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In the High Court of South Africa (Transvaal Provincial Division) |
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Case Number : 4636/2002 |
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In application of : |
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The Open Democracy Advice Centre |
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Amicus curiae |
In the matter between : |
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CCII Systems (Pty) Limited |
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Applicant |
and |
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S A Fakie N. O. |
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First Respondent |
S A M Baqwa N. O. |
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Second Respondent |
B T Ngcuka N. O. |
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Third Respondent |
M G P Lekota N. O. |
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Fourth Respondent |
Heads of ArgumentFiled on Behalf of the Amicus Curiae
A. Introduction
B. Rule 16A and Condonation for Non-Compliance
C. The Role of an Amicus Curiae
D. Opposition by the First to Third Respondents
1. The Open Democracy Advice Centre (hereinafter referred to as “ODAC” or “the amicus curae”) seeks to intervene in the matter between CCII Systems (Pty) Limited v Shauket Fakie NO and others Case No : 4636/2002 (“the main application”) for purposes of making submissions relating to the application of section 32 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) and the relevant provisions of the Promotion of Access to Information Act, No. 2 of 2000 (“the PAI Act”).
2. ODAC is a non-governmental non-profit company registered in terms of section............. companies Act, No. 61 of 1973. It is an association between the institute for Democracy in South Africa (“IDASA”), the Black Sash Trust and the Department of Public Law of the University of Cape Town.
3. ODAC was established to deal specifically with matters related to and arising from “the PAI Act”, and the Protected Disclosures Act, No. 26 of 2000. ODAC’s primary mission is to promote transparent democracy, foster a culture of corporate and government accountability. It seeks to achieve its objectives through supporting the effective implementation and protection of rights and laws which enable access to and disclosure of information.
4. ODAC seeks the following relief :
4.1 Condonation for its failure to comply with the provisions and time periods set out in Rule 16A of the Uniform Rules of Court, if any.
4.2 Leave to intervene in the main application in terms of Rule 16A, alternatively for the court to exercise its discretion and grant leave on such terms and conditions as the above Honourable Court may permit.
4.3 Leave to present further written and oral argument at the hearing of the main application.
B Rule 16A and Condonation for Non-Compliance
5. Rule 16A of the Uniform Rules of Court governs the admission of an interested party as amicus curiae in constitutional matters before the High Court. It is submitted that in non-constitutional matters, the court exercises a discretion as to whether it would benefit from the submissions made by an amicus curiae.
6. Rule 16A provides as follows :
6.1 A person raising a constitutional issue shall give a notice containing a clear and succinct description of the constitutional issue to the registrar at the time of filing the relevant affidavit or pleading, which notice shall be placed on a notice board designated for that purpose and which shall remain there for a period of 20 days.
6.2 Any interested party may, with the written consent of all the parties to the proceedings given not later than 20 days after the filing of the affidavit or pleading in which the constitutional issue was first raised, be admitted therein as amicus curiae upon such terms and conditions as may be agreed upon in writing by the parties. These may be amended by the court. Such written consent shall within five days of its having been obtained, be lodged with the registrar and the amicus curiae shall, in addition to any other provision, comply with the times agreed upon for the lodging of written argument.
6.3 If a potential amicus curiae is unable to obtain the aforementioned written consent, he or she may, within 5 days of the expiry of the 20 day period prescribed in that subrule, apply to the court to be admitted as an amicus curiae in the proceedings, which application shall -
6.3.1 briefly describe the interest of the amicus curiae in the proceedings;
6.3.2 clearly and succinctly set out the submissions which will be advanced by the amicus curiae, the relevance thereof to the proceedings and his or her reasons for believing that the submissions will assist the Court and are different from those of the others parties; and
6.3.3 be served upon all parties to the proceedings.
6.4 Any party who wishes to oppose such an application shall file an answering affidavit within 5 days of the service of such application upon such party clearly and succinctly setting out the grounds of such opposition.
6.5 The court hearing an application for admission as amicus curiae may refuse to grant the application upon such terms and conditions as it may determine and may dispense with any of the requirements of this rule if it is in the interests of justice to do so.
7. It is common cause that the Notice contemplated in Rule 16A(1)(a) was never given. It is also common cause that the consent sought by ODAC to be admitted as amicus curiae was only sought after the 20 days contemplated in Rule 16A92) had expired.
