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ACCESS TO PROCUREMENT INFORMATION IN SOUTH AFRICA A paper presented at the Public Procurement Regulation in Africa Conference held

at Stellenbosch Institute for Advanced Studies (STIAS), in Stellenbosch, 24-25

October 2011

Michael Clark

LLB

Post-Graduate Research Assistant, Socio-Economic Rights and Administrative

Justice Research Group, Stellenbosch University

___________________________________________________________________

1 Introduction

Access to state held information in a public procurement context is of crucial

importance for a variety of fundamentally significant constitutional issues. First, it is

the most effective way of upholding the constitutional value of transparency, as laid

down in section 217(1) of the Constitution of the Republic of South Africa, 1996 (“the

Constitution”).1 In this regard it aids in the facilitation of good governance and

accountability, as well as combating potential pitfalls such as corruption and

maladministration in the public procurement process.2

Secondly, the right of access to information is imperative, in that it serves to

enforce tendering parties’ right to administrative justice, particularly the right to

reasons and procedural fairness.3 It is evident that to enable a tendering party to

enforce their right to administrative justice, such party must first be able to obtain

                                                                                                                         1 C Hoexter Administrative Law in South Africa (2007) 91; P Bolton The Law of Government Procurement in South Africa (2007) 238. 2 Hoexter Administrative Law 91; I Currie & J De Waal The Bill of Rights Handbook 5 ed (2005) 684; C Plasket “Tendering for Government Contracts: Public Procurement and Judicial Review” in G Glover (ed) Essays in Honour of AJ Kerr (2006) 160-161. 3 S 33(1) of the Constitution provides that:

“Everyone has the right to administrative action that is lawful, reasonable and procedurally fair”.

See also Bolton Government Procurement 237.

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information relating to the tender process.4 Without access to such information, a

tendering party may be ill-advised on whether or not to pursue legal recourse, and

consequently unable to “exercise an effective legal ‘voice’” to discipline government

action.5

Finally, the right of access to information is itself a constitutionally entrenched

right, crystallised in section 32(1) of the Constitution. This clearly indicates the

reverence and significance of this right in our country. Furthermore, section 32(2)

mandates the creation of legislation that would give practical effect to the right of

access to information. This has led in turn to adoption of the Promotion of Access to

Information Act 2 of 2000 (“PAIA”), which is utilised as an essential tool to facilitate

access to information.

Therefore, it is evident that the right of access to information, and its effective

implementation, is of considerable importance in a public procurement context. It is

for this reason that this paper intends to consider whether adequate effect is given to

the right of access to tender information in South Africa. This will be done by

considering the possible types of information that may be obtained by tendering

parties, as well as the potential avenues in which such information may be obtained.

Thereafter, an investigation of the potential developments in the arena of access to

state held information will be undertaken. In this regard particular attention will be

paid to the new Rules of Procedure for the Judicial Review of Administrative Action

(“the new rules”),6 as well as the potential impact of the Protection of State

Information Bill.7 It is proposed these developments are certainly indicative of a

                                                                                                                         4 See also, generally, S Jagwanth & R Calland “The Right to Information as a Leverage Right” in R Calland & A Tilley (eds) The Right to Know, the Right to Live: Access to Information and Socio-Economic Justice (2002) 2. Here the authors argue that the right of access to information is an enabling right; that is, a right that is imperative in order to meaningfully exercise other fundamental rights. As such, the right of access to information can be described as a “gateway” right, capable of unlocking other rights. 5 E Atwood & MJ Trebilcock “Public Accountability in an Age of Contracting Out” (1996) 27 Canadian Business LJ 1 11 as referred to in Bolton Government Procurement 238. See also ABBM Printing and Publishing (Pty) Ltd v Transnet Ltd 1997 10 BCLR 1429 (W) para 21; Aquafund (Pty) Ltd v Premier of the Western Cape 1997 2 All SA 608 (C) 615-616. 6 Rules of Procedure for Judicial Review of Administrative Action GN R 966 in GG 32622 of 09-10-2009. 7 Bill 6 of 2010, an explanatory note of the Protection of Information Bill is available in GG 32999 of 2010-03-05. See also the amended working draft of the Ad Hoc Committee on the

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definitive attitude shift on the part of the state. Finally, this paper will deal with

potential solutions that have been explored by the courts to balance all of the

conflicting interests involved in these often complex situations.

2 Access to information and the right to reasons 2 1 The right to reasons

Generally, a distinction is drawn between reasons and other manifestations of

information. Reasons, in this context, refer to statements which offer an adequately

informative explanation as to why a certain administrative action has or has not been

taken, whereas information encompasses a far broader concept.8 Reasons are

deemed such since they are formulated, whereas information is already information

in its unprocessed form.9 It is also apparent that the right to reasons is an

independent, free-standing right;10 which should be regarded as an integrated part of

the administrative process.11

Simultaneously, the right to reasons is also a vehicle which facilitates the

communication of information, and therefore should also be considered a type of

information. The intimate relationship between reasons and information has implicitly

been acknowledged by the Supreme Court of Appeal in Tetra Mobile Radio (Pty) Ltd

                                                                                                                                                                                                                                                                                                                                                                                         Protection of Information Bill, available at Parliamentary Monitoring Group (PMG) “Protection of Information Bill: IFP, DA and ACDP proposed amendments of 5 November 2010” (05-11-2010) PMG <http://www.pmg.org.za/report/20101105-deliberations-public-hearings-protection-information-bill-b6-2010-cla> (accessed 13-11-2010). It should be mentioned that the Bill has been passed by the National Assembly, and is currently making its way through the National Council of Provinces. 8 Hoexter Administrative Law 414-415; Currie & De Waal Bill of Rights Handbook 679. 9 Hoexter Administrative Law 415. 10 This is clear from s 33(2) of the Constitution which states that

“[e]veryone whose rights have been adversely affected by administrative action has the right to be given written reasons”.

