RMR Commodity Enterprises Registration No. CK88/19263/23 t/a Krass Blankets v State Tender Board and Others (27022/2006) [2008] ZAGPHC 270 (20 August 2008)

/SG

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 20/08/2007

CASE NO: 27022/2006

UNREPORTABLE

In the matter between:

RMR COMMODITY ENTERPRISE CC

Registration No. CK88/19263/23

t/a KRASS BLANKETS APPLICANT

and

THE STATE TENDER BOARD 1ST RESPONDENT

AFRICHOICE TRADING CC

Registration No. CK2003/078261/23 2ND RESPONDENT

THE MINISTER OF FINANCE 3RD RESPONDENT

THE GOVERNMENT OF THE REPUBLIC

OF SOUTH AFRICA 4TH RESPONDENT

ARANDA TEXTILE MILLS 5TH RESPONDENT

ARETHOMENG AGENCIES CC 6TH RESPONDENT

BUTSANA TEXTILE SERVICES 7TH RESPONDENT

BW PRETORIUS COMMUNICATIONS CC 8TH RESPONDENT

CONTISO BUSINESS ENTERPRISE 9TH RESPONDENT

DESERT CHARM TRADING (PTY) LTD 10TH RESPONDENT

DOLLY DEVELOPERS 11TH RESPONDENT

DURAFOAM DISTRIBUTORS 12TH RESPONDENT

ERNEST RANKHUMISE 13TH RESPONDENT

HILDA PHOFEDI’S DISTRIBUTOR CC 14TH RESPONDENT

KHOI LINENE AND TEXTLE CC 15TH RESPONDENT

KLM SETATI FOODSERVICES CC 16TH RESPONDENT

MACOLA CLEANING ENTERPRISE 17TH RESPONDENT

MAJA GENERAL TRADING 18TH RESPONDENT

MALOME HLABIOA TRANSPORTATION

& DISTRIBUTION CC 19TH RESPONDENT

MAMORAKA INVESTMENTS CC 20TH RESPONDENT

ROLPH 21ST RESPONDENT

MATILDA MASHWA PHOOKO 22ND RESPONDENT

MAXCELLENT DISTRIBUTORS 23RD RESPONDENT

MESESENYANE CLEANING SERVICES 24TH RESPONDENT

MOHOCA TRADING 25TH RESPONDENT

M T PHETLHU 26TH RESPONDENT

NITRAF SUPPLIES 27TH RESPONDENT

R S TSHIDADA 28TH RESPONDENT

PRENAM DISTRIBUTORS 29TH RESPONDENT

RAMONE DESIGNER SERVICES

AND PROJECTS 30TH RESPONDENT

REAGILE BAKWENA DEVELOPMENT 31ST RESPONDENT

SHAKENG PROMOTIONS (PTY) LTD 32ND RESPONDENT

SIZAKANLANE MA RADEBE CC 33RD RESPONDENT

SLENDERTEX CC 34TH RESPONDENT

STAR GHAR IMPEX CC 35TH RESPONDENT

TRY AGAIN DISTRIBUTORS 36TH RESPONDENT

TSHOLO FELA BASADI 37TH RESPONDENT

VIBRAMED CC 38TH RESPONDENT

JUDGMENT

MOKGOATLHENG, AJ

Introduction

[1] This is an application in terms of section 78(1) read with section 82 of the Promotion of Access to Information Act 2 of 2000 (“the Act”) for access to the original documents constituting the tender lodged by the second respondent with the first respondent in respect of Tender No RT 26/2004T (“the Tender”) for the supply of blankets to the state. The applicant avers that, it reasonably requires the said documents, has complied with the relevant provisions of the Act, and alleges that the first respondent’s reason that the information sought does not in terms of section 7 of the Act fall within the ambit of the Act is misconceived, unsustainable, and is contrived as a concerted endeavour to frustrate it in its quest for justice.

Factual background

[2] The applicant submitted a tender to the first respondent for the supply of blankets, on tender number RT26-2004, pursuant to an advert in the Government Tender Bulletin number 2308.