8. ODAC has conceded that even if the Applicant had complied with the provisions of Rule 16A, and filed a notice with the registrar it would not have come to the attention of ODAC who would in any event have had to seek condonation from this Honourable Court for its intervention.
9. The provision of the notice is a procedural requirement. The Court can condone non-compliance with the notice. It is respectfully submitted that the absence of such a notice cannot be an impediment to a party seeking to be admitted as an amicus in a matter.
10. Moreover, given the nature of the main application and the ambit of documents being sought by the Applicant ODAC would only have been able to properly assess whether as amicus curiae it was able to be of any assistance to the court, once the answering affidavits have been filed.
11. The main application was launched on 18 February 2002 in the Pretoria High Court. The Applicant sought to compel the First Respondent to provide it with the information and documentation reflected in its Notice of Motion. This request was subsequently reduced in the Applicant’s replying affidavit in the main application and shall be referred to as the reduced record.
12. The answering affidavits in the main application were filed on 28 March 2002, 9 March 2002, 16 April 2002 and 29 May 2002 respectively. The Applicant’s replying affidavit was filed on 2 July 2002. The First to Third Respondent filed a fourth affidavit attested to on 4 October 2002.
13. ODAC first became aware of the main application on 16 July 2002 when so advised by the Applicant’s legal adviser. This information was imparted to ODAC, not because the Applicant sought a litigation partner as suggested by the First Respondent, but because Ms Tilley, ODAC’s project manager, had asked to be kept informed of the progress of the Applicant’s efforts to obtain information by way of the provisions of the PAI Act.
14. On 17 July 2002 ODAC obtained counsel’s advice on whether it should seek to intervene in the main application. The following day ODAC sought the consent of the attorneys for the Applicant and the First to Third Respondents, to be admitted as amicus curiae in the main application. ODAC omitted did not approach the Fourth Respondent.
15. In a facsimile dated 18 July 2002 the Applicant granted its consent.
16. Despite several telephone calls, subsequent facsimiles and undertakings to respond to ODAC, the Respondents failed to respond to the amicus curiae application.
17. As a result, on 8 August 2002 ODAC launched a formal application in the Pretoria High Court seeking to be admitted as amicus curiae in the main application. It was served on the State Attorney on 8 August 2002 and on Applicant’s and First to Third Respondent’s attorneys of record on 12 August 2002.
18. The Respondent did not oppose this application and the matter was set down on the unopposed roll for 3 September 2002 where His Lordship Justice van der Walt directed ODAC to furnish the Court with written confirmation of the Respondent’s decision in respect of the amicus curiae application.
19. On 3 September 2002 we requested the written consent of all the respondents.
20. The matter was stood down until 6 September 2002. On 5 September 2002 ODAC was advised per facsimile that the First to Third Respondents did not intend to oppose ODAC’s application to be admitted as amicus curiae and a further letter was sent to the attorney of record for the Fourth Respondent requesting written consent. No response was received.
21. On 6 September 2002 ODAC’s application was postponed to 25 September 2002 to enable the State Attorney to obtain instructions from the Fourth Respondent.
22. On 11 September 2002 the First to Third Respondents withdrew their non-opposition to ODAC’s application and the matter was withdrawn from the unopposed roll. A Notice of Opposition was filed on 11 September 2002 and on 20 September 2002 answering papers were received. ODAC’s replying affidavit was filed and served on 11 October 2002.
23. On 13 September 2002 the Fourth Respondent filed a notice of intention to oppose. No answering affidavit was forthcoming.
24. On 18 October 2002 the Fourth Respondent served us an unsigned affidavit.
25. Despite telephone conversations and a facsimile dated 29 October 2002, the Fourth Respondent did not serve on us a signed affidavit until late afternoon of 31 October 2002.
26. It is submitted that the delay in launching this application and the non-compliance with the time periods contained in Rule 16A on the part of ODAC have been fully explained. Such delay was neither deliberate, nor vexatious.
27. As is evident from the aforegoing the Respondents have deliberately ignored court process by failing to respond timeously.
28. Accordingly, ODAC submits that insofar as it has complied with the requirements for admission as amicus curiae, this is a proper case for this Honourable Court to condone non-compliance with any of the provisions of Rule 16A on its part.
