THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
CASE NO. 375/2003

In the matter between

MINISTER FOR PROVINCIAL AND
LOCAL GOVERNMENT OF THE REPUBLIC
OF SOUTH AFRICA
Appellant

and

UNRECOGNISED TRADITIONAL
LEADERS OF THE LIMPOPO
PROVINCE (SEKHUKHUNELAND)
Respondent
___________________________________________________________
CORAM:
MPATI DP, SCOTT, NAVSA, HEHER JJA et JAFTA
AJA

HEARD:
23 AUGUST 2004

DELIVERED:     29 SEPTEMBER 2004
___________________________________________________________

Summary: Promotion of Access to Information Act 2 of 2000 – limitation
in terms of s 44(1) – interpretation and application thereof.
___________________________________________________________

JUDGMENT
___________________________________________________________
JAFTA AJA

[1] This appeal concerns the interpretation and application of s 44 (1)
of the Promotion of Access to Information Act 2 of 2000 (‘the Act’).
Parliament enacted this legislation in compliance with an obligation
imposed on it by s 32 of the Constitution which provides:
‘(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 on the
state.’
[2] Section 44(1) of the Act reads:

‘(1) Subject to subsections (3) and (4) the information officer of a public body
may refuse a request for access to a record of the body –

(a) if the record contains –

(i) an opinion, advice, report or recommendation obtained or prepared; or

(ii) an account of consultation, discussion or deliberation that has occurred,
including, but not limited to, minutes of a meeting,

for the purpose of assisting to formulate a policy or take a decision in the
exercise of a power or performance of a duty conferred or imposed by law; or

(b) if –

(i) the disclosure of the record could reasonably be expected to frustrate the
deliberative process in a public body or between public bodies by inhibiting
candid -

(aa) communication of an opinion, advice, report or recommendation; or

(bb) conduct of a consultation, discussion or deliberation; or

(ii) the disclosure of the record could, by premature disclosure of a policy or
contemplated policy, reasonably be expected to frustrate the success of that
policy.’
[3] The appellant is the Minister for Local and Provincial Government
(‘the Minister’) whose department is, for the purposes of s 44(1), a public
body. The respondent is a voluntary association of traditional leaders
(‘the association’) in the Province of Limpopo. As its name indicates its
existence has its origin in the refusal by the government to recognise the
status of its members. In October 2002 the association applied to the
Pretoria High Court for an order declaring that it had a right of access to a
report compiled by a commission of enquiry known as the Ralushai
Commission. This report was held by officials in the department. The
association also sought an order setting aside a decision by the Minister’s
information officer denying it access to the report.
[4] The facts on which the association relied for the relief sought by it
were common cause. During February 1996 the Premier of the then
Northern (now Limpopo) Province established the Ralushai Commission
to investigate disputes relating to irregularities and malpractices in the
appointment of certain traditional leaders in that province. The
Commission was also required to recommend steps to be taken by the

Premier to resolve such disputes. In 1997 the Commission presented its
interim report to the Premier. This report was made available to the
public and the association obtained a copy thereof.
[5] The Commission’s final report, which was subsequently presented
to the Premier, was not made public. On 30 April 2001 the association,
acting in terms of s 18 of the Act, addressed a letter to the office of the
Premier requesting access to the report. The reply elicited was that the
report had been referred by the Premier ‘for further handling’ and the
letter was, therefore, being redirected to the Minister to communicate
directly with the association. On 31 August 2001 the association sent a
letter to the Minister demanding compliance with its request and
threatening legal action should there be no reply. The Minister failed to
respond. A second letter dated 22 February 2002 also failed to elicit a
prompt response.
[6] Eventually the Minister replied by way of a letter dated 9 July
2002.  In it the information officer, Mr Craig Clerihew (Clerihew) stated:
‘2. As information officer of this Department, I am, in terms of various provisions of
[the Promotion of Access to Information Act 2 of 2000], empowered to refuse your
request for access to the Ralushai Commission’s report. You are specifically referred
to, amongst others, section 44 (1) of the Act. In terms of this provision a request for
access to information may be refused if the record contains an opinion, report or
recommendation “for the purpose of assisting to formulate a policy or take a decision
in the exercise of a power or performance of a duty conferred or imposed by law”.

