g
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Investigating Directorate:
Serious Economic Offences

The Minister of Justice

SECOND APPELLANT

v

Bernard Gutman NO

RESPONDENT

Before:
Smalberger ADP, Harms, Zulman, Navsa JJA, Heher AJA

Heard:
1 March 2002

Delivered: 25 March 2002

Summary – access to information under s 32 of Constitution – preservation of secrecy under s
30 of National Prosecuting Authority Act 32 of 1998 – whether Investigating Director entitled
to rely on s 30 for refusal to allow access.

________________________________________________________________

JUDGMENT
___________________________________________________________________________

HEHER AJA

equipment and the provision of services in relation to social pensions and
welfare grants for the Cape Provincial Administration.  The tender was awarded
to Nisec CC.  In April 1995 the company was wound up.  The present
respondent is its liquidator.  The contract with Nisec CC was cancelled  amid
allegations of fraud and impropriety.
[3] An investigation into the award of the tender was conducted by the
Director of the Office for Serious Economic Offences acting pursuant to powers
conferred by the Investigation of Serious Economic Offences Act 117 of 1991.
[4] During 1997, and while the Director was examining the evidence
gathered, the respondent launched an application requiring the Director and the
Minister of Finance to make available to him information collected and
compiled in the course of the investigation and to allow him access to tape
recordings of certain meetings of the Regional Office of the State Tender Board.
The application was brought in terms of s 32(1) of the Constitution read with
item 23(2)(a) of schedule 6 thereto, the respondent averring that the information
was required by him in order to determine whether to institute action for
damages against various parties arising out of the award of the tender.  The

attorney on 25 January 1999 as follows:
“Whereas we are in agreement with points 1 and 2 of your letter under reply [i.e. withdrawal
and costs], we are somewhat concerned about the meaning and ambit of your paragraph
numbered 3.  Whereas the effect of withdrawing the application under Case No. 21861/97 is
to bring the same to a final end, it may be that there are issues that arise between the parties in
the future and in the context independent of the aforesaid application (more particularly, the
action recently instituted under Case No. 1119/99).
Our client is on no account prepared to waive any such right which he may have in the
context of the aforesaid action or in any other context for that matter.”

The state attorney yielded.  He replied on 27 January 1999:
“We note your concern that there may be issues which may arise between the parties in the
future in a context independent of the pending application.  Your client is obviously at liberty
to enforce its constitutional rights in respect of those issues.  However, we must state
unequivocally that the disruption caused by your client in OSEO’S office as a result of his
unreasonable demand for indiscriminate access to all documentation will not be tolerated.
Therefore, as regards the claims made under case number 21861/97, we trust that these will
not be pressed and to that extent our client is anxious to put this matter to rest.
It goes without saying that your client is at liberty to exercise his rights under s 32 of the
Constitution in respect of information reasonably required for purposes of the action instituted
under case number 1119/99.”
The contention in these proceedings that the respondent was vexatious in
making a second application for access (which is referred to below) because

Welfare and Population Development and the Premier of the Western Cape.  He
claimed, inter alia, payment of R102 572 000,00 as damages suffered by the
company.  He alleged corruption on the part of certain employees of the Welfare
Department of the Cape Provincial Administration acting in the course and
scope of their duties, together with one Huisamen, the majority member of Nisec
CC, negligence in the evaluation and investigation of the tenders, unfair
comparison of the tenders and unreasonableness in awarding the tender to Nisec
CC and not to the company.  In formulating his claim the respondent made use
of documents furnished to him by the Director and inspected at his offices.
[7] The official investigation culminated in criminal charges against
Huisamen, the employees and two others for fraud and contraventions of s 1 of
the Corruption Act 94 of 1992.
[8] The respondent prepared for the civil action.  He found that the
information which had assisted him to formulate his claims was by no means
sufficient for the purposes of presenting the case in court.  Further requests were
made for access to documents in possession of the Investigating Director, who is
presently the first appellant.  (On 16 October 1998 Act 117 of 1991 had been

