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REPORTABLE

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO: 01011/12

DATE:22/08/2012

In the matter between:

SA AIRLINK (PTY) LIMITED...................................................................Applicant

and

THE MPUMALANGA TOURISM AND PARKS AGENCY …...........First Respondent

SHUKRAT MAKINDE N.O.....................................................................Second Respondent

NTHABISENG MOTETE N.O................................................................Third Respondent

COMAIR LIMITED....................................................................................Fourth Respondent

PRIMKOP AIRPORT MANAGEMENT (PTY) LIMITED.....................Fifth Respondent

J U D G M E N T

SALDULKER J:

[1] The applicant, SA Airlink (Pty) Ltd is a privately owned airline operator that conducts commercial, domestic and regional air travel services. In this application, it seeks, in terms of s 78(2)¹ of the Promotion of Access to Information Act 2 of 2000 (PAIA), the review of decisions made by the second and third respondents and an order declaring that the first respondent, Mpumalanga Tourism and Parks Agency (MTPA), provide the applicant with a copy of an agreement (the agreement) entered into between the first and fourth respondents (Comair), and further any agreements entered into between the Kruger Mpumalanga Airport or the fifth respondent (Primkop) in relation to fees payable by the fourth respondent, as well as all records of the first respondent in relation to its decision to enter into an agreement with a third party and the decision to select Comair as that third party.

[2] Neither Comair, nor the fifth respondent have opposed the relief sought.

[3] The MTPA is an organ of state and a public body as defined in section 1² of PAIA. It is a body created in terms of s 2 of The Mpumalanga Tourism and Parks Agency Act 5 of 2005. Its objectives include to “foster, promote and sustainably develop and market tourism”.

Background

[4] On or about 7 August 2009, an article was published in the Business Day newspaper, which reported that MTPA was “contracting with” Comair, for the provision of flights between O R Tambo International Airport and Kruger Mpumalanga International Airport. Consequently, the applicant became concerned about the propriety of MTPA’s actions, inter alia, for the following reasons. No tender had been issued for the provision of the services being provided by Comair, and that the agreement may result in the MTPA subsidising Comair in return for offering flights to the Kruger Mpumalanga International Airport. Furthermore the applicant had not received any such financial incentive to service the route and that, the MTPA’s actions “skewed” competition between Comair and the applicant in Comair’s favour, without MTPA having followed any ‘fair process’ before ‘favouring’ Comair.

[5] On 14 August 2009, the applicant requested a copy of the agreement between MTPA and Comair, from MTPA, in terms of s 18(1)³ of PAIA, including the documents drawn up in preparation for the conclusion of the agreement and any documents pertaining to the decision to conclude the agreement. In response to this request, the second respondent stated that there was no final agreement between the MTPA and Comair. The applicant then wrote to the second respondent indicating its desire to be considered for the provision of whatever service the MTPA was contemplating procuring from Comair, calling upon the MTPA to provide the applicant with the detail of these services, so that it could draft a proposal that could be considered by the MTPA, reminding MTPA of its right in terms of PAIA. There was no response from MTPA. Consequently another letter was addressed to the second respondent with the same aforegoing request for access to the agreement concluded between MTPA and Comair.

[6] On 2 November 2009 the second respondent, on behalf of MTPA, responded to the letter and refused the applicant’s request on the basis that the agreement sought was “unknown to MTPA”, and that they were unable to assist with such a request as they did not have a copy of such a document. After a further exchange of correspondence, a meeting took place between the applicant’s and MTPA’s representatives. At this meeting it was admitted by Mr. Ndabeni, the then CEO of MTPA, that such an agreement existed and the details thereof would be announced in April 2010 at the Tourism Indaba.

[7] During May 2010, Comair and the Member of the Executive Council for Economic Development, Environmental and Tourism in Mpumalanga, Mr. Jabu Mahlangu (the MEC), announced the conclusion of an agreement between Comair and MTPA. Save to record that the agreement was intended to increase tourism airlift capacity “through the provision of cost competitive and sustainable flights” from Kruger Mpumalanga International Airport, and that it was a “partnership” that would enable Comair to provide six flights a week to the airport, the announcement did not contain the terms of the agreement sought.

[8] On or about 3 June 2011, the applicant addressed a new request to MTPA for records in its possession, in terms of s 18 of PAIA, which included inter alia the following:

8.1 The terms of the agreement between Comair and MTPA referred to in the announcement by the MEC on 4 May 2010;

8.2 Any agreements to which the Kruger Mpumalanga International Airport (or Primkop), was a party in relation to fees payable by Comair for air travel services, including landing fees, parking fees and passenger service charges; and

8.3 All records of the MTPA in relation to the decision to enter into an agreement with a third party and the decision to select Comair as that third party.