The Ralushai Commission’s report is to be used for the purposes quoted above, with
the result that your request for access to that report is denied.
3. In terms of section 25 (3)(c) of the Act, you may lodge an internal appeal against
the refusal of your request.’
[7] The association noted an appeal in terms of s 75 of the Act but the
Minister upheld the decision of the information officer and dismissed the
appeal. The dismissal of the appeal led to the application in the court
below.
[8] The Minister, in opposing the application, contended that the
request for access had been refused in terms of subsecs 44 (1)(a) and (b)
of the Act. Notably, s 44 (1)(b) had not been referred to in the letter of 9
July 2002. In the answering affidavit filed on the Minister’s behalf,
Clerihew stated the following:
‘6.1
I am advised that the respondent is empowered, in terms of section 44, to
refuse the applicant’s request for access to the Ralushai Commission’s Report
because:
6.1.1 The Ralushai report contains an opinion, advice, report or recommendation
obtained for the purpose of assisting the Department of Provincial and Local
Government (“the department”) to formulate a policy on the issue of the
traditional leadership disputes and claims or for the respondent to take a
decision in the exercise of a duty conferred or imposed by the Constitution
(Act no 108 of 1996) and other relevant legislation;

6.1.2 the disclosure of the report could reasonably be expected to frustrate the
deliberative process within the department and in Cabinet by inhibiting the

candid: (a) communication of an opinion, advice, report or recommendation or
(b) conduct of a consultation, discussion or deliberation on the issues of
traditional leadership disputes;

6.1.3 the disclosure of the report could, by its premature disclosure reasonably
be expected to frustrate the success in the development of the said policy and a
legislative process which I will later deal with herein.’
[9] The court below (Botha J) held that in appropriate circumstances
an information officer would be entitled to refuse access to information
either in terms of subsec 44 (1)(a) or 44 (1)(b). In respect of s 44 (1)(b) he
found that the Minister had not proved that the disclosure of the report
would frustrate the deliberative process. He said:
‘I can hardly see, on the facts presented to me, how the release of the report relating to
46 aggrieved leaders in Sekhukhuneland could bring the national indaba to naught.
Nor can I see how it can inhibit candid communication of the report or the conduct of
the debate. No facts were given to show how the national debate would be frustrated.
It can also not amount to the premature disclosure of a policy, because it does not
contain any formulation of the national policy which is still being formulated.
My conclusion is therefore that the respondent can only rely on section 44 (1)(a) for
[his] refusal to grant access to the report of the Commission.’
[10] Botha J considered and rejected the association’s contention that
the report in question was not obtained for formulating national policy

relating to traditional leadership because such purpose had not been
covered by the Commission’s terms of reference. The learned Judge said:
‘That argument, in my view places a restrictive interpretation on the words of section
44 (1)(a). The subsection merely requires that an advice, report or recommendation
has been obtained or prepared for the purpose of assisting to formulate a policy or
take a decision in the exercise of a power or performance of a duty conferred or
imposed by law. It does not require that the public body concerned must have
commissioned the advice, report or recommendation. It is sufficient if it has obtained
the advice, report or recommendation for the stated purpose. In this case it is clear that
the respondent has obtained it for the purpose of formulating national policy with a
view to national legislation, all of which in the exercise of a power conferred by law.’
[Botha J’s emphasis].
[11] Pursuant to his finding that the report fell within the scope of s 44
(1)(a), Botha J held in favour of the association that Clerihew had failed
to consider that the refusal of access in terms of s 44 (1)(a) was not
mandatory. He proceeded to a conspectus of the factors weighing for and
against the granting of access to the document against the background of
s 32 of the Constitution and the objects of the Act. Finding that the
release of sections of the report which referred to the members of the
association would probably not have a negative impact on ‘the wider
national debate’, the learned judge then granted the following order:
‘1. The decision of the information officer of the respondent dated [9] July 2002 and
the subsequent endorsement of that decision by the respondent on 18 September 2002,