29. In the event that Honourable Court is of the view that the main application is not a constitutional issue which triggers Rule 16Am it is submitted that this is an appropriate case for the Court to exercise its discretion and permit ODAC to be admitted as amicus curiae.
C. The Role of an Amicus Curiae
30. The provisions contained in Rule 16A (6) which regulate the content of an application to be admitted as amicus curiae are the same as those contained in Rule 9(6) of the Constitutional Court Rules which deals with an amicus curiae in that court.
31. In both instances, where admission as amicus curiae is sought by way of application, admission is entirely in the discretion of the curt. In the exercise of this discretion a court will consider whether the submissions sought to be advanced by the amicus curiae will be of assistance to it.
32. It is submitted that the case law which has developed around section 9 of the Constitutional Court rules is directly applicable to the interpretation of Rule 16A. The following principles have emerged :
32.1 An amicus curiae has a special duty to the court : to provide cogent and helpful submissions regarding questions of law or fact to which attention would not otherwise be drawn and which assist the court.
32.2 It must not repeat arguments already made but must raise new contentions and generally these contentions must be raised on the date already before the court.
32.3 An amicus curiae is not a party to litigation, but believes that the Court’s decision may affect its interest.
32.4 The amicus curiae differs from an intervening party, who has a direct interest in the outcome of the litigation and is therefore permitted to participate as a party to the matter.
32.5 An amicus curiae joins proceedings, as its name suggests, as a friend of the Court. It is unlike a party to litigation who is forced into the litigation and thus compelled to incur costs. It joins in the proceedings to assist the Court because of its expertise on or interest in the matter before the Court.
32.6 It chooses the side it wishes to join unless requested by the Court to urge a particular position. An amicus curiae, regardless of the side it joins, is neither a loser nor a winner and is generally not entitled to be awarded costs.
D Opposition by the First to Third Respondents
33. The First to Third Respondents oppose ODAC’s application on a number of grounds. I deal with each in turn.
34. Before doing so I point out that on 18 October 2002 the attorneys of record for the Fourth Respondent served on us an unsigned opposing affidavit. Despite repeated requests a signed version of this affidavit was only provided to us on Thursday afternoon, 31 October 2002. The timing of this affidavit on the eve ODAC having to file its heads of argument has resulted in ODAC not being able to file a replying affidavit. It is submitted that the Fourth Respondent’s affidavit filed, as late as it was, without explanation, should be disallowed.
35. Although the First to third Respondent disputes that the application of the PAI Act in the present matter is a constitutional matter, it appears to be common cause that section 32 is given effect to in the PAI Act and that the right of access to information is necessary for the promotion and enhancement of an open and accountable administration in all spheres of government.
36. In other words the only way to ‘activate’ the access to information right contained in section 32 is to apply the provisions of the PAI Act. Accordingly, the jurisprudence relating to the PAI Act shapes the ambit of section 32.
37. The question as to whether the application of PAI is a constitutional issue has relevance in two contexts :
37.1 firstly whether it gives rise to a Rule 16A notice; and
37.2 secondly, as being both an amplification and limitation of the right of access to information, whether provisions of Chapter 4 of the PAI Act is consistent with section 36 of the Constitution. I deal with the latter aspect as part of the submissions made in respect of the substantive law.
38. Section 167(3) of the Constitution refers to the phrase “constitutional matters”. It is submitted that this is synonymous to the “constitutional issues” referred to in Rule 16A.
39. The constitution provides no definition of a constitutional matter. In S v Boesak the Constitutional Court held that constitutional matters were extensive and included -
39.1 disputes as to whether any law or conduct is inconsistent with the Constitution;
39.2 issues concerning the status, powers and functions of an organ of State;
39.3 the interpretation, application and upholding of the Constitution; and
39.4 whether the interpretation of any legislation or the development of the common law promotes the spirit, purport and objects of the Bill of Rights.
40. Section 167(3) of the Constitution makes it clear that the constitutional Court determines in the final instance whether a matter is a constitutional matter or not.
