Chairperson of the Tender Board of Namibia v Pamo Trading Enterprises CC and Circle Hospitality Services (PTY) LTD (SA 87/2014) [2016] NASC 6 (17 November 2016);

Group

Full judgment

REPORTABLE

CASE NO: SA 87/2014

IN THE SUPREME COURT OF NAMIBIA

In the matter between:

 

CHAIRPERSON OF THE TENDER BOARD OF NAMIBIA

 

Appellant

And

 

PAMO TRADING ENTERPRISES CC

1ST Respondent

CIRCLE HOSPITALITY SERVICES (PTY) LTD

2ND Respondent

 

Coram: SMUTS JA, CHOMBA AJA and MOKGORO, AJA

Heard: 14 October 2016

Delivered: 17 November 2016

 

APPEAL JUDGMENT

 

SMUTS JA (CHOMBA AJA and MOKGORO AJA concurring):

 

  1. This appeal raises the question as to whether Arts 12 and 18 of the Namibian Constitution afford prospective litigants a right of access to documentation of administrative bodies at pre-litigation stage.

 

  1. The appeal has its origin in an urgent application brought by the respondents, two tenderers. They applied to the High Court to compel the Tender Board of Namibia (Tender Board) to provide minutes of its meetings and documentation as a form of pre-litigation discovery claiming a right of access to that documentation grounded in Arts 18 and 12 of the Constitution. The application was opposed. After hearing argument, the High Court made an order in favour of the tenderers (respondents in this appeal), directing the Tender Board to deliver a copy of the minutes to them.

 

  1. The Tender Board appeals against that ruling.

 

Background facts.

  1. The respondents submitted tenders for catering services for government school hostels. The tender divided government schools into seven regions and made provision for proposals to be submitted for schools in each of the seven designated regions.

 

  1. During October 2014, the respondents became aware of a newspaper report alleging that the wife of the Permanent Secretary of the Ministry of Education had an interest in an entity which was reported to have been awarded a tender in a region. Shortly after this and on 15 October 2014, the respondents were informed in a letter from the Tender Board that the tender had been cancelled by the Tender Board at its meeting on 13 October 2014.

 

  1. Because of the allegation in the press report of an allocation of a tender to an entity in which the permanent secretary’s wife was alleged to have an interest, which was later also reported in other newspapers, the respondents drew an inference that the meeting of 13 October 2014 had been preceded by another meeting at which tenders had been awarded or allocated.

 

  1. On 23 October 2014, the respondents’ lawyers addressed a letter to the Tender Board, asserting that the respondents had been prejudiced by the cancellation and had not been consulted on that issue. The letter required the Tender Board to furnish them with the minutes of all meetings where the tender was discussed ‘to enable us to responsibly advise our clients with respect to their rights’. It was conceded in the letter that neither the Tender Board Act, 16 of 1996 (‘the Act’) nor the regulations promulgated under it made it compulsory for the Tender Board to make available the documents in question but they argued that their right to require the documents arose by virtue of Arts 12 and 18 of the Constitution (which respectively entrench their rights to a fair trial and to administrative justice).

 

  1. When the Tender Board declined to provide the requested minutes, the respondents launched an urgent application on 5 November 2014, set down for 10 November 2014. In the notice of motion, the respondents not only sought the minutes of meetings where the tender was discussed but also copies of the mechanical recordings of those meetings as well as handwritten notes from which the minutes were compiled, a copy of each document which served before the Tender Board and the attendance list for each meeting. The application invoked Arts 12 and 18 of the Constitution and s 16 of the Act entitling them to reasons. It was asserted that Arts 12 and 18 ‘guarantees ‘(sic)’ access to information.” On the issue of substantial redress in due course it was averred:

 

‘. . . the right of access of (sic) information is such a fundamental principle applicable to tenders, that the (respondents) would never be able to be afforded substantial redress in due course.’

 

  1. The Tender Board opposed the application and filed an answering affidavit prior to the hearing. The board essentially contended that the respondents were not entitled to pre-litigation discovery and that they had an alternative remedy in the form of a review. The answering affidavit largely comprised legal contentions. But it was pointed out in it that the respondents had not sought reasons for the decision to cancel the tender and accepted that they were entitled to reasons under the Act and Art 18. Terse reasons for the cancellation of the tender had been given in a letter which preceded the answering affidavit and were expanded upon in that affidavit.

 

  1. The reasons were essentially twofold. Firstly, it was pointed out that there were irregularities which came to the attention of the board and which had resulted in the Anti-Corruption Commission seizing documentation from the board. In the second instance, it was also stated on behalf of the board that there were shortcomings with regard to tender specifications concerning disabled children with special dietary needs. Attached to the answering affidavits were the minutes of the meeting of 13 October 2014 when the tender was cancelled and where these reasons were set out in more detail.