respondent had been achieved.  He launched an urgent application in which he
sought an order compelling the Investigating Director to allow inspection and to
furnish copies of documents described in the Notice of Motion as
“2.1
All documents obtained by the Investigating Directorate:  Serious Economic Offences
(IDSEO) or the Office of Serious Economic Offences (OSEO) in connection with its
investigation into the circumstances surrounding Tender KT30986MD and the award
thereof to Nisec CC, from all persons or entities listed in annexure “NM1” hereto.
2.2
Transcripts of interviews conducted by OSEO/IDSEO with witnesses in the course of
the said investigation whether in terms of Section 5 of the Investigation of Serious
Economic Offences Act or Section 30 of the National Prosecuting Authority Act or
otherwise.
2.3
Copies of witness affidavits and/or statements obtained by OSEO/IDSEO whether in
terms of the said Section 5 or Section 30 or otherwise.
2.4
The forensic report or similar document in respect of and in support of the criminal
charges preferred against M M Huisamen and Four Others setting out the basis on
which the State intends to prove its case which document is normally furnished to the
Accused in respect of serious economic offences.
2.5
The Report of OSEO/IDSEO to the Minister of Justice in terms of Section 5(12) of
Act 117 of 1991 or, alternatively, the Report by the Investigating Director to the
National Director in terms of Section 28(12) of Act 32 of 1998.”

[10] The application was opposed by the Investigating Director and the
Minister of Justice.  It was heard by De Klerk  J in the Transvaal High Court.
He made the following order

time, to inform applicant why and how access to those documents should be limited.
3.
[That] the applicant is entitled at his own expense to make copies of the documents
made available to him.
4.
[That] respondents are ordered to pay applicant’s costs of the application including the
costs of two counsel.”

[11] The learned Judge found that although s 32(1)(a) of the Constitution
conferred an unqualified right of access to information held by the State, the
respondents in the application were entitled to restrict the right to access if they
were able to justify the limitation in terms of s 36 of the Constitution.  They had
attempted to do so by relying on s 30 of the Act.
[12] The learned Judge decided that s 30
“prescribes an internal control mechanism in the office of the first respondent.  It does not
give the first respondent the discretion to decide whether a limitation of the right of access
granted by section 32(1)(a) of the Constitution is warranted.”

Accordingly, he found, the appellants’ attempt to rely on s 30, of itself, whether
as a defence to the request for information or as a limitation in terms of s 36 of
the Constitution could not be sustained.
[13] In terms of the transitional arrangements set out in item 23 of schedule 6
of the Constitution the legislature was required to enact the national legislation
envisaged in s 32(2) of the Constitution to give effect to the right contained

Item 23(3) provided that s 32(2) would lapse if the legislation envisaged in that
section was not enacted within the said period:  Ex parte Chairperson of the
Constitutional Assembly:  In re Certification of the Constitution of the Republic
of South Africa 1996, 1996 (4) SA 744 (CC) para 83.
[14] Legislation to give effect to the right viz, the Promotion of Access to
Information Act 2 of 2000 was eventually passed by Parliament and assented to
on 2 February 2000, to take effect on a date to be determined by the President.
That Act, with the exclusion of ss 10, 14, 16 and 51, was, however, only brought
into operation on 9 March 2001.  It was common cause between the parties that
the deemed interpretation placed on s 32(1) in item 23(2)(a) lapsed with the
enactment.    What remained was s 32(1) in an unqualified form, namely
“Everyone has the right of access to –
(a)
any information held by the State; ……”

[15] The application was launched in the Court a quo in June 2000.  The rights
and duties of the parties were therefore governed by s 32(1) unencumbered by
the transitional interpretation, as the Court a quo correctly found,
notwithstanding that the appellants had throughout their affidavits relied upon
the terms of the transitional provision.

African Revenue Service  v Dunblane (Transkei)(Pty) Ltd 2002 (1) SA 38 (SCA)
46 C - H and the authorities there cited, and Standard Bank Investment
Corporation Ltd v Competition Commission and Others;  Liberty Life
Association of Africa Ltd v Competition Commission and Others 2000 (2) SA
797 (SCA) 810D – 811A.
[17] The Act has been amended by the National Prosecuting Amendment Act
61 of 2000 with effect from 12 January 2001.  For present purposes the changes
brought about are not significant.
[18] Section 7(1) of the Act authorized the President to establish not more than
three Investigating Directorates in the Office of the National Director of Public
Prosecutions “in respect of specific offences or specified categories of
offences”.
[19] The head of each Investigating Directorate was an Investigating Director
who performed the powers, duties and functions of the Directorate subject to the
control and directions of the National Director (s 7(3)).
[20] It is clear from s 7(4) that an Investigating Director might potentially be
assisted by a staff of public servants, “persons in the service of any public or

