Fourth Respondent's Heads of Argument

Introduction

1.      In deciding whether it is just and equitable to grant the relief sought by applicant under the provisions of section 82 of the Promotion of Access to Information Act, 2 of 2000 (“the Act”), this Court will, we submit, have regard inter alia to :

1.1     the degree to which the applicant has established a legitimate right or interest requiring protection; proper particularisation of the information which is required and a rational and sufficient explanation demonstrating how that information will assist in the exercise or protection of the right;

1.2     that all persons likely to be affected by the grant of relief and having an interest in the proceedings have been joined;

1.3     the nature of the objections raised against the disclosure of documents by those joined; and

1.4     whether the relief is competent or desirable in the light of subsequent conduct by the applicant - in casu the institution of an action for damages.

Necessary Elements of the Application

2.      The legislative source and trigger of the Act is section 32 of the Constitution which gives effect to the constitutional right of access to any information held by the state and which is required for the exercise or protection of any rights. The provisions of the Act should be interpreted in a manner which is consistent with that overarching purpose.

3.      The requirements for an application to compel disclosure of such information brought under section 32(1) of the Constitution read with item 23(2)(a) of Schedule 6 have equal relevance and force to an application now brought under the Act. In particular, it remains essential for any proper determination of such application to require the applicant to make out a proper case for access to information, i.e. to establish :

3.1     what the right is that is to be exercised or protected;

3.2     what the information is which is required; and

3.3     how that information will assist in exercising or protecting that right.

Cape Metropolitan Council v Metro Inspection Services Western Cape CC & Others, 2001 (10) BCLR 1026 (SCA).

4.      Applicant makes no attempt to identify and correlate any alleged right with the information sought in a meaningful way. More particularly :

4.1     Applicant’s complaint, and the right sought to be exercised or protected, is alluded to in the broadest terms in paragraph 13 of the founding affidavit with its unmotivated talk of “significant deviations from lawful tender procedures on the part of the State’s representatives”; “unfair administrative action” and “unlawful business practices”. On the strength of these nebulous statements, applicant sought the production of some 135000 pages material

                (See first respondent’s answering affidavit, para 6.4)

                or, perhaps, some 225000 pages

                (ibid, para 7).

4.2     Applicant made no attempt to motivate why the documentation sought was relevant to the exercise or protection of the right and the insincerity of the application as formulated is also indicated by the substitution in the replying affidavit of another request for the production of documents this time designated “the reduced record” and applying to issues formulated for the first time (albeit again in a nebulous fashion) in paragraph 12 of the replying affidavit.

5.      Fourth respondent has not had the opportunity to deal with the applicant’s reformulation of its case in reply or the introduction of new grounds by reference to which rights are sought to be exercised. We submit that this Court ought not to allow the applicant to make out a new case in reply as against the fourth respondent and, in effect, to rely upon a request which was never actually made.

6.      Moreover, and in any event -

6.1     the reformulated request remains as cryptic and nebulous as before;

6.2     the information sought remains entirely undefined;

6.3     there now appears to be references to complaints concerning a private company, African Defence Systems (Pty) Limited (“ADS”) and to a Mr Shamin Shaikh;

6.4     there remains no attempt to justify in proper terms the information which is sought in relation to the right which must be exercised or protected.

Failure to Join

7.      It now emerges from applicant’s replying affidavit that it is seeking information concerning ADS and its involvement in the supply of Corvettes “at various different levels” including a supposed “conflict of interest” as is set out in paragraph 12.3 of the replying affidavit.

8.      It is difficult to conceive if any justification not to join ADS to the proceedings :

        cf. Goodman Bros (Pty) Ltd v Transnet Ltd, 1998 (4) SA 989 (W).

9.      Moreover, the interests of the Minister of Finance and Mr S Shaikh are affected and no attempt has been made to address their position.

Objections Raised by Fourth Respondent

10.     Reacting as best it could, to the diffuse allegations appearing in the founding affidavit, the fourth respondent objected to ten categories of information as enjoying mandatory protection in terms of the Act and, in particular, sections 36, 37, 38, 41, 42 and 44 thereof.

(Fourth respondent’s affidavit, para 7)

11.     In regard to the objections raised by the fourth respondent:

11.1    those raised in subparagraphs 7.1 and 7.2 are conceded by the applicant

(Replying affidavit, para 95).

11.2    that raised in subparagraph 7.3 is contested

(Replying affidavit, para 96).

