PAIA

Facts: The applicant, Professor Alberts, was a professor in the physics department of the University of Johannesburg (UJ) and he researched and developed thin film photovoltaic solar technology. A company was incorporated, Photovoltaic Technology Intellectual Property (Pty) Ltd (PTiP) by UJ, through which the commercial application of the technology could take place. The Industrial Development Corporation provided funding for PTiP and Innovative Investment Corporation (Pty) Ltd (IIC) was also incorporated. Unfortunately there were suspicions of illegal actions of certain individuals and their use of IIC with ensuing publicity and PTiP floundered. Professor Alberts blames the leadership of UJ for failing to act to save PTiP. In 2017, PTiP ceased operations and was placed in business rescue and ultimately in liquidation.

Application: Professor Albert’s attorneys addressed a letter to the Chief Information Officer of UJ seeking records in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA). An internal appeal was noted against the refusal by UJ to grant access to the records requested of it. UJ dismissed the appeal. Professor Alberts then brought proceedings in terms of sections 78 and 82 of PAIA to set aside UJ’s decision to refuse access to the information sought, and to direct UJ to grant access.

Discussion: Professor Alberts contends that he is the requester entitled to relief before this court. UJ contends that Professor Alberts is not the requester. PAIA is predicated upon the rights of access of a requester to be given access to records. UJ’s first line of defence is that the requester is PTiP. Yet it is Professor Albert who moves this court to grant him access. As he is not the requester, he has no right of enforcement, and he is non-suited on this basis. PAIA regulates what is required for a requester to be given access to a record of a public body and any record of a private body. It is the requester that is given access. A requester is defined, in relevant part, as a person making a request for a record ( section 1 of PAIA). The issue that arises in this case is this: who made the request for access to the records? That is the person who may have a right of access to the records requested, and it is that person who may apply to court for appropriate relief if access is denied.

Findings: The dispute rests upon an assessment of the evidence as to who made the request. The documentary record, fairly interpreted, shows that the request was initiated on behalf of PTiP. The substantive treatment of the issues is based on the role of Professor Alberts as a director. The capacity in which Professor Alberts is cast is that of a director of PTiP with authority to act on behalf of the company. PTiP was the requester. Only a requester may apply to court to secure access to the records sought in the application before court. PTiP should have brought the application as the requester. PTiP did not do so. Professor Alberts is the applicant but not the requester. He is non-suited on this basis. His failure in this application does not warrant an order of costs in the light of the wider public interest considerations. The significance of the work that Professor Alberts and PTiP were engaged upon went beyond private interest.

Order: The application is dismissed.

UNTERHALTER J

Facts and issue: The applicant is the employee of the respondent who is on suspension due to certain allegations against him. The applicant seeks that the respondent should consider and decide on the applicant’s application for the access to the contract of employment between the parties and the record of the hearing proceedings. A point of improper citation and non-joinder of the KSD TVET College is taken by the respondent. It also alleges that the Promotion of Access to Information Act is not applicable in this matter because the information sought was demanded after the institution of criminal and civil proceedings or disciplinary procedures. Correctly, sub-paragraph 27.2 of the answering affidavit of the respondent mentions a pending criminal case as a common area between the parties.

Discussion: There can be no denying that KSD TVET College is a public College that was established in terms of section 3 and declared as such in terms of Section 4 of the Act. Section 5 of the Act reinforces what is contained in Section 3(2) of the Further Education and Training Act 16 of 2006, i.e. that every public college is a juristic person. All the above taken into consideration, makes it difficult to understand without more why the Information Officer of another entity is liable for the action of a totally different entity, especially in light of the provisions of section 45(1) of the Act. There is no basis for the citation of the Information Officer for the Department of Higher Education. The point of non-joinder of the College and misjoinder of the Information Officer for the Department of Higher Education is upheld. On the point of pending criminal proceedings, it is known that there is a pending criminal case involving the applicant and as such section 7(1)(a) of PAIA is also met in this case. For this reason, it is impossible for the applicant to invoke the provisions of PAIA in circumstances where documents sought will be used during civil or criminal proceedings. There is no dispute that section 45(1) of the Act allows the applicant to access the required information. If there is no dispensation available during disciplinary hearing to obtain the required documents, there is no reason why section 45(1) cannot be invoked. Section 45 of the Act gives the applicant a right to demand the required information. There is no reason why the applicant cannot request the information during the disciplinary proceedings relying on section 45 as opposed to PAIA.