41. It is submitted that Rule 16A applies each time a litigant raises “constitutional issue” in the High Court.
42. In Member of the Executive council for Local Government and Development Planning, Western cape and Another v Paarl Poultry Enterprises CC t/a Rosendal Poultry Farm the respondent contended in limine that the application for leave to appeal should not be granted, inter alia, because the issue in the appeal was not a constitutional matter. In disagreeing, the Constitutional Court held that the action of the MEC in enacting the proclamation constituted an unlawful exercise of public power and that any issue involving the legality of the exercise of public power was a constitutional matter.
43. It is submitted that the issue regarding the ambit of the PAI Act and its effect on a litigant’s section 32 right is so inextricably interwoven that the application and interpretation of the PAI Act is a constitutional issue.
44. In light of the aforegoing this matter clearly raises a constitutional issue as contemplated by Rule 16A of the Uniform Rules of Court.
45. The First Respondent contends that ODAC is biassed and unable to fulfil a neutral role in this matter because Professor Klaaren, a member of ODAC, had assisted the office of the Auditor-General in preparing its answering papers and the first Respondent fears that ODAC’s involvement, could potentially lead to a breach of its right to legal professional privilege.
46. It is submitted that there is no substance to this objection for the following reasons :
46.1 It is clear that ODAC’s submissions ae of a legal nature (and not based on the content of any privileged document) and that there is no indication of any breach of any legal professional privilege which may exist between the First Respondent and Professor Klaaren.
46.2 The role of members in the management and control of ODAC is limited to participating in an annual general meeting for purposes of approving financial statements, considering annual reports, voting in amendments to ODAC’s articles of association and further participating in discussions relating to long term objectives which ODAC should pursue.
46.3 Professor Klaaren had no involvement in either ODAC’s decision to seek admission as an amicus curiae or in respect of the contents of the submissions being made on behalf of ODAC in the application to be admitted a an amicus curiae.
46.4 In any event membership of a section 21 company is not akin to serving on the board of directors of another company but rather more like a honorary capacity, not unlike those where judges or prominent persons act in a capacity “lending” their names to a non-governmental organisation or holding an honorary position in an organisation. Or holding an honorary position in an organisation. In the latter instance this would not preclude them from adjudicating matters which came before.
46.5 Ms Tilley of ODAC, even before this application was launched and before the First Respondent’s papers had been finalised, aware that Professor Klaaren had been approached by the Office of the Auditor-General to assist the First Respondent, took special care not to discuss this matter with Professor Klaaren in order to ensure that conflicts of interest did not arise and that neither of them are compromised.
46.6 As a result ODAC only became aware of the extent of Professor Klaaren’s involvement in the matter when faced with the First Respondent’s answering affidavit.
46.7 It is submitted that on the facts the First to Third Respondents have not made out a case for a reasonable apprehension of bias.
47. For purposes of an amicus curiae application, ODAC need only comply with the requisites contained in Rule 16A. Although admission was sought in terms of section 38 read with Rule 16A, reliance on section 38 is strictly speaking not necessary.
48. It is not conceded that ODAC does not have standing in terms of section 38, rather that for purposes of this application, the Court does not have to decided this issue insofar as the requirements of Rule 16A are complied with.
49. Moreover, a lack of standing in terms of section 38 would not preclude an application in terms of Rule 16A.
50. The obligation rests on the litigant who raises the constitutional issue to provide the registrar with a Rule 16A notice.
51. A failure to do so can be condoned in terms of the provisions of Rule 16A.
52. The absence of such notice cannot preclude a potential amicus curiae from seeking admission. Moreover, the discretion would rest with the Court to admit an amicus curiae irrespective whether the request is couched in terms of Rule 16A or otherwise.
53. Accordingly, it is submitted that this court should grant the relief sought in ODAC’s Notice of Motion.
(i) Section 32 and the PAI Act
54. Section 32 of the Constitution provides:
“(1) Everyone has the right of access to -
(a) Any information held by the Sate, 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 Sate.”
55. The inclusion of a constitutional right of access to information in the Interim Constitution, as opposed merely to statutory regulation of freedom of information, was a unique characteristic of the interim South African Bill of Rights. This obviously also applies to the 1996 Constitution. The formulation and context of the said sections 23 and 32 indicate that they were included in the Bills of Rights of the interim and 1996 Constitution respectively, for the purpose of facilitating transparent and accountable government, as provided for by constitutional Principle IX, as set out in Schedule 4 to the Interim Constitution.