[3] The applicant alleges that on 30 July 2004, its General Manager Singh received “a telephone call from a whistleblower whom it verily believes was employed by the first respondent, noting that it had effectively won the tender, but would be sidelined”. On 6 August 2004 the applicant was notified that the tender was awarded to the second respondent.

[4] The applicant alleges that it was immediately apparent to it, that the prices it had tendered were lower than those, which were payable under the contract and presumably tendered by the second respondent.

[5] On 19, 23 and 24 August 2004, Singh addressed letters to the first respondent, noting that;

(1) in terms of the tender the contract should have been awarded to the tenderer who scored the highest number of preference points; –

(2) the prices which the applicant had tendered were lower than those which had been tendered by the second respondent, and setting out the details of the differences;

(3) requesting reasons for not awarding the tender to the applicant;

(4) raised serious concerns about the awarding of the tender to the second respondent;

(5) raised concerns about the prices quoted by the second respondent, and was of the view that the second respondent proposed to import the tendered blankets;

(6) it was entitled to eight (8) empowerment points because of its historically disadvantage individual status, and one point in respect of its small business enterprise status;

(7) he queried how the comparative prices of the applicant and the second respondent were determined, and what preference points were awarded to the applicant and the second respondent; and

(8) suggested that the tender should be reviewed with circumspection.

[6] The first respondent in a letter faxed on 7 September 2004 replied that “the prices of the tenderers including the lowest acceptable bid” cannot be disclosed as this information is regarded as confidential.

[7] On 22 September 2004 the applicant addressed a letter to the third respondent complaining that the first respondent’s staff manipulated the tender prices, and requested that a forensic audit be conduct. The third respondent after considering a report from the first respondent refused to authorise a forensic audit.

[8] On 7 September 2005 the applicant addressed a letter to the first respondent demanding payment of the amount of R4 039 755.00 in respect of damages sustained as loss of profit due to its failure to award it the tender.

[9] On 25 November 2005, the state attorney acting on behalf of the third respondent denied liability, and advised the applicant that the tender was properly awarded to the successful part, that in any event the terms of the ensuing contract had lapsed.

[10] On 21 April 2006 the applicant in terms of section 18 of the Act, requested the entire tender documents in respect of Tender number RT26/2004T submitted by the first respondent, and the copy of the tender documents submitted by Aranda Textile Mills (Pty)

Ltd for the aforementioned tender.

[11] The first respondent did not respond to the applicant’s letter. The applicant on 30 May 2006 appealed against the first respondent’s refusal for access for the requested documents.

[12] In a letter dated 12 July 2006 the state attorney advised the applicant that “I must hereby inform you that, whilst you have already indicated your intention to institute legal proceedings as required in terms of section 3 of Act 40 of 2002, the information requested does, in terms of section 7 of the Promotion of Access to Information Act, not fall within the ambit of the Act and is consequently refused.”

[13] The applicant contends that it seeks access to the record in order to: –

(a) make an assessment of its legal position in relation to the first and/or second respondents and/or their officers or employees; and

(b) consider whether to pursue a claim for damages against the first respondent and/or any other party or parties and/or lodge criminal complaints against such persons and/or whether to embark upon any other alternative course of conduct.

[14] The first respondent contends that the applicant has not exhausted its internal appeal remedies, thus this court is precluded from adjudicating the application.

[15] The first respondent contends that as the applicant intends instituting legal proceedings, there are other remedies available to it in terms of the Uniform Rules of Court or Anton Piller proceedings.

[16] The first respondent seeks the dismissal of the application with costs on a punitive attorney and client scale, because of the purpose of this application is to publish defamatory allegations or the information may be demanded by way of other legal proceedings which are available to the applicant, submits that the information which the information officer was obliged to furnish to the applicant was provided, and says that the information now required is protected by the Act, or is of academic interest only, that since the tender has expired it would serve no purpose to furnish the information, even if, it was necessary to do so in terms of the Act, that the information now required is for purposes of … pending civil action against its official, that the application is vexatious as it accompanied by unnecessary annexures which are irrelevant as no reference is made thereto and further contends that the applicant has already commenced civil proceedings as envisaged in the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, that it may seek the information by invoking the discovery process in terms of the Uniform Rules of Court.