It is further clear from s 5 of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”). See also G Quinot “New Procedures for the Judicial Review of Administrative Action” (2010) 25 SA Public Law 654. 11 King William’s Town Transitional Local Council v Border Alliance Taxi Association (BATA) 2002 4 SA 152 (E) 160H.

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v MEC, Department of Works.12 In this case the court utilised the right to request

reasons, as provided for in the KwaZulu Natal Procurement Act 3 of 2001, as well as

the founding principle of fairness in the procurement process; to infer that the

unsuccessful tenderer was entitled to access certain information.13 This was inferred

despite the fact that the provincial legislation made no provision for the right to

access documentation.14 Consequently, one may argue that the right to reasons is

inextricably linked to access of information.

Reasons, as information, are crucial in the context of public procurement.

Reasons inform unsuccessful tenderers of the grounds upon which their tender was

unsuccessful or discontinued. This, in turn, enables such tenderers to rectify the

possible defects in their applications so as to ensure that future tender applications

are more likely to be well-received.15 Reasons also empower unsuccessful tendering

parties to make informed decisions about the viability of challenging the award of a

tender as an infringement of their right to just administrative action.16

The right to reasons emanates from section 33(2) of the Constitution, and has

been given expression to in section 5 of PAJA.17 These sections have the capacity to

have a limiting effect on the right to reasons, since they provide that potential

applicants are only entitled to reasons if their “rights” have been “adversely affected”

by administrative action.18 As illustrated above, reasons could be considered a type

of information, and as such these constraints on the class of persons entitled to

reasons could effectively limit access to information, especially if one considers the

                                                                                                                         12 2007 JOL 20719 (SCA). 13 Paras 9-12. 14 Para 9. 15 Hoexter Administrative Law 416; Bolton Government Procurement 229-230; Breen v Amalgamated Engineering Union [1971] 2 QB 175 (CA) 191C. 16 Hoexter Administrative Law 416; Bolton Government Procurement 230; Currie & De Waal Bill of Rights Handbook 680. See also Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 1 SA 853 (SCA) para 10, where it was stated that

“reasons given may tell a tenderer that his goods did not comply with the specifications. He, knowing that they did comply, would then be able to take the matter further. Without reasons he might be without a remedy.”

17 See n 10 above. 18 Consideration of a tender is deemed to be an administrative action. See Aquafund (Pty) Ltd v Premier of the Western Cape 1997 2 All SA 608 (C) 616; ABBM Printing and Publishing (Pty) Ltd 1997 10 BCLR 1429 (W) para 15.

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wide scope section 32 of the Constitution envisions.19 However, given the potentially

burdensome duty that the right to reasons confers on administrators, the limitation on

the right of access to information may arguably be rendered reasonable and

justifiable.20 It should also be noted that the courts have given a generous

interpretation to these constraints. In Transnet Ltd v Goodman Brothers (Pty) Ltd21

the court pointed out that “rights” should not be interpreted in the traditional sense of

the right to be awarded a tender, but rather as the fundamental right to administrative

justice. Thus, if a tenderer were not given reasons her rights would automatically be

adversely affected since such tenderer would have no way of ascertaining whether

her right to just administrative action had been upheld or infringed.22 As Hoexter

points out, this means that it would be highly inconceivable that a tenderer’s rights

would ever not be adversely affected;23 and consequently the right to access to

information, as expressed through the right of reasons, is capable of being

sufficiently enforced.

2 2 Access to information through administrative law processes

It is well-established that the adjudication of a tender process is considered

administrative action.24 For this reason, arguments relating to access to information

                                                                                                                         19 S 32 (1) of the Constitution provides that “everyone” should have access to “any” information held by the state. 20 Hoexter Administrative Law 417; Bolton Government Procurement 230-231. 21 2001 1 SA 853 (SCA). 22 Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 1 SA 853 (SCA) paras 11-12. In this judgment the court also referred to other fundamental rights that may be affected by the lack of reasons, most significantly, the right to equality. As Olivier JA points out:

“The right to equal treatment pervades the whole field of administrative law, where the opportunity for nepotism and unfair discrimination lurks in every dark corner...It is cynical to say to an individual: you have the right to equal treatment, but you are not allowed to know whether you have been treated equally” (para 42).

See also Aquafund (Pty) Ltd v Premier of the Western Cape 1997 2 All SA 608 (C) 617-618. 23 Hoexter Administrative Law 424-425. 24 Aquafund (Pty) Ltd v Premier of the Western Cape 1997 2 All SA 608 (C) 616-617; ABBM Printing and Publishing (Pty) Ltd v Transnet Ltd 1997 10 BCLR 1429 (W) paras 15-16; Plasket “Tendering for Government Contracts: Public Procurement and Judicial Review” in Essays in Honour of AJ Kerr 164-166.

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in a public procurement context are often founded on the right to administrative

justice (section 33 of the Constitution), and therefore also PAJA.

The procedure for bringing an application for judicial review of administrative

action is currently governed by rule 53 of the Uniform Rules of Court (occasionally

also rule 6 and disclosures in terms of rule 35). Rule 53 provides for a notice of

motion procedure which is characterised by certain unique, exceptional “super-

added requirements”25 in the form of increased access of information, which flows

from the obligation on the administrative authority to file the full record of the

proceedings to be reviewed.26 As a result of this increased access to information the

rule 53 procedure is considered advantageous to the applicant.27 It is submitted that

such an advantage should be praised considering the extensive power state parties

are capable of wielding by virtue of their authority. This inequality in power is further

exacerbated by the state’s commercial bargaining power and unilateral dictation of

contractual terms in public procurement. It should also be mentioned that this initial

advantage granted to applicants is diminished by the highly exceptional nature of

discovery in motion proceedings,28 thereby once again weakening the right of access

to information.

