IN THE ~ IIGH COURT OF SOU rl~ AFRICA

(rRANSVAAL PROVINCIAL DIVISION)

Case No.: 4636/200':

In the application of:

THE OPEN DEMOCRACY ADVICE CENTRE Amic:us curiae

In the matter between

CCI/ SYSTEMS (PROPRIETARY) LIMITED Applicant

and

SAFAKIEN.O.

SAM BAQWA N.O.

BT NGCUKA N.O.

MGP LEKOTA N.O.

rirst Re~pondcnt

Second Rcsporldcnt

Third Respondent

Fourth Respondent

PRACTICE DIRI"'::CTION

1. THE OPEN DEMOCRACY ADVICE CENTRE IN RI"::: CCII SYSTEMS

(PROPRIETARY) LIMITED V FAKIE AND OTHERS CASE NO:

4638/2002

2.3.

Number on the roll:

Counsel: Amicus curiae: Nazreen Bawa (021) 424 9222

First to Third Respondents: Sam Maritz SC (O12) 3037400

Application to be admitted as amicus curiae4.

5.

Summary: The amicus. curaie seek to be admitted in the

aforementioned application. It is opposed by the First to Third

Respondents. We have not been able to ascertain with any degree of

certainty whether the Fourth Respondent will be making oral

submissions. A Notice of opposition and a belated answering

affidavit has been filed on behalf of the Fourth Respondent. The

Applicant in the main application does not oppose the relief being

sought by the amicus curiae, namely

a. Condonation; and

b. Admission as amicus curaie.

6. The main application is being set down on 7 November 2002 and

counsel have agreed that the amicus application will be argued first

and that it should not take longer than 1/2 hour.

7.

The relief sought is only urgent in that a ruling must be obtained at

the hearing in order to determine the further participation of the

amicus curiae in the main proceedings.

The matter is unlikely to settle and the papers must be read.8.

9. Given the nature of the matter, the detailed heaas of argument have

been drafted and submitted.

DATED at Pretoria on 1 November 2002.

CENTREc/o Legal Resource CentreStfl Floor Centenary BuildingBureau Lane, PretoriaRef: A Thakor I Alison Tilley

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVIS)ON)

In the application of

THE OPEN DEMOCRACY ADVICE CENTRE Amicus curiae

In the matter between

ApplicantCCI15Y5TEMS (PROPRIETARY) LIMITED

and

First Respondent

Second Respondent

Third Respondent

Fourth Respondent

SA FAKIE N.D.

SAM BAQWA N.O.

aT NGCUKA N.C.

MGP LEKOTA N.O

FILING SHEET

Amicus Curiae Heads ofDOCUMENTS TO BE FILED

Arguments

FILED BY: t~O~RACYADVICE CENTREc/oLEGAL RESOURCES CENTRE51h Floor. Centenary BuildingBureau Lane, PretoriaRef: A Thakor 3358/02Tel: (012) 323-7673

~.

day of 2002.DATED AT PR£TO RI A on th isTO : -I.I~IE REGISTRAR

PRETORIA HIGH COURT

~ ~ GOODMAN & JACOBS INC.Applj.cant's Attorneys4 Greenpark Estates27 George Ston-ar DriveGroenkloof \ ,..Pretoria

AND TO

day

, S ATTORNEYS

AND TO : MAPONYAINCORPORATEDRespondent's AttorneysSan lam Gables \.

1209 Schoeman Streetcnr Schoeman and Duncan StreetsHatfield w

PretoriaRef: Mr P Maponya SD/COM6/02

MAPONY AIncorporated / Reg 2001/024379/21

AiTORNEYS NOTARIES & CONV~'(A.NCERSGround Floor. '209 Schoeman & Duncan Streets

Hatfield -PretoriaPO Box 13659 ihe Tramshed 0128

Dooex 184 pretoria

e-mail: pmaponya@mweb.co.zaTel: (012) 342..0523 Fax: (012) 342-0439

: THE STATE ATTORNEV \Fedsure Forum

4°\ Floor South TowerCorner Van Der Walt and Pretorious StreetsPrivate Bag X.91Pretoria \,

CCJD/KF 953/2002/L12) \ .

.