denying the applicant access to the report of the Ralushai Commission of Enquiry are
set aside.
2. It is declared that the applicant is entitled to access to the sections of the report
dealing with each of its 46 members listed in annexure MM1 and each portions of the
introductory and general sections of the report that are necessary for a proper
understanding of the sections dealing with the individual members of the applicant.
3. The respondent is ordered to make the sections of the report referred to in
paragraph 2 above available for inspection by the applicant within 30 days of the date
of this order and to provide the applicant with one copy of such sections, if so
required.’
[12] The present appeal was noted against the above order, leave to
appeal having been granted by this court. In essence the issue raised on
appeal was whether the court below correctly interpreted and applied s 44
(1) to the facts. Counsel for the Minister contended that the court below
erred in coming to the conclusion that Clerihew had failed to prove that
the decision to refuse access to the report was justified in terms of s 44
(1). Although he initially argued that s 44 (1)(a) should be interpreted
liberally (ie in favour of the Minister) as the court below did, he later
conceded that the subsection should be construed restrictively.
[13] Counsel for the association pointed out that the Ralushai
Commission had been established to investigate disputes relating to
traditional leadership and not for the purpose of preparing a report which
was to be used for achieving the objects of subsec 44 (1)(a). He submitted

that when the Minister contemplated making policy in August 2000, the
compilation of the report had already been finalised and it had been
presented to the Premier and that consequently the Minister could not
justify withholding the report on any basis.
[14] The Minister’s answer to these contentions, which found favour
with the court below, was that he obtained the report from the Premier for
the purpose of formulating a national policy as envisaged in the
subsection. It was contended on the Minister’s behalf that the withholding
of the report was justified in terms of s 44 (1)(a).
[15] The proper interpretation of subsec 44 (1)(a) depends largely on
the meaning to be ascribed to the phrase ‘obtain for the purpose of
formulating a policy’. According to the Shorter Oxford English
Dictionary ‘obtain’ means ‘to procure or gain, as a result of purpose and
effort’ or ‘to acquire or get’. The word ‘obtain’ is capable of both a
narrow and a wide meaning. There are no indications in the Act itself,
either textual or purposive, which point in one direction or the other.
[16] However, the genesis of the legislation was the Constitution and
the Act must be interpreted with due regard to its terms and spirit. The
right of access to information held by the state is couched therein in wide
terms. Subsection 44 (1)(a) must be construed in the context of s 32
(1)(a), read with sections 36 and 39 (2) of the Constitution (cf Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490

(CC) para 72). It is clear that subsec 44 (1)(a) limits the right of access to
information and s 36 of the Constitution requires that the scope of such a
provision be restricted only to an extent which is reasonable and
justifiable. Section 39 (2) obliges every court to promote ‘the spirit,
purport and objects of the Bill of Rights’ when interpreting any
legislation. It must also be borne in mind that the Act was enacted in
order to give effect to access to information and promote the values of
openness, transparency and accountability which are foundational to the
Constitution.
[17] In the light of what is set out in the preceding paragraph it is clear
that the restrictive meaning of ‘obtain’ is to be preferred. In the context
under discussion it must mean procuring information for any of the
purposes referred to in the subsection. In view of that interpretation it is
clear from the facts of this case that the Minister did not ‘obtain’ the
report in terms of s 44 (1)(a). Consequently the withholding thereof in
terms of that subsection was not justified. The court below erred in
construing the subsection differently. It follows that the purported
exercise of the power in terms of the subsection by Clerihew was invalid.
[18] Regarding the justification of the refusal based on subsec 44 (1)(b),
the findings of the court below cannot be faulted. It found that the
Minister had failed to show that the disclosure of the report ‘could
reasonably be expected to frustrate the deliberative process’ and the

success of a national policy on traditional leadership. It is notable from
the quoted provisions of s 44 (1) that in the answering affidavit Clerihew
merely repeats the wording of the section. Clearly, para (b) enjoins an
information officer to consider all the facts and to determine whether it
could reasonably be expected that a disclosure of a report would frustrate
any of the purposes referred to in subsec (1)(b)(i) or (ii).
[19] In the view I take of the matter, it is unnecessary to consider the
other points raised by the association. The appeal should be dismissed.
The parties were in agreement that costs should follow the result and that
such costs should include the costs of two counsel.
[20] The appeal is dismissed with costs, including costs occasioned by
the employment of two counsel.

__________________________

C N JAFTA

ACTING JUDGE OF APPEAL

MPATI DP )
SCOTT JA )
NAVSA JA )
CONCUR
HEHER JA )