Fortunately, the effects of this limitation are reduced considering the scope of the

definition attached to the “record” that the state official is obliged to provide the

applicant. The “record” of the administrative action has been infused with a broad

meaning to include “the documents, evidence, arguments and other information

before the tribunal relating to the matter under review, at the time of the making of

the decision in question”.29 This ensures that tenderers could employ the rule 53

procedure to obtain a wide range of information that would be crucial to their review

of administrative action.

                                                                                                                         25 Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 3 SA 654 (A) 675E. 26 Uniform Rules of Court, rule 53(1)(b); Hoexter Administrative Law 472; Quinot (2010) SA Public Law 648. 27 Jockey Club of South Africa v Forbes 1993 1 SA 649 (A) 660-662; Hoexter Administrative Law 474-475. See also the references at n 19 of Quinot (2010) SA Public Law 648. 28 Quinot (2010) SA Public Law 648. 29 Johannesburg City Council v The Administrator, Transvaal (1) 1970 2 SA 89 (T) 91G-92A as quoted in MEC for Roads & Public Works, Eastern Cape v Intertrade Two (Pty) Ltd 2006 JOL 17048 (SCA) para 15 (own emphasis).

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Access to information is also limited by the class of tenderers that the rule 53

procedure applies to. Only litigants attempting to subject administrative action to

judicial review are entitled to utilise rule 53. Although this class is broader than the

class of tenderers entitled to the right to reasons, it still falls short of the class that

should be entitled to access to information as envisioned in the Constitution. This is

by virtue of the fact that tenderers would effectively have to institute proceedings for

judicial review, and consequently also expend financial resources, in order to obtain

access to information that they may need to enforce their fundamental rights. This is

obviously problematic, considering that one of the central reasons tenderers seek to

obtain access to information is to enable them to make an informed choice on

whether or not to institute proceedings for judicial review. It is therefore evident that

instituting proceedings before one is aware of the viability of such proceedings would

be highly undesirable, impractical and could have the result of overburdening our

courts.

The state has often employed the argument that applicants should be barred from

relying on both rule 53 and PAIA in order to obtain access to information. A case

which succinctly illustrates this argument is MEC of Roads & Public Works, Eastern

Cape v Intertrade Two (Pty) Ltd.30 In this case the state argued that the tenderer

should have requested the relevant documents in terms of rule 53, if this yielded

undesirable results the tenderer should have invoked the disclosure procedure in

terms of rule 35(12); only after these requests had proven fruitless would the

tenderer be entitled to rely on PAIA. Alternatively, the state argued that the tenderer

should have reversed this procedure by invoking PAIA prior to considering the

institution of proceedings.31 It should be mentioned that this argument stems largely

from section 7(1) of PAIA.32

                                                                                                                         30 2006 JOL 17048 (SCA). 31 Para 9. 32 S 7(1) of PAIA provides:

“This Act does not apply to a record of a public body or a private body if – (a) that record is requested for the purpose of criminal or civil proceedings; (b) so requested after the commencement of such criminal or civil proceedings, as the case may be; and (c) the production of or access to the record for the purpose referred to in paragraph (a) is provided for in any other law.”

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The court, however, lambasted this argument as overly formalistic, “technical” and

“deplorable”.33 When reflecting on this case, it becomes apparent that this conclusion

was reached largely by interpretation. First, the court pointed out that any

interpretation of the potential limitations contained in PAIA and the rules of procedure

should be informed by the Constitution.34 In this regard it is important to consider the

promotion of the spirit, purport and object of the Bill of Rights, as well as whether the

expression given to access to information is sufficient for an open and democratic

society.35 Furthermore, the court indicated that section 7 of PAIA should be

interpreted in a purposive manner, that is to say an interpretation which gives

expression to the objectives of PAIA, namely to promote and give effect to the

constitutional right of access to information.36 This line of reasoning suggests that

where restrictions to access to information are at play the purposive interpretation

dictates that these restriction be interpreted in a manner that would have the least

limiting effect on the right of access to information. Thus, the court used these

interpretive tools to find that the rule 53 procedure, and on a broader scale litigation,

should not be a formalistic bar to an applicants’ right of access to information and

reliance on PAIA.

The rule 53 procedure is set to be replaced by the new rules referred to above, as

envisioned by section 7(3) of PAJA.37 The new rules have been approved by

Parliament, but have not yet come into effect. The impact of the new rules will be

assessed below.

2 3 Access to information through the Promotion of Access to Information Act

                                                                                                                                                                                                                                                                                                                                                                                         Although all of the subsections have to be present in order for s 7(1) to apply, in the present discussion s 7(1)(c) is imperative, as rule 53 may arguably be considered “other law” for the purposes of this section. 33 MEC for Roads & Public Works, Eastern Cape v Intertrade Two (Pty) Ltd 2006 JOL 17048 (SCA) para 20. 34 Para 11. 35 See, generally, s 39(2) of the Constitution. 36 MEC for Roads & Public Works, Eastern Cape v Intertrade Two (Pty) Ltd 2006 JOL 17048 (SCA) para 20; I Currie & J Klaaren The Promotion of Access to Information Act Commentary (2002) 12-17; read with s 9 of PAIA. 37 Rules of Procedure for Judicial Review of Administrative Action, rule 1(4)(b) which expressly states that rule 53 will no longer apply to judicial review of administrative action.