Investigating Director.
[21] It is also clear that the primary target of the Investigating Directorate was
serious crime and not (for want of a better term) run-of-the-mill criminal
activity.
[22] Section 22 of the Act provided that the National Director of Public
Prosecutions, as head of the prosecuting authority,
“shall have authority over the exercising of all the powers, and the performance of all the
duties and functions conferred or imposed on or assigned to any member of the prosecuting
authority by the Constitution, this Act or any other law”.

[23] An Investigating Director could, in addition to the powers, duties and
functions conferred or imposed on or assigned to him by the Act, institute
actions and prosecute appeals emanating from criminal proceedings instituted by
him or on his authority (s 24(2)).
[24] Chapter 5 of the Act dealt with “Powers, duties and functions relating to
Investigating Directorates”.  In terms of s 27
“If any person has reasonable grounds to suspect that a specified offence has been or is being
committed or that an attempt has been or is being made to commit such an offence, he or she
may lay the matter in question before the Investigating Director by means of an affidavit or
affirmed declaration specifying –

and might designate any person referred to in s 7(4) to conduct it and report to
the Investigating Director.  Such an inquiry would be held in camera.  For its
purposes persons could be summoned to produce books, documents or other
objects and to be questioned.  Such books, documents or objects could be
examined or retained for further examination or safe custody.
[26] In terms of s 29 the Investigating Director or his delegate was permitted to
enter premises and, inter alia, make copies of books or documents found thereon
and seize anything which might have a bearing on the investigation in question
and retain it for examination or safe custody.
[27] Then follows s 30, the section which has given rise to this appeal:
“Preservation of secrecy and admissibility of  evidence:  -
(1)
Notwithstanding any other law, but subject to subsection (3), no person shall without
the permission of the Investigating Director disclose to any other person –
(a)
any information which came to his or her knowledge in the performance of his
or her functions in terms of this Act and relating to the business or affairs of
any other person;
(b)
the contents of any book or document or any other item in the possession of
the Investigating Director;  or
(c)
the record of any evidence given at an inquiry,
except –
(i)
for the purpose of performing his or her functions in terms of this Act;
or

[28] In the amending Act these provisions are housed in s 41(6), a section
which bears the rubric “Offences and penalties”.  Their new location probably
represents a belated appreciation of their true substance, as will be discussed
below.  The authority previously conferred on an Investigating Director has been
transferred to the National Director where, to some extent, it has always resided
by reason of the terms of s 22, referred to earlier.
[29] Looking at the broad scheme of the legislation which has been outlined,
the following indications are relevant to the role of the Investigating Director
under s 30:
(1)
The legislature directed specific resources to combat serious
crime.
(2)
In placing the Investigating Directors at the head of the drive, the
legislature provided them with specific powers to obtain and protect
information sensitive to the investigation and prosecution of such crime.
(3)
The legislature recognized that the information obtained was,
considering the substance, sources and potential misuse of the information
and the nature of the criminal activities and what was at stake, vulnerable.

but also a recognition of the harm which could be caused to innocent
persons if free disclosure were permitted.)
(5)
In the context of s 30 the relevant Investigating Director was
invested with the sole duty and responsibility of deciding whether
disclosure might be made.  The section  recognized two circumstances
when no authority was required from the Investigating Director, viz.
disclosure in the course of the performance of a functionary’s duties and
disclosure made pursuant to an order of court requiring the functionary to
do so.  The last-mentioned
instance shows the primacy accorded to the courts even within the scope
of s 30.
(6)
The powers of an Investigating Director under s 30 were not so
much directed to access to information, which could always be sought
through the National Director or the Investigating Director himself, in
which case s 30 had no role to play, but rather against uncontrolled
disclosure of information by persons who might either have no or