 

  1. It was also pointed out in the answering affidavit that the tender had not been awarded because no award had been communicated to the tenderers and in the absence of any notification of being successful, there had been no award of the tender.

 

  1. It was also raised in the answering affidavit that the other tenderers had provided tenders in confidentiality to the board. By disclosing their documentation to the respondents, prejudice could inure to them, by reason of the fact that the tender board intended to advertise the tender again. In a separate paragraph it was also stated that the application gave rise to a suspicion that the respondents were seeking to obtain information from competing tenderers which could ultimately lead to an unfair advantage for the respondents. The answering affidavit also disputed that the respondents had established any entitlement to the mandatory interdict sought by them.

 

  1. The replying affidavit likewise mainly comprised legal argument. With reference to the contention raised on behalf of the board in the answering affidavit that the application amounted to a fishing expedition, the respondents stated in reply that no ground was advanced for that contention. This despite the statements raised with reference to prejudice to the other tenderers if their tender information were to be provided to the respondents.

 

The approach of the High Court

  1. When the matter was argued in the High Court, the respondents confined the relief sought only to the minutes of the prior meeting of the tender board on 2 October 2014 and jettisoned the relief calling for all the other documentation sought in the notice of motion. The ruling of the High Court is brief and would appear to be based upon the right of tenderers in the position of the respondents to fair administrative action (in Art 18). The court essentially held that the respondents were requesting reasons which would go to the fairness of the process and directed the Tender Board to provide a copy of the minutes of the meeting of 2 October 2014. The court also ordered the Tender Board to pay the respondents’ costs.

 

Submissions of the parties

  1. Mr Frank SC, who, together with Ms Bassingthwaighte, appeared for the Tender Board, argued with reference to authority that under the common law pre-litigation discovery is the exception and a very rare one at that. He referred to the description given to pre-litigation discovery as a ‘fishing expedition’ in Cilliers et al in Herstein & Van Winsen the Civil Practice of the High Court of South Africa ( 5th ed) p 780-781 and that a court would not assist parties to enable them to ascertain whether or not there is a cause of action. The approach in the common law has been described with reference to English authority thus in Spies v Verster 1910 NPD 205 at p 209 - 210:

 

‘(As) a general rule, the court will not grant the plaintiff an order for discovery until he has filed his declaration. Even after proceedings have been commenced courts of law will not allow interrogatories to be administered, in order that the party may find out something of which he knows nothing now which might enable him to make a case of which he has no knowledge at present. These come within the description of fishing interrogatories, and on that ground cannot be allowed.’

 

  1. Mr Frank acknowledged that the position in South Africa had changed after the adoption of the interim and final constitutions which each had a right of access to information enshrined in them. Pursuant to that constitutional right, the South African legislature enacted the Promotion of Access to Information Act of 2000 (PAIA). Under that Act, in dealing with organs of state, tenderers would be entitled to access to a record of the tender and the onus would be on the organ of state to justify any refusal to provide it. Where however a person sought documents at a pre-litigation stage in matters involving private litigants, they would be required to establish that the documents were needed for the exercise of or protection of a right. Mr Frank referred to the approach adopted by the majority in Unitas Hospital v Van Wyk and another 2006 (4) SA 436 (SCA) to the effect that open and democratic societies would not encourage fishing expeditions in this context if the section in question were to be used to facilitate pre-discovery as a general practice. Mr Frank also argued that even on the basis of the approach of the minority in that matter, PAIA would not offer ‘untrammelled pre-action disclosure’ and that the issue would need to be determined on a case-by-case basis as to whether a litigant required a record.

 

  1. Mr Frank also pointed out that the Namibian Constitution does not provide for an express right of access to information and that Art 18 cannot be construed to include such a right. In the absence of legislation similar to PAIA, he argued that the respondents would need to require this court to develop the common law to provide for pre-litigation discovery. He argued that the respondents had not established a basis for the development of the common law along those lines and that the High Court ruling should be reversed.

 

  1. Mr Frank also referred to the need to ensure that other parties’ rights should be protected and in particular where they would be entitled to ensure that their trade secrets and confidential information are protected. They would need to have the opportunity to state their case in this regard. The approach of the respondents would preclude that.

 

  1. It was also argued on behalf of the Tender Board that there was an alternative remedy available to the respondents in the form of instituting a review application. Once a review application had been launched, which is expressly foreshadowed in the application which served before the court below, rule 76 would trigger an entitlement to the full record of the decision-making in question.

 

  1. Mr Frank also submitted that the respondent had not met the requisites for a final mandatory interdict, not having established a clear right or the absence of an alternative remedy and that the application should have been dismissed for either of those reasons as well.