[17] The first respondent contends that it did not infringe the applicant’s constitutional rights as encapsulated in the Act, that the conduct of the applicant is to harass the first respondent by publishing scandalous unsubstantiated allegations.

[18] The first respondent contends that the applicant requires information which involves third parties whose consent has not been sought, that the second respondent has objected to its documents being furnished to the applicant, further that it requires privileged information which second respondent is not prepared to waive such privilege, further that it requires information which protected as it is commercial information of a third party the release whereof would be a breach of confidence.

The first respondent’s grounds of refusal to grant access

[19] The first respondent contends that the information required by the applicant relates to the proceedings which preceded the award of the tender, RT26-2004 the term thereof has already expired, and states the information required is not necessary to protect any rights, and is either protected in terms of various sections in the Act or may be requested by way of other legal proceedings.

[20] The first respondent states that the information requested by the applicant was furnished by the first respondent as it was obliged to, that the further information now required is protected by the … is of academic interest.

[21] The first respondents contends that the tender has expired and the contract has been performed, that it would serve no purpose to supply the information, even if, it was necessary to do so in terms of the Act.

[22] The first respondent contends that the information requested is required for purposes of a civil action for damages which is pending for alleged loss of profit.

[23] The first respondent contends that applicant after the refusal to furnish the requested information, it was obliged to exhaust the internal remedies of appeal, consequently the court is precluded from entertaining this application.

[24] The first respondent contends that as the applicant intends to institute legal proceedings, it has other remedies in law to secure the requested information in terms of the Uniform Rules of Court, or Anton Pillar proceedings.

[25] The first respondent contends that the applicant has not obtained the consent of the second respondent to release the record, that in any event, the latter has objected to such information being released to the applicant as such information is privileged.

[26] The first respondent contends that the requested information is protected, as it is commercial information belonging to the second respondent and is privileged.

[27] Mr Tokota on behalf of the first respondent submitted that section 32(1) of the interim Constitution of the Republic of South Africa Act 54 of 1993 must be read with schedule 2 thereof, when it comes to the interpretation thereof, which states that:

“Every person has a right of access to all information held by the state or any of its organs, in any sphere of government, insofar as that information is required for the exercise of protection of any of their rights.”

[28] Mr Tokota argues that the preamble of the Act makes it efficacious for the state to give effect to its obligation to promote or fulfil the rights of access to information in order to actively promote a society in which people of South Africa have effective access to information to enable them to more fully exercise and protect all their rights. This contention argues Mr Tokota resonates in section 9(e) of Act 108 of 1996.

[29] Mr Tokota argues that if the information sought is not necessary to protect one’s right or to exercise one’s right, it would otherwise be prejudicial to the state, if anybody would just request information for the sake of asking.

[30] Mr Tokota argues that although the cases of “Unitas Hospital and Cape Metropolitan Council cases”, refer to private

entities these, indicate the applicability of the aforequoted principle, that the information sought must be required for the exercise of or the protection of one’s rights.

[31] Mr Tokota argues that since the applicant has not instituted review proceedings in terms of the Promotion of Justice Act No 3 of 2000, that the applicant cannot or is precluded from instituting an action for damages or loss of profit in terms of the ratio in the case of Steenkamp NO v Provincial Tender Board Eastern Cape 2007 3 SA 121 and says that the applicant has not shown that it requires the information for the exercise or the protection of its rights.

[32] Further Mr Tokota argues that in terms of sections 7 and 50 of the Act, the applicant is precluded from accessing the information unless “it has shown the element of need and substantial advantage of access to the requested information”.