[9] On 30 June 2011, the second respondent wrote to the applicant indicating that the MTPA’s Chief Executive Officer and Information Officer, Mr Ndabeni, had considered the applicant’s request and refused it in terms of ss 7, 36, 37, 42, 43 and 44, of PAIA, and that an appeal could be lodged in terms of s 25(3)(c)⁴ of PAIA. The applicant was also informed that “the contracts, commercial information of third parties and the rights of the parties are protected information in terms of the Promotion of Access to Information Act 2 of 2000.”

[10] On 20 July 2011, the applicant noted an appeal against this decision. On 14 October 2011, the third respondent Ms Nthabiseng Motete, who had taken over from Mr Ndabeni as MTPA’s Chief Executive and Information Officer, indicated to the applicant that she had considered the appeal and refused it. The primary reason for the third respondent’s refusal was the objection by Comair that it will suffer prejudice should the contract be released, as it contained a confidentiality clause, and that “providing access to this contract will be a breach of the confidentiality clause in the agreement and could lead to a claim of damages against” MTPA. There were additional reasons. The contract contained commercial information of Comair who was a competitor of the applicant, and that if access was granted to the applicant, it “will disadvantage and prejudice the future supply of information” to MTPA by Comair. This commercial information of third parties is protected in terms of s 36^{5anc" HREF="#sdfootnote5sym">5} of PAIA. Furthermore, the third respondent indicated that the contract was a “marketing agreement” between the two organisations to advance MTPA’s tourism mandate and that the contract requested for does not contain information that is already within the public arena.

[11] The applicant contends that as MTPA is an organ of state and a public body, it is obliged in terms of s 11 of PAIA⁶ to provide the applicant with the records unless it is able to prove that a valid ground for refusal in terms of PAIA exists. S 32 of the Constitution⁷ confers a right on every person to “any information held by the State”. S 11 of PAIA gives effect to the right in s 32 of the Constitution by providing that a requester must be given access to a record of a public body if the requester complies with the procedural requirements in PAIA for access and no ground for refusal of access under PAIA exists⁸.

[12] In terms of s 18 of PAIA, if a request for access to a record of a public body is made in the prescribed manner the information officer must, as soon as reasonably possible⁹, after the request was received, decide whether to grant the request. If a request is refused, then the requester may lodge an internal appeal, with the relevant authority. The relevant authority must decide the appeal as soon as reasonably possible, but in any event within 30 days after the appeal is received.¹⁰

[13] However, if the appeal is unsuccessful, or the requester does not have a right of appeal, then the requester may approach a court for appropriate relief in relation to the request. Section 81(2) of PAIA expressly states that the burden of establishing that the refusal of access is justified under PAIA, rests on the party refusing access. This burden must be discharged on a balance of probabilities. ¹¹

[14] It must be borne in mind that it is the second respondent who has deposed to an answering affidavit on behalf of the first and the third respondents. A perusal of this affidavit indicates conflicting averments in regard to their knowledge of the agreement. Although the respondents concede that an agreement was concluded between the first and fourth respondents which contained commercial information and that the fourth respondent refused to consent to the disclosure, they also, in the same affidavit, disavow knowledge of the agreement, stating “there was no agreement that was entered into between the first and fourth respondents that I am aware of”.

[15] Furthermore, although the second respondent neither took the decision to refuse the application nor determined the appeal, she has deemed it fit, in several instances to provide supplementary reasons to justify the refusal of the application and the appeal, in regard to a decision that she did not take.

[16] The second respondent also raises ss 36(1)(b)¹² and 36(c)(ii) of PAIA, and states that “where the commercial or financial interest of the fourth respondent are at play, or where it may be prejudiced in commercial competition, then a request may be refused”, and that the disclosure would harm future relations between the first and fourth respondents, and that “the harm which would be caused to the fourth respondent would be, and this should be self-evident, that the applicant being a direct competitor would have access to a slew of information which could be used to harm its commercial or financial interests”.

[17] A further ground is also raised in the affidavit to the effect that the “information sought was already in the public domain”. This is contrary to what was said in the letter of 14 October 2011 that the contract requested “does not contain information that is already within the public arena”. Thus new reasons have been advanced by the second respondent who seeks to rely on the provisions of section 44¹³ in its answering affidavit, in defence of the third respondent’s refusal¹⁴. According to the second respondent, s 44 confers a discretion on an information officer to refuse access to records of recommendations or reports of internal deliberations that occurred for the purpose of taking a decision. In my view such discretion can only be exercised on a proper consideration of the facts. The third respondent has not provided any reasons for exercising her discretion in the manner that she did.

[18] Significantly, the grounds on which the application was declined initially are as follows:

18.1 The agreement contains commercial information relating to third parties, which rights of the parties are protected in terms of the Act.

18.2 It was justified by the provisions of sections 7¹⁵, 36¹⁶, 37¹⁷, 42¹⁸, 43¹⁹ and 44²⁰ of the Promotion of Access to Information Act of 2000 (“the Act”).

