Transnet Limited and Inter Waste (Pty) Ltd v SA Metal Machinery Company (Pty) Ltd

Transnet's trading division, National Ports Authority of South Africa (NPASA), invited tenders for a two-year contract for removal of galley waste from ships in Cape Town harbour. Inter Waste (Pty) Ltd was the successful tenderer. SA Metal Machinery Company (Pty) Ltd (the respondent), an unsuccessful tenderer, requested copies of Inter Waste's completed tender document under the Promotion of Access to Information Act 2 of 2000. NPASA provided the tender documentation but deleted details material to the calculation of the tender price, specifically the rates for each service item in the schedule of prices and provisional quantities. After fruitless correspondence, the respondent applied to the High Court for an order directing Transnet to furnish the completed schedule of prices without deletions. The High Court (Blignault J) granted the order. Transnet and Inter Waste appealed.

• What is the meaning of 'could reasonably be expected' in section 36(1)(c) of the Promotion of Access to Information Act - does it require probable harm or merely possible harm?
• Whether disclosure of a successful tenderer's price composition would cause the third party commercial harm justifying refusal of access under sections 36(1)(c) and 37(1)(a)
• Whether a court has discretion under section 82 to refuse access even if the grounds for refusal in sections 36 and 37 are not established
• What material may a court consider in an application under section 78 - is it limited to what was before the information officer?
• Whether a confidentiality clause in a tender agreement can validly protect tender details from disclosure after contract award in light of constitutional obligations of transparency

The appeal was dismissed with costs. The High Court order directing Transnet to furnish SA Metal Machinery Company with a copy of Inter Waste's completed schedule of prices and provisional quantities was confirmed.

The binding legal principles established are: (1) The phrase 'could reasonably be expected' in section 36(1)(c) of the Promotion of Access to Information Act requires that the contemplated harm to a third party's commercial interests be probable, not merely possible. (2) Both section 36(1)(b) ('likely to cause harm') and section 36(1)(c) ('could reasonably be expected' to cause harm) require probable harm; the difference lies in degrees of expectation, not degrees of probability - s 36(1)(c) requires consequences that could be expected as probable if reasonable grounds exist for that expectation. (3) Applications under section 78 are civil proceedings in which courts may consider evidence beyond what was before the information officer when access was refused. (4) Organs of state cannot validly use contractual confidentiality clauses to circumvent constitutional obligations of transparency and accountability or to prevent disclosure of public contract details after award. (5) Section 82 does not confer discretion on courts to refuse access when grounds for refusal under sections 36 and 37 have not been established; once a requester complies with procedural requirements and overcomes Chapter 4 refusal grounds, access must be given. (6) A requester's reasons for requesting access are irrelevant to the right of access under section 11(3).

The court made several non-binding observations: (1) It would be placing an undue burden on middle management staff designated as deputy information officers to expect them to dispose with necessary knowledge and experience of complex factual and legal questions arising under sections 36 and 37, reinforcing the inference that the legislature intended these questions to be visited anew by courts. (2) The confidentiality clause in the tender notice, in context, was intended only to protect tender prices in the pre-award phase, and 'tender price' meant the total price without component details. (3) The court refrained from deciding whether the confidentiality clause continued to protect unsuccessful tenderers after contract award. (4) The court noted that the use of epithets like 'cogent' and 'convincing' evidence does not alter the nature of the civil onus - the question remains whether the onus-bearing party has proven its case on a balance of probability. (5) The court observed that even the perception, if not the reality, of irregularities in contract awards would entitle making a request given the Act's objects in section 9(e) regarding transparency and scrutiny of decision-making.

This case is a foundational judgment on the interpretation and application of the Promotion of Access to Information Act 2 of 2000. It establishes critical principles for balancing the constitutional right of access to information held by the state against third party commercial confidentiality rights. The judgment clarifies that the Act gives effect to a constitutional right and must be interpreted to favour disclosure, with exceptions being limited and specific. It provides authoritative guidance on the threshold for refusing access based on commercial harm to third parties, requiring probable harm rather than merely possible harm. The case is particularly significant for public procurement transparency, holding that organs of state cannot use confidentiality clauses to avoid constitutional obligations of transparency and accountability after contracts are awarded. It also clarifies the nature of court proceedings under the Act as full civil proceedings rather than limited reviews, and confirms that requesters need not provide reasons for access requests.