Received a copy pereofthisday of ~ f\h1l"""'W- 2002

.C;;; ;:ftf\j OnJJ ' (5~o2

RESP~;~' A T;~_~~~_\11 ~'\.aluU\"t

AND TO

Received a copy hereof thisday of 2002

-

ST A TE ATTORNEY PRETORIA

71\1\7 "'f'~\ .r.7(.: ,

hereo, f this2002

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

In the application of;

.,"

THE OPEN DEMOCRACY ADVICE CENTRE Amicus curiae

In the matter between:

CCII SYSTEMS (PTY) LIMITED Applicant

and

SHAUKET FAKIE N.C.

SAM BAKWA N.O.

BULELANI NGCUKA N.O

M P G LEKOTA N.D.

First Respondent

Second Respondent

Third Respondent

Fourth Respondent'"II.

HEADS OF ARGUMENT FILED ON BEHALF OF THE AMICUS CURIAE

Page

3A. J[!trf)~u£!!o!1

Rule 16A snd condonation for non-compliance 4B.

12The Role of an amicus curiae

c.

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Page 2

D. Opposition bY the First to Third ReSDOQden!§ 14

{i} Constitutional Issue 14 ...~ 17

Section 3~ 20

Absence of a qQtice 20

E.

leaaJ submissions 21

(i) Section 32 and the PAl Act 21

Purposive apcroach to the application of access to

information leQislation and its interaction with section 32 25

(iii) The Request 28

Section 45lb). 44l1)(b) and 44{2)(c) 28

(v) Copies 32 "-.

(vi) Limitations 34

.

Table of ReferencesF. 38

..

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Page 3 .

A.

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The Open Democracy Advice Centre (hereinafter referred to as

"ODA C" or "the amicus curiae j seeks to intervene in the matter

between CC/'_Systems (Ptv) Lim!led v Shauket Fak;e NO and oth~!:.2.

Case No: 4636/2002 ("the main applicationj 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,

2 of 2000 ("the PAl Act'j

.

2 ODAC is a nC"'-govemmental non. profit company registered in terms of

sectior. -npanies Act. No. 61 of 1973. It is an association

between tlj~ institute for Democracy in South Africa ("/DASA1. the

Black Sash Trust and the Department of Public Law of the University of

Cape Town.1

3. ODAC was established to deal specifically with matters related to and

arising from "the PAl 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

1 Tilley founding affidavit, record pp. 7 -8 at paras 6-9

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disclosure of information?

4 ODAC seeks the following relief:

4.2

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 appJication.3

B.5.

Rule 16A of the Uniform Rules of Court gover[ls the admission of an

interested party as amicus curiae in constitutional matters before the

High CoUrt.4 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.

2 Tilley founding affidavit, record p. 16 at para 36; p. 17 at para 38; p. 18 at para 403 Notice of motion, record pp_1-2 at paras 1-54 Rule 16A was inserted by Government Notice R849 of 25 August 2000

...

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Page 5

6. Rule 16A provides as follows:

A person raising a constitutional issue shall give a notice6.1

containing a clea~ and succinct description of the constitutional

issue to the registrar at the time of filing th"e 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.

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

These may be amended by the court. Such writtenparties

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.

to obtain thecuriae is unablepotential amIcusIf a

aforementioned written consent, he or she may I within 5 days of

~

the expiry of the 20 day period prescribed in that subrule, apply

ccno 'I"\klCC: I- 7nn7 'Ankl 'c

Page 6

to the court to be admitted as an amicus curiae in the

proceedings, which application shall --

briefly describe the interest of the amicus curiae in the

proceedings;

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 other parties; al1d

.,be served upon all parties to the proceedings.

Any party who wishes to oppose such an application shall file an6.4

application upon such party clearly and succinctly setting out the

grounds of such opposition.

The court hearing an app.lication for admission as amicus curjoae6.5

may refuse or 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.

Page 7

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 amicLfS curiae was only sought after the 20

days contemplated in Rule 16A(2) 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.s

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.6

5 Tilley founding affidavit, record p. 11 at para 178 Tilley founding affidavit, record p. 12 at para 18 "Ii,

7(\(\7

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Page B

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 infon7lation 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.

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 2002.7 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.s This information..

was imparted ~o ODAC~ not because the Applicant sought a litigation

partner as suggested by the First Respondent,9 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 PAl Act.1O

7 Tilley founding affidavit, record p.12 at para 188 TI1I~y founding affidavit. record p.12 at para 20 .9 Fakie answering affidavikecord p. 56 at para 4.5; Tilley replying affidavit, record p. 79 at

para 15.1'10 Tilley replying affidavit record p. 73 at para 8.4 .

