answering affidavit is that the first respondent has in respect of the audit files invoked the majority of the provisions on which it seeks to rely in a generalised way, on the basis merely that some of the documentation which is sought by the applicant enjoys the protection against disclosure which is provided by one or more of the sections of the Act.  He has not sought to identify the relevant documents, nor is it his contention that all the documents enjoy protection against disclosure.  His defence is therefore correctly described by the applicant as being that "the requested documents are so voluminous that he cannot reasonably be expected to analyse them all with a view to identifying those documents which are or may be protected from disclosure".

 Para 4 of the replying affidavit, record p 500.

This is a defence which rests on section 45(b) alone, and is in the circumstances the only substantive defence which is offered regarding access to the audit files.

14.       His defence in respect of access to the draft reports is based on sections 44(1)(b) and 44(2)(c) of the Act.

Para 24 of the answering affidavit, record p 72.

Interpretation

15.       Prior to dealing with the specific provisions of the Act which have been invoked by the first respondent, we shall briefly set out the constitutional matrix within which the Act has to be read.

16.       Chapter 5 of the Constitution of the Republic of South Africa, 1993, Act 200 of 1993 ("the interim Constitution") provided for the adoption of a new constitutional text.  Section 71(1) required that the new constitutional text "comply with the Constitutional Principles contained in Schedule 4".  Principle IX of schedule 4 to the interim Constitution required provision to be made "for freedom of information so that there can be open and accountable administration at all levels of government".

17.       Commenting on the initial new constitutional text which it was asked to authorise, the Constitutional Court held that Constitutional Principle IX did not envisage "access to information merely for the exercise or protection of a right, but for a wider purpose, namely to ensure that there is open and accountable administration at all levels of government".  It is a right which is "directed at promoting good government".

Ex parte Chairperson of the Constitutional Assembly:  in re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) at 802G-H and 803A, paras [83] and [85] (per the Court).

18.       Section 32 of the Constitution of the Republic of South Africa, 1996, Act 108 of 1996 ("the final Constitution") gives effect to Constitutional Principle IX.  It provides as follows:

(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.

19.       In conformity with the Constitutional Court's judgment, section 32(1)(a) specifically does not restrict the individual's right of access to information held by the state to the situation where such access is required in order to exercise or protect an antecedent right.  Such a limitation appears only in paragraph (b) of subsection (1) (i.e. in relation to information held by private bodies).

20.       The national legislation which was to be enacted is the Act.  It was required by item 23(1) of schedule 6 to the final Constitution that such legislation was to be enacted within three years of the date on which the final Constitution took effect.  Until the legislation was enacted, item 23(2) of schedule 6 deemed section 32(1) to read as follows:

Every person has the right of access to all information held by the state or any of its organs in any sphere of government in so far as that information is required for the exercise or protection of any of their rights.

21.       It was that restriction on the right, namely that it could be exercised only to the extent that the information was required for the exercise or protection of an antecedent right, which concerned the Constitutional Court.  The Court allowed the restriction, only because it would not last beyond the three-year period within which the new legislation was to be enacted.

22.       It is a requirement of statutory interpretation that legislative provisions be read in such a way as to conform with the provisions of the final Constitution.

De Lange v Smuts NO and others 1998 (3) SA 785 (CC) at 821C-D, para [85];

S v Dzukuda and others;  S v Tshilo 2000 (4) SA 1078 (CC) at 1101A-C, para [37];

Investigating Directorate:  Serious Economic Offences and others v Hyundai Motor Distributors (Pty) Ltd and others:  in re Hyundai Motor Distributors (Pty) Ltd and others v Smit NO and others 2001 (1) SA 545 (CC) at 559B-D, para [23].

23.       If a provision cannot be read in conformity with the Constitution, it follows that it is unconstitutional, hence invalid.  This is a fortiori the case with the Act, which was specifically drafted and enacted in order to give effect to the requirements of the fundamental right of access to information.  The Constitutional Court has held that the right is there in order to ensure open and accountable administration and good government.  The legislature must in the circumstances be deemed not to have intended, in giving effect to the objects of section 32 of the final Constitution, the kind of pusillanimous response which the first respondent seeks to justify with reference to various sections of the Act.  Such a response does nothing to promote openness, accountability and good government, and can therefore be sanctioned by this Court only if it is very clearly justified by the language of the Act.

24.       Section 2(1) of the Act confirms that this is the correct approach to adopt, for it says the following regarding interpretation:

When interpreting a provision of this Act, every court must prefer any reasonable interpretation of the provision that is consistent with the objects of this Act over any alternative interpretation that is inconsistent with those objects.

The Act in its preamble states one of its two objects to be that of "foster[ing] a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information".  Section 9 includes in the objects of the Act the promotion of –

... transparency, accountability and effective governance of all public and private bodies by, including, but not limited to, [sic] empowering and educating everyone –

(iii) to effectively scrutinise, and participate in, decision-making by public bodies that affects their rights.