Findings and order: The application is dismissed.

Facts: The information that is at the centre of the Promotion of Access to Information Act 2 of 2000 (PAIA) request relates to the outcome of a Board of Inquiry conducted by the Department of Defence in the aftermath of the Battle of Bangui which took place in the Central African Republic (CAR). The Battle involved troops of the South African National Defence Force, including a contingent of Special Forces, and a grouping of CAR rebel forces who fought collectively under the name "Seleka". It resulted in a loss of 15 South African soldiers’ lives and injury of a further 25. The applicant is a journalist who works for the Business Day and Financial Mail. He sought the information in question for purposes of a book that he was writing with two other journalists about the Battle. By the time the matter was heard, the book had already been written. However, he persists with the application because he states that the Department has never provided an official account of what transpired in the Battle, save for sweeping broad answers and vague descriptions, including to the families of the deceased, which means that no one has been held accountable for the disaster which is described as South Africa’s worst military defeat in the democratic era.

Application: The respondents were ordered, in terms of section 80 of the Promotion of Access to Information Act 2 of 2000, to deliver to the court, the SANDF Board of Inquiry into the events of the Battle of Bangui. The respondents complied with the order and delivered a redacted version of the requested record, which comprises three Board of Inquiry investigations that were conducted in 2013 and 2014. Having examined the record, the court must determine whether the respondents have discharged the statutory burden imposed upon them by section 81(3) of PAIA to establish that their refusal of the request for access complied with the provisions of PAIA.

Discussion: The refusal by the respondent is based on section 34(1) which provides that the information officer of a public body must refuse a request for access to a record of the body if its disclosure would involve the unreasonable disclosure of personal information about a third party, including a deceased individual. Expounding upon the respondents’ reliance on this ground, the Minister’s letter explains that, unlike the deceased soldiers, the names of the injured were not previously published and their permission would have to be obtained before publishing their names, details of their injuries and how they were injured. This information, says the letter, is considered to be private personal information which impacts directly on the injured soldiers’ persons and dignity, as well as the right of their families not to be exposed to such publicity. The legal position is that, although the respondents were required to notify the affected third parties regarding the applicant’s request, the notification was not for the purposes of obtaining permission. And even if the third parties had made representations objecting to disclosure of the information, the information officer would still have been permitted to disclose the information to the applicant if the provisions above were met. The same would apply if reasonable steps were taken to notify third parties but no representations were made, or the third parties were not informed despite reasonable steps being taken to notify them. To the extent that the respondents seek to rely on their failure to notify the third parties as justification for reliance on section 34(1), that can no longer avail them. As envisaged in subsection 34(2)(e), the applicant has obtained permission from the next of kin of some of the deceased soldiers to gain access to the requested record. In addition, to the extent that the record contains names of the deceased soldiers, they are already publicly available, which is undisputed, and this means they may be made available in terms of subsection (2)(c). Further, it is not in dispute that the said soldiers were officials of a public body and that the information sought relates to those positions and functions, as envisaged in subsection (2)(f).

Findings: The applicant invited, if not challenged, the respondents to explain their stance that the information relating to injured soldiers is private personal information whilst the information relating to the deceased is not, stating that it is bereft of logic and substantiation. There remains no explanation from the respondents for this distinction. The applicant emphasizes that he does not seek personal information relating to the soldiers’ medical records, postmortems and photographs of the injured and deceased persons, which may be redacted if necessary. He states that the names of the deceased and injured are not private matters or personal information which justify refusal. No case is made out by the respondents to establish why the names of the deceased or injured are exempt from disclosure. It falls upon the respondents to make out a case that the information sought is protected from disclosure in terms of section 34(1). Reliance on that provision requires the information officer to set out facts which cause the record to fall within the ambit of the provision, in other words, why its disclosure would be unreasonable. This the respondents have not done, despite invitation in the supplementary affidavit to do so. It remains unexplained why any of the contents of the record is exempt from disclosure in the circumstances of this matter. Save for reciting the contents of section 34(1), the respondents have failed to discharge the evidentiary burden placed upon them to make out a case for their reliance on section 34(1). It is not sufficient to recite the statutory language of the exemptions claimed. Access to the record should be granted, save those details of the soldiers’ medical records, postmortems and photographs of the injured and deceased persons, which amount to personal information as defined in section 1, should be redacted. It is not appropriate that the record should be withheld because it provides insightful information of how the Battle ensued, including circumstances under which some lives and equipment was lost. The record may, however, be redacted in the limited respects. The limited redaction will not render the record unintelligible or otherwise affect the quality of its disclosure.