not persons who required permission.  The section was not directed to imposing
or setting limits on the National Director or the Investigating Director.  The
persons who were struck by the prohibition were (1) functionaries under the Act;
(2)  persons who possessed copies of books, documents or items of which the
Investigating Director had come into possession in the course of his duties or
who had information about the contents of any such book, document or item;
(3)  persons who had access to the record of an inquiry held under the Act.
[31] It is clear that all three categories included persons who were not, in their
work, subject to the authority of the Investigating Director.  Persons in the
second and third categories might be outside the public service, unknown to the
Investigating Director and ignorant of his existence.  The description by the
Court a quo of the powers of the Investigating Director under s 30 as “internal
control” narrowed the scope of the section inappropriately.  For the same reason
I disagree with the submission of the appellants’ counsel that, properly
construed, s 30 related only to the disclosure of documents by officers and
agents of the Directorates.

other functionary upon whom no specific discretion has been conferred by
statute.  He was required to come to a bona fide informed decision as to whether
access should be granted or refused.  Should he refuse it or grant access
conditionally or partially the person seeking access had the right to apply to
court in order to enforce his constitutional or other rights.  The court would then
consider the validity of the objection by the Investigating Director on its merits
and particularly, but not only (as the order of the Court a quo implies), within
the scope of any justification proffered under s 36 of the Constitution.  It is
conceivable that valid grounds of objection may be raised outside of the
constitutional framework.  To the extent that paragraph 1 of the order appealed
against limits that right it requires to be varied.  Although the scheme of the Act,
in so far as it brought the Investigating Director into possession of the
information in question and informed his use thereof, might well be relevant, s
30 of itself provided no justification for a refusal by the Investigating Director to
disclose information.  This interpretation does not in the least run counter to the
objects which the Act sought to further.

2001(1) SA 29 (CC) para. 25) and the use of language appropriate to a
discretion, are absent.  It does not make much sense to countenance only a
review of the exercise of the powers of the Investigating Director while the
section recognized the right of a court to order disclosure by any of the persons
subject to the sanction without the restrictions inherent in review procedures.
[34] The interpretation which I have placed on s 30 gives full weight to the
constitutional rights of an applicant both in relation to access to information and
access to the courts, while leaving open for recognition the competing interests
of the State.  By contrast the interpretation urged by appellants’ counsel is not
easily reconciled with the values of the Constitution.  While a statutory
provision may be adjudged by a court to operate as a constitutional limitation on
a fundamental right,  it is entirely contrary to the spirit of the Constitution that
the diktat or discretion of a functionary in the employ of the State should have
that effect.  Such a person is not equipped or empowered to make the necessary
determination.  The rights of the subject can only properly be protected if the
court undertakes that task fully informed by the evidence and submissions which
s 36 contemplates shall be weighed in the balance.

which the accused in the criminal case would not himself be entitled, as to
which see Shabalala and Others v Attorney General, Transvaal and Another
1996 (1) SA 725 (CC) 757 E – I, I think we would be wrong to do so.  It is clear
from the affidavits that the only justification which the appellants intended to
provide was in the context of the perceived exercise of a discretion under s 30 of
the Act.  The respondent was not called on to meet a justification under s 36 of
the Constitution.  In addition, much of the justification provided was non-
specific, dealing with broad categories rather than the items in issue.  The
affidavits also concede that the Investigating Director did not consider the
request on its merits.  On the papers before us there is no assurance that any of
the documents fall within any category of justification.
[36] The order of the Court a quo provides a practical step in the resolution of
the dispute between the parties, which, one may hope, will be applied by all
parties with less intransigence than seems to have characterized their relations
thus far.
[37] Lastly, lest there be any doubt, I should make it clear that in upholding the
order of the Court a quo I do not tacitly conclude that all or any of the

subsequent steps as the respondent may take to obtain access to the documents
in question.
[38] The order is accordingly:
(a)
The appeal is dismissed with costs, including the costs consequent upon
the employment of two counsel.
(b)
Paragraph 1 of the order of the Court a quo (see paragraph 10 above) is
amended by the addition at the end thereof of the words “or can otherwise
lawfully be limited or denied”.
(c)
Paragraph 2 of the order is amended by the addition of the words
“or denied”.

_________________
J A HEHER
ACTING JUDGE OF APPEAL

SMALBERGER ADP) CONCUR
HARMS JA)
ZULMAN JA)
NAVSA JA)