[33] Mr Tokota argues that it is irrelevant when interpreting the statute read in the context of the constitution whether it is a private or public body, that all one has to show is that one needs the information in order to exercise a right or to protect a right, that if one cannot show that, access to information must be denied.

[34] Mr Tokota contends that the applicant seeks the information just for the fun of it, or to harass the respondent, as shown by the vexatious and defamatory statements applicant attributes to the applicant’s officials without lawful justification by

alleging that “if the first respondent’s officials do not furnish information by close of business day on 9 September 2004,

he (it) will have no option but to suspect the first respondent’s officials of perpetration of corruption, fraud and of bribery and will naturally lay charges accordingly”.

[35] Mr Cajoo on behalf of the applicant argued that schedule 6 of the Constitution was an interim measure designed pending the promulgation of specific anticipated legislation, namely the Promotion of Access to Information Act 2 of 2000 which became operational on 9 March 2001, and which sets out and regulates the basis in terms whereof a requestor for access to a record must comply with Mr Cajoo submits that the interim measure in the interim constitution has been superseded by the Act.

[36] Mr Cajoo argues that the judgments referred to by Mr Tokota as authority for the refusal of the applicant are distinguishable in that they allude to private entities, and states that on the facts this court is bound by the judgment of HARTZENBERG J in CC11 Systems (Pty) Ltd v Fakie and Others NNO 2003 2 SA 325 unless this court is convinced that HARTZENBERG J was clearly wrong.

[37] Mr Cajoo argues that the Supreme Court of Appeals has held that the Act clearly provides that, a requestor only has to comply with the procedural requirements, and is thereafter entitled to access the information required without providing any reason, as

such reason are irrelevant, that the reason to exercise or to protect a right is not a requirement for a public body.

[38] Mr Cajoo submits that the applicant has a claim for damages if it can demonstrate that the first respondent’s decision, in not awarding it the tender was tainted with fraud or mala fides Mr Cajoo referred the court to the judgment in the case of Minster of Finance and Others v Gore 2007 (1) SCA at 138F-J, par 86.

[39] The first respondent contends that it was entitled to refuse access to information required by the applicant because it requests the full record of the tender documents submitted by the second respondent, which contain all the secret commercial information relating to its commercial, financial, scientific or technical information other than trade secrets, which the latter objects to be released to the applicant.

[40] The first respondent contends therefore, that it is entitled in terms of section 36 and 37 of the Act not release such information is it likely to cause harm to the commercial of financial interest of the second respondent.

[41] The first respondent argues that the request for other documentary information such as minutes of departmental deliberations pertaining to the evaluation of the tender is protected in terms of section 44 of the Act. In substantiation of this contention Mr Tokota referred the court to the following decisions:

Minister of Environmental Affairs and Tourism and Another v Scenematic Fourteen (Pty) Ltd [2005] ZASCA 11; 2005 6 SA 182 (SCA) 198F, par (b)8; Clutcho (Pty) Ltd v Davis 2005 3 SA 486 (SCA) 493, par 17.

[42] Mr Cajoo submitted that even though the applicant is not required to demonstrate reasons for requiring access to the record, it has clear cogent reasons justifying access to the record.

[43] The application of the law to the facts

Section 32(1) of the Constitution of the Republic of South Africa Act 108 of 1996 confers the right to access to any information held by the state and is entrenched in the Bill of Rights. Section 32 reads:

“(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 any 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 measure to alleviate the administrative and financial burden on the State.”

[44] The Act is the legislation demanded by section 32(2) of the Constitution. The preamble declares that the Act was enacted to: “give effect to the constitutional right to access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights; and to provide for matters connected therewith”.

The need to give effect to the right in section 32 to foster transparency and accountability in public bodies of course is subject

to reasonable and justifiable limitation under section 36 of the Constitution.

[45] The first respondent was constituted in terms of section 2(1) of the State Tender Board Act 86 of 1968, and is institution “exercising a public power” and “performing a public function” and is consequently an “organ of state” as envisaged in section 239(b) of the Constitution and “a public body” within the purview of section 1 of the Act.