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The majority of the arguments relating to access to tender information are based

on the constitutional right of access to information contained in section 32 of the

Constitution, which provides that everyone has the right of access to “any

information held by the state”.38 Section 32(2) of the Constitution envisions

legislation that would give practical effect to this right; which is how the legislature

came to enact PAIA, as an expression of this right.39

It is asserted that the restrictions on the class of persons entitled to rely on PAIA,

in order to further their attempts at access to information, once again have a

potentially limiting effect on the right of access to information as a whole. This is by

virtue of section 7(1) of PAIA.40 Fortunately, our courts have attributed an

interpretation to section 7(1) that ensures minimal limitation to the right of access to

information. In CCII Systems (Pty) Ltd v Fakie NO41 the court considered the

purposes of section 7(1) to be crucial to its interpretation. It was submitted that

section 7(1) prohibited access to information after the commencement of litigation in

order to achieve a dual purpose: first, to prevent PAIA from having an impact on the

law relating to discovery or compulsion of evidence in criminal or civil proceedings;42

and secondly, to avoid the situation where a litigant obtains an unfair advantage over

their adversary.43 The court further contended that

“[b]efore a litigant has instituted proceedings and even if he wants to institute proceedings he is, in my view, not prohibited from invoking the provisions of [PAIA] to get access. One of the objects of the Act must be that citizens can get information regarding wrongs perpetrated against them to enable them to hold the wrongdoers accountable in a court of law...To interpret the Act that everybody who contemplates legal action is prohibited from

                                                                                                                         38 See specifically s 32(1)(a) of the Constitution (own emphasis). 39 Currie & Klaaren Promotion of Access to Information Act Commentary 25; Hoexter Administrative Law 93; Bolton Government Procurement 238. See also the preamble of PAIA which provides that PAIA is intended to “foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information”. 40 See n 31 above. 41 2003 JOL 11324 (T). This decision was also confirmed and applied in MEC for Roads & Public Works, Eastern Cape v Intertrade Two (Pty) Ltd 2006 JOL 17048 (SCA) para 17. 42 Currie & Klaaren Promotion of Access to Information Act Commentary 52-54; CCII Systems (Pty) Ltd v Fakie NO 2003 JOL 11324 (T) para 21. 43 CCII Systems (Pty) Ltd v Fakie NO 2003 JOL 11324 (T) para 21.

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requesting access will be to render the Act nugatory for the purposes for which it was promulgated.”44

The coming into effect of PAIA had a significant influence on the right of access to

information. PAIA resulted in a shifting of the onus of proof: from the tendering party,

who was required to prove that the information requested was necessary for the

protection and enforcement of their rights; to the state party, who is currently

required to indicate why the tendering party should not be entitled to access the

tender information.45 This means that the state party is required to assert that a

tenderer should be refused access to the requested information, as well as carry the

burden of proving that such refusal is reasonable or justifiable in terms of the Act.

PAIA has also resulted in an alteration of the foundational basis on which access is

granted, from a “need to know” basis, to a “right to know” basis.46 Finally, PAIA

instilled a presumption in favour of disclosure of information.47 Therefore, where

tendering parties seek to obtain a record or information from a state party and such

tendering parties’ requests comply with all the necessary requirements of the Act,

the state party is obliged to grant access.48

PAIA also made room for legitimate limitations of the right of access to

information. In fact, PAIA provided an extensive list of grounds which a state party

may rely on in order to refuse a request for access to information.49 Almost all of the

grounds for refusal of access to information are potentially applicable in a public

procurement context.50 The grounds that are most prevalent in procurement

                                                                                                                         44 Para 21. 45 Bolton Government Procurement 242, 250; Currie & Klaaren Promotion of Access to Information Act Commentary 95; MEC for Roads & Public Works, Eastern Cape v Intertrade Two (Pty) Ltd 2006 JOL 17048 (SCA) para 20; CCII Systems (Pty) Ltd v Fakie NO 2003 JOL 11324 (T) para 4. 46 GE Devenish, K Govender & D Hulme Administrative Law and Justice (2001) 189. 47 See also Open Democracy Advice Centre (ODAC) Submission by the ODAC to the Ad Hoc Committee on the Protection of Information Bill on the Protection of Information Bill (2010) 3. 48 S 11(1)(a) of PAIA. 49 See Chapter 4 of Part 2 of PAIA. 50 Bolton Government Procurement 243. See also CCII Systems (Pty) Ltd v Fakie NO 2003 JOL 11324 (T) where the respondent relied on a number grounds of refusal; namely that

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processes are: the protection of commercial information of third parties,51 as well as

the holding body;52 the protection of confidential information of third parties;53 and

requests which are manifestly vexatious, frivolous or would cause an unreasonable

diversion of the resources of the public body in question.54 A detailed discussion of

all the grounds of refusal falls outside the parameters of this paper. However, since

the grounds for refusal are inherently limitations of the right to access to information,

there is always a danger that the individual rules relating to each ground may be

taken too far.55 It is asserted that the courts should constantly be contemplative of

the fine line between a reasonable and unreasonable limitation of the right of access

to information.

2 4 Access to information through procurement specific processes

In South Africa the dominant statutory instruments which regulate public finance

and public procurement, are the Public Finance Management Act 1 of 1999

(“PFMA”), the Preferential Procurement Policy Framework Act 5 of 2000 (“PPPFA”)

and the Local Government: Municipal Finance Management Act 56 of 2008

(“MFMA”).

As illustrated above, access to information is of particular significance in the public

procurement context. It is therefore flummoxing that none of these statutes contain

express provisions relating to the facilitation of access to tender information

                                                                                                                                                                                                                                                                                                                                                                                         processing the request would substantially and unreasonably divert resources away from the respondent’s core business and the confidential information of third parties. 51 See s 36(1)(a)-(c) of PAIA. See also, for comprehensive discussions on this ground of refusal, Bolton Government Procurement 244-249; and Currie & Klaaren Promotion of Access to Information Act Commentary 134-147. 52 See s 42(3) of PAIA. See also, for a comprehensive discussion of the ground of refusal, Currie & Klaaren Promotion of Access to Information Act Commentary 147-152. 53 See ss 36(1)(c) and 37 of PAIA. See also Currie & Klaaren Promotion of Access to Information Act Commentary 152-155. 54 See s 45 of PAIA. See also Currie & Klaaren Promotion of Access to Information Act Commentary 189-192.  55 The potential danger posed by these grounds of refusal is partially mitigated by s 46 of PAIA, which subjects all of the grounds of refusal to the public interest and compels disclosure if the “public interest ... clearly outweighs the harm contemplated in the provision in question”.