Order: The decision of the first respondent to refuse the applicant’s request for access to information is reviewed and set aside. The respondents are ordered to provide the applicant with the information requested in the PAIA request within ten days of the date of the order, save that the record provided to the applicant may be redacted in certain respects.

MANGCU-LOCKWOOD  J

* See Thompson v Information Officer: Department of Defence [2024] ZAWCHC 58 on the judicial peek.

Facts: Afriforum (applicant) requested certain records from Eskom in terms of section 18(1) of the Promotion of Access to Information Act 2 of 2000 (PAIA). The request was only partially complied with, in that Eskom disclosed some of the requested records. The records in respect of which access was denied were: a list of all Independent Power Producers (IPP's) that are currently feeding electricity into the national grid; copies of all active contracts that Eskom or any one of its subsidiaries has concluded for the purchasing and transportation and distribution of coal and diesel; and copies of all active unredacted contracts that Eskom or any one of its subsidiaries have with neighbouring countries of South Africa for Eskom or any one of its subsidiaries to provide electricity to those countries.

Application: This application is the sequel to an exhausted internal appeal procedure instituted by the applicant against the refusal of the information officer of Eskom to grant access to the records or documents. The application is brought in terms of section 78 read with section 82 of PAIA. Eskom had refused to disclose the remainder of the requested records broadly on the grounds that they contain information exempted from disclosure as provided for in terms of section 42(3)(b) and (c) of PAIA.

Discussion: Eskom’s response letter neglected to provide an explanation as to why that particular section was relevant to the present request. Section 42(3)(b) and (c) deals with financial, commercial, scientific or technical information, the disclosure of which would be likely to cause harm to the commercial or financial interests of the State or a public body. The denial of access was issued without providing any justification or supporting evidence. Eskom's heads of argument belatedly incorporated a new “ground” for denial by invoking the Protection of Personal Information Act 4 of 2013 (POPIA). The reliance on POPI is plainly an attempt by Eskom to supplement its case and cannot be allowed. Eskom also expressed its intention to rely on sections 36(1)(b) and 36(1)(c)(i) and (ii) which deal with deal with mandatory protection of certain commercial information of a third party.

Findings: Eskom provided no evidence regarding the potential injury to Eskom or to third parties. Eskom, being an organ of State, is after all constitutionally obligated to conduct its operations in a transparent and accountable manner. Considering the enormous quantities of coal purchases, the public ought to know at what prices the suppliers have contracted with Eskom and for what period. Eskom is a major public body in terms of the Public Finance Management Act 1 of 1999 (PFMA) and public interest is of paramount importance in such transactions. In terms of third-party interests in the disclosure of the contracts, Eskom's comments are generalised and lack any factual basis. It is highly unlikely that disclosure of the diesel contracts could prejudice Eskom or that Eskom and the competition would suffer if they were made public. The South African public, which is increasingly paying higher power rates, has the right to know what price Eskom sells electricity to surrounding nations and to compare such pricing to that in South Africa. The ongoing reports of serious irregularities pertaining to fuel and coal contracts and the heightened duty of transparency and openness and avoidance of secrecy and the public interest in the disclosure, outweighs any potential harm contemplated in the provisions on which Eskom relies in order to refuse access to the records pertaining to coal and diesel contracts.

Order: The refusal of the respondents (Eskom and the information officer) to grant the applicant access to records/documents in respect of applicant's request is set aside. The respondents are directed to grant the applicant and/or its attorneys access in printed form of the records or documents within 10 days from date of this order.

WINDELL J

Facts: The applicants are former employees of the first respondent, Transnet SOC Ltd, specifically its subsidiary, Transnet Port Terminals and the second respondent is Transnet’s Port Terminals’ Information Officer. The applicants were dismissed from the employ of Transnet’s Port Terminals in 2016 for gross insubordination. They challenged the fairness of the dismissals and referred disputes to the Transnet Bargaining Council. The findings were against the applicants and a review application to the Labour Court was dismissed. The applicants continued to challenge the legitimacy of their dismissals, inter alia, by way of repeated calls to Transnet officials pleading for reinstatement and a referral to the Public Protector, which was not pursued.