[46] The applicant is a juristic person as contemplated in section 8(4) of the Constitution, which is entitled to the rights encapsulated in the Bill of Rights.

A requestor in terms of section 11 of the Act is entitled to access a record of a public body if it has complied with all the procedural requirements and access is not refused on any grounds stated in chapter 4 of the Act.

[47] The first respondent has invoked sections 36 and 37 which prohibits access to the following information of a third party,

(a) trade secrets

(b) financial, commercial, scientific or technical information other than trade secrets, the disclosure of which would be likely to cause harm to the third party’s commercial or financial interest; or

(c) information supplied in confidence by the third party “the disclosure of which could reasonably be expected”

(i) to put a third party at a disadvantage in contractual or other negotiations; or

(ii) to prejudice the third party in commercial competition.

[48] Section 37(1) of the Act prohibits disclosure of access to information it would “constitute grounds or an action for breach of a duty of confidence owed to a third party in terms of an agreement”.

[49] Section 82 of the Act gives the court the power to make any order that is just and equitable which includes amending or setting aside the refusal decision, or a declaratory order.

[50] The first respondent contends that it is clear that the applicant “requires information relating to the proceedings which proceeded the award of tender, RT26-2004T the term of which is already expired, that information is not necessary to protect any

rights either alleged in the papers or imagined, is protected by the Act that the information it was obliged to furnish to the applicant was indeed furnished, that the information now required is protected by the Act or is of academic interest”.

[51] The first respondent contends that the contract pertaining to the tender has been performed and has expired on 31 March 2005, that the applicant has no cause of action for delictual damages or loss of profit because there is no legal duty on the first respondent to award the tender to the applicant, nor to compensate the applicant for damages where it had failed to comply with the requirements of administrative action, that since the applicant did not apply for an interdict at the stage after the award was made its only possible remedy was a review.

[52] In support of this contention Mr Tokota referred me to the case of Steenkamp NO v Provincial Tender Board, Easter Cape 2006 3 SA 151 (SCA) 163, par 29 and 165 and page 162 par 33 and Olitzki Property Holdings v State Tender Board 2001 3 SA 1247 (SCA) 1262 par 30 and par 40-42, p 1266-1267.

[53] The first respondent submits that the applicant has therefore no cause of action against it, that the applicant has not established a causa for the relief it seeks, that in any event, any order in favour of the applicant would be a brutum fulmen and only of academic interest only.

[54] The tender was awarded to the second respondent in July 2004. It is common cause that on 30 August 2004, the applicant requested information from the first respondent pertaining to the award of the tender.

[55] On 3 September 2004, a certain Alexander in the first respondent’s office partially furnished the information sought, but excluded information that he considered as confidential, stating that the prices of the tenderers including the “lowest

acceptable bid” cannot be disclosed as this information is regarded as confidential.

[56] The applicant’s response for seeking the information was apparently triggered by information it received on 30 July 2004 from a whistleblower employed by the first respondent that although “the applicant had effectively won the tender, it would be sidelined” due to the fact that the tender prices have been tempered with to favour and advance the cause of the second respondent.

[57] In a letter dated 8 September 2004, the applicant pointed out that the information supplied was insufficient and requested that the first respondent should give it access to information that was not confidential and to motivate reasons why access was refused to information the first respondent regarded as confidential.

[58] The first respondent was given an ultimatum that should it not respond by 9 September 2004, applicant would “have no option but to suspect you of perpetrating corruption, fraud and/or bribery, and naturally will lay charges accordingly, prompting a full investigation by the Special Investigations Unit”.

[59] On 22 September 2004, the applicant addressed a letter to the Minister of Finance requesting his office to conduct a forensic audit regarding the awarding the tender, it contended that there were irregularities in the award thereof. The Minister of Finance requested the information provided to the applicant by the whistleblower and the reasons why it alleges the tender should have been awarded to the applicant or should not have been awarded the second respondent, the alleged acts of corruption committed by Messrs Alexander, Mathebula and Mthombeni. The applicant provided such information.