Page 9

On 17 July 2002 ODAC obtained counsel's advice on whether it should14.

seek to intervene in the main application.11 The following day ODAC

sought the consent of the attorneys for the Ap"plicant and the First to

Third Respondents, to be admitted as amicus curiae in the main

15.

facsimiles andsubsequentcalls,telephoneseveralDespite16.

undertakings to respond to ODAC, the Respondents failed to respond

to the amicus curiae application.14

17.

It was served on the State Attorney on 8 Augu~tmain application.

2002 and on Applicant's and First to Third Respondent's attorneys of

record on 12 August 2002.

The Respondents did not oppose this application and the matter was18.

amicus curiae application

l' Tilley founding affidavit record p. 13 Qt para 2212. Tilteyfounding affidavit record p. 13 at para 23 and pp. 31.3413 Tilley founding affidavit record p. 13 at para 24, p. 35

Page 10

On 3 September 2002 we requested the written consent of all the19.

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 COAC's application to be

admitted as amicus curiae and a further letter was sent to the attorney

Noof record for the Fourth Respondent requesting written consent.

response was received.

On 6 September 2002 ODAC's application was postponed to 2521.

September 2002 to enable the State Attorney to obtain instructions

from the Fourth Respondent.

On 11 September 2002 the First to Third Respondents withdrew their22.

non-opposition to ODAC's application and the matter was withdrawn

Notice of Opposition was filed on 11from the unopposed roll. A

September 2002 and on 20 September 2002 answering papers were

"ODAC's replying affidavit was filed and served on 11received.

October 2002.

On 13 September 2002 the Fourth Respondent filed a notice of23

intention to oppose. No answering affidavit was forthcoming.

Tilley founding affidavit record pp. 13-14 at para 25, pp. 36-37

Page 11

On 18 October 2002 the Fourth Respondent served us an unsigned24.

affidavit.

25.

until late afternoon of 31 October 2002.

26.

Such delay was neither deliberate,ODAC have been fully explained.

nor vexatious.

27.

28.

provisions of Rule 16A on its part.

29.

,discretion and permit ODAC to be admitted as amicus curiae

Page 12

c. The Roje of ~nami~'ys cyriae

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

5

It is submitted that the case law which has developed around section 932.

is directly applicable to theof the Constitutional Court Rules

interpretation of Rule 16A. The following principles have emerged:16

An amicus curiae has a special duty to the court: to provide32.1

cogent and helpful submissions regarding questions of law or

fact to which attention would not otherwise be drawn and which

assist the court.

1S In Re certain amic; curaie: M;nister of Health and Others v Treatment Acl;on Cam ai nand

Or~e~ 2002 (10) BCLR 1023 (CC) at para 3; Fose v Min;ster of Safety and Securitv 1997 (3)

SA 786 (CC) at para St6 Hoffmann v SA Airways 2001 (1) SA 1 (CC) at para 62; supra fn 10

Page 13

32.2 It must not repeat arguments already made but must raise new

contentions and generally these contentions must be raised on

the data already before the court.

An amicus curiae is not a party to litigation, but believes that the.

Court's decision may affect its interest.

.

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.

'

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D. Opposition bv the First to Third Respo~de!l!s~,

33. The First to Third Respondents oppose COAC's application on a

number of grounds. I deal with each in turn.

34 Before doing so 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 sffidavit

was only provided to us on Thursday afternoon. 31 October 2002. The

timing of this affidavit on the eve of 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.

Constitutional !ssu~ 17(i)

35. Although the First to Third Respondent disputes that the application of

the PAl Act in the present matter is a constitutional matter, it appears to

be common cause that section 32 is given effect to in the PAl 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. 18

17 Fakie answering affidavit record p. 55 at para 4.118 Fakie answering affidavit record p. 55 at para 4.1

-fir

,.

Page 1536,

of section 32.

37.

...,

.

respect of the substantive law.

38.

...

39.

were extensive and included -

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Page 16

39.1 disputes as to whether any law or conduct is inconsistent with

the Constitution;

issues concerning the status, powers and functions of an organ

of State;...,

39.3 the interpretation, application and upholding of the Constitution;

and

whether the interpretation of any legislation or the development

of the common law promotes the spirit, purport and objects of

the Bill of Rights.

J

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.20

41.

It is submitted that Rule 16A applies each time a litigant raises

"constitutionalissue" in the High Court.

