South Africa, High Court of South Africa (Gauteng Division, Pretoria), 17 August 2023, Case No. 10009/22

Case overview

Country
South Africa
Case ID
Case No. 10009/22
Decision date
Deciding body (English)
High Court of South Africa (Gauteng Division, Pretoria)
Type of body
Court
Type of Court (material scope)
Civil Court
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
State Court
Instance
Action pursuant to Promotion of Access to Information Act for access to copies of documents
Area
Health, right to information and freedom of expression
Further areas addressed
  • Healthcare management (Covid related, excluding vaccination)
  • Vaccination
Outcome of the decision
Claim upheld
General Summary

The Plaintiff is a collective NGO and submits a request to two public bodies for the disclosure of the content of vaccine procurement contracts negotiated during the pandemic. After refusal from the Respondents, the Plaintiff files a complaint before the Court pursuant to the Promotion of Access to Information Act (PAIA). The Court upholds the arguments of the Plaintiff, pointing out that the refusal to disclose information violates both the Constitution and the PAIA and that the request was supported by public interest reasons including the need for public knowledge of the clauses included in the vaccines which, as seemingly indicated by media and parliamentary reports, heavily favored the interests of vaccine manufacturers. Moreover, the Government did not offer adequate proof that a disclosure would result in adverse consequences for the breach of the contractual confidentiality clauses, nor did it prove that such disclosure would cause prejudice to future commercial interests of the South African state. The Government was thus ordered to disclose the information requested.

Facts of the case

The Plaintiff submitted, in July 2021, an application to the respondents, pursuant to the Promotion of Access to Information Act (PAIA), concerning access to procurement contracts for COVID-19 vaccines stipulated between the South African government and several vaccine manufacturers, as well as the minutes and reports of the meetings concerning the negotiation of the content of said contracts. The Respondents acknowledged the request but failed to answer twice. After the Plaintiff forwarded a request to one of the vaccine manufacturers, which refused to disclose information invoking confidentiality, the Respondents provided an official answer, pointing out that in the light of confidentiality clauses contained in the contracts, the Government could not disclose the materials requested. Therefore, the Plaintiff filed a complaint before the court. The Respondents pointed out that, while the contracts were negotiated in good faith, there was, at the time, intense competition among countries in order to get access to vaccines. The negotiations, therefore, led to the inclusion of confidentiality clauses which, if breached, would prejudice future engagements between the Government and the vaccine manufacturers.

Type of measure challenged
National government measure
Measures, actions, remedies claimed
Disclosure of information
Individual / collective enforcement
Action brought in the interest of a specific group of claimants for the purpose of injunctive measures or other remedies, including the annulment of administrative decisions, for the protection of a more general collective interest.
Nature of the parties
  • Claimant(s)
    Private collective
  • Defendant(s)
    Public
Type of procedure
Special / extraordinary procedures
Reasoning of the deciding body

The Court highlights four main points to be discussed:

  1. The existence of a material non-joinder of the interested parties
  2. The assessment of the grounds of confidentiality invoked by the Respondents
  3. The prejudice that a disclosure of information would exert on future procurement and commercial interests
  4. The existence of a public interest reason to compel the disclosure of the requested information

With regard to the first point, the Court points out that, pursuant to the PAIA, the Government bears the duty to take all reasonable steps to whom or which the record relates to the request. While the compliance of the Government with the provision is not in discussion, the Court notes that it can be accepted that the third parties were made aware of the request and decided to associate themselves with the refusal to disclose information as well as their identities. The Court says that in the case of a party who withheld its identity then decides to raise the non-joinder in order to block the proceeding, this is an expression of a secretive culture in private bodies, which is contrary to the spirit of PAIA.

With regard to the second point, the court, relying on national case law, points out that a public body cannot agree to a confidentiality clause in a contract and then invoke such clause to avoid complying with its transparency duties. Even considering the confidentiality clauses, the Respondents could have at least disclosed the non-confidential part of the contracts. Instead, they just outright refused to give any information to the Plaintiff. Furthermore, the respondents did not provide sufficient information to demonstrate that the disclosure of information in spite of the confidentiality clauses would result in adverse consequences such as a claim for damages due to breach of contract.

With regard to the third point, the Court acknowledged that information may be withheld if the disclosure would result in a prejudice to the commercial interests of the nation; however, the Respondents once again failed to demonstrate how, in the specific case, the disclosure of the information would imply a prejudice in commercial competition for vaccines or in a commercial disadvantage for South Africa.

With regard to the fourth point, the court upholds the Plaintiff’s arguments regarding the existence of public interest reasons for disclosure. In particular, it is necessary to access the information so to understand the basis upon which the contracts were negotiated, given the fact that media reports as well as reports of the Government to the Parliament suggest that vaccine manufacturers required the inclusion of high indemnity clauses in the contracts and that the vaccines were bought at high prices. Notwithstanding the emergency situation existing at the time of the procurement, it does not exempt the Government from complying with the principle of transparency and openness, pursuant both to the constitution and to the PAIA.

Conclusions of the deciding body

The Court sets aside the previous refusal to disclose information and orders the Respondents to hand copies of the documents sought by the Plaintiff within 10 days.

Implementation of the ruling

The Government complied with the Court’s request and supplied copied of the documents.

Fundamental Right(s) involved
Freedom of information
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Right to transparency
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Health v. freedom of expression / right to information
General principle applied
State of emergency or necessity
Other notes

The disclosure of the relevant information caused a public outcry in South Africa and a debate among observers, in the light of the fact that it appears that the clauses of the vaccine procurement contracts were largely serving manufacturers’ interests, thus showing how pharmaceutical companies took advantage of the health emergency.

On the General principle applied: the Court also applied the principles of Transparency and Openness.

Author of the case note
Gianmatteo Sabatino, Researcher, Zhongnan University of Economics and Law