[60] On 7 September 2005 the applicant addressed a letter to the third respondent demanding payment of the amount of R4 039 755.00 in respect of damages sustained as loss of profit purportedly arising from the first respondent’s deliberate actions in wilfully failing to award it the tender.

[61] On 21 April 2006 the applicant requested in terms of section 18 of the Act the entire tender document of Tender No RT26/2004T submitted by the second respondent together with other information. The first respondent did not respond to this request.

[62] On 30 May 2006 applicant noted an appeal in terms of section 75 of the Act. On 29 June 2006 the applicant advised the first respondent that should it not receive any response it would launch an application in terms of section 78 of the Act in this

court.

[63] On 12 July 2006, the state attorney on behalf of the first respondent advised the applicant that his instructions were to inform the applicant that “whilst you have already, indicated your intention to institute legal proceedings as required in terms of section 3 of Act 40 of 2003 the information requested does, in terms of section 7 of the Promotion of Access to Information Act, not fall within the ambit of the Act and is consequently refused.

[64] In my view the applicant has shown in terms of section 11 of the Act that it has complied with all the procedural requirements in the Act pertaining to the request for access to the record of first respondent.

[65] The first respondent bears the onus of showing that its refusal of the applicant’s request for access complied with the provisions of section 81(3) of the Act.

[66] The first respondent contends that since the applicant had through letter of demand commenced civil action as contemplated in the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, there are other remedies provided for in law to secure the information sought in terms of either the Uniform Rules of Court or by way of Anton Pillar proceedings.

[67] The first respondent is in effect invoking section 7(1)(b) of the Act. In my view this defence is misconceived. It is trite that legal (civil) proceedings are instituted or commenced in terms of section 1(4) of Act 40 of 2002 by service of any process,

excluding a notice, on an organ of state in which a creditor claims payment of a debt. Mr Tokota conceded this proposition. It follows that the applicant has not yet instituted legal or civil proceedings for the recovery of the damages as foreshadowed in its notice in terms of section 3 of Act 40 of 2002. It follows that at this stage pre discovery procedure in terms of rule 35 is not available to the applicant as contended by the first respondent.

[68] The remedy of an Anton Pillar application cannot be invoked by the applicant as it is normally applicable in the preservation of evidence where there is a reasonable apprehension that same may be destroyed, alienated or hidden. In any event the first respondent did not seem to pursue this argument with any conviction.

[69] In my view it has not been demonstrated that the applicant has preferred criminal charges against the first respondent’s officials. Business Watch not part of the South African Police Services, neither is it an entity or an organ of state with investigative or prosecutorial authority as envisaged by the Constitution of the Republic of South Africa Act 108 of 1996.

[70] MAYA JA in MEC for Roads and Public Transport; Eastern Cape and Another v Intertrade Two (Pty) Ltd 2006 5 SA 1 (SCA) held that the three jurisdictional prerequisites prescribed by section 7(1) of the Act are cumulative, that all three must exist contemporaneously to exclude the operation of the Act.

[71] In my view the first respondent has not demonstrated the existence of the jurisdictional requirement of section 7(1) of the Act, it follows that the first respondent’s reliance on section 7(1) of the Act is misconceived.

[72] The first respondent’s argument that the applicant in terms of the notice of motion has sought access to more documents than previously requested before the inception of these proceedings, that in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) the applicant is precluded from approaching this court without first exhausting the internal remedies provided for in terms of section 11 of the Act has no merit.

[73] In my view the applicant has exhausted its internal remedies in terms of the Act. The applicant has procedurally lodged an appeal after the first respondent refused or neglected to respond to its letter dated 14 July 2006 by

(a) refusing to furnish it with reasons why it regarded the requested information as confidential;

(b) invoking the misconception that the applicant had commenced legal proceedings as envisaged in terms of Act 40 of 2002; and

(c) stating that in terms of section 7 of the Act the requested information did not fall within the purview of the Act, and was protected.