42. In Member of the Executive Council for Local Government and

Deve/ooment Plannina. Western CaDe. and Another v Paarl Poultry

Enterorises CC tla Rosendal Poultry Farm21 the respondent contended

20 Fredericks and Others v MEC for Education and TraininQ. Eastern CaDS and Others 2002

'2) SA 693 (CC) at para 312002 (3) SA 1 (CC) at para 6

t

Page 17

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 ..i

the MEC in enacting the proclamation constitut~d 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 PAl Act and its

effect on a litigant's section 32 right is so inextricably interwoven that

the application and interpretation of the PAl 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 Ruleg, of Court.

~22(ii)

45. The First Respondent contends that ODAC is biased 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.23

.

22 Fakie answering affidavit record p. 54 at para 3.7;3 Fakie answering affidavit, record pp.53.54 at paras 32- to 3.7

..,

Page 18 ..\

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 are 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.24 ...

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.25

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 as an amicus curiae,26

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

2.i Tilley replying affidavit, record p.75 at paras 8.132S Tilley replying affidavit, record p-71 at paras 8.2.4 and 8.2-5

~ Tilley replying affidavit, record pp.72-73 at paras 8.3. 8.6 and 8.8

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Page 19

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. In the latter instance this would not preclude

them from adjudicating matters which came before.

~

"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.27

;46.6 As a result ODAC only became aware of the extent of Professor

Klaaren's ir1volvement in the matter when faced with the First

Respondent's answering affidavit.

It is submitted that on the facts the First~to Third Respondents

have not made out a case for a reasonsable apprehension of

bias.

a7 Tilley replying affidavit, record pp.72-73 at paras 8.3, 8.5 and 8.6

~

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(iii) Section 3~

47. For purposes of an amicus cu~ae 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.

Apse~nc~ of a noti~e

The obligation rests on the litigant who raises the constitutional issue to

prov!de the registrar with a Rule 16A notice.

A failure to do so can be condoned in terms of the provisions of Rule51.

16A.

The absence of such notice cannot- preclude a potential amicus curiae52.

Moreover, the discretion would rest with thefrom seeking admission

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Page 21 ,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..

E. l.eQal submissign_s

(i) Sef;tion 32 and the PAl Act

--,

54. Section 32 of the Constitution provides:

"(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) Nat;onallegislation must be enacted to give effect to" this fight, and

may provide for reasonable measures to alleviate the administrative

and f;nancial burden on the State."

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 cha~cteristic of the interim South

This obviously also applies to the 1996African Bill of Rights.

The formulation and. context of the said sections 23 andConstitution-

32 indicate that they were included in the Bills of Rights of the Interim

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56.

'-..

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57.

58.

.

2a Devenish Govender & Hulme ~~!@~~-~Q~~~~ a! pp 186 -

187

29 see L Gaum The Ri ht to Access to Information Korf v Health Professions Council of

~f~ 20001 SA 1171 (T)) 2001 (64) THRHR 146 at 150

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good govemment.30

60.

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Page 24

61.

for its implementation.31

~

62.'" usually involves detailed and

requisffe conditions for ffS enforcemenf,.32

63.

date to be determined by the President. The PAl Act, with the

9 March 2001.

protection of a right).

,

31 Item 23(2)(a) of Schedule 6 to the Constitution'J2 Supra fn '30 at para 83

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Page 25

65. The main aim of the PAl Act is to foster a culture of transparency and ..,accountability in public and private bodies by giving effect to section

32. ,.

66.

The PAl 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 PAl Act is determined, the

parameters of section 32 would have been established. To the extent

that the PAl 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 ConstitutioF'l and the provisions

encapsulated in the PAl Act is of cardinal importance not only to the

c~rr~nt parties, but to all litigants

(ii) Purposive approach 12 the aeDJic~tiQn- of ~ccess to I!)fo!mat!o!)

leQ!slation andJt$ interaction with secti_on 32

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

It requires that information irL the hands of theshift from the past.

'A-C,"I\O

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.

,Page 26

Government which impacts directly on civi! society must fall into the

public domain.33

It is submitted that the ability of an individual to be able to use the70,

provisions of the PAl 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.

..,

The state's obligation in respect of the PAl Act must be viewed in the71.

context of sections 7(1) and 7(2) of the Constitution which provides that

This Bill of Rights is 8 cornerstone of democracy In South Africa. It

enshrines the rights of all people in our country and affirms the

democratic values of human dignity, equality and freedom.