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specifically. At most these statutes refer to vague, hollowed out notions of

“transparency” and “access to information” without providing a fleshed out framework

to achieve these critically important values in a public procurement context.

This substantial lack of express recognition of access to information flies in the

face of the constitutional promise of transparency enshrined in section 217(1) of the

Constitution and indicates an element of neglect for this right and the processes

associated therewith, at least in a symbolic sense. This oversight is also

disconcerting when one reflects on the historical policy formulation of government.

There have been a number of policy initiatives that expressly aimed to improve

access to procurement information.56 While it may be argued that these aims were

largely achieved by the adoption of PAIA, the failure to address access to tender

information specifically remains questionable and unfortunate.

However, a recent high court case may have the potential to substantially change

this position. In Monoceros Trading 135 CC t/a Metro Security v Nelson Mandela

Bay Municipality57 the applicant, a tenderer, sought to obtain information relating to

the decision of non-award of a contract. When requesting the relevant information

from the state party, the applicant’s attorney presented the following argument:

“Since both in terms of legislation and the provisions of your client’s procurement policy your client is required to act with transparency there should be no need for us to invoke the provisions of the Access to Information Act or Rule 53.”58

Thus, the applicant refrained from requesting access to the information via the

recognised channels. Instead the applicant considered it sufficient to rely on the

open-ended principle of transparency.

                                                                                                                         56 One could refer to the procurement reform process embarked on by the state in 1995, the so-called “ten point plan”. See Ministries of Finance and Public Works, Procurement Task Team: An Initiative of the Ministries of Finance and Public Works Interim Strategies: Public Sector Procurement Reform in South Africa: A 10-Point Plan (1995). One could also refer to the Ministries of Finance and Public Works Green Paper on Public Sector Procurement Reform in South Africa GN 691 in GG 17928 on 14-04-1997. See also P Bolton “Government Procurement as a Policy Tool in South Africa” (2006) 6 Journal of Public Procurement 193 204-205. 57 Monoceros Trading 135 CC t/a Metro Security v Nelson Mandela Bay Municipality (3900/2010) 2011 ZAECPEHC 1 (19-01-2011). 58 Para 21 (emphasis added).

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The court tended to agree with the applicant’s submissions since it specifically

referred to the above quoted correspondence, and granted the access to the

information sought without justifying such decision with reference to PAIA or

administrative law procedures.59 The court therefore seemed to acknowledge access

to procurement information as an inherent element of the public procurement

process.

The Monoceros Trading case therefore seems to suggest the possibility of a new

route through which the facilitation of access to information may be obtained. One

could easily fault this new development as lacking clarity and certainty, but

simultaneously this avenue has the advantage of freedom from the formalities

associated with all the other avenues to access procurement information, as well as

the potential to tailor a particular solution to the unique complexities presented by

nature of procurement information.

3 New developments

3 1 The Protection of State Information Bill

It has been asserted that the controversial Protection of State Information Bill (“the

Bill”) is a “fundamentally draconian and oppressive piece of legislation” that cannot

be considered constitutionally valid in an open and democratic society.60 There were

a variety of impediments contained in the Bill that would have adversely impacted on

the right of access to information, and especially earlier drafts of the Bill conveyed an

alarming legislative intention which posed significant threats to fundamental

principles such as transparency and accountability.

                                                                                                                         59 While one could argue that the court was obliged to grant access to the requested information in the face of PAIA’s presumption in favour of disclosure and the state’s failure to raise a ground of refusal, these were not the arguments expressed in the court’s judgment.  60 P de Vos Harold Wolpe Trust Talk on the Protection of Information Bill (17-08-2010) unpublished talk delivered at the Harold Wolpe Memorial Trust Event, 17-08-2010 <http://constitutionallyspeaking.co.za/pierre-de-vos-harold-wolpe-trust-talk-on-protection-of-information-bill/> (accessed 08-10-2010). De Vos also states that “the problems with the Bill go far beyond its individual clauses” and that no amount of “tinkering with particular clauses [would] render the otherwise unconstitutional Bill constitutionally valid”.

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Of the more prominent concerns with the earlier versions of the Bill, the first major

concern was the manner in which a number of provisions of the Bill endowed de

facto discretionary powers onto public officials.61 These provisions effectively allowed

public officials to “play God” by empowering them to make decisions based on their

own subjective considerations, rather than on clear objective directives; which in turn

poses a substantial threat to the right of access to information. Per illustration one

may refer to the previous section 6(a) of the Bill that asserted, in the ordinary course

of events, state held information should have been accessible and available to all

persons unless “justifiable public or private considerations” required otherwise. Since

the terms used in this provision were not defined in the Bill, nor deemed to have

settled and well-established meaning in law, the provision had the potential to invite

wide discretionary decision making.62 It should be mentioned that the latter versions

of the Bill provided more defined guidelines and directives to be considered by the

state party’s considering the classification of state-held information.

Most perplexing to the public procurement context, was the previous section 12 of

the Bill which dealt with commercial information, and although it has been deleted it

still conveys an unwelcome picture for access of information in public procurement.