[74] The applicant has not invoked review proceedings in terms of Rule 53 of this court neither has it instituted legal proceedings in terms of Act 40 of 2002, it follows therefore that applicant is not precluded by section 7 (1) of the Act to have access to the requested information.

[75] The first respondent contends that the applicant has failed to obtain the consent of the second respondent to release the record, further that the second respondent has objected to the record been released to the applicant.

[76] The first respondent contends that the applicant has not established why it needs the information, and how this information is going to assist it in the protection or exercise of its rights that it only requires this information in order to “properly consider its position or to assess its legal position”. This contention has no merit.

[77] The first respondent argues that since the contract of the tender expired on 3 March 2005, and there is no review application launched, the applicant has no remedy in law to sue the first respondent for delictual claim for damages in respect

of loss of profit, that there is no necessity in law to furnish the sought information that the order sought by the applicant is of academic interest and would be a brutum fulmen. The first respondent misconceives the purview of section 7(1) of the Act.

[78] The first respondent contends that the record of the tender documents which was submitted by the second respondent contains all the secrete commercial information relating to it trade secrets and that the second respondent has objected to the release of

the information to the applicant. Further the first respondent contends that the other information such as internal memorandum, and minutes of departmental committees pertaining to deliberations and evaluations which are opinions made to advise the first respondent are protected from disclosure in terms of section 44 of the Act. This contention has no merit.

[79] Section 11(1) provides that, a requester must be given access to a record of a public body if –

(a) the requester complies with all the procedural requirements in this Act relating to a request for access to that record; and

(b) access to that record is not refused in terms of any grounds for refusal contemplated in Chapter 4 of this Act.

[80] Section 11(3) provides that:

“(3) A requester’s right of access contemplated in subsection (1) is, subject to this Act, not affected by –

(a) any reasons the requester gives for requesting access; or

(b) the information officers belief as to what the requester’s reasons are for requesting access.”

[81] Section 36 of the Act decrees that access must be refused if the record contains:

(a) trade secrets of a third party;

(b) financial, commercial, scientific or technical information, other than trade secrets of a third party the disclosure of which would be likely to cause harm to the commercial or financial interest of that third party; or

(c) information supplied in confidence by a third party, the disclosure of which could reasonably be expected –

(i) to put that third party at a disadvantage in contractual or other negotiations; or

(ii) to prejudice that third party in commercial competition.

[82] Section 37 of the Act provides that access must be refused if the disclosure of the record would constitute grounds for an action for breach of a duty of confidence owed to a third party in terms of an agreement.

[83] The second respondent is not opposing this application. There is no evidence that the disclosure of the second respondent’s information would be likely to cause harm to its commercial or financial interests.

[84] Neither first nor the second respondents have proffered any cogent reasons why they contend that the record contains privileged information. The second respondent in its letter to the first respondent dated 4 September 2006 states that:

“Some of the information have already been asked for by the same applicant in respect of the other tender no RT2005T and the same seems to have been given to the applicant about two months back and thereafter applicant has not moved any action/application in court in this respect to take up the matter further …

Further it is important to mention that we would like to know in advance if in case the State Tender Board has decided to pass on the information before the information can actually be passed, as in such situation we might have to take legal remedial action to save passing of this information.”

[85] The second respondent further states that the documents which the applicant is trying to obtain from the State Tender Board consists of vital information and strategies which during the course of our application to the Tender Board have been divulged with the State Tender Board in the year 2004, which in turn if passed on to the applicant can hamper future tenders, and states

that such information can enable the applicant to strategise in the same way.

[86] In Transnet Ltd and Another v SA Metal Machinery CO (Pty) Ltd 2006 6 SA 285 (SCA), HOWIE P in page 301, para 55-56 held as follows:

“55. …

56. What is more the tender documentation included the agreement in draft. Inter Waste must have known in advance that its schedule of prices and quantities would, if it secured the contract, become part of the agreement and therefore exposed to public scrutiny. Accordingly, even if ‘tender price’ in the Notice of Motion included the schedule, the parties’ intention could never have been to maintain confidentiality in respect of the rates of the award. Parties cannot circumvent the terms of the Act

by resorting to a confidentiality clause.”