The §la!e must respect protect. Dromo!s and fulfil the riahts in the Bil/

Q[_R[ahts." (my emphasis)

In Qaga .v Canada (Minister of Fin~nce11997 [2] SCR the Canadian,

72.

Supreme 'Court (at para 62)34 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

33 See also section 9(e) of the PAl Act.34 Sec:;-lion 2(1) of the Cansdian Access to Information Act. RSC 1985, provides that thepurpose of the Acl is to extend the present laws of Canada to provide a right of access toinformation in records under the control of a government institution in accordance with theprinciple that government inforrnalion should be made available to the public, thal necessaryexceptions to the right of access should be limited and specific and that decisions on thedisclosure of government information should be reviewed independently of the govemment.This Acl also contains a number of exemptions similar to those sel out in chapter 4 of the PAl

Act. '1

-..

,-rrll/\ "'0'

, -\

73.

...

right. v~It also limits section 32 in Order to, inter alia, protect privacy,

commercial confidentialityand effective, efficient.. and good

governance.

74.Accordingly, any interpretation given to the provisions of the PAr Act

must be consistent with the purpOse which is being Souaht tn h~

--w,.,.~ u~achieved by the PAl Act, read with section 32 of the Constitution,

namely to promote openness, transparency and democracy.

-' ,',I ~~nQ 'nN"" B~:L ~OOl 'AON .~

~.

Page 28(iii)

75. --,

-.

record relating to its

complaints.35

76.

;

77.

(iv)

7B.

...,

.,. I_r,./\ II "'il

--,Page 29

processing the request :would substantially and unreasonably divert the

resources of the oublic body.

79. The First Respondent complained that the request in the Applicant's

Notice of Motion would do exactly this.36.

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.J7..,

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 State, 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.

J

82, As stated by Devenish, Govender and Hulme supra at p 181:

"Authentic democratic and transparent government requires that those

persons and bodies that make vital political and economic decisions

need to be thoroughly supervised and controUed by the political forces

and actors in the body politic, who in turn must have access to

36 Fakie answering affidsvi! main record p. 62 at para 92; p. 65 at para 9.8; pp. 65-66 at para

9_1031 Fakie answering affidavit main record pp. 65-66 at para 9.10

Page 3185.

...applicable. 38

.,86.

record if it would reveal evidence of-

or

..,

87.

provisions of the PAl Act.39

-a8.

...

-t- --,_1'1"'"

.".,

44(2)( c).

Page 32

,.

«;

(v) ~OJJ~!§.

89

~.

90.

91.

,

f'f"'" -""

Page 33

particular piece of information under the control of a government

institution.42

92. It is submitted that in the context of the PAl Act any contention that the

record which is in possession of a government institution would not be.

under the control of that government institution within the meaning of...,

the PAl 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 ~PAl Act irrespective as to whether or not those records constitute

~

copies or not. As lon9 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 PAl Act.

93. Accordingly I no information under the control of a government~

institution is excluded from the operation of the PAl Act.

In any event section 29(2)(a) of the PAl Act contemplates the provision94.

of copies of records and not originals.

~z Q2gg sup"a at para 80; see also ,Qanads PQ2t Corooration v Minister of Public Works and

DuQuette 8ad Information Commissioner of Can~d8 where the Canadian Federal Court ofAppeal considered the meaning of "conlro'" in the context of the Access to Information Act.

,

t

1'1'/1 /\ .""

Page 34

95 Accordingly, there is no basis to this objection....,

(vi) Lirnit!tiQns

96. In terms of section 11(1) of the PAl Act a requester ~ be given

access to a record of a public body if that requester complies with all

the procedural requirements contained in the PAl 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 PAl Act.43. 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

.-;---""" .~.,

Page 35 ~.

purpose.

99.

These limited

secrecy, is the dominant objective sought to be achieved by the

FO/A.44'"

The

strictly.

-.,African context.

I-ccna "'k!If, ""'n 71\1\7 'Af\~1 'r

Page 36In Canada the person refusing to give information must crace pvi""~~~;

102.

,--- -.""""'I\"t;before the court that relates to consequences that could ensue from

disclosure. Evidence which ~escrjbes the Consequences in a aen~":l1

~

way fall short of meeting the burden of entitlement to an exemption

from disclosure.46Moreover, exemptions from disclosure should be.

justified by affidavit evidence explaining clearly the rationale exempting

..,such record.46

103.

i}

It is submitted that this ;s consonant to the 'Gpproach adopted by the

Constitutional Court in its evaluative process in terms of sectinn ~~ 't

, V,",. IIhas refused to uphold statutes and conduct whose justification was

11Iighly speculative and rationally unconvincingl, and &hot supported bv

104. In Moise v Greater Germiston TLC: Minister of Justice Intervenin 2001

.' ." .