 

  1. Mr Heathcote, SC, who together with Mr Maasdorp, appeared on behalf of the respondents, argued that the constitutional right to administrative justice (in Art 18) and to a fair trial protected in Art 12 afforded the parties in the position of the respondents the right of access to the information requested by them and granted by the court below. In a detailed argument, he referred to the approach of this court and the High Court in giving effect to the right to administrative justice protected in Art 18. He argued that it should be broadly, liberally and purposively interpreted in order to give it a construction which is ‘most beneficial to the widest amplitude’ in accordance with the decisions of this court and of the High Court with reference to the rights protected in Chapter 3 of the Constitution. He stressed that Art 18 guarantees redress if an administrative body failed to act in accordance with the duty to act fairly and reasonably and comply with the requirements imposed upon the body under law.

 

  1. Mr Heathcote submitted that Art 18 promises fair procedures which are transparent including the right to reasons for administrative action and a general duty to act fairly. He emphasised the flexible nature of fairness and reasonableness.

 

  1. It was also argued on behalf of the respondents that Art 18 is unlike the other constitutional rights and freedoms protected in Chapter 3 by providing for its own remedy in stating that aggrieved persons may approach the courts or tribunals to seek redress. Counsel argued that Art 18 is not triggered by litigation and exists in its absence and is a continuing obligation on the part of administrative bodies. Counsel further contended that courts have a duty to forge remedies in fulfilment of the right to administrative justice and that transparency would be a pivotal consideration in doing so. He argued that a participant in an administrative process ‘has a substantive right to transparency and that this should include the record of decision making.

 

Question to be determined

  1. The question to be determined is whether the respondents established an entitlement to the minutes of the Tender Board of 2 October 2014. The respondents assert that their claimed right arises from Arts 12 and 18 of the Constitution. The question resolves itself into determining whether those constitutional provisions afford the respondents that right within the statutory context and on the facts raised by the respondents in support of their claim, and if not, whether they had made out a case for the development of the common law to afford them pre-litigation discovery of the decision-making of the board.

 

Statutory and Constitutional context

  1. Both sides accept that the Act and the regulations promulgated under it did not entitle the respondents to the minutes. Section 16(1) of the Act requires the board to notify all tenderers of the outcome of any tender in writing and, when requested by a tenderer, to give reasons for the acceptance or rejection of his or her tender. The board is required by s 15 (6) of the Act, where it does not accept the lowest tender, to keep reasons for this on record.

 

  1. The regulations promulgated under the Act provide that all discussions and matters including all matters considered by the board are to be treated as confidential and are not to be disclosed unless authorised by the board Regulation 4 (4) of the Tender Board (Regulations published in Government Notice No 237 of 1996 in Gazette No 1403 of 12 September 1996). The board is also obliged by the regulations to keep minutes of its meetings (Regulation 5).

 

  1. Although the respondents raised their right to a fair trial under Art 12 as entitling them to the minutes, they relied primarily on Art 18 in argument. It provides:

 

‘Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal.’

 

  1. The respondents contend that Art 18 (and Art 12) are to be interpreted to include the right of access to information by a participant in a tender process in respect of documentation forming part of the decision making process.

 

  1. Article 18 protects the right to administrative justice. It is one of the rights and freedoms forming part of Chapter 3 of the Constitution.

 

[30] This court has made it clear that Art 18 is to be interpreted ‘broadly, liberally and purposively’ to give the article a construction which is most beneficial to the widest amplitude Immigration Selection Board v Frank & another 2001 NR 107 (SC) per Strydom CJ (diss.) at 175 B-C. (Although a minority judgment, the majority concurred in this exposition of the law (at 109F-110B). See also Government of the Republic of Namibia v Cultura 2000 1993 NR 32 (SC) at 340 B-D.This court further held that Art 18 requires not only reasonable grounds, but inherent in that requirement, fair procedures which are transparent Frank at 170 I-J.

 

[31] This court found in Frank that implicit in Art 18 is the obligation on the part of an administrative organ to give reasons for its decision and presciently stated:

 

‘There can be little hope for transparency if an administrative organ is allowed to keep the reasons for its decision secret.’

 

[32] The court further held that whether the requirements of fairness and reasonableness under Art 18 were complied with would ‘more often than not, only be determined once reasons have been provided’ page 174J-175A.

 

[33] Article 18 does not however expressly provide for a right of access to information from a decision making body or official. It protects a person’s right to administrative justice and fair and reasonable administrative action. Plainly Art 18 is to be interpreted generously to ensure that persons enjoy the full measure of that fundamental right. In Minister of Defence v Mwandinghi 1993 NR 63 (SC) at 70-71 per Mohammed AJA cited with approval the approach of Lord Wilberforce in Minister of Home Affairs and another [1979] ALL ER 21 (PC) at 25 f-26 e including:

 

‘This is in no way to say that there are no rules of law which should apply to the interpretation of a constitution. A constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences.'