The overly broad definition of commercial information would have “left little room for

any commercial information not to be classified as confidential, secret or top

secret”.63 This, together with the capacity to classify commercial information if it

could lead to the “reputational injury” of a public official,64 would have substantially

infringed the right of access to information. The mere proposal of section 12 (and

other similar provisions) justifies the inference that an unambiguous attitude shift has

occurred on the part of government, a shift aimed at the restriction, rather than

promotion of access to state held information. This shift is particularly distressing

considering the fundamental importance of the right of access to information in

promoting the principles of good governance and accountability.

                                                                                                                         61 See ss 1, 6 and 17 of the Bill. See also ODAC Submission by ODAC to the Ad Hoc Committee on Protection of Information Bill 4-5, 6, 8-9; De Vos Harold Wolpe Trust Talk. 62 ODAC Submission by ODAC to Ad Hoc Committee on Protection of Information Bill 6. 63 ODAC Submission by ODAC to Ad Hoc Committee on Protection of Information Bill 7 (own emphasis). 64 7-8.

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Fortunately the Bill has been significantly amended and improved by the Ad Hoc

Committee on the Protection of Information Bill. However, despite these

improvements there is much public dissatisfaction with the Bill as it works its way

through the National Council of Provinces. It is important to consider the potentially

detrimental effect of this Bill on the constitutional imperative of an open and

democratic society based on freedom, equality and human dignity. This broaches the

question of whether the Bill may be constitutionally suspect, and it is submitted that it

is.65

3 2 The new Rules of Procedure for the Judicial Review of Administrative Action

As stated above, the new rules will replace the current rule 53 procedure. There

are some significant changes brought about by the new rules which relate to both the

right to request reasons (contained in rule 3)66 and the new disclosure procedure

(contained in rule 4).67

The addition of rules of procedure for the right to request reasons seems both

perplexing and out of place. The main reason for this submission is that a procedure

relating to the request for reasons already exists in the Regulations on Fair

Administrative Procedures.68 This leads to the unfortunate situation where two sets

of procedures may simultaneously apply to a request for reasons, rendering one of

the procedures superfluous. This oversight has the potential effect of creating

confusion. There is also the threat that administrators may abuse this situation,

utilising the confusion to pick and choose beneficial aspects of either procedure,

                                                                                                                         65 It is painfully apparent that the Bill is an infringement of the constitutional right of access to information (section 32(1) of the Constitution). Furthermore, it is argued that this infringement is clearly unreasonable and unwarranted in an open and democratic society. De Vos Harold Wolpe Trust Talk clearly illustrates that the very purpose of the Bill is suspicious (to serve the national interest), not to mention the fact that the Bill is clearly overboard and the purpose far too “invasive”. 66 Rules of Procedure for Judicial Review of Administrative Action, rule 3. 67 Rules of Procedure for Judicial Review of Administrative Action, rule 4. 68 Regulations on Fair Administrative Procedures, 2002 in GN R 1022 in GG 23674 of 31-07-2002 regs 24-28. See also Quinot (2010) SA Public Law 654.

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which places tenderers requesting reasons in a vulnerable position and effectively

marginalising their access to reasons.69

Quinot contends that the grouping of the procedure for the request for reasons

with the procedure for judicial review of administrative action has a regressive effect,

“[a]t least symbolically”.70 He indicates that the inclusion of the right to request

reasons in the new rules implies that the right to request reasons is merely “ancillary

to judicial review”, rather than being venerated as a free-standing right.71

Furthermore, the new disclosure mechanism in rule 4 of the new rules brings

about a rather momentous change in relation to the access to information. Instead of

entitling an applicant to the full record of the administrative action, rule 4 only permits

such applicant access to “relevant documents”. The definition of a “relevant

document” encompasses “a document that directly relates to a ground of judicial

review upon which a requester or applicant relies or intends to rely in proceedings for

judicial review”.72 This definition dramatically narrows the scope of information that

applicants are allowed access to, as well as placing the determinations as to what

would be considered “relevant” solely within the subjective discretion of the

administrator or public official.73 This once again creates an anomalous, unfair

situation equivalent to the unequal relationship created by the proposed discretionary

powers considered for public officials in terms on the earlier drafts of the Protection

of State Information Bill as discussed above; which, once again, has the potential of

significantly limiting the right of access to information.

Bestowing such potentially broad discretionary powers onto public officials may

prove highly problematic for two fundamental reasons. Firstly, administrators or

public officials may be ill-suited to make effective value judgments compelled by the

new rules, without special directives. Secondly, these provisions have the effect of

granting discretionary powers relating to the right of access to information to the very

holders of the information in the dispute. This means that the already unequal power                                                                                                                          69 It should be mentioned that although the new rules do not expressly repeal the procedure to request reasons in terms of the Regulations on Fair Administrative Procedures, the Minister of Justice has indicated an intention to repeal the existing procedures. See Quinot (2010) SA Public Law 655, specifically n 60. 70 Quinot (2010) SA Public Law 655-656. 71 655-656. 72 Rules of Procedure for Judicial Review of Administrative Action, rule 2(2). 73 Quinot (2010) SA Public Law 659-660.

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relationship between the state and tendering parties is intensified, tipping the scales

of justice definitively in favour of the state. Furthermore, this alarming state of affairs

carries the potential for abuse and prejudice, not to mention the concealment of

corruption and maladministration;74 which, ironically enough is in direct contrast to

the objectives of access to information. This problem is exacerbated by the fact that

the new rules do not make provision for the possibility of challenging an

administrator’s determination of what he considers relevant.75 Consequently, the new

rules curtail the right of access to information in a severe manner.

The aim of rule 4 is to reduce the substantial burden that rests on administrators

by removing the obligation to provide the full record of the administrative action.76

However, Quinot rightly points out that “to provide the list of ‘relevant documents’ [an

administrator] must surely go through the entire record”.77 Logic therefore dictates

that the same amount of time and effort are expended whether administrators

provide the full record or only the relevant documents. Consequently, there is no

justifiable reason for the new procedure to opt for the more restrictive approach,

especially since such procedure would unduly infringe the right of access to

information.

