Investigating Directorate: Serious Economic Offences and Another v Gutman NO

The respondent was the liquidator of Nisec CC, a company that had been awarded a tender for equipment and services relating to social pensions and welfare grants for the Cape Provincial Administration in 1995. The company was subsequently wound up amid allegations of fraud and impropriety, and the contract was cancelled. An investigation was conducted by the Director of the Office for Serious Economic Offences under the Investigation of Serious Economic Offences Act 117 of 1991. The respondent instituted civil action claiming R102,572,000 in damages against various government entities, alleging corruption and negligence. To prepare his case, the respondent sought access to documents, witness statements, transcripts, forensic reports and other information held by the Investigating Director. The Investigating Director refused access, relying on section 30 of the National Prosecuting Authority Act 32 of 1998, which imposed secrecy obligations. The respondent launched an urgent application under section 32(1) of the Constitution for access to the information.

• Whether section 32(1) of the Constitution confers an unqualified right of access to information held by the State
• Whether section 30 of the National Prosecuting Authority Act 32 of 1998 entitles an Investigating Director to refuse access to information
• Whether section 30 operates as an 'internal control mechanism' or as a discretionary power to limit constitutional rights
• Whether a refusal by the Investigating Director to disclose information can be justified under section 36 of the Constitution
• What is the proper interpretation and scope of section 30 of the National Prosecuting Authority Act

The appeal was dismissed with costs, including costs of two counsel. The order of the Court a quo was upheld with amendments to paragraphs 1 and 2. Paragraph 1 was amended by adding at the end: 'or can otherwise lawfully be limited or denied'. Paragraph 2 was amended by adding the words 'or denied'. The practical effect was that the Investigating Director was ordered to afford the respondent access to inspect the documents, make available copies, and allow the respondent to make copies at his own expense, subject to any lawful limitations.

Section 30 of the National Prosecuting Authority Act 32 of 1998 does not confer on an Investigating Director a discretion to refuse access to information held by the State, nor does it of itself provide justification for refusing disclosure. The section operates primarily as a prohibition against unauthorized disclosure by functionaries and third parties who possess sensitive investigative information, rather than as a limitation on access rights. When faced with a request for access to information under section 32(1) of the Constitution, an Investigating Director must make a bona fide informed decision on whether to grant or refuse access. If access is refused or granted conditionally or partially, the person seeking access has the right to apply to court to enforce constitutional rights. Only a court, not a state functionary, is equipped and empowered to determine whether a fundamental constitutional right may be limited, which determination must be made in accordance with section 36 of the Constitution. It is contrary to the spirit of the Constitution for the diktat or discretion of a state functionary to operate as a constitutional limitation on fundamental rights.

The Court observed that the new location of the secrecy provisions in section 41(6) of the National Prosecuting Amendment Act 61 of 2000 (under the rubric 'Offences and penalties') probably represented a belated appreciation of their true substance as criminal sanctions rather than access-limiting provisions. The Court noted that it would be inappropriate to speculate whether the respondent's access rights might give him greater rights than the accused in the criminal proceedings would have, referencing Shabalala and Others v Attorney General, Transvaal and Another. The Court commented that the order of the court a quo provided a practical step in resolving the dispute and expressed hope that it would be applied by parties with less intransigence than had characterized their relations thus far. The Court noted that the justification provided by the appellants was non-specific, dealing with broad categories rather than specific items, and that the affidavits conceded the Investigating Director had not considered the request on its merits.

This case is significant in South African constitutional jurisprudence for clarifying the scope and application of the constitutional right of access to information under section 32 of the Constitution. It established important principles regarding the relationship between statutory secrecy provisions and constitutional rights, confirming that state functionaries cannot unilaterally limit constitutional rights through administrative discretion - such limitations must be justified before a court under section 36. The case also provides authoritative interpretation of section 30 of the National Prosecuting Authority Act, clarifying that it is not a mechanism for refusing access to information but rather a provision regulating unauthorized disclosure by those who come into possession of sensitive investigative material. The judgment reinforces the primacy of courts in determining whether constitutional rights may be limited, and emphasizes that access to information is essential for the vindication of other rights, such as the right to access courts. The case was decided during the transitional period between the original Constitution's interim access to information provisions and the full implementation of the Promotion of Access to Information Act 2 of 2000.