 

[34] The caveat in interpreting constitutional provisions articulated by Kentridge AJ for a unanimous Constitutional Court in S v Zuma and others 1995(2) SA 642 (CC) in paras 17 and 18 is salutary and should however be borne in mind:

 

‘[17] While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument. I am well aware of the fallacy of supposing that general language must have a single 'objective' meaning. Nor is it easy to avoid the influence of one's personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean.

 

[18] We must heed Lord Wilberforce's reminder that even a constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to 'values' the result is not interpretation but divination. If I may again quote S v Moagi (supra at 184), I would say that a constitution 'embodying fundamental rights should as far as its language permits be given a broad construction'.

 

[35] While Art 18 advances the values of openness and transparency, the right enshrined is that of a person to fair and reasonable administrative action at the hands of an administrative body or official. Inherent in this right is the right to reasons for administrative action. That right is expressly contained in s 16 of the Act to participants in tenders under the Act. But Art 18 does not include within its express wording any right of access to information. Nor did the drafters of the Constitution provide for the right of access to information in another provision in the manner in which the drafters of the South African Interim and final Constitutions have done in ss 23 and 32 respectively in those Constitutions, as well as the drafters of the 2010 Kenyan Constitution in s 35 of that Constitution.

 

[36] Mr Heathcote was not able to point to any authority which interpreted the right to administrative justice to include the right of access to information in the manner sought by the respondents. He argued it was inherent in the right to administrative justice.

 

[37] Mr Heathcote also submitted that the drafters of the Constitution in 1990 were obliged to adhere to what were termed the 1982 Constitutional Principles. Set out in an annexure to a letter to the UN Security Council dated 12 July 1982 from the representatives of Canada, France, Germany, the United Kingdom and the United States of America. Included in these principles was one to ensure that the bill of rights in the Constitution would be ‘consistent with the provisions of the Universal Declaration of Human Rights’. Mr Heathcote referred to Art 19 of that instrument which states:

 

‘Everyone has the right to Opinion and Freedom of Expression. This right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’

 

[38] Mr Heathcote also referred to Art 9 in the African Charter on Human and People’s Rights, 1981 which entitles every individual to the right to receive information. He argued that elsewhere access to information was considered to be part freedom of expression.

 

[39] Mr Heathcote referred to Art 19 of the Universal Declaration of Human Rights because freedom of expression set out in it includes the right to ‘receive and impart information and ideas without interference by public authority . . .’. Art 21 of the Constitution which entrenches the right to freedom of expression does not expressly include the right to impart and receive information. It is however unnecessary to rely on the 1982 Principles in support of a contention that such an interpretation should be accepted.

 

[40] The right to freedom of expression including ‘freedom to seek, receive and impart information’ is set out in Art, 19 of the International Covenant on Civil and Political Rights which Namibia acceded to on 28 November 1998 and thus, by virtue of Art 144 of the Constitution forms part of the law of Namibia, as was acknowledged by this court in Namunjepo v Commanding Officer, Windhoek Prison 1999 NR 271 at 284I – 285D. It follows that the right to freedom of expression enshrined in Art 21 (1) of the Constitution includes the right to receive and impart information without interference by public authority.

 

[41] Mr Heathcote submitted that the right of access to information forms part of the right to freedom of expression. In support of this contention, he referred to RM Robinson, Access to Information, LexisNexis Editorial Staff, South Africa, 1 May 2016 at p. 10 - 11 footnote 5 in which the author states that the right of access to information forms part of the right to freedom of expression under international law. The learned author refers to the right to impart and receive information in the Declaration and also in the European Convention, citing a case involving a journalist in Rosiianu v Romania 27329/06 [2014] ECHR 803. But it is stated that that case concerned that journalist’s ‘access to information of a public nature which was necessary for the exercise of his profession . . .’ where there was an intention to ‘communicate the information in question to the public and thereby to contribute to the debate on good public governance, the applicant’s right to impart information had been impaired.’

 

[42] In Leander v Sweden 9 EHRR 433, the European Court of Human Rights also interpreting Art. 10 of the European Convention (including the right to receive and impart information without interference by public authorities) stated:

 

 

“The court observes that the right to freedom to receive information basically prohibits government from restricting a person from receiving information that others wish or may be willing to impart from him. Article 10 does not, in circumstances such as those of the present case, confer on the individual the right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual (As quoted in Cheadle, Davis, Haysom. South African Constitutional Law: The Bill of Rights (2002) at 577).