(4) SA 491 (CC) the Constitutional Court held (at para 19)i ....

45 Ottowa Football Club v Canada Minister of Fitness and Amateur Sorts {1989] 2 FC 480

{[O) al488 '.

6.r:~~~~~~~~,~ ~ [1992J 2 FC 75 (ro) at p.109-11047 ~~~~~ 19.95 (3) 3.91 (CC) at para 287,'.Q ~~~~ 1998 (3) SA 785 (CC)

at para 94,-~ ~2001 (1) SA 1146 (CC) at paras 30 and 37

~.

.-- ., r r /\ n .,. 0'7.L.

Page 37

...,

.

considerations, the party contending for justification must put such

material before the Court. It is for this reason that the government

functionary responsfole for legislation that is being challenged on

constitutional grounds must be c/1ed 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 Gata and argument may in

appropriate cases 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 thef

right of access to information to be limited in terms of the exemptions

which have been raised.

NBAWA

Counsel for the Amicus Curiae

Cape Town

1 November 2002

"'.

-.,Page 38

..F. TABLE OF REFEREN~§§

1

2.

3.

4.

5.6.

..,

7.

8.

9.

10.

11.

12.

13.

~

14.

15.

1.6~

17.

18.

In Re certain amici curaie: Minister of Health and Others v~- ~ ~~--~-- ~

..Tre~tment ActionCampaio:, gnd Qthers 2002 (10) BCLR 1023 (CC)

Foss v Minister of Safety and ~ec!;!;d.tv 1997 (3) SA 786 (CC)

Hoffmann v- SA 8.irw~_~s 2001 (1) SA 1 (CC)

S ~ BQe2~k 2001, (1) SA 912 (CC)

Fredericks and Others v MEC for Education and Training. Ea§tem

Caoe _and Otfl~C2 2002 (2) SA 693 (CC)

Member of the Executive Council for Local Government and

Develor;menf Planninq. Western Cape. and Another v Paa[l Po~ltry

Enterprises CC t/a RQsendal Poultry Farm 2002 (3) SA 1 (CC)

Oevenish Govender & Hulme Admjnisfrativ~ ~L§~aQQJ~sti£e- ]Q

SolJfb/;.f{i(;a at pp 186 -187

Semjngr Report the gonstitutional Riaht of Access to ./nformatio[1

Johannesburg 2001 No 5 Konrad ~~enhau~rStif!ung at p 18

~Dvironmental Protection AQen(:~ v_Miok 410"US 7380

L Gaum Th~ Riaht to Access to Information {Kort v Health

Professions Council of South Africa 2000 1 SA 1171 (T» 2001 (64)

THRHR 146 at 150

Ex oarte Chairperson of the Constitutional Assembly: In- r~Qerti(ication of the Constitution of the Republic of South AfricsJ -

~ 1996 (4) SA 744 (CC)

Raog v Canada {Minister of Finan_G~} 1997 [21 SCR

Canada Packers Inc. v Canada (Minister of Agriculture) [1989J 1

FC 47 at 6

Canada Post Corooration v Minister of Public Works and QuClueft?

and Information Commissioner of Canada::; ~

Qet>§rtment of Justice v Tax An~/y~t~ 492 US 136 at 151 (1989);

Deoartment of Air Force v Rose 425 US 352 at 36.1 (1976)

FB! ~ ~bramsOfl_456 US 615 at 630 (1982)

Moise v Greater Germiston TLC: Minister of Justice Interveninq

2001 (4) SA 491 (CC)

" 'flln"'"j..j..

Page 39

19.

20.

Ottowa Football Club v Canada (Minister of Fitness and Ametef:![

SfJorts [1989] 2 FC 480 (TD) at 488

Temette v Canada (Solicitor Genera}) [1992] 2 FC 75 (TO) at p.109-

110

21.

22.

23.

S v Makwanvane 1995 (3) 391 (CC) at para 287

De LanQe v Smut§ 1998 (3) SA 785 (CC) at para 94

S v§tevn 2001 (1) S;A 1146 (CC) at paras 30 and 37

..,

...

~,

.7/\ /\ 7 ., ".. .,