56. Section 32 is a novel provision with ‘no corresponding antecedent in foreign constitutions, and is [therefore] ... perhaps a fourth generation right’. In addition it creates a positive right to information that is far more comprehensive than for instance article 10 of the European Convention, which merely authorises the right to receive and impart information and ideas without interference from the public authorities.
57. The objective sought to be achieved with the inclusion of section 32 in the Bill of Rights is to make provision for “freedom of information so that there can be open and accountable administration at all levels of government”.
58. The learned authors state further : (at p. 187) :
“The Constitution established that access to information is a right. It is predicated on the need for accountability, which, it can be argued, will be meaningless unless an unqualified and enforceable right of access to official information exists.”
See also : Seminar Report the Constitutional Right of Access to Information Johannesburg 2001 No 5 Konrad Adenhauer Stiflung at p 18, where it is stated that the Right of Access to Information operates at two levels :
“It has an instrumental objective, in that it seeks to foster a culture of transparency, accountability and propriety in private and public bodies. At another level, it simply recognises that we have an inherent right to access to information and this is an end in itself.”
59. It is quite clear that access is not limited to 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. In other words it is directed at promoting good government.
60. The purpose of the right access to information was, perhaps, best enunciated in the case of Environmental Protection agency v Mink 410 US 73 80, where the United States Supreme Court stated the following regarding the general purpose of the Federal Freedom of Information Act :
“Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessary from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands.”
61. Section 32 operated as a transitional measure until such time as to afford Parliament time to provide the necessary legislative framework for its implementation.
62. Freedom of information legislation ”... usually involves detailed and complex provisions defining the nature and limits of the right and the requisite conditions for its enforcement”.
63. Legislation to give effect to section 32, viz the PAI Act was passed by Parliament and assented to on 2 February 2000, to take effect on a date to be determined by the President. The PAI Act, with the exclusion of sections 10, 14, 16 and 51, was brought into operation on 9 March 2001.
64. The PAI Act is specialised legislation which has to be applied in a manner to enhance the realisation of other rights contained in the Bill of Rights. It regulates the right to access to any information held by the Sate and by private bodies. (As regards the latter category there is a proviso that the information should be required for the exercise or protection of a right.
65. The main aim of the PAI Act is to foster a culture of transparency and accountability in public and private bodies by giving effect to section 32.
66. The PAI Act also confirms the provision for access to information on a basis of ‘a right to know’, as opposed to ‘a need to know’.
67. Accordingly, once the ambit of the PAI Act is determined, the parameters of section 32 would have been established. To the extent that the PAI Act limits any right of access to information, such limitation must be consistent with the provisions of section 36 of the Constitution.
68. The interplay between the absolute right to access to information contained in section 32(1) of the Constitution and the provisions encapsulated in the PAI Act is of cardinal importance not only to the current parties, but to all litigants.
69. Section 1 of the Constitution lays the foundation of a new society which espouses the values of a system of democratic government which ensures accountability, responsiveness and openness - this signifies a shift from the past. It requires that information in the hands of the Government which impacts directly on civil society must fall into the public domain.
70. It is submitted that the ability of an individual to be able to use the provisions of the PAI Act to gain access to information in the hands of the State is an indication of the extent to which the values of openness, transparency and accountability are being espoused.
71. The state’s obligation in respect of the PAI Act must be viewed in that context of sections 7(1) and 7(2) of the Constitution which provides that :
“(1) This Bill of Rights is a cornerstone of democracy in South Arica. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.” (My emphasis)
72. In Dagg v Canada (Minister of Finance) 1997 [2] SCR the Canadian Supreme Court (at para 62) held that access to information operated on the premise that politically relevant information should be distributed as widely as reasonably possible, and that there was not two stores of politically relevant information - a larger one shared by the leaders and a much smaller one shared by ordinary citizens. It held that no government should possess more than a small part of the information that must be available in communities if government is to be effective and responsible and the same is true of the ordinary citizen (at para 63). The Court found that rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable. Consequently, while the access to information recognises a broad right of access to “any record under the control of a government institution”, it is important to have regard to the overarching purpose of the Act in determining whether an exemption to the general right should be granted.