The audit files

25.       Section 45 of the Act provides as follows:

The information officer of a public body may refuse a request for access to a record of the body if –

(a) the request is manifestly frivolous or vexatious;  or

(b) the work involved in processing the request would substantially and unreasonably divert the resources of the public body.

26.       The first respondent has invoked only the latter of these grounds as justification for his refusal of the request for access to the audit files.  In order for him to be successful, the first respondent is required to show –

26.1    that processing the request would substantially divert his resources;

26.2    that processing the request would unreasonably divert his resources;  and

26.3    that he has in the circumstances exercised a discretion against granting the request.

27.       The first respondent's invocation of section 45 must be tested against the reduced record, for that is all to which the applicant is at this stage seeking access.

                        Paras 11-16 of the replying affidavit, record pp 502-506.

28.       The first respondent has dealt with these paragraphs of the replying affidavit in his rebutting affidavit, but has not sought to rely on section 45.  In other words, the first respondent is apparently not contending that processing the request for the reduced record would substantially and unreasonably divert his resources and that he has therefore exercised his discretion against granting this request.

29.       Instead, the first respondent has come up with four reasons for not considering the request for the reduced record.  They are all procedural in nature, and are:

29.1    that the applicant is not entitled to make out a case in reply;

29.2    that the request for the reduced record is not a request in terms of the Act;

29.3    that the first respondent has only copies of documents in his possession, and a proper request for documents in terms of the Act will have to be referred to the government departments concerned;  and

29.4    that the request falls foul of the provisions of section 7 of the Act.

            Para 2 of the rebutting affidavit, record pp 591-593.

30.       We deal with each of those reasons in turn.

(i)  Making out a case in reply?

31.       The applicant has not made out a case in reply.  It made out a case in the founding papers.  In reply it responded to one of the first respondent's objections by limiting the extent of the relief sought by it.  This is something that happens every day in the courts.  The cause of action remains the same, but instead of asking for all the audit files for the period 1 January 1998 to 20 November 2001, the applicant now asks for some of the audit files for that period.  If an applicant in his notice of motion asks for prayers a, b and c, and in reply abandons c, then by analogy with the first respondent's reasoning he is precluded from continuing in that application to ask for prayers a and b:  instead, he must withdraw the application and start again.  This cannot be correct.

32.       The notice of motion in any event contains a prayer for further and/or alternative relief:

Such a prayer can be invoked to justify or entitle a party to an order in terms other than that set out in the notice of motion (or summons or declaration) where that order is clearly indicated in the founding (and other) affidavits (or in the pleadings) and is established by satisfactory evidence on the papers (or is given), cf Trustees of the Orange River Land and Asbestos Co v King and Others 6 HCG 260 at 296-297.  Relief under this prayer cannot be granted which is substantially different to that specifically claimed, unless the basis therefor has been fully canvassed, viz the party against whom such relief is to be granted has been fully apprised that relief in this particular form is being sought and has had the fullest opportunity of dealing with the claim for relief being pressed under the head of 'further and/or alternative relief'.

Port Nolloth Municipality v Xhalisa and others;  Luwalala and others v Port Nolloth Municipality 1991 (3) SA 98 (C) at 112D-F (per Berman J).

See further:

Daniels Beck's Theory and Principles of Pleading in Civil Actions 6^th ed pp 71-72.

(ii)  Not a request in terms of the Act?

33.       The first respondent is also incorrect in his apparent assumption that the request for the reduced record is to be treated as a new request under the Act.  It is not.  There has been only one request made under the Act.  The request was refused, and the applicant proceeded to Court to compel compliance with the request.  It is still seeking an order compelling the first respondent to comply with the request, but to a more limited extent.  The request has not changed:  the relief which is sought in these proceedings has been limited.

34.       Even were the replying papers to be regarded as bearing on the request made under the Act, it should properly be regarded as nothing more than a refinement of that request.  Thus, if a requester were to complete all the requisite forms and to ask for documents a, b and c, and the public body were to object to the production of document c, it surely cannot be the case that the requester is not entitled on the basis of the same request to receive documents a and b.  According to the logic of the first respondent's contention, the requester would have to withdraw the request, complete new forms and recommence the process.  This is not an interpretation of the Act which accords with its objects.

35.       The only substantive reason which the first respondent has provided for why the applicant should not be entitled simply to limit the ambit of the documentation sought by it, is that he "would have to apply [his] mind afresh to a properly particularised request and come to a decision thereon".  The reduced record has been detailed in the replying affidavit.  The replying affidavit was served on the first respondent's legal representatives in June 2002.  The first respondent deposed to his rebutting affidavit on 4 October 2002.  He had more than three months in which to apply his mind to the matter of the reduced record.  He does not explain his apparent failure to have done so, and it is submitted that there is no reason why he could have not have done so.  His attitude smacks of obstructive prevarication.