[19] MTPA did not dispute in the refusal decision that such an agreement existed. It refused access to the agreement on the basis set out in the letter of 30 June 2011. Comair, in its letter of objection dated 15 August 2011, objected to the disclosure of the record on the basis that the information sought is “highly sensitive and of a commercial nature” and that disclosure of it would prejudice commercial competition between the airlines because it includes price sensitive information. Yet in this application, Comair did not file any affidavits in answer to this application, nor did it oppose the relief sought by the applicant.

[20] Both the aforegoing initial refusal and the objection from Comair appear to be based on the existence of an agreement, which must have been in MTPA’s possession, and MTPA is obliged to provide access to it, regardless of whether it is a party to it.

[21] In regard to its principal objection the third respondent relies on s 37(1)(a) of PAIA which provides that a public body must refuse a request for access to a record if the disclosure of the record “would constitute an action for breach of a duty of confidence owed to a third party in terms of an agreement²¹”. The third respondent also relied on the provisions of section 36 of PAIA. That section provides that the information officer of a public body must refuse a request for access to a record of the body if the record contains inter alia commercial information of a third party “the disclosure of which would be likely to cause harm to the commercial or financial interests of that third party”.

[22] The overriding principle in relation to this “disclosure” clause is that a public body is obliged to conduct its operations transparently and accountably. In Transnet Ltd and Another v SA Metal Machinery Co (Pty) Ltd 2006 (6) SA 285 (SCA) at [55], it was held that “Once it enters into a commercial agreement of a public character like the one in issue (disclosure of the details of which does not involve any risk, for example, to State security or the safety of the public) the imperative of transparency and accountability entitles members of the public, in whose interest an organ of State operates, to know what expenditure such an agreement entails … Parties cannot circumvent the terms of the Act by resorting to a confidentiality clause²²”.

[23] The onus is on MTPA to justify the refusal of any request made to it, with reference to the provisions of the Act. The respondents have not shown that it is probable that the disclosure even of confidential information would cause harm to Comair’s commercial interests, particularly in light of the fact that Comair no longer operates on the route to which the agreement applies. A party relying on this provision must show that harm is not simply possible, but probable. In the circumstances, the third respondent has not put up any reasons that justify the refusal of access to the records. Furthermore, Comair will not, therefore, suffer any damages should there be such disclosure, as it is bound by its decision not to oppose this application.

[24] Merely because the agreement contains a confidentiality clause cannot shield the agreement from disclosure. The respondents have also not explained why a breach of this clause could also result in a successful claim for damages. The second and third respondents have asserted that the agreement is “simply a marketing agreement”. Thus, it is inconceivable that it contains “a slew” of sensitive information, the disclosure of which would result in commercial harm to Comair.

[25] I find that the respondents have not made out any basis to refuse access to the records, and the third respondent’s decision must be set aside on this basis. The applicant has clearly exhausted its remedies under s 78(1)²³ of the Act. The respondents have not, in my view, justified the refusal of the applicant’s request. No valid grounds for refusing the applicant’s request for records exist. Accordingly I find that the applicant is entitled to the records it seeks in terms of s 82 of PAIA²⁴ and that no valid ground exists for its refusal. The third respondent is ordered to produce copies of those records within 30 days of this order, on payment of the fees prescribed in PAIA.

[26] Insofar as the agreement between the fourth and fifth respondents is concerned, the second respondent states that it is not the custodian of the agreement and is unaware of any such agreement being concluded. It is not clear whether a copy of such agreement is in fact in the possession of the first respondent. In the result, the first respondent is ordered to produce the agreement if it is in its possession, and if not, for its Chief Executive Officer, to state so under oath, and that affidavit is to be provided to the applicant within 30 days of this judgment being handed down.

[27] As regards costs, it is clear that the first, second and third respondents have not simply abided by the decision of the court, but have opposed this application and authorised the second respondent to file an answering affidavit on their behalf, in support of the decision to refuse access to the information, in circumstances where Comair, which was allegedly the party that objected to the disclosure, does not oppose this application. It is just and equitable that in these circumstances that the first, second and the third respondents pay the costs of the application, jointly and severally.

[28] In the circumstances, I grant an order as set out in the terms of the draft order “X” provided to me by the applicant.

[29] The draft order “X” is made an order of court.

_____________________________

H SALDULKER

JUDGE OF THE SOUTH GAUTENG

HIGH COURT, JOHANNESBURG

COUNSEL FOR THE APPLICANT ADV M A WESLEY

INSTRUCTED BY CLIFFE DEKKER HOFMEYR INC

COUNSEL FOR THE FIRST TO

THIRD RESPONDENTS ADV M A LENNOX

INSTRUCTED BY AJAY MAKKA INC ATTORNEYS

DATE OF HEARING 11 APRIL 2012

DATE OF JUDGMENT 22 AUGUST 2012

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