73. It is submitted that every request for access to information to State in terms of the PAI Act is an invocation of the unqualified right contained in section 32(1)(a) of the Constitution. The PAI Act provides the when and how an Applicant should enforce his or her section 32 right. It also limits section 32 in order to , inter alia, protect privacy, commercial confidentiality and effective, efficient and good governance.
74. Accordingly, any interpretation given to the provisions of the PAI Act must be consistent with the purpose which is being sought to be achieved by the PAI Act, read with section 32 of the Constitution, namely to promote openness, transparency and democracy.
75. The only request remaining before this Court relates to draft versions of the joint report and clearly delineated portions of the audit files, which excludes trade secrets and other protected information and which relate exclusively to that portion of the record relating to its complaints.
76. In refusing to grant access the Respondents have sought in their answering affidavits to rely generally on sections 45(b), 37 and 41 (1)(a) and specifically on section 12 relating to cabinet minutes, sections 36, 42, 42 and 44(1)(a) in respect of commercial documents and section 44(2)(c) in respect of draft reports.
77. Given the reduced request from the Applicant, sections 12, 36, 37, 41 and 42 are no longer relevant to the adjudication of this matter and ODAC is precluded from dealing with them.
(iv) Section 45(b), 44(1)(b) and 44(2)(c)
78. This provision is found in chapter 4 of the PAI Act. It permits a public body to refuse a request for access to a record if the work involved in processing the request would substantially and unreasonably divert the resources of the public body.
79. The First Respondent complained that the request in the Applicant’s Notice of Motion would do exactly this.
80. This amounts to a limitation on the right of access to information. Its reason for doing so is that the First Respondent does not have the resources to consider each document in the audit files.
81. It is submitted that a right which does not require a showing of a need to know, but which encapsulates a right to know, cannot ipso facto be trumped by the fact that an organ of Sate, endowed with far-reaching powers, has contended that he does not have the resources to accede to the Applicant’s request. It is submitted that such an approach does not endorse accountability in an open and democratic society.
82. As stated by Devenish, Govender and Hulme supra at p181:
“Authentic democratic and transparent government requires that those persons and bodies that make vital political and economic decisions need to be thoroughly supervised and controlled by the political forces and actors in the body politic, who in turn must have access to information, to effectively probe, criticise and evaluate the conduct of members of the executive and the administration.”
83. Section 44(1)(b) of the PAI Act provides that a public body may refuse a request for access to a record of the body if 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 -
84. Section 44(2)(c) provides that a public body may refuse a request for access to a record of the body if the record contains a preliminary, working or other draft of an official of a public body. Such refusal cannot however be in respect of records which contain a statement of reasons required to be given in accordance with section 5 of the Promotion of Administrative Justice Act, 2000.
85. The First Respondent contends that the draft reports sought by the Applicant falls squarely within the provisions of sections 44(1)(b) 44(2)(c). He also contends that section 46 of the PAI Act is not applicable.
86. Section 46 permits, notwithstanding section 44(1)(b) and 44(2)(c) as relied on by the First Respondent, that the public body disclose the record if it would reveal evidence of -
1. A substantial contravention of, or failure to comply with , the law; or an imminent and serious public safety or environmental risk; or
2. The public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question.
87. It is not disputed that the First Respondent did not consider the extent to which the various documents contained in the audit files comprising of the “record” had be dealt with for purposes of complying with the provisions of the PAI Act.
88. The Canadian courts have found that in determining whether to accede to a request of refuse such request under a recognised exemption each distinct record must be considered on its own and in the context of all the documents requested for release, as the total contents of the release are bound to have a considerable bearing on the reasonable consequences of the disclosure or non-disclosure.
89. The First Respondent, in rebuttal, contends that he only has copies of documents in his position and that a proper request for documents in terms of the PAI Act must be referred to the responsible information officers of the departments concerned.
90. The PAI defines a record as being recorded information regardless of form or medium. Section 3 of the PAI Act provides that it applies to a record of a public body regardless of when it came into existence. It is quite clear from section 4 that a record in the possession or “under the control of” an official of a public body in his or her capacity as such is regarded as being a record of that public body.
91. The Canadian Supreme Court has held that while it is true that the Access to Information Act speaks of “access to a record“ under any practical, contextualised definition “record” this would refer to a particular piece of information under the control of a government institution.