Application: The applicants launched this application in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA) in which they requested the respondents to provide access to a report compiled by a Forensic Investigator, Owen Mavana, in 2019, allegedly referring to the circumstances leading to the dismissal of the applicants from the respondent’s employment. In an amended notice of motion, the applicants later added an alternative prayer, namely that the respondents be directed to deliver the Mavana Report to the court in terms of section 80(1) of PAIA to enable the court to examine the report and to decide whether the applicants are entitled to be granted access to it.

Discussion: The respondents explain that the Mavana Report was produced pursuant to an agreement of confidentiality between Mr Mavana and Transnet, with the report containing riders protecting its confidentiality and non-distribution to third parties without the prior consent of Transnet and Mr Mavana. According to the respondents, the request for the Mavana Report is a “fishing expedition” for information supporting the applicants’ ongoing “agenda of reinstatement.” According to section 7(1) of PAIA, the Act does not apply to records requested for criminal or civil proceedings after commencement of proceedings. The question is whether section 7(1) can be used to exclude a requested record from PAIA’s ambit after the relevant court proceedings to which the records relate have been finalised.

Findings: Section 7(1) does not apply on these facts and in respect of already concluded proceedings. Certainly, a request for access to a record after court proceedings have been finalised cannot disrupt such proceedings. Transnet is a State Owned Company (SOC) and can act as both a public and private body for the purposes of PAIA. The respondents have not discharged the onus of proving that Transnet acted as a private body in relation to the Mavana Report and that the threshold test in section 50 of PAIA applies to determine if the applicants are entitled to access to the report. Section 11(1) of PAIA applies, when information is requested from public bodies. As to the alleged risk of breach of confidence owed to a third party in terms of an agreement, it is insufficient for the holder of a record to repeat the language of the exemption claimed to prove that the exemption applies. The respondents have not produced sufficient facts to enable the court to determine whether there is indeed such a risk.

Order: The respondents are ordered to furnish the applicants a copy of the Mavana Report within 20 days as from the date of service of the order. Transnet is to pay the applicants’ cost of suit.

BOTHA AJ

Facts and issue: The applicant instituted proceedings for a relief in terms of which the respondent is directed to provide him with copies of the postmortem report of his partner, who died at hospital. The applicant contends that he requested copies of the postmortem report relating to the death of his partner and that information was never given to him. The respondents contend that the request did not meet the mandatory standards and requirements prescribed by the enabling legislation.

Discussion: The applicant is the deceased’s next of kin. There is judicial authority for proposition that permanent life partnerships are very much akin to marriages. Accordingly, these kinds of relationships deserve of legal recognition and protection. The complaint about provision of sufficient particulars in the prescribed form are not outside the scope of operation of section 19(2) of PAIA. The respondents’ duty to assist is not limited to the completion of prescribed form and its transmission to the Information Officer. It is therefore not opened to the respondents to refuse request for information on account of insufficient particulars provided in the prescribed request form.

Findings: The lodging of the appeal outside time limits prescribed by the empowering provision, namely section 75(1) (a)(i) of PAIA, is null and void and it constitutes a nullity. There is no valid appeal lodged. The application must fail, as internal appeal procedure has not been exhausted.

Order: The application is dismissed. The respondents are directed to pay 50% of applicant’s party and party costs.

Facts: The municipality promoted two of the applicant’s colleagues and he launched a grievance procedure relating to the process that was followed for the promotions. He contended that the promotions were unprocedural and irregular. The grievance was considered and thereafter dismissed by the municipality. Dissatisfied with the dismissal, the applicant referred an alleged unfair labour practice dispute to the bargaining council. The dispute was set down for conciliation and remained unresolved. The dispute was heard and argued in an arbitration. The commissioner made findings and held that only a court of law can declare the alleged unprocedural and irregular promotions unlawful.

Application: Following the award by the commissioner, the applicant launched a request in terms of the Promotion of Access to Information Act 2 of 2000, requesting to be furnished with the record of the job evaluation process that was followed relating to the disputed promotions. The municipality, after asking for several extensions to provide the record to the applicant, failed to do so. Whilst these steps were taken the litigation to compel the municipality to grant access in accordance with PAIA commenced. The applicant seeks access to the job evaluation and re-grading records.