This relates to the internal memorandum written by advisors to the Minister of Finance, a member of Mincom, and in respect of which the documents in question may be taken to relate to that Minister’s involvement on a Cabinet Committee. Furthermore, section 42(2)(b)(iv) applies. It is to be noted that no attempt has been made by the applicant to join that Minister so as to allow him to comment on the propriety of the information sought.

11.3    the assertion that commercial sensitive information relating to third parties is involved and that this relates to the exact specifications of armaments, weaponry and Industrial Participation Obligations business products

(para 7.4)

is denied by applicant

(para 97)

although the basis of the objection seems to be merely argumentative. Such information is mandatorily protected under sections 36(1) and 41.

        11.4    confidential information emanating from third parties

(para 7.5)

and which is protected under section 37 (1) is, nonetheless, sought by the applicant because it says the procedure under section 37(1)(a) was not followed. We submit that where the Information Officer of the public body fails to raise an objection which the statute peremptorily obliges him to do, that failure can hardly permit the applicant to further violate the rights of the third party which is entitled to protection. Again it underlines the non-joinder which imperils the rights of others.

        11.5    information which relates both to the defence and security of the Republic and which is covered by section 41

(para 7.6).

This is contested by applicant because the objection is said to be raised in broad and vague terms (a necessary result of the blunderbuss request)

(replying affidavit, para 101).

Again, the responses of the Information Officer of the first respondent can hardly be determinative of whether documents emanating from fourth respondent can reasonably be expected to cause prejudice to the defence and security of the Republic. There remains an overriding discretion in the hands of the Court. Given the subject-matter of the body of documents sought to be obtained, i.e. arms procurement relating specifically to the technological capacity and attributes of an essential element of the Corvettes, the sensitivity of the information cannot be doubted. The fact that the objection is phrased in broad terms simply reflects the broad terms of the request.

        11.6    information disclosed under the Auditor-General Act

(para 7.7)

in respect of which applicant now seems to indicate that such third party should be consulted

(replying affidavit, para 103).

The fact is that the request is misconceived.

        11.7    Advisory opinions, etc., connected with the formulation of a policy of procurement

(para 7.8)

which relates to the protections afforded under section 44(1). Again, the decision of the Information Officer of the first respondent cannot be determinative. The matter remains in the discretion of the Court.

        11.8    record of evaluation material

(para 7.9)

fall into the category protected under section 41(1)(a) as well as categories of protection to third parties under sections 36 and 37 and in respective of which the applicant’s responses are merely argumentative.

        11.9    documentation consisting of preliminary working and draft documentation of officials involved in the procurement process

(para 7.10)

which is directly affected by sections 41(1) and 44(2)(b) should not be disclosed.

        11.10   further and in regard to all the objections raised specific reliance is placed upon sections 36, 37, 38, 41, 42 and 44.

Subsequent Litigation

12.     The Act is not intended to apply where the applicant has in fact instituted action claiming substantive relief in respect of the very complaints concerning which the documentation was sought. In that regard we refer to section 7. The record in this case is requested for the purpose of civil proceedings and the applicant will be entitled to production of relevant non-privileged material under the ordinary rules relating to discovery. The request to the Information Officer preceded the issue of summons in the litigation and the question arises whether that takes applicant outside the provisions of section 7(1)(b) and, if so, whether the purpose of the Act in this regard is served by such nimble feats of timing. We submit that “requested” for the purposes of section 7 should be taken to include the process of enforcement of the request (all of which should precede the institution of action to exercise the right). Alternatively, and as a matter of discretion, the Court should be slow to grant relief in such a case as this in which it is clear that the applicant has sufficient information to commence litigation (as it has) and that the relief sought is therefore no longer necessary.

Generally

13.     The structure of the Act presupposes that the Information Officer is well-placed to respond meaningfully to the request; more particularly is able correctly to discharge the statutory function of protecting rights of third parties be they government departments of private persons. The position of the Information Officer in this case was one far distant from the merits of the dispute and it was opportunistic and unsatisfactory for the applicant to direct his request to the first respondent in all the circumstances of the case. Requests should better have been made to the Department of Defence; Finance and to Armscor and to ADS. The unnecessary complications created by the misdirection of the request should be taken into account in the exercise of a discretion.

Conclusion              

14.     We submit that this application should be refused with costs including the employment by the fourth respondent of the costs of two counsel.

Dated at Sandton this 4th day of November 2002.