4 Recommended manner in which access to procurement information should be given effect to

There are various ways in which our courts have elected to give expression to

tenderers’ right to access procurement information. Some methods employed by the

courts have been progressive, while others have been far too lenient and accepting

of non-disclosure. It should, however, be borne in mind that cases relating to access

to tender information involve complicated and often contradictory issues. Often a

court is entrusted with the facilitation and enforcement of opposing interests: on the

one hand, it is expected to prevent the potential overburdening of state

                                                                                                                         74 See in relation to the earlier versions of the Protection of State Information Bill, ODAC Submission by ODAC to Ad Hoc Committee on Protection of Information Bill 8-9; De Vos Harold Wolpe Trust Talk. 75 658. 76 659. 77 660.

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administration and protect the confidentiality (and privacy) of third parties; while on

the other, it might be faced with an earnest plea to facilitate the accessibility of

information sought by a tendering party in order to enforce fundamental rights and

ensure accountability is served. Thus, there is a duty on our courts to ensure that

these sensitive interests are carefully weighed against each other, and that a “fair

balance” is struck;78 or if such a “fair balance” is untenable, to ensure that adequate

expression is given to the conflicting rights and that the right to access to information

is not unduly infringed.

One of the fundamental developments in the context of freedom of access to

tender information (and information in general) is our courts’ rejection of arguments

related to blanket confidentiality or refusal.79 As was pointed out in ABBM Printing

and Publishing (Pty) Ltd v Transnet Ltd:

“Part of [the tender document], such as the tender price, the tenderer’s experience and expertise cannot be confidential. Other parts of it may well contain confidential information ... it would be counter-productive and contrary to the Constitution to allow the respondent to hide behind an unsubstantiated blanket claim of confidentiality on behalf of tenderers or the express undertaking of confidentiality given to all tenderers.”80

It is submitted that this development has a progressive effect on the right of

access to information since any limitation of the right is now subject to the scrutiny of

a court. Our courts would be unsatisfied with a limitation of the right in the absence

of a satisfactory justification for each refusal or limitation to access. It is further

argued that requiring such justification serves to reduce the risk of administrators

making arbitrary refusals or not applying their mind to the request,81 as well as

satisfying the tenderer that there may be a valid ground of refusal barring their

request.

There are various manners in which a court of law could approach the need to

give expression to access to information in a public procurement context. First, a                                                                                                                          78 Tetra Mobile Radio (Pty) Ltd v MEC, Department of Works 2007 JOL 20719 (SCA) para 14. 79 See the judgment of CCII Systems (Pty) Ltd v Fakie NO 2003 JOL 11324 (T) 14; ABBM Printing and Publishing (Pty) Ltd v Transnet Ltd 1997 10 BCLR 1429 (W) para 24. 80 ABBM Printing and Publishing (Pty) Ltd v Transnet Ltd 1997 10 BCLR 1429 (W) para 24 (own emphasis). 81 Hoexter Administrative Law 416-417.

19    

court could be accepting of a public authority’s submission that the information

requested by a tenderer should not be accessible, without having recourse to the

content of the information. Essentially, these decisions are made in the dark, without

any recourse or check against the extensive authority of the state. However, this is

naive, fails to take account of the very genuine threat of corruption, and flies in the

face of the constitutional imperative of accessibility to all state held information

contained in section 32(1) of the Constitution.

Another alternative is that the court could reject a blanket refusal to accessibility,

requiring that each document (or parts thereof) be considered on its own merits and

that an adequate explanation raised relating to each case for the non-disclosure.82 It

is the justification for the refusal to access that presents the hurdle to overcome in

order to give sufficient expression of the right to access in these cases. It is

submitted that these decisions, while less deplorable than those discussed above,

are still made in the dark and fail to give proper expression to the right of access to

information.

Finally, there is the approach followed in the judgments of ABBM Printing and

Publishing (Pty) Ltd v Transnet Ltd and Tetra Mobile Radio (Pty) Ltd v MEC,

Department of Works. This approach rejects a blanket refusal to access to

information while still treating confidentiality and privacy with sufficient respect. This

is achieved by only allowing the legal representatives of the tenderer access to the

confidential information on the express condition that such legal representatives do

not disclose the content of this information to any party; including the tenderer, save

for purposes of consulting with counsel or an independent expert.83 The parties are

then encouraged to resolve potential disputes among themselves and provision is

made for the tenderer to approach a judge in chamber if it disputes a claim of

confidentiality or non-disclosure.84

It is asserted that this approach is preferential for access to information for a

variety of reasons. It seems to be the approach best suited to give expression to the

conflicting interests of confidentiality and access by ensuring that a “fair balance” is

                                                                                                                         82 CCII Systems (Pty) Ltd v Fakie NO 2003 JOL 11324 (T) 14. 83 ABBM Printing and Publishing (Pty) Ltd v Transnet Ltd 1997 10 BCLR 1429 (W) para 29; Tetra Mobile Radio (Pty) Ltd v MEC, Department of Works 2007 JOL 20719 (SCA) para 17. 84 ABBM Printing and Publishing (Pty) Ltd v Transnet Ltd 1997 10 BCLR 1429 (W) para 29; Tetra Mobile Radio (Pty) Ltd v MEC, Department of Works 2007 JOL 20719 (SCA) para 17.