Discussion: Section 7 of PAIA provides that the Act does not apply to records requested for criminal or civil proceedings after commencement of proceedings. Mr Gwebu on behalf of the applicant contended that the access to the required documents was not done in the course of litigation as no civil or criminal proceedings are pending. Mr Omar on behalf of the respondent contended that access to the required documents was done in the course of civil litigation, given the history of the case between the applicant and the respondent pertaining to the promotion of two of his colleagues.

Findings: Section 7 clearly covers instances where the documents are sought prior to litigation. This is so given that, when the requester makes an application, he or she must state the right that he or she wishes to enforce. In his request for the job evaluation records, the applicant mentioned four items but is silent on the reasons motivating for such a request. This court has no difficulty in seeing through the veiled request for documents that it is for the purpose of the ongoing litigation. There is no other reason to request the job re-evaluation documents. The court is further fortified by Maamach Pty Ltd v Air Traffic Navigation Service SOC Ltd [2022] ZAGPJHC 283 at para [36] where it was held that textually, the exclusion only applies after the “commencement” of proceedings, however, the courts have held that the exclusion can apply as well to attempts to obtain “pre-action discovery.”

Order: The application is dismissed with costs.

SENYATSI J

Facts: The police issued media statements that they had destroyed 24,901 firearms which include firearms voluntarily handed over during the previous two firearms amnesty periods as well as those that were either confiscated by or surrendered to the State. The destruction was reported to have taken place at Cape Gate Steel in Vanderbijlpark, Gauteng. The applicant made a request for information for the SAPS to furnish the records and/or ballistic reports for each destroyed firearm which substantiated the claim that all of the 24,901 firearms were subjected to Integrated Ballistics Identification Systems (IBIS) testing, which in turn returned no positive hits nor firearm application linked to them.

Application: The request was refused because the request “relates to confidential information, and protection of certain other confidential information, of the third party.” The applicant launched an internal appeal and was successful, but the SAPS never supplied the information and did not answer a further request and have not provided access. The applicant seeks relief in terms of the Promotion of Access to Information Act 2 of 2000 that the respondents be obliged to produce the records.

Discussion: The respondents maintain that they provided the applicant with the requested information in the form of the media statement, the Government Gazette and the destruction certificate. The respondents say it would be a protracted process to collate individual certificates in relation to destroyed firearms, because individual files are located in every province. The respondents further invited the applicant to specify firearms which are of concern to the applicant and that information pertaining to those firearms would then be made available to the applicant. The answering affidavit contained a contention that the applicant was non-specific as to information requested. The respondents cannot in the same breath say the applicant’s request is imprecise, whilst simultaneously saying the applicant has been given the requested information.

Findings: None of the media statement, the Government Gazette or the destruction certificate referenced by the respondents provide proof that the firearms were tested and that no firearms which returned positive hits or firearm applications linked to them were destroyed. It is not permitted of the respondents to say, in the application, that the requested information is not to be made available because it would result in a protracted process. This is because the respondents did not aver an impediment to producing the requested information, given that the applicant’s internal appeal succeeded. The respondents have always been in control of information requested by the applicant. It is similarly not open to respondents to raise privacy concerns in their opposition to the application.

Order: Respondents are ordered to, within 30 days, provide information which substantiates the claim that all the destroyed firearms were subject to IBIS testing, which returned no positive confirmation for involvement in the commission of any offence, nor any firearm applications linked to the firearms. The respondents are ordered to pay the costs.

MOOKI J

Facts: Montrose Mews is a body corporate constituted out of a sectional title scheme and Ms Mokoka is a member of that body corporate. Ms Mokoka asked to see bank statements reflecting the state of Montrose Mews’ administrative fund and a statement of the fund’s expenditure for certain months. The request was apparently motivated by what Ms Mokoka thought was a poor auditor’s report, and her suspicion that an irregular loan had been made to the body corporate. On receipt of the request for information, Montrose Mews referred Ms Mokoka to a Promotion of Access to Information Act 2 of 2000 (PAIA) manual it had prepared. Montrose Mews took the view that PAIA applies to any request made by a member of the body corporate for information held by the body corporate.