92. It is submitted that in the context of the PAI Act any contention that the record which is in possession of a government institution would not be under the control of that government institution would not be under the control of that government institution within the meaning of the PAI Act, has no basis. The fact that an organ of state has possession of records is sufficient for such records to be subject to the PAI Act irrespective as to whether or not those records constitute copies or not. As long as the documents are under the control of the relevant organ of state, that institution would be authorised to grant or deny access to the record and to govern its use. All that is required is that the public body to whom the request is made must be in possession of the records at the time that the request is made. The role of the public body in acquiring or accumulating information is not an express consideration as to whether or not such information constitute a record and is subject to disclosure pursuant to the PAI Act.
93. Accordingly, no information under the control of a government institution is excluded from the operation of the PAI Act.
94. In any event section 29(2)(a) of the PAI Act contemplates the provision of copies of records and not originals.
95. Accordingly, there is no basis to this objection.
96. In terms of section 11(1) of the PAI Act a request must be given access to a record of a public body if that requester complies with all the procedural requirements contained in the PAI Act relating to a request for access to that record.
97. A requester seeking to enforce his or her section 32(1)(a) rights bears the onus of proving that the requirements of section 11(1) are complied with.
98. The burden then shifts to the relevant public body to show that access to the requested information is denied on the basis of any ground for refusal contemplated in Chapter 4 of the PAI Act. This effectively amounts to a limitation of the right contained in section 32(1)(a) and must be justified according to the criteria contained in section 36 of the Constitution. In other words a public body must place evidence before the court which indicates that the refusal to allow access to the requested information is reasonable and justifiable taking into account the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve the purpose.
99. The US Supreme Court when considering exemptions provided for in the Freedom of Information Act (“FOIA”), 5USC section 552, and which are similar to those contained in Chapter 4 of the PAI Act held that consistent with the FOIA’s goal of broad disclosures, exemptions had to be consistently given a narrow compass. These limited exemptions should not obscure the basic policy that disclosure, not secrecy, is the dominant objective sought to be achieved by the FOIA.
100. Similarly, in Dagg at para 51 the Canadian Supreme Court held that access to information is a general rule and that exceptions to the rule must be confined to those specifically set out in the statute. The government bears the burden of shoeing that the information falls into one of the exceptions and that such exceptions must be interpreted strictly.
101. It is submitted that a similar approach would be applicable in the South African context.
102. In Canada the person refusing to give information must place evidence before the court that relates to consequences that could ensue from disclosure. Evidence which describes the consequences in a general way fall short of meeting the burden of entitlement to an exemption from disclosure. Moreover, exemptions from disclosure should be justified by affidavit evidence explaining clearly the rationale exempting such record.
103. It is submitted that this is consonant to the approach adopted by the Constitutional Court in its evaluative process in terms of section 36. it was refused to uphold statutes and conduct whose justification was “highly speculative and rationally unconvincing” and “not supported by any empirical evidence and research” and has required “evidence or other admissible factual material” to be placed before it.
104. In Moise v Greater Germiston TLC : Minister of Justice Intervening 2001 SA 491 (CC) the constitutional Court held (at para 19) :
“It is also no longer doubted that, once a limitation has been found to exist, the burden of justification under s 36(1) rests on the party asserting that the limitation is saved by the application of the provisions of the section. The weighing up exercise is ultimately concerned with the proportional assessment of competing interests but, to the extent that justification rests on factual and/or policy considerations, the party contending for justification must put such material before the Court. It is for this reason that the government functionary responsible for legislation that is being challenged on constitutional grounds must be cited as a party. If the government wishes to defend the particular enactment, it then has the opportunity - indeed an obligation - to do so. The obligation includes not only the submission of legal argument but the placing before Court of the requisite factual material and policy considerations. Therefore, although the burden of justification under s 36 is no ordinary onus, failure by government to submit such “data and argument may in appropriate case tip the scales against it and result in the invalidation of the challenged enactment. Indeed, this is such a case.”
105. It is accordingly submitted on behalf of ODAC that in light of the aforegoing submissions that this is not an appropriate matter for the right of access to information to be limited in terms of the exemptions which have been raised.
N BAWA
Counsel for the Amicus Curiae
Cape Town
1 November 2002