MEC for Roads and Public Works Eastern Cape and Another v Intertrade Two (Pty) Ltd (047/05) [2006] ZASCA 33; 2006 (5) SA 1 (SCA) (27 March 2006)

MEC for Roads and Public Works Eastern Cape and Another v Intertrade Two (Pty) Ltd (047/05) [2006] ZASCA 33; 2006 (5) SA 1 (SCA) (27 March 2006)

The court held that section 7(1) of PAIA does not bar access to documents requested prior to the commencement of litigation. The jurisdictional requirements of section 7(1) are cumulative, and in this case, the request for documentation was made before proceedings were instituted. The appellants' argument that only the formal notice of motion constituted a valid request under PAIA was rejected. The court found that Intertrade's prior correspondence amounted to a legitimate request under PAIA. Furthermore, some documents sought may not be obtainable under Rule 53 or Rule 35, and PAIA remains available to ensure access to such information. The court emphasized the constitutional imperative...

Citation
[2006] ZASCA 33
Parties
Appellant: MEC for Roads and Public Works, Eastern Cape; Appellant: Chairman of the Provincial Tender Board, Eastern Cape; Respondent: Intertrade Two (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 March 2006
Case Number
047/05
Procedural Posture
Civil Appeal / Appeal From Bhisho High Court; Review Application Under Rule 53
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Howie, Farlam, Heher, Van Heerden, Maya
Legal Topics
Promotion of Access to Information Act, Review of Tender Awards, Discovery Procedure, Constitutional Right of Access, Rule 53 Record, Rule 35 Discovery
Administrative Law Civil Procedure Promotion of Access to Information Act Review of Tender Awards Discovery Procedure Constitutional Right of Access Rule 53 Record Rule 35 Discovery

Case Brief

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Parties

MEC for Roads and Public Works, Eastern Cape

Appellant

Chairman of the Provincial Tender Board, Eastern Cape

Appellant

Intertrade Two (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Bhisho High Court; Review Application Under Rule 53

Legal Issues

  1. 1 Whether an unsuccessful tenderer instituting review proceedings under Rule 53 is precluded from seeking production of documentation relating to the tender adjudication beyond the Rule 53 record.
  2. 2 Whether documentation requested prior to the commencement of review proceedings is excluded from access under section 7(1) of PAIA.
  3. 3 Whether section 7(1) of PAIA bars access to documents requested before litigation commences.

Ratio Decidendi

The court held that section 7(1) of PAIA does not bar access to documents requested prior to the commencement of litigation. The jurisdictional requirements of section 7(1) are cumulative, and in this case, the request for documentation was made before proceedings were instituted. The appellants' argument that only the formal notice of motion constituted a valid request under PAIA was rejected. The court found that Intertrade's prior correspondence amounted to a legitimate request under PAIA. Furthermore, some documents sought may not be obtainable under Rule 53 or Rule 35, and PAIA remains available to ensure access to such information. The court emphasized the constitutional imperative...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.