Application: Ms Mokoka took the view that Montrose Mews’ reliance on PAIA was no more than a tactic meant to conceal information to which she was entitled under the Management Rules. She has refused to fill out an information request under PAIA. She says she has an unconditional right to the information she seeks under the Sectional Titles Schemes Management Act 8 of 2011 and its Regulations. The adjudicator at the Community Schemes Ombud Service directed Montrose Mews to hand over a number of bank statements to which he concluded Ms Mokoka is entitled under the Sectional Titles Management Act. Montrose Mews seeks to review and set aside the adjudication order.

Discussion: Ms Mokoka has a right under the Management Rules to inspect the statements she wishes to see “on application”. The use of the word “application” in Management Rule 26(2) denotes that, although Ms Mokoka is entitled to the statements she seeks under the Management Rules, she is not entitled to information in them that is not necessary to allow her to assess the Montrose Mews’ financial situation and which Montrose Mews has a good faith basis to redact. This would include personal information that is irrelevant to Ms Mokoka’s assessment of Montrose Mews’ financial state. That does not mean that all personal information may be redacted per se. Access to some personal information of other body corporate members (their identities and payments they have made to the body corporate, for example), may be a necessary incident of Ms Mokoka’s rights under the Management Rules.

Findings: PAIA does not apply to Ms Mokoka’s request to see the bank statements she demands because it was never intended to apply in situations where a duty to disclose information arises from pre-existing legal relationship between a person seeking information and the person holding that information. PAIA is rather intended to apply where a person seeking information from a private body would otherwise have no right to it. To hold otherwise would lead to absurd results, mostly by imposing an additional burden on the exercise of existing rights of access to information. It would be truly perverse to encumber specific statutory rights of access to information with the machinery of PAIA, which is manifestly designed to kick in only when no such specific rights exist. The manifest purpose of PAIA is not to displace other statutes which provide for defined rights of access to information to individuals who are embedded in specific legal relationships.

Order: The application is dismissed with costs.

WILSON J

Facts: The applicant was charged with and convicted of armed robbery and is currently incarcerated at Zonderwater Medium A Correctional Centre. The applicant is in the process of appealing his conviction and sentence. He brought an application to compel the respondent, MTN, to provide him with copies of his cell phone records for a certain period. These records were once released by the respondent to the National Prosecuting Authority in terms of section 205(1) of the Criminal Procedure Act 51 of 1977 for trial purposes. The applicant is of the opinion that his cell phone records that were used by the state in his trial to secure his conviction were either tainted or fabricated. The applicant contends that he was wrongfully charged and convicted of armed robbery as a result he seeks his detailed itemized billing records for the period of the robbery in question because he harbours suspicions regarding the cell phone records that were used in his trial which led to his conviction.

Application: To compel the respondent to furnish cell phone records of the applicant for the period requested. The applicant intends to compare the records he will obtain from the respondent with those used at trial to determine the accuracy thereof. The applicant contends that he was not part of the robbery crew and was not in contact with any of the co-accused before, during and after the robbery and he was not found in possession of the money that was stolen.

Discussion: The applicant contends that the number for which the cell phone records are sought is his. He contends that his cell phone records which are in the possession of the respondent will detail and reveal his whereabouts at the time when the robbery is alleged to have taken place, and this will prove his innocence once and for all as he submitted that he was not part of the robbery crew. The applicant relies on section 32(1)(b) of the Constitution to show his entitlement to the records requested from the respondent. The applicant submits that section 32(1)(b) of the Constitution trumps any other legislation including statutes dealing with communication-related information such as RICA. The respondent raised points in limine in that: the applicant did not set out the empowering provision on which he relies for bringing this application and it thus difficult to determine if the applicant has made all the necessary averments to support the allegations he made; the applicant does not allege the grounds upon which he is entitled to the information he has requested from the respondent; he did not furnish proof that he was a customer of the respondent during the period upon which he requires the cell phone records; and the applicant’s application has lapsed in regard to the maximum storage period for archived communication-related information.

