Brümmer v Minister for Social Development and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J and Yacoob J
• Judgment Date: 13 August 2009
• Citation: 2009 (6) SA 323 (CC)
• Docket Number: 25/09
• Hearing Date: 26 May 2009
• Counsel: AA Gabriel, E Fitz-Patrick and JP Broster for the applicant. MTK Moerane SC (with NH Maenetje) for the respondents. N Rajab-Budlender for the first amicus curiae. F Snyckers, K Hofmeyr and K McLean for the second amicus curiae.
• Court: Constitutional Court

Ngcobo J:

Introduction

[1] These proceedings involve three applications. The first is an application E for leave to appeal directly to this court against the decision of the Western Cape High Court (the High Court) refusing condonation. The High Court refused to condone the applicant's non-compliance with the 30-day limit which s 78(2) [1] of the Promotion of Access to Information Act 2000 [2] (PAIA) prescribes for lodging applications to court. The F second is an application for confirmation of the order made by the High Court declaring invalid s 78(2). The third application is by the South African Human Rights Commission (the Commission) for its admission as amicus curiae. These applications arise from a request by the applicant, Mr Brümmer, a journalist, for certain records held by the Department of Social Development (the Department). G

[2] The confirmatory proceedings raise three interrelated questions concerning the enforcement of the constitutional right of access to information held by a public body. The first is whether the provisions of s 77(4) read with s 77(5)(c)(i) or the provisions of s 78(2) govern H applications to court to challenge a decision refusing access to information held by a public body. [3] The second question, which arises only if the provisions of s 78(2) govern applications to court, is whether the 30-day limit prescribed by s 78(2) is consistent with ss 32 and 34 of the Constitution. The third question, which arises only if s 78(2) is inconsistent with the Constitution, is the appropriate relief. I

Ngcobo J

Background A

[3] Mr Brümmer, a journalist, seeks access to certain information held by the Department under the provisions of PAIA. [4] The information relates to a government tender that the Department is alleged to have awarded to IT Lynx Consortium (the consortium). The applicant alleges B that he requires this information in order to report accurately and properly on an article that he is writing. The information requested by the applicant comprises 'records which pertain directly and indirectly to the State Information and Technology Agency (Pty) Ltd (SITA) tender No 0082/2001 (Tender 82) for the design, development and implementation of a grant administration system'. Tender 82 is the subject-matter C of the litigation between the consortium and SITA, the Minister for Social Development (the Minister) and the Minister for Finance.

[4] The Director-General of the Department, who considered the request in the first instance, refused the request on various grounds. One D of the grounds advanced for refusal was that the information sought was the subject of civil litigation between the Department and the consortium. Elaborating on this ground of refusal, the Director-General informed the applicant, amongst other things, that 'the Department has reasonable grounds to expect that the disclosure of the records will lead to publications by the media, the Mail & Guardian in particular, which E could prejudice or impair the fairness of the trial or the impartiality of the adjudication of the IT Lynx Claim under case No 21290/05'.

[5] On appeal to the Minister, the application suffered the same fate. The Minister refused access to the information on the basis that the Department had reasonable grounds to expect that the disclosure of the F records would lead to publication in the media, the Mail & Guardian in particular, which could prejudice or impair the fairness of the trial or the impartiality of the adjudication of the IT Lynx matter under21290/05. In refusing the information, the Minister relied upon the provisions of s 39(1)(b)(iii)(ee) of PAIA. [5]

Ngcobo J

[6] The applicant thereafter instituted review proceedings in the High A Court under s 78(2) of PAIA. He sought, amongst other things, an order setting aside the decision to refuse information and an order directing the Minister to furnish him with the information sought. But as his application was brought well after the 30-day limit prescribed in s 78(2), he also sought an order condoning his non-compliance with the 30-day limit. The applicant contended that the decision to refuse him access to B the information sought constituted an unjustifiable and unreasonable limitation of his right of access to court, as well as his right of access to information, and therefore violated those rights.

