Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The judgment of the High Court of South Africa Eastern Cape, Makhanda is available here.

• Neutral citation: Boudewyn Homburg de Vries Smuts N.O and Others v MEC for Department of Economic Affairs and Others [2022] ZAECGHC 35
• Judge: Govindjee J
• Judgment delivered: 26 July 2022
• Outcome: The Provincial Department responsible for Environmental Affairs was ordered to disclose all permits issued to trap, kill, hunt or translocate endangered leopards in the Eastern Cape between 2017 and 2020.

Summary

This case involves the interplay between the Constitutional right of access to information and the right to privacy.

The Applicants, the Landmark Foundation Trust (the Foundation) approached court after the MEC had refused to disclose permits to trap, kill, hunt or translocate any leopards in or from the Eastern Cape from 2017 to 3 December 2019. The Foundation had requested this information using a Promotion of Access to Information Act, 2000 (PAIA) request, had had submitted a PAIA appeal when the original request had been denied on the basis of disclosure of personal information of third parties.

The case considered the constitutional imperatives of access to information under PAIA and the right to privacy as provided for under the Protection of Personal Information Act 4 of 2013 (POPIA).

Leopards are listed in the TOPS Regulations as a ‘vulnerable species’, meaning that they are an indigenous species facing a high risk of extinction in the wild in the medium-term future. Various activities relating to these species are restricted in terms of the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA).

The MEC argued that if a third party objected to the distribution or dissemination of personal information requested through PAIA, an Information Officer (such as the Second Respondent) was prohibited from granting access by section 11 of POPIA. The court disagreed with this interpretation and focused on the wording of section 34(1) of PAIA which prohibits unreasonable disclosure of personal information about a third party.

The Foundation argued that there can be no reasonable expectation of privacy on the part of the third parties concerned when considering the nature of the information requested. Disclosure would, on that basis, not be unreasonable in the circumstances. Alternatively, they claimed that the public interest override provided for in s 46 of PAIA was applicable.

The dispute turned on the interpretation of section 34 of PAIA. The question was whether the MEC put forward sufficient evidence to conclude that the information it withheld fell within the PAIA’s section 34 exemption which provides as follows:

“Subject to subsection (2), the information officer of a public body must refuse a request for access to a record of the body if its disclosure would involve the unreasonable disclosure of personal information about a third party, including a deceased individual.”

The court considered the legal framework emphasising that transparency and the right of access to information are intricately linked to the ‘cultivation of an accountable, responsive and open society and to the realisation of other constitutional rights, including the right to a healthy environment.’ It held that given the nature of a request for a permit to perform a restricted activity, and its potential impact on a vulnerable species, that application process acquires a social dimension outside the private domain.

The court held that a reasonable expectation of privacy cannot exist in relation to such an activity. Therefore the objection against disclosure cannot be considered reasonable given the legitimate pursuit of information linked to conservation and management of a vulnerable species and the constitutional right to a healthy environment. On this basis, disseminating the information requested to the Applicants, including the personal information contained therein, also cannot be unlawful in terms of POPIA.

The court held that the MEC had not discharged the burden on a balance of probabilities, that the information it sought to withhold fell within the PAIA section 34 exemption.

The court determined that the Foundation was entitled to relief in terms of s 82 of PAIA and ordered that the responsible Information Officer grant access to the information requested (all applications it had received and all permits issued to trap, kill, hunt or translocate any leopards in or from the Eastern Cape, in terms of the TOPS Regulations).