20    

struck.85 Furthermore, this approach fosters a culture of consultation and agreement

by allowing the parties an opportunity to attempt to resolve disputes relating to non-

disclosure among themselves. At the same time the court also provides an

enforcement mechanism by allowing the parties recourse to dispute non-disclosure

in chambers, which adequately guards against abuse.86 Finally, by permitting the

legal representatives access to the state held information, this approach ensures that

the rights and interests of the tenderer are not prejudiced in any material way. This is

so because the legal representatives could dispute non-disclosure if such

representative deems the information imperative for the enforcement or protection of

fundamental rights.

Consequently, it becomes clear that the approach to access to information as

presented in these cases, or similar variations, promote the right of access to

information sufficiently while simultaneously giving expression (and recognition) to

other interests.

5 Conclusion

Access to information in a public procurement context is fundamentally important,

not only to ensure that the basic rights of tenderers are protected and upheld, but

also on a broader scale to enhance good governance and accountability.

It has been pointed out that the existing law regulating the access to information

has the capacity to give sufficient expression to the right of access to information,

and holds the sinister potential to harshly limit this right in certain circumstances. In

the past our courts have attempted to interpret the law in a manner that would make

only the slightest possible infringement to the right of access to information. This is

illustrated in the accommodating manner in which our courts have interpreted each

class of persons entitled to the various manifestations of information.

                                                                                                                         85 Tetra Mobile Radio (Pty) Ltd v MEC, Department of Works 2007 JOL 20719 (SCA) para 14. 86 ABBM Printing and Publishing (Pty) Ltd v Transnet Ltd 1997 10 BCLR 1429 (W) para 29; Tetra Mobile Radio (Pty) Ltd v MEC, Department of Works 2007 JOL 20719 (SCA) para 17. It should also be mentioned that if the legal representative disregard the prohibition on disclosure it could amount to contempt of court.

21    

It has also been illustrated that the arena of access to information is set to change

significantly as a result of the Protection of State Information Bill and the new Rules

of Procedure for the Judicial Review of Administrative Action. It is submitted that

both of these legislative developments will callously and unnecessarily limit the right

to access to information, especially in a public procurement context. Furthermore,

these enactments are indicative of a substantial attitude shift on the part of

government, a shift away from promotion of access to information and more inclined

to support secrecy and non-disclosure.

Finally, it is clear that our courts have the desire and capability of giving effective

expression to the right of access to information in certain circumstances. The role of

the courts in the future may be of even greater importance considering the pervasive

effect of the new developments discussed above. Our courts should not be reticent,

but rather be encouraged to develop approaches that might aid in facilitating and

enforcement of access to public procurement information.

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Bolton P The Law of Government Procurement in South Africa (2007)

Currie I & De Waal J The Bill of Rights Handbook 5ed (2005)

Currie I & Klaaren J The Promotion of Access to Information Act Commentary (2002)

Devenish GE, Govender K & Hulme D Administrative Law and Justice (2001)

Hoexter C Administrative Law in South Africa (2007)

Hoexter C The New Constitutional and Administrative Law II: Administrative Law

(2002)

Jagwanth S & Calland R “The Right to Information as Leverage Right” in Calland R &

Tilley A (eds) The Right to Know, the Right to Live: Access to Information and Socio-

Economic Justice (2002)

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Marcus, Spitz, Steyn & Woolman Constitutional Law in South Africa 2 ed (2003)

Plasket C “Tendering for Government Contracts: Public Procurement and Judicial

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Journal Articles

Atwood E & Trebilcock MJ “Public Accountability in an Age of Contracting Out”

(1996) 27 Canadian Business LJ 1

Quinot G New Procedures for the Judicial Review of Administrative Action (2009)

unpublished (copy on file with the author)

Official documents

Open Democracy Advice Centre (ODAC) Submission by the Open Democracy

Advice Centre to the Ad Hoc Committee on the Protection of Information Bill on the

Protection of Information Bill (2010)

Websites

De Vos P “Harold Wolpe Trust Talk on the Protection of Information Bill” (2010)

Constitutionally Speaking <http://constitutionallyspeaking.co.za/pierre-de-vos-harold-

wolpe-trust-talk-on-portection-of-information-bill/> (accessed 08-10-2010)

23    

Table of Cases

ABBM Printing and Publishing (Pty) Ltd v Transnet Ltd 1998 (2) SA 109 (W)

Aquafund (Pty) Ltd v Premier of the Western Cape [1997] 2 All SA 608 (C)

Breen v Amalgamated Engineering Union [1971] 2 QB 175 (CA)

CCII Systems (Pty) Ltd v Falkie NNO 2003 (2) SA 325 (T)

Investigating Director of the Investigative Directorate: Serious Economic Offences v

Gutman NO [2002] JOL 9527 (SCA)

Johannesburg City Council v The Administrator, Transvaal (1) 1970 2 SA 89 (T)

Khala v Minister of Safety and Security 1994 (4) SA 218 (W)

King William’s Town Transitional Local Council v Border Alliance Taxi Association

(BATA) 2002 4 SA 152 (E)

MEC for Roads and Public Works, Eastern Cape v Intertrade Two (Pty) Ltd [2006]

JOL 17345 (SCA)

Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982

3 SA 654 (A)

SA Metal and Machinery Co (Pty) Ltd v Transnet Ltd [2003] 1 All SA 335 (W)

Shabalala v Attorney-General, Transvaal; Gumede v Attorney-General, Transvaal

1995 (1) SA 608 (T)

Tetra Mobile Radio (Pty) Ltd v MEC, Department of Works 2007 JOL 20719 (SCA)

Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 1 SA 853 (SCA)

Transnet Ltd v SA Metal Machinery Co (Pty) Ltd 2006 (6) SA 285 (SCA)

Table of Legislation

The Promotion of Access to Information Act 2 of 2000

The Promotion of Administrative Justice Act 3 of 2000

The Protection of Information Bill 6 of 2010

Other

The Constitution of the Republic of South Africa 1996, s 32, s 33, s 217