BHP Billiton PLC Incorporated v Jan George De Lange

Media 24 Limited, acting through Jan George De Lange, made two requests to Eskom Holdings Limited (a public body) for information concerning electricity supply contracts between Eskom and BHP Billiton PLC/Hillside Aluminium for two aluminium smelters (Hillside in Richards Bay and Mozal in Maputo). The first request on 30 June 2009 sought the entire bulk purchase agreements and invoices for three years, which was refused on 29 July 2009. Media 24 then made a more limited second request on 18 September 2009 seeking only the pricing formulae, signatories, and commencement/termination dates of the contracts, which was refused on 13 November 2009. The refusal was based on sections 36(1)(b), 36(1)(c) and 37(1)(a) of the Promotion of Access to Information Act 2 of 2000 (PAIA), on grounds that disclosure would harm Billiton's commercial interests and breach confidentiality obligations. Media 24 applied to the South Gauteng High Court to compel disclosure, which was granted. Billiton appealed, raising a point in limine that the application was time-barred under s 78(2) of PAIA.

• Whether the second request for information constituted a new request triggering a fresh 180-day period under s 78(2) of PAIA as interpreted in Brümmer, or was merely a narrower version of the first request making the application time-barred
• Whether sections 36(1)(b) and 36(1)(c) of PAIA justified refusal of the requested information on the basis it would harm Billiton's commercial and financial interests
• Whether section 37(1)(a) of PAIA justified refusal based on breach of a duty of confidence owed to Billiton
• Whether the information sought was already in the public domain such that disclosure would not cause the alleged harm
• Whether the public interest override in section 46 of PAIA required disclosure despite the grounds for refusal

The appeal was dismissed by majority decision. The order of the high court was upheld except for the costs order, which was varied to order Eskom (rather than Billiton) to pay the costs of the application including costs of two counsel. No order as to costs was made on appeal.

The binding legal principles established by the majority are: (1) A subsequent narrower request for information that differs materially in scope from an earlier broader request constitutes a new request for purposes of the 180-day time limit under s 78(2) of PAIA as interpreted in Brümmer. (2) A party refusing access to information under ss 36(1)(b) and (c) of PAIA bears the burden of proving on a balance of probabilities that disclosure would be 'likely to cause harm' or 'could reasonably be expected' to cause the specified commercial harm, requiring objective evidence beyond mere assertion. (3) Information that is already substantially available in the public domain (even through commercial research services) cannot be withheld on grounds that disclosure would harm commercial interests under s 36. (4) Section 36(1)(c) applies only to 'information supplied in confidence', not to terms negotiated and agreed upon in a contract with a public body. (5) Section 37(1)(a) requires an actual contractual or legal duty of confidence, which cannot be established merely by general practice or unilateral assertions of reciprocal confidentiality obligations without express agreement.

The majority made several non-binding observations: (1) Media 24's pragmatic approach of making a narrower second request rather than immediately launching court proceedings was consistent with PAIA's objective in s 9(d) of enabling access to information 'swiftly, inexpensively and effortlessly'. (2) The heightened public interest in Eskom's electricity supply contracts, including parliamentary debates and concerns about load-shedding, tariff increases and Eskom's financial losses, formed important context for the information request. (3) The court noted that from an accounting perspective, Billiton's contracts were 'not loss-making' but were contributing to Eskom's operating profits at smaller margins. (4) The minority (Cloete JA) observed that allowing successive narrower requests would 'defeat the time limit' and be 'manifestly absurd', and that the time limit serves both the public body and third parties who must be able to rely on finality. (5) The minority also noted that the Plascon-Evans principle applies in motion proceedings regardless of where the onus lies, and that Billiton's evidence should have been accepted. (6) Petse JA observed that whether repeated requests constitute abuse must be determined on a case-by-case basis.

This case is significant for South African law on access to information because: (1) It clarified the application of the 180-day time limit under s 78(2) of PAIA as modified in Brümmer v Minister for Social Development, particularly regarding whether successive narrower requests trigger new time periods. (2) It established important principles regarding the burden of proof on parties seeking to refuse access under ss 36 and 37 of PAIA - they must adduce evidence that harm 'will and might' happen, not merely assert it. (3) It affirmed that information already substantially available in the public domain (even if through paid services) cannot be withheld on commercial confidentiality grounds. (4) It reinforced the constitutional right of access to information held by the state, particularly regarding matters of significant public interest such as electricity supply contracts affecting the broader public. (5) It demonstrated the tension between commercial confidentiality interests and public interest in transparency regarding state contracts. The split decision highlights ongoing debates about procedural versus substantive approaches to information access rights.