            (iii)  Referral to other government departments?

36.       The suggestion that the request would "probably" have to be referred to other departments is made for the first time in the rebutting affidavit, even though it does not specifically relate to the request for the reduced record.  (The first respondent's point – if good – would have applied with equal force to the request as formulated in the founding papers.)  The point does not hold up under scrutiny.  The first respondent is in effect saying that the provisions of the Act apply only to original documents.  One cannot request a public body to provide access to any copies of documents.  Such a request must be directed at the holder of the original documents.  Clearly this does not accord with the intention of the legislature.  It can avail the first respondent only if the word "record" in section 11(1) of the Act is to be read in such a way as to restrict its meaning to original documents.  The definition of "record" in section 1 is however a very broad one, and means in respect of a public or private body –

                        ... any recorded information –

(a) regardless of form or medium;

(b) in the possession or under the control of that public or private body, respectively;  and

(c) whether or not it was created by that public or private body, respectively.

37.       In any event, the applicant has directed its request to the first respondent, not to any government departments.  To the extent that the first respondent is not in possession of documents falling within the statutory concept of a "record", he is not obliged to produce such documents.  He is not obliged (and the applicant does not expect him) to refer the request to any other body for processing.  Accordingly, the fact that some of the documents may not (for purposes of the Act) be in his possession is not a reason to refuse to respond to the request.

            (iii)  Section 7 (pending civil proceedings)

38.         Section 7(1) of the Act provides as follows:

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 [sic] 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.

39.       In order to fall within the provisions of section 7, the conditions contained in each of paragraphs (a), (b) and (c) of subsection (1) must be fulfilled.  This is indicated by the use of the co-ordinating conjunction.  The proceedings to which the first respondent refers were only instituted in August 2002.  No request for access to information was made after the commencement of those proceedings.

40.       To the extent that the first respondent seeks to contend that the application for access to the reduced record – by way of the replying affidavit – constitutes a fresh request, that, too, predated the commencement of the proceedings referred to (the replying affidavit was served in June 2002).

41.       The first respondent does not substantiate his allegation that the applicant "is attempting to employ a stratagem" with reference to anything other than the mere fact that the applicant has instituted a claim against the Minister of Defence and two other parties.  Why this constitutes a stratagem is not made clear.

42.       The first respondent has also failed to allege and prove that the information requested by the applicant has been requested "for the purposes of" the civil proceedings instituted in August 2002.

43.       In paragraph 31 of his replying affidavit (record p 511) Young stated that to the first respondent's knowledge the purpose of the applicant's request was –

43.1    to assess the propriety of the selection of suppliers for certain of the systems comprising the Corvettes;  and

43.2    to assess the process by which the SDPs were subsequently investigated by the joint investigating team.

44.       In paragraph 86 (record p 526) Young stated, further, that one of the purposes of the request was to see whether there had been political interference in the finalisation of the report.

45.       The applicant's stated purposes do not indicate that the request was made for purposes of the pending proceedings.  The mere fact that some of the requested documents may be relevant and discoverable in the pending proceedings is not sufficient to satisfy the requirement specified in section 7(1)(a).

46.       Furthermore, it is clear that some of the requested documents have nothing to do with the pending proceedings.

46.1    The draft versions of the report relate squarely to the joint investigating team's investigative process and the question of political interference.

46.2    Many of the documents in the audit files would likewise be relevant to the assessment of the investigative process.

46.3    The pending proceedings concern the selection of the Detexis system in place of the applicant's Information Management System, and the selection of ADS (in preference to the applicant) as the supplier of the System Management System.  However, the applicant's unhappiness relates to other systems as well (particularly, the selection in respect of the IPMS Simulator – see para 12.2 of the replying affidavit, record p 502), as also to ADS's role as a whole (para 12.3 of the replying affidavit, record p 503).

47.       We have contended above that, if the first respondent fails in his purported reliance on section 45(b), then none of the other sections which he calls to his aid in order not to give the applicant access to the reduced record avails him.  The reason is that those other sections can only be employed in relation to specific documents, having the particular attributes set out in the sections concerned.  Any other interpretation would be contrary to the objects of the Act and to section 32 of the final Constitution.  The first respondent has however failed in his answering affidavit to identify any such specific documents, precisely because the documentation sought was (so he claims) so voluminous.

