The MEC for Roads and Public Works, Eastern Cape and Another v Intertrade Two (Pty) Ltd

Intertrade Two (Pty) Ltd, a supplier and repairer of mechanical and electrical plant and equipment, had held a contract with the Eastern Cape Department for Roads and Public Works since 1997 for preventative maintenance and repairs of plant and equipment at provincial hospitals. The contract was repeatedly extended. Between 1999 and 2003, the department conducted multiple tender processes in which Intertrade was often the only tenderer, but contracts were not awarded. In September 2003, the department invited tenders for four contracts (two for mechanical/electrical work and two for laundry/kitchen repairs). Intertrade was the only tenderer for the ME contracts and one of two tenderers for the LK contracts. Despite extensive delays, investigations by the Provincial Strategy Planning Division revealing unfair treatment and deaths of patients due to lack of equipment maintenance, and apparent support from the Premier, no decision was made. Intertrade suspected tender price tampering and was approached by someone offering to secure approval in exchange for a 10% stake. On 27 July 2004, Intertrade's attorneys formally requested documentation relating to the tender process. The department provided only incomplete and disjointed documents and withheld most requested materials. Intertrade then instituted review proceedings in terms of uniform rule 53 and requested a wide range of documents beyond the rule 53 record.

• Whether section 7(1) of the Promotion of Access to Information Act 2 of 2000 (PAIA) precludes a tenderer who has instituted review proceedings in terms of uniform rule 53 from seeking an order for production of documentation relating to tender adjudication that allegedly falls outside the ambit of the record referred to in uniform rule 53(1)(b)
• Whether documentation was 'requested' prior to the commencement of review proceedings for purposes of section 7(1)(b) of PAIA
• Whether an applicant in review proceedings must exhaust procedural remedies under rules 53 and 35(12) before invoking PAIA to obtain documents
• The scope of documents comprising a 'record of proceedings' under uniform rule 53
• Whether the right to obtain information conferred by the uniform rules and PAIA can be invoked contemporaneously

The appeal was dismissed with costs, including costs of two counsel. The order of the Bhisho High Court (Dhlodhlo ADJP) dismissing the appellants' objection and granting relief to Intertrade was upheld.

Section 7(1) of PAIA contains three cumulative jurisdictional requirements, all of which must be satisfied for the Act to be excluded: (a) records requested for purposes of criminal or civil proceedings; (b) requested after commencement of such proceedings; and (c) production or access provided for in any other law. Where documents are requested by letter prior to institution of proceedings, the requirement in section 7(1)(b) is not met, and PAIA is not excluded as a mechanism for obtaining access to information. A formal written request for documents from a public body through attorneys' letters constitutes a 'request' for purposes of section 7(1)(b) of PAIA. The interpretation of PAIA must be informed by section 39(2) of the Constitution and must promote the constitutional right of access to information held by the state under section 32 of the Constitution. Section 2(1) of PAIA requires courts to prefer interpretations consistent with the Act's objects (promoting accountability and transparency) over inconsistent interpretations. An unsuccessful tenderer who has instituted review proceedings is not precluded from seeking access to documents that may fall outside the scope of the uniform rule 53 record where the request was made prior to institution of proceedings.

The court refrained from deciding definitively whether documents that cannot be obtained through rules 53 and 35 would fall outside the ambit of section 7(1)(c) of PAIA, finding it unnecessary given the conclusion on section 7(1)(b). The court also declined to express an opinion on whether the right to obtain information conferred by the uniform rules and PAIA can be invoked contemporaneously insofar as documents fall outside the scope of rule 53(1)(b) and rule 35(12). The court observed that the purpose of section 7 of PAIA appears to be to prevent the Act from impacting the law governing discovery or compulsion of evidence in civil and criminal proceedings, and to ensure litigants use their remedies under the Rules to avoid one litigant gaining unfair advantage. The court emphasized that rules should be interpreted to advance, not reduce, the scope of entrenched constitutional rights. The court made strong obiter comments condemning the appellants' conduct, describing their resistance to disclosure on technical grounds as 'most reprehensible' given that patients were suffering and children dying due to poorly maintained hospital equipment while public officials engaged in delaying tactics at taxpayers' expense. The court cited Van Niekerk v Pretoria City Council approvingly, noting that public authorities are no longer permitted to 'play possum' with members of the public where rights are at stake, and that the Constitution subordinates organs of state to a new regimen of openness and fair dealing. The court indicated that had leave to appeal not been granted by the court a quo, it may have considered a special punitive costs order to mark its extreme displeasure at the appellants' conduct.

This case is significant in South African jurisprudence for clarifying the relationship between the constitutional right of access to information under section 32 of the Constitution, the Promotion of Access to Information Act 2 of 2000, and procedural rules governing civil litigation (particularly uniform rules 53 and 35). It establishes that PAIA is not automatically excluded when litigation has commenced, particularly where information requests were made prior to commencement of proceedings. The judgment emphasizes that section 7(1) of PAIA contains cumulative requirements that must all be met for the Act to be excluded. The case reinforces the principle that public bodies have an obligation of openness and fair dealing with the public, and cannot use technical procedural objections to avoid disclosure of information where constitutional rights are at stake. It is particularly important in the context of tender processes and administrative law, establishing that unsuccessful tenderers have robust rights to access information to challenge potentially irregular conduct. The judgment demonstrates the courts' commitment to interpreting legislation consistently with constitutional values and the objects of PAIA, which promote accountability and transparency in government.