 

[43] Quite apart from the respondents not bringing their application on this basis and asserting the right of freedom of expression, it would seem that this provision has rather been construed as prohibiting public authorities from restricting persons to receive information others might be willing to impart and not conferring a positive right to access to information held by public authorities. (See Woolman et al at Constitutional Law of South Africa Vol 4 at 62 – 1 to 2). This is borne out by what is stated in Cheadle et al at 577 that the Council of Europe’s Committee of Ministers in 1981 ‘issued an important recommendation regarding the right to access to information’ which constituted a set of principles which ‘would in effect lead to the introduction of freedom of information legislation.’

 

[44] Even though there was not a reliance upon the right of freedom of expression by the respondents in their application and was not the case which the board had to meet, it would in any event appear to me that the nature of the right asserted by the respondents to access to the minutes by virtue of their participation in a tender is distinguishable from the right in Art 19 of the Covenant and the Universal Declaration (and the European Convention). The nature of the interference by a public authority would have an impact on a person’s right to expression which was not asserted and does not arise in this matter.

 

[45] It is accordingly not necessary to further canvass access to information as forming part of freedom of expression on the facts of this matter.

 

[46] Furthermore, the characterisation of the right of access to information of the kind asserted in this matter as embodied in the self-standing right of access embodied in s 23 and s 32 of the South African interim and final Constitutions by that country’s Constitutional court is entirely at variance with Mr Heathcote’s contention as to the nature of the right in issue.

 

[47] In addition to providing for the right to fair and reasonable administrative action (protected in s 33 of the final South African Constitution), those constitutions in those separate provisions afforded a separately set out right to access to information. The right of access of information, first introduced in s 23 of the Interim Constitution was, referred to as the introduction of a ‘free standing right of access to information’ by Woolman et al in 62-1. The final Constitution expanded upon s 23 by providing in s 32:

 

‘(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) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden to the State.’

 

[48] The right set out in s 32 of the final Constitution in South Africa did not come into operation at once. It was postponed for 3 years (for national legislation to be adopted) which later occurred in the form of PAIA. In the interim a transitional provision along the lines of s 23 applied. In its unanimous Certification judgment (In re Certification of the Constitution of the Republic of South Africa, 1996 (CC T 23/29) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) at paras 83-86), the Constitutional Court of South Africa, referred to s 32 read with the transitional arrangement (which postponed the full enjoyment of s 32) in order to determine whether the transitional arrangement complied with the relevant Constitutional principle (IX). The latter required that the right of access to information be provided for in the followed terms: ‘Provision shall be made [in the final Constitution] for freedom of information so that there can be open and accountable administration at all levels of government’. The court stated in this context:

 

‘[83] The transitional measure is obviously a means of affording Parliament time to provide the necessary legislative framework for the implementation of the right to information. Freedom of information legislation usually involves detailed and complex provisions defining the nature and limits of the right and the requisite conditions for its enforcement. What is envisaged by the CP (constitutional principle) is not merely for the exercise or protection of a right but for a wider purpose, namely to ensure that there is open and accountable administrational all levels of government.

 

[84] What must therefore be determined is whether the suspension of the NT (new text – the final constitution) 32(1) formulation of the right for three years complies with CP IX.

 

[85] Details governing freedom of information are not ordinarily found in a constitution, and it is unlikely that the drafters of the CPs (constitutional principles) contemplated that such provisions would be contained in the NT itself. It is also significant that freedom of information is not a 'universally accepted fundamental human right', but is directed at promoting good government. That is why it is dealt with in CP IX, as one of a series of CPs dealing specifically with government. Had freedom of information indeed been a fundamental human right or one of the basic structural requirements for the new dispensation, its suspension would have been inconsistent with the character of the state envisaged by the drafters of the CPs.

 

[86] But it is not such a right. CP IX requires that 'provision' be made for freedom of information in the NT. That has been done in NT 32(1) read with NT sch 6 s 23(2)(a), which clearly delineates the right and puts the Legislature on terms under the sanction of unqualified implementation. In the context of CP IX, and of what is reasonably required on the part of the Legislature if such provision is to be made, that meets the requirements of the CP. If the legislation is not passed timeously the general but undefined right as formulated in NT 32(1) will come into operation. That is reasonable. The Legislature is far better placed than the Courts to lay down the practical requirements for the enforcement of the right and the definition of its limits. Although NT 32(1) is capable of being enforced by a court - and, if the necessary legislation is not put in place within the prescribed time it will have to be - legislative regulation is obviously preferable.’

(My emphasis)

 

[49] I respectfully agree with what is stated by that court concerning the characterisation of the right in question as not being a ‘universally accepted fundamental human right’ but rather one directed at promoting good governance.

 

[50] As was spelt out by the Constitutional Court in their Certification judgment, freedom of information laws affording the right of access to information had been enacted in the United States of America, Canada and Australia. To this list may be added Germany, the United Kingdom and New Zealand (see Robinson at p 10) and of course South Africa in PAIA.

 

[51] Counsel pointed out in an argument that there have recently been repeated statements on the part of the executive branch of government of an intention to place draft legislation before parliament providing for access to information. This court can take judicial notice of this expressed intention. Legislation according persons the right to access to information held by the State would not only promote accountable and transparent government, values enshrined in the Constitution, but would also reinforce the exercise of fundamental rights entrenched in Chapter 3 of the Constitution, including the right to participate in political activity (Art 17), freedom of expression (Art 21 (1) and administrative of justice (as well as other rights).

 

[52] As was said by Ncobo CJ in the South African Constitutional Court M & G Media Ltd1:

 

‘In a democratic society such as our own, the effective exercise of the right to vote also depends on the right to access to information. For without access to information, the ability of citizens to make responsible political decisions and participate meaningfully in public life is undermined. [Footnote omitted.]

 

Similar sentiments were expressed by Cameron J in My Vote Counts with reference to freedom of expression:

 

‘The Bill of Rights also confers the right to freedom of expression. This court has held that this right is what ‘makes [the right to vote] meaningful’: only if information is freely imparted, and citizens are kept informed, are their choices genuine. As Mogoeng CJ has also noted on behalf of the court, “the public can only properly hold their elected representatives accountable if they are sufficiently informed of the relative merits” of the issues at stake. The same is necessarily true when the public decides which representatives to elect by exercising the right to vote.’ [Footnotes omitted]2

 

[53] The legislature is furthermore better placed than the courts to delineate the parameters of the right of access to information and in setting the requirements for exercising that right (As was observed in the Certification case in para 86), as has occurred in other jurisdictions with similar legislation.3 Access to information legislation would greatly advance the values of openness and accountability which flow from the fundamental Constitutional principles of democracy, the rule of law and justice for all enshrined in Art 1 of the Constitution.

 

[54] Mr Heathcote argued that the entitlement to reasons for administrative action under Art 18 would in the present context include access to information and in particular to the minutes of meetings where the tender was discussed.

 

[55] Whilst it is clear that Art 18 should be interpreted broadly, liberally and purposively to give the right enshrined in it a construction which is ‘most beneficial to the widest amplitude’, the interpretation pressed by Mr Heathcote to include the right of access to information at the hands of a tenderer by virtue of participation would seek to import words into the provision which were not intended and which a reasonable construction of the provision cannot bear. In short, the language of Art 18 does not permit such an interpretation. This is quite apart from not establishing that the respondents were aggrieved persons under Art 18 by failing to establish what right was affected and in what way they were aggrieved as is explained in paras 64 and 72 below.

 

[56] Having found that the respondents did not establish a right to access to the minutes under Art 18 because of the sketchy and unsupported basis raised in the founding papers does not mean that Art 18 cannot found a basis a claim for documentation relevant to administrative action taken by a body or official where the refusal to provide documentation infringes on the right to fair and reasonable administrative action. It would depend upon the facts and circumstances. It is not necessary for the purposes of this judgment to attempt to delineate the circumstances under which such a claim can validly be made.

 

Article 12

[57] Although the respondents’ right to a fair trial entrenched in Art. 12 was raised in the founding papers to support their claim to an entitlement to the minutes of 2 October 2014, Art 12 did not feature in their detailed written arguments, except to say that it supports Art 18. The written argument focussed on Art 18. During his oral argument, Mr Heathcote contended that Art 12 did entitle the respondents to those minutes. In support of this contention, he referred to the right of accused persons in criminal trials to disclosure of the docket [as found by this court in S v Scholtz 1998 NR 207 (SC)] to form part of an accused’s right to a fair trial protected under Art. 12.

 

[58] The right to disclosure of a docket in criminal proceedings was found to be inherent to the right to a fair trial. In South Africa, the right to disclosure of a docket was asserted with reference to the right to a fair trial (then protected under s 25 of the interim Constitution) and s 23 embodying the right of access to information. Mohamed DP for a unanimous Constitutional Court in Shabalala and Others v Attorney – General and Another 1996 (1) SA 725 (CC) at para 34 which held that s 25 was of direct application and that s 23 did not take the matter further.

 

[59] The right to disclosure of the docket, however, arises when criminal proceedings are instituted against accused persons. It does not arise during investigation before an accused is charged.

 

[60] When the respondents institute their contemplated review, they would very soon become entitled to the full record of the decision making under rule 76, as has already been said. Their right to a fair trial in the contemplated proceedings (including the interim relief pending their outcome) is thus not shown to provide a basis to compel the board to hand over the minutes prior to the institution of the proceedings.

 

Pre-litigation discovery to be permitted by developing the common law?

[61] The further question arises as to whether the respondents have made out a case that the common law should be developed to provide for pre-litigation discovery. This court recently made it clear that our courts have a duty to develop the common law whenever that is warranted (JS v LC and another Case No SA 77/2014. Unreported 19 August 2016). The question is in turn whether public and legal policy, embodying the legal convictions of the community, determined with reference to the values and norms embodied in the Constitution,4 require that the common law should be developed to provide for pre-litigation discovery along the lines sought by the respondents.

 

[62] In my view the respondents have not made out such a case.

 

[63] The respondents in their founding papers state an intention to launch an application for interim relief to interdict further action pursuant to the cancellation of the tender, pending the review of the decision to cancel. The nature of the right is not further explained nor set out, except for adding that the requested documentation is sought in order to obtain advice as to whether they have a cause of action.

 

[64] In response, the board’s chairperson pointed out that the respondents had not asked for reasons for the cancellation and added that the tender had been cancelled and provided reasons for its cancellation. It is further stated that no award of the tender had occurred as the board had not informed any tenderer of a prior decision to allocate the tender. Whilst it is not necessary for present purposes to determine whether any rights had accrued to tenderers who had not even been notified of an intention to award them a tender when it was subsequently cancelled, the respondents merely assert that they complied with tender specifications and not that their tenders were or should have been accepted. Even in the absence of notification or entering into an agreement pursuant to the tender, the respondents do not assert or establish any right in relation to the tender in their founding papers. There is only the vague assertion of a right by virtue of their participation in the tender and seeking access to documentation under Arts 12 and 18.

 

[65] The High Court rules recently (in 2014) underwent major reforms to introduce judicial case management and some other changes. Pre-action disclosure was not introduced, as had occurred in England  under the rules promulgated under the Supreme Court Act of 1981,  referred to by Cameron, JA in Unitas Hospital in para 46.  The rule change in England permits pre-action disclosure ‘where there is a real prospect, in principle, that this will be fair to the parties if litigation is commenced, or of assisting them to avoid litigation, or to avoid costs in any event.’ Unitas Hospitals at para 46.  Cameron JA further referred to the advantages of pre-litigation disclosure (in para 47 of Unitas Hospital) in promoting the early settlement of claims and assisting potential litigants to assess the viability of their claims on the light of documentation sought and provided. This would be an aspect for the rule giver to consider.

 

[66] I accept that under the common law pre-litigation discovery is a rare exception and would not be permitted as a ‘fishing expedition’ to enable persons to ascertain whether they have a case or not. Although discovery under judicial case management in the High Court rules can be ordered at a very early stage of proceedings to ensure that cases are dealt with expeditiously and fairly, this would of course only arise after the institution of proceedings. But the respondents do not have to invoke judicial case management to secure early discovery or the record of the decision making. That is because rule 76 of the High Court (and previously rule 53) expressly require a decision maker to serve the complete record of decision making within 15 days after receipt of a review application. The courts have rightly widely interpreted the record to include ‘every scrap of paper throwing light, however indirectly on what the proceedings were, both procedurally and evidentially . . . ’5

 

[67] As was argued on behalf of the board, the respondents clearly had an alternative remedy at their disposal to obtain the minutes in the form of a review application. If they had served one at the time of sending their letter demanding the documents, the documentation would have been provided a few days after their urgent application was set down. No reasons are stated in their application why this would have not sufficed.

 

[68] Furthermore, the respondents did not properly address in reply the concern of making available other tenderers’ information without hearing those parties particularly on the context of an intention to advertise the tender again where knowledge of competitors’ pricing could be prejudicial to the latter.

 

[69] As Mr Frank pointed out, even in South Africa where the right of access to information is constitutionally enshrined (and where s 50 of PAIA entitles a party to documents at a pre-litigation stage against a private party if that party can establish that the documents are required for the protection of rights), Brand, JA for the majority of the Supreme Court of Appeal in Unitas Hospital stated:

 

 

‘[21] . . . I do not believe that open and democratic societies would encourage what is commonly referred to as 'fishing expeditions', which could well arise if s 50 is used to facilitate pre-action discovery as a general practice (see Inkatha Freedom Party (supra) at 137C). Nor do I believe that such a society would require a potential defendant, as a general rule, to disclose his or her whole case before any action is launched. The deference shown by s 7 to the rules of discovery is, in my view, not without reason. These rules have served us well for many years. They have their own built-in measures of control to promote fairness and to avoid abuse. Documents are discoverable only if they are relevant to the litigation, while relevance is determined by the issues on the pleadings. The deference shown to discovery rules is a clear indication, I think, that the Legislature had no intention to allow prospective litigants to avoid these measures of control by compelling pre-action discovery under s 50 as a matter of course.