48.       The first respondent has in his rebutting affidavit again failed to identify the specific documents which might enjoy the protection of one or more sections of the Act – notwithstanding the fact that the request for the reduced record would have rendered such an exercise feasible.  (At least, there is no suggestion in the rebutting affidavit that the exercise would not have been feasible.)  There is no explanation for this failure.  In view of the fact that access to the reduced record only is being sought, it was incumbent on the first respondent in his rebutting affidavit to identify the specific documents in respect of which he wishes to claim protection from disclosure under the Act – he cannot continue to rely on the vague and generalised assertions which one finds in the answering affidavit.  The first respondent has therefore not discharged the onus of justifying his refusal to give access to the reduced record.

The draft reports

49.       In addition to his reliance on sections 44(1)(b) and 44(2)(c) of the Act as a defence against disclosure of the draft reports, the first respondent also contends that "a draft document does not constitute and official document for purposes of the [Act]".

                        Para 24 of the answering affidavit, record p 72.

            We have already quoted the definition of "record".  There is nothing in that definition which supports this contention.

50.       In terms of section 44(1)(b) a request for access to a record of a public body may be refused if –

(i) the disclosure of the record could reasonably be expected to frustrate the deliberative process in a public body or between public bodies by inhibiting the candid

(aa) communication of an opinion, advice, report or recommendation;  or 

(bb)conduct of a consultation, discussion or deliberation;  or

(ii) the disclosure of the record could, by premature disclosure of a policy or contemplated policy, reasonably be expected to frustrate the success of that policy

51.       One searches in vain in the answering affidavit for any evidence which supports the first respondent's purported reliance on this paragraph.  The submission of the draft reports by the first, second and third respondents and the subsequent submission of the final report are in the past.  There can surely be no serious suggestion that the disclosure of the draft reports might now frustrate any deliberative process.  Nor could such disclosure realistically be expected to frustrate the success of a policy – and the first respondent has made no allegations regarding any such policy.

51.            Section 44(2)(c) permits a public body to refuse a request for access to a record if –

the record contains a preliminary, working or other draft of an official of a public body.

52.       It is submitted that the purpose of the paragraph is to prevent requesters from obtaining advance information regarding pending determinations by public bodies.  It is not intended to prevent requesters from ascertaining, after the event, how a certain decision was arrived at.  The draft reports in this case have historical interest:  they are not "live" documents in the sense that a final document has yet to be composed.  The first respondent's reliance on this paragraph is therefore misplaced, and not in accordance with what must – in the light of the constitutional imperative – be deemed to be the legislature's intention.

53.       In any event, section 44(2) confers a discretion on the public body to refuse a request for access on one of the enumerated grounds.  One knows that the first respondent did not exercise a discretion under this subsection (cf para 47 of the replying affidavit, record p 515), for he seeks to rely on its provisions for the first time in his answering affidavit, where he refers to section 44(2) as an "exclusionary provision" (para 9.7, record p 64).  He made no mention of section 44(2) when initially refusing the applicant's request (see annexure "RY8", record p 47).

54.       One furthermore knows, from the first respondent's own evidence, that there could have been no good reason for him to exercise his discretion – had he exercised a discretion – against disclosure of at least the three draft reports which were sent to the President.  His evidence is that these draft reports "were sent to the Office of the President for the sole purpose of having the factual content of the reports verified by Government".  The "opinions and findings" of the first, second and third respondents "were not negotiable, nor subject to changes at the behest of whomsoever in Government".

            Para 23 of the answering affidavit, record p 71.

55.       On the respondents' version, therefore, the only possible difference between these draft reports and the final, joint, report would be certain factual corrigenda.  (If the reports – particularly the opinions and conclusions – underwent more substantial change, this would point to political interference.  However, the fact that disclosure would or might expose this is no proper basis for refusing access.)

56.       It is necessary to emphasise, once again, that the burden of establishing that a refusal of a request for access is justified rests on the public body concerned.  In relation to a discretionary ground of refusal such as section 44(2)(c), this burden involves establishing not merely the jurisdictional prerequisite for the exercise of the discretion, but also the cogency of the grounds on which the discretion was exercised.  Assuming in the present case that the drafts requested by the applicant are drafts within the contemplation of section 44(2)(c), this would merely establish the jurisdictional prerequisite for the statutory discretion.  The first respondent has not disclosed the grounds on which he exercised the discretion (if he exercised it at all), and the Court is thus unable to assess the cogency of the decision.  This being so, the first respondent has not discharged the burden resting on him in relation to section 44(2)(c).

Conclusion

57.       It is submitted that the application for access to the reduced record and to the draft reports should be granted.

58.       It is further submitted that the respondents should jointly and severally pay the costs of the application, including the costs of two counsel.  Even should this Court for any reason find that the applicant is not entitled to obtain access to the reduced record and the draft reports, it is submitted that the applicant is nonetheless entitled to costs up to the stage of the delivery of the rebutting affidavit, in which the first respondent provided the applicant with the correspondence to which the applicant had sought access.  The application would to that extent have been successful.

Owen Rogers S.C.

Eduard Fagan

Chambers

Cape Town

4 November 2002