[7] The Minister and the Director-General resisted the application C maintaining, first, that the review application should have been brought under s 77(4) read with s 77(5)(c)(i) which gives the applicant 60 days to bring an application challenging refusal of access to information. Second, they contended that the High Court had no power to condone non-compliance with the time limit prescribed in s 78(2). They also opposed the application for condonation on the merits on the ground D that the case for condonation had not been made out. They maintained that the decision refusing access to the information sought had been properly taken under the provisions of s 39(1)(b)(iii)(ee).

[8] The point taken by the Minister that the High Court did not have the power to condone non-compliance with the 30-day limit in s 78(2) E triggered an amendment to the notice of motion which introduced a constitutional challenge to s 78(2). This challenge was conditional upon the court upholding the point taken by the Minister. This challenge necessitated the joinder of the Minister for Justice and Constitutional Development as the third respondent. The Minister for Justice and Constitutional Development did not enter the fray on whether the High F

Ngcobo J

A Court has the power to condone non-compliance with s 78(2) and, if so, whether the applicant had made out a case for condonation. Instead he limited his submissions to the challenge to the constitutionality of s 78(2), maintaining that the section does not limit any of the constitutional rights contended for by the applicant, and if it does, that the B limitation is reasonable and justifiable. I shall refer to the Minister for Social Development, the Minister for Justice and Constitutional Development and the Director-General collectively as the respondents.

[9] During the hearing in the High Court a further amendment was introduced. This time the constitutional challenge to s 78(2) was C conditional upon the court finding that it had the power to condone, but refusing condonation on the basis that the applicant had not made out a case for condonation. This amendment appears to have been prompted by the concession by the respondents, made in the course of the hearing, that the High Court had the power to condone non-compliance with D s 78(2).

[10] The High Court held that it had the power to condone non-compliance with the provision of s 78(2). However, it refused condonation holding that the applicant had not provided a satisfactory explanation for the delay and that the applicant had no prospects of success in E the underlying review. It found that the Minister had demonstrated that releasing the information sought would prejudice the trial or otherwise be unfair to the trial. The High Court was referring to the litigation between the Department and the consortium. In the event, the High Court dismissed the application for condonation and ordered the F applicant to pay the first and second respondents' costs, including those consequent upon the employment of two counsel.

[11] This conclusion led the High Court to accept the invitation extended to it through the second amendment to the notice of motion, namely, to consider the constitutionality of s 78(2) in the event the G application for condonation was unsuccessful on the merits. It concluded that s 78(2) was unconstitutional because, in the first place, the 30-day limit was grossly inadequate and therefore limited the right of access to court and, in the second place, this limitation was unjustifiable under s 36(1) of the Constitution. [6] It accordingly declared the provisions H of s 78(2) unconstitutional and referred its order embodying that

Ngcobo J

declaration to this court for confirmation. In addition, it ordered the A Minister for Justice and Constitutional Development to pay the applicant's costs, including those consequent upon the employment of two counsel.

[12] The present proceedings are a sequel. B

Proceedings in this court

[13] In this court the applicant seeks the confirmation of the order of invalidity. He is also seeking leave to appeal directly to this court against the order of the High Court refusing to condone his non-compliance with s 78(2). The respondents are resisting both applications. C

[14] The South African History Archives Trust (SAHA), a non-governmental organisation, applied for and was admitted as amicus curiae. One of the objectives of SAHA is to collect, preserve and catalogue material of historical, contemporary, political, social, economic and cultural significance. It also promotes the accessibility of archival materials to the D general public. It describes itself as 'an independent NGO archive dedicated to documenting and supporting the struggles for justice in South Africa'. It entered the fray and joined the side of the applicant contending that the 30-day period in s 78(2) is in conflict with ss 32 and 34 of the Constitution. In addition, it drew to our attention the difficulties associated with bringing court applications under s 78(2). E These difficulties will be referred to later in this judgment.

[15] Shortly before the hearing, the Commission launched an application for admission as amicus curiae. This application, which consisted of two volumes, contained, amongst other things, the Human Rights F Development Report for the period 2007/2008, a draft Human Rights Development Report 2008/2009 and the South African Human...