Findings: The outstanding question becomes whether the requirement in subsection 7(1)(c) of the Promotion of Access to Information Act 2 of 2000 has been established, whether the production of or access to sought records is provided in any other law. The sought information can be accessed by means of a subpoena in terms of section 35(1) of the Superior Courts Act 10 of 2013 which stipulates that “A party to proceedings before any Superior Court in which the attendance of witnesses or the production of any document or thing is required, may procure the attendance of any witness or the production of any document or thing in the manner provided for in the rules of that court.” Section 35(1) of the Superior Courts Act can be read with Uniform Rule 38(1) which can be used at any stage of any proceedings. Rule 38(1) allows for any party desiring inter alia the production of any document or thing to have access to such document or thing through a subpoena. Also, Uniform Rule 35 which allows for the discovery, inspection and production of documents can also be explored as an avenue to access the sought information. Resultantly, PAIA is not applicable in this matter. The applicant has not made out a case that he is entitled in law to the requested information. The relief sought by the applicant is not legally competent due to the lapse of time.

Order: The application is dismissed.

NYATHI J

Facts: A Board of Inquiry was conducted by the Department of Defence in the aftermath of the Battle of Bangui which took place in the Central African Republic in 2013. The Battle involved troops of the SANDF, including a contingent of Special Forces, and a grouping of CAR rebel forces who fought collectively under the name “Seleka”. It resulted in a loss of 15 South African soldiers’ lives and injury of a further 25. The applicant is a journalist who sought information in question for purposes of a book that he was writing with two other journalists about the battle. He states that the department has never provided an official account of what transpired in the battle, save for sweeping broad answers and vague descriptions, including to the families of the deceased, which means that no one has been held accountable for the disaster which is described as South Africa’s worst military defeat in the democratic era.

Application: The applicant seeks the review and setting aside of the information officer’s decision to refuse his request for access to information which was made in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA), as well as the review and setting aside of the Minister’s decision to dismiss his appeal against the officer’s refusal. He also seeks an order directing the Minister to provide the requested information within ten days.

Discussion: The inquiry was indeed held by the department, specifically looking into the reasons why soldiers died and some were injured, as well as into the loss of military hardware and munitions. Regarding the refusal of access and the bilateral, diplomatic or international relations that are said to be at stake, the Minister’s letter did not elaborate on the nature thereof, whether economic, security or scientific, or why the release of information would jeopardize the relations between the two countries, or with any other international country. Another ground relied upon by the respondents for refusing access is prejudice which may be caused to the defence or security of the Republic. The Minister’s letter states that the witness statements and evidence contained in the inquiry dealt with military combat strategies employed, which ought not to be in the public domain.

Findings: The dearth of information provided by the respondents is regrettable as the court has not been placed in a position to assess the validity of the claims of the respondents, and specifically their reliance on the section 41(1)(a) exemptions. If disclosing the type of military equipment and strategies used in the battle and contained in the inquiry could pose a threat to the defence or security of the Republic, that cannot be undone at a later stage. This is an appropriate case for the court to exercise its discretion in terms of section 80 to examine the inquiry – to take a judicial peek into it. Not only will such an order be in the interests of justice, taking into account the concerns of the parties involved in this case, but it will assist the court in determining, in terms of section 46, whether ultimately the public interest in the disclosure of the inquiry outweighs the harm contemplated in section 41.

Order: The respondents are ordered, in terms of section 80 of PAIA, to deliver to the chambers of the judge the SANDF Board of Inquiry into the events commonly referred to as the Battle of Bangui which took place in the Central African Republic in 2013.

MANGCU-LOCKWOOD J

Facts and issue: The Trust concluded a written agreement with the respondent in terms of which the Trust leased immovable property to the respondent. The lease ultimately expired by effluxion of time.  The respondent continued to occupy the leased premises. The Trust believes the respondent kept the Mast operational after 30 June 2020 without paying rent. The Trust lodged a request for access to the records of the respondent, such request was declined. The Trust seeks an order directing the respondent to make available the documents listed in the notice of motion.

Discussion: The rspondents basis for opposition is that the Trust has not shown that the requested documents are required for the exercise or protection of a right.  The requested documents are not reasonably required to identify the right defendant. The requested documents are not reasonably required to formulate the Trust’s claim. The applicants have not shown that the requested documents are reasonably required for the exercise or protection of the Trust’s right to institute an action. The Trust knows the identity of the only potential defendant that is mentioned in the founding affidavit and it is able to formulate its claim against that defendant. Once the Trust initiates an action, the rules of discovery will apply with all of the safeguards that are built into that process.

Findings and order: The main application is dismissed.