[87] In my view there are no valid grounds of objection proffered by the first respondent as envisaged in Chapter 4 of Part 2 of the Act. The contention that the applicant has to show that it needs access to the information in the exercise or protection of any right is not relevant because the first respondent is a public body therefore the requirements of section 50(1)(a) are not applicable.

[88] I am of the view that the first respondent has not discharged the onus justifying the refusal to afford the applicant access to the record and other relevant documentation relating to the tender.

[89] In Claase v Information Officer of South African Airways [2006] SCA 163 (RSA), unreported judgment delivered on 30 November 2006 COMBRINK AJA stated as follows:

“In MEC for Roads and Public Works ... this Court aexpressed the view that where a record of information is requested in terms of Section 50 and a State body or private person or institution obdurately and unreasonably refuses to furnish it in circumstances where it obviously should have, the Court may make a punitive award of costs to mark its displeasure … The conduct of SAA in this case in my view warrants such an order. Section 9 of the Act states that one of the objects of the Act is:

(d) to establish voluntary and mandatory mechanisms or procedures to give effect to that right in a manner which enables persons to obtain access to records of public and private bodies as swiftly, inexpensively and effortlessly as reasonably possible…

I emphasise the words ‘swiftly’ and ‘effortlessly’ … Even if SAA’s conduct in persistently refusing to make the record available was not intentionally vexatious, it had that effect… As a mark of this Court’s displeasure at SAA’s conduct a punitive costs Order will be made in respect of the proceedings in the Court below.”

[90] The conduct of the first respondent relevant to the issue of costs includes the following:

(a) The first respondent failed, despite various requests to provide the applicant with reasons underlying the award of the tender to the second respondent and/or responses to queries raised by the applicant.

(b) The first respondent misinformed the third respondent as to the reasons the applicant was not the successful tenderer.

(c) The first respondent failed to provide any meaningful responses to various correspondence addressed by the applicant to it.

(d) The first respondent failed to respond to the applicant’s endeavours to establish whether a section 14(1) manual had been prepared by it and to provide the applicant with a copy thereof. The first respondent falsely sought to assert that such manual is available on its website in spite of clear evidence pointing to the contrary.

(e) A frivolous ground was advanced by the first respondent in order to refuse the applicant access to the record.

(f) Spurious grounds have been advanced by the first respondent in opposition to the relief sought by the applicant.

(g) The first respondent’s conduct has been reprehensible, having regard to its constitutional obligations to conduct its affairs openly and transparently.

(h) The first respondent has clearly sought to suppress the true facts and for this reason has refused to provide the record to the applicant.

(i) The first respondent failed to act “swiftly” and “effortlessly” in complying with its obligations under the Act.

(j) The first respondent appears to concede that the applicant may be entitled to access to the record by invoking its rights to discovery and/or Anton Pillar proceedings, but contends that the applicant is not entitled to such relief in this application.

(k) Even if the first respondent’s conduct in persistently refusing to make to record available to the applicant was not intentionally vexatious, it had that effect.

[91] In my view it would, in all the circumstances, be appropriate for the first, to be ordered to pay the costs of this application, including all reserved costs, as well as the costs of, and associated with the joinder of the fifth to the thirty eighth respondents as parties to the application, on an attorney and client scale.

[92] I propose making the following order:

(a) The application is granted with costs;

(b) The first respondent is ordered to pay the applicant’s costs on an attorney and client scale including the reserved costs and the costs of the founding application.

RD MOKGOATLHENG

ACTING JUDGE OF THE HIGH COURT

I agree

JUDGE OF THE HIGH COURT

27022/2006

Heard on:

For the Appellant: Adv

Instructed by: Messrs

For the Respondent: Adv

Date of Judgment: