Our Ref :

DEM16/0305/E JONKER

Your Ref: Date

:

Tyger Valley Office Park Building Number 2 Cnr Willie van Schoor & Old Oak Roads Bellville

1 December 2014

THE DEPUTY INFORMATION OFFICER THE DEPARTMENT OF ENERGY

PO Box 4040 Tyger Valley 7536 South Africa TEL: 021 918 9000 021 918 9012 FAX: 021 918 9090 0866131061

PER EMAIL

Docex 1 Tygerberg

(Direct Line) (General) (Direct fax)

e-mail: [email protected] web: www.mindes.co.za

Dear Sir

ACCESS TO INFORMATION INTERNAL APPEAL BY LANCE GREYLING 1.

We act for the Mr Lance Greyling.

2.

On 22 September 2014 an agreement was concluded between the governments of South Africa and the Russian Federation, described as a “framework agreement” for the development of nuclear energy power stations in South Africa (“the Treaty”). It is reported that in concluding the Treaty, the South African government was represented by the Minister of Energy, Ms. Joemat-Pettersson.

3.

On 09 October 2014 our client, Mr. Lance Greyling, requested a copy of the Treaty in accordance with section 32(1)(a) of the Constitution, and Part 2 of the Promotion of Access to Information Act 2 of 2000 (“PAIA”).

4.

Mr. Greyling is a concerned citizen, and a member of the National Assembly, representing the Democratic Alliance (“the DA”). He is also the DA’s shadow Minister for Energy.

5.

In a letter of 4 November 2014, the Deputy Information Officer of the Department of Energy (“the Department”) informed Mr. Greyling that his request for access to the Treaty had been refused in terms of section 36, read with section 42(2) of PAIA, as: “(a)

the release of records would jeopardize or compromise the delicate process of negotiations which is still on-going with other countries pertaining to the new nuclear build programme;

(b)

the negotiations in paragraph (a) involve technical, scientific or commercially sensitive information and if released prematurely could prejudice the interests of the other party to the agreement, as well as the State and negatively impact on current negotiations with other countries.”

Minde Schapiro & Smith Incorporated Registration number 2010/025182/21 Attorneys Notaries Conveyancers & Mediators since 1926 Directors: Gerhard van Reenen, Louis Meyer B Juris LLB, André Pepler B Comm LLB, Heinrich Crous BA LLB, Samantha Solomons B Proc, Rosalie Smit B Comm LLB, Elzanne Jonker BA LLB, Rick O'Kennedy B Comm LLB, Dominique Wolhüter LLB Senior Associate: Gerhard Lourens BA LLB Associates: Jeannine van de Rheede LLB LLM, Jacques Pienaar B Comm LLB LLM, Naretha Brand LLB, Disha Govender B Comm LLB Consultants: Mervyn Smith, Stefan Van Niekerk BA LLB Vat registration number: 4580257428

6.

We hereby notify you that our client appeals against the abovementioned decision, in accordance with section 74(1)(a) of PAIA.

7.

A completed form, as prescribed in form B of annexure B to the Regulations under PAIA, is attached.

8.

Mr. Greyling reiterates his commitment to pay any reasonable administrative fee for the copying of the agreement.

9.

The basis for the appeal is as follows: 9.1

The Department’s reliance on section 36 of the Act is misplaced. That provision permits the refusal of a record which contains, inter alia, “financial, commercial, scientific or technical 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”.

9.2

There is, however, no suggestion that the Treaty contains financial, commercial or scientific information of a third person – whether that third party be the Russian state itself; or any entity controlled by, or registered in, Russia.

9.3

Similarly, any reliance which the Department places on section 42(3)(b) of PAIA is misplaced. That provision permits the refusal of a record which contains “financial, commercial, scientific or technical information … the disclosure of which would be likely to cause harm to the commercial or financial interests of the State or a public body”.

9.4

There is again no suggestion that the Treaty contains information of this sort. Instead, the Department’s letter indicates only that further negotiations are continuing with “other countries”, and that those other negotiations involve technical, scientific or commercially sensitive information.

9.5

It is also highly unlikely that a framework Treaty would contain such protectable information. Such a Treaty would ordinarily be aimed at facilitating negotiations between Eskom, which would be responsible for constructing any power stations, and entities controlled by foreign States, which provide nuclear services. Any technical or commercially sensitive information would be contained in subsequent, more detailed agreements.

9.6

The letter further suggests that the disclosure of the document “could prejudice the other party” to the Treaty. This would appear to suggest that disclosure would affect some undisclosed interests of the Russian Federation. It is unclear what interests these are. In any event, there is no basis under PAIA for the Department to limit the disclosure of documents to citizens, in order to protect the commercial interests of another sovereign State.

9.7

Finally the Department’s letter suggests that disclosure of the Treaty would affect ongoing negotiations with other countries. This would appear to invoke section 42(3)(c)(i) of PAIA, which permits the refusal of a record which “contains information, the disclosure of which could reasonably be expected … to put a public body at a disadvantage in

Minde Schapiro & Smith Incorporated Registration number 2010/025182/21 Attorneys Notaries Conveyancers & Mediators since 1926 Directors: Gerhard van Reenen, Louis Meyer B Juris LLB, André Pepler B Comm LLB, Heinrich Crous BA LLB, Samantha Solomons B Proc, Rosalie Smit B Comm LLB, Elzanne Jonker BA LLB, Rick O'Kennedy B Comm LLB, Dominique Wolhüter LLB Senior Associate: Gerhard Lourens BA LLB Associates: Jeannine van de Rheede LLB LLM, Jacques Pienaar B Comm LLB LLM, Naretha Brand LLB, Disha Govender B Comm LLB Consultants: Mervyn Smith, Stefan Van Niekerk BA LLB Vat registration number: 4580257428

contractual or other negotiations.” 9.8

The Department’s letter fails to indicate the countries with which such negotiations are continuing. Reports have however indicated that similar agreements have subsequently been concluded with the French and Chinese governments. There would thus not appear to be any on-going negotiations for similar agreements.

9.9

Furthermore, the Department’s letter confirms that the Treaty is one in terms of section 231(2) of the Constitution. This means that the Treaty requires ratification by Parliament before being binding on the Republic. When this happens, as it must, the Treaty will have to be made known to our client in his role as a member of Parliament, and to the public generally.

9.10 The reason why the Department apparently wishes to limit disclosure of the Treaty before it is placed before parliament is that this would be “premature”. This cannot, with respect, withstand scrutiny. The Treaty does not have any effect in domestic law until it is ratified by Parliament, but this does not mean that it has no status or effects in the interim. The Treaty remains in force between South Africa and the Russian Federation in international law, even if it not enforceable in South Africa’s domestic courts. 9.11 The Treaty has not been placed before Parliament as yet, and we are unaware of any intention by the Minister of the Department to place it before Parliament. This constitutes a failure of their duties under the Constitution. This action/inaction also leads to the inescapable inference that the Department is seeking to restrict information for other reasons. 9.12 In any event, to the extent that the Treaty may contain sensitive information, this does not justify a blanket refusal to disclose any part of the document. Our client’s rights must be balanced, in a practical sense, against any claims of confidentiality or sensitivity of the information in the Treaty. 9.13 Our client’s right of access to the Treaty does not merely arise from PAIA. In addition, our client has the right to consider the lawfulness of any decision or action by the State, or its purported representatives, to enter the Treaty. This is an essential component of the doctrine of the rule-of-law, enshrined in section 1(c) of the Constitution. Our client’s rights would be rendered nugatory if the Treaty could be shrouded in confidentiality for all purposes. 9.14 In ABBM Printing and Publishing (Pty) Ltd v Transnet Ltd 1998 (2) SA 109 (W) the Court held that: “… it would be counterproductive and contrary to the Constitution to allow the respondent to hide behind an unsubstantiated blanket claim to confidentiality on behalf of tendered or the express undertaking of confidentiality given to all tenderers.” 9.15 In that case the Court instead structured a regime to limit the unauthorised further distribution of the document, in a manner protecting any confidentiality. 9.16 This sort of approach has been followed in several cases, including Tetra Mobile Radio

Minde Schapiro & Smith Incorporated Registration number 2010/025182/21 Attorneys Notaries Conveyancers & Mediators since 1926 Directors: Gerhard van Reenen, Louis Meyer B Juris LLB, André Pepler B Comm LLB, Heinrich Crous BA LLB, Samantha Solomons B Proc, Rosalie Smit B Comm LLB, Elzanne Jonker BA LLB, Rick O'Kennedy B Comm LLB, Dominique Wolhüter LLB Senior Associate: Gerhard Lourens BA LLB Associates: Jeannine van de Rheede LLB LLM, Jacques Pienaar B Comm LLB LLM, Naretha Brand LLB, Disha Govender B Comm LLB Consultants: Mervyn Smith, Stefan Van Niekerk BA LLB Vat registration number: 4580257428

(Pty) Ltd v MEC, Department of Works 2008 (1) SA 438 (SCA) and Democratic Alliance v Acting National Director of Public Prosecutions [2013] 4 All SA 610 (GNP) (upheld in Zuma v Democratic Alliance [2014] ZASCA 101 (28 August 2014) at paras 36 and 38). 10.

In accordance with these cases we submit that, to the extent that the appellate authority finds that the Treaty contains confidential or sensitive information, then: 10.1 A copy of the Treaty should still be provided to our client and ourselves; 10.2 The Department must identify those portions of the Treaty which allegedly contain confidential or sensitive information; 10.3 Both we and our client will provide undertakings that we will not directly or indirectly reveal the portions of the Treaty which contain such confidential or sensitive information; 10.4 Within 15 working days of receiving the Treaty, our client be entitled to present written submissions to the appellate authority indicating why he contends that further disclosure of the allegedly confidential or sensitive portions of the Treaty cannot be restricted; and 10.5 Within 15 days of receiving such submission, the appellate authority shall either make a decision, or indicate that it intends holding oral hearings.

11.

We trust that this appeal will receive your proper attention and careful consideration,

12.

We await your soonest response.

Yours faithfully MINDE SCHAPIRO & SMITH INC.

Minde Schapiro & Smith Incorporated Registration number 2010/025182/21 Attorneys Notaries Conveyancers & Mediators since 1926 Directors: Gerhard van Reenen, Louis Meyer B Juris LLB, André Pepler B Comm LLB, Heinrich Crous BA LLB, Samantha Solomons B Proc, Rosalie Smit B Comm LLB, Elzanne Jonker BA LLB, Rick O'Kennedy B Comm LLB, Dominique Wolhüter LLB Senior Associate: Gerhard Lourens BA LLB Associates: Jeannine van de Rheede LLB LLM, Jacques Pienaar B Comm LLB LLM, Naretha Brand LLB, Disha Govender B Comm LLB Consultants: Mervyn Smith, Stefan Van Niekerk BA LLB Vat registration number: 4580257428