 

[22] I hasten to add that I am not suggesting that reliance on s 50 is automatically precluded merely because the information sought would eventually become accessible under the rules of discovery, after proceedings have been launched. What I do say is that pre-action discovery under s 50 must remain the exception rather than the rule; that it must be available only to a requester who has shown the 'element of need' or substantial advantage' of access to the requested information, referred to in Clutchco, at the pre-action stage. An example of such a case is, in my view, to be found in Van Niekerk v Pretoria City Council (supra), upon which considerable reliance was placed by the Court a quo (see the quotation in para [14] above). The point is, however, that the facts of that case were materially different. Van Niekerk had a report by experts who did not identify who was responsible for the damage to his equipment (at 848C). The City Council, on the other hand, relied on a report which apparently exonerated it from responsibility (at 848F - G). Quite understandably, in the circumstances, Van Niekerk's allegation was that, without the report relied upon by the City Council, he was unable to establish whether it could be held liable (at 848H - I). Though I think it is legitimate to use s 50 to identify the right defendant, I do not agree with the Court a quo's thesis that one is entitled, as a matter of course, to all information which will assist in evaluating your prospects of success against the only potential defendant. On that approach, the more you know, the better you will be able to evaluate your chances against your opponent. The corollary of this thesis therefore seems to be that the requester will, in effect, always be entitled to full pre-action discovery. The dicta by Cameron J in Van Niekerk referred to by the Court a quo (see para [14] above) cannot legitimately be relied upon in support of its thesis.’

 

 

[70] In the minority judgment of Cameron, JA it was stated that PAIA did not afford ‘untrammelled pre-action disclosure’ and that the statute did however broaden the scope to pre-action access to documents to be determined on a case-by-case basis.

 

[71] As was also spelt out by that same court in the context of an assertion of the constitutional right to access in that jurisdiction prior to PAIA (Cape Metropolitan Council v Metro Inspection Services 2001(3) SA (SCA) 1013 p 1026 at para 28):

 

‘Information can only be required for the exercise or protection of a right if it will be of assistance in the exercise or protection of the right. It follows that, in order to make out a case for access to information in terms of s 32, an applicant has to state what the right is that he wishes to exercise or protect, what the information is which is required and how that information would assist him in exercising or protecting that right.’

 

[72] Quite apart from the weighty consideration of an adequate alternative remedy in the hands of the respondent which would preclude the need to develop the common law on the facts of this case, the respondents furthermore do not properly specify in their application what right they wish to protect, what information is required and how that would assist them in exercising, asserting or protecting that right.

 

[73] As I have pointed out, the respondents were sketchy and vague in setting out the right they wish to assert and do not even address the further aspects of explaining what information is required and how this could assist them in asserting their right. The vagueness in this regard is compounded by their failure to exercise their statutory and constitutional right to request reasons before launching their application. The respondents thus comprehensively failed to justify the need to develop the common law to compel the board to provide the documentation sought by them.

 

Conclusion

[74] In short, the respondents in my view fell well short of establishing a constitutional or common law right to the minutes of the board’s meeting of 2 October 2014.

 

[75] It follows that the appeal succeeds and that the order of the High Court is to be set aside. As far as costs are concerned, both sides were represented by two instructed counsel. The issues raised in the matter and their importance warranted the engagement of two instructed counsel. The cost order on appeal should reflect that.

 

Order

[76] The following order is granted:

 

  1. The appeal succeeds with costs.

 

  1. The costs of the appeal include the costs of one instructing and two instructed counsel.

 

  1. The order of the High Court dated 14 November 2014 is set aside and the following order is substituted for it:

 

‘The application is dismissed with costs.’

 

 

 

_____________________

SMUTS JA

 

 

 

 

_____________________

CHOMBA AJA

 

 

 

 

_____________________

MOKGORO AJA

APPEARANCES

 

APPELLANT:

T J Frank, SC

(with him Ms N Bassingthwaighte)

 

 

Instructed by Government Attorney

 

RESPONDENTS:

R Heathcote, SC

(with him Mr R Maasdorp)

 

Instructed by Engling, Stritter & Partners

 

 

1 President of the Republic of South Africa and others v M & G Media Ltd 2012 (2) SA 50 (CC) at para 10 See also Cameron, J (diss) in My Vote Counts NPC V Speaker of the National Assembly and Others 2016 (1) SA 132 (CC) at para 38.

2 At para 40.

3 Referred to in para 50 above.

4 Moolman & another v Jeandre Development CC Case No SA 50/2013, 3 December 2015 at para 74. See also Van Straten NO and others v Namibia Financial Institutions Authority and another Case No SA 19/2014 8 June 2016, Barkhuizen v Napier 2007(5) SA 323 (CC) at paras 28-29.

5 Pieters v Administrateur van Suidwes Afrika en ‘n ander 1972 (2) SA 220 (SWA) Aonin Fishing (Pty) Ltd and another v Minister of Fisheries and Marine Resources 1998 NR 147 (HC) at 150 B-F.