Access to information held by the state

December 1st, 2023

Health Justice Initiative v Minister of Health and Information Officer, National Department of Health (GP) (unreported case no 10009/22, 17-8-2023) (Millar J)

By Lesetsa Teffo

The Health Justice Initiative (HJI), the applicant, submitted a request on the 19 July 2021 in terms of s 18(1) of Promotion of Access to Information Act 2 of 2000 (PAIA) to the National Department of Health (NDoH), the respondent, for access to information delineated in Form A, being among others, copies of the memoranda of understanding and contracts concluded between the NDoH and pharmaceutical companies for the procurement of vaccines relating to the Coronavirus (COVID-19). The request was made subsequent to information that a budget of R 10 billion was allocated for the procurement of COVID-19 vaccines. Despite the promise to revert to the applicant on or before the 13 September 2021 the NDoH failed to meet the deadline. The HJI contacted Janssen Pharmaceuticals, Pfizer South Africa and other entities in December 2021 without success. Its appeal to the NDoH was never entertained as a result it brought an application for an order compelling the NDoH to disclose information concerning procurement of COVID-19 vaccines (paras 7 – 11).

Nature of dispute

The NDoH refused the HJI access to information requested on the ground of mandatory protection of confidentiality of third parties as contemplated in s 37 of PAIA. It based its reasons that procurement of contracts was negotiated in good faith and in the interests of the country that they are non-disclosure agreements signed by the NDoH and vaccine manufacturers. Therefore, the provision of such contracts would amount to breach of the terms of confidentiality that would prejudice both the NDoH and vaccine manufacturers (paras 11 – 12). The NDoH had invited all affected pharmaceutical companies to make presentations whether they consent to disclose such information in the public interest.


The High Court had to deliberate on the reasons for blanket refusal given by the respondent if they are adequate in terms of s 25(3) of PAIA.

Interestingly it dealt with the following points –

  • point in limine of non-joinder;
  • whether the confidentiality clause incorporated into the agreement shielded the NDoH from disclosing requested information;
  • prejudice to future procurement/commercial interests’ consequent to disclosure of requested information; and
  • whether public interest compelled the disclosure of requested information (paras 13,14 and 19).

The respondent’s contention that the parties it had concluded agreements with had direct and substantial interest to the proceedings such that failure to join them rendered the application as stillborn was dismissed. The court held that s 47(1) of PAIA obliges NDoH to notify third parties of the request and invite them to make representations in terms of s 48(1) of the Act. Resultantly, the NDoH failed to discharge the burden of proof of representations from third parties (paras 21, 23 and 24).

It held further that since information was disclosed in confidence by the Minister of Finance to the Parliamentary Portfolio Committee on Health, the basis of refusal by the NDoH was found to be without merit (paras 30, 35 and 38). There was no probable prejudice to be suffered by the respondent in the event of disclosure. Even though the contracts were negotiated in response to an emergency plan, the public must know the terms of basis of negotiations by the state. Non-disclosure of information makes it impossible to ascertain if mandatory disclosure contemplated in s 46 of PAIA applies. If it does, it disregards the oversight function of the courts (paras 43, 48 and 49.3)


Section 32(1) of the Constitution guarantees everyone’s right of access to information held by the state or another person when such information is required for the exercise or protection of any rights. PAIA was enacted in terms of s 32(2) of the Constitution to give effect to the right of access to information. It sets out the application of the Act, manner of access to information and the grounds that a party can rely on to refuse access to information or records.

The case addressed several crucial issues such as state’s blanket refusal to provide requested information in terms of PAIA that gives effect to the constitutional right of access to information held by the state. It is the HJI’s constitutional victory that was previously confirmed in Brummer v Minister for Social Development and Others 2009 (6) SA 323 (CC) that access to information is the crucial right to freedom of expression that includes the right of access to receive or impart information or ideas (paras 62 and 63).

The state’s refusal to disclose requested information without adequate reasons in terms of s 25(3) of PAIA is indicative of the secretive and unresponsive culture in public and private bodies, and contrary to the purpose of PAIA. The court referred to ss 195(1) and 217(1) of the Constitution that ‘public administration must be governed by the democratic values and principles enshrined in the Constitution’, that is, maintain and promote a high standard of professional ethics. That is, every organ of state that contracts for goods and services is bound to ‘do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective’.

The HJI presented a compelling argument that the state cannot use the confidentiality clause to circumvent the obligation to account and be transparent to the public. Non-disclosure of information or records by the state is mischievous to the spirit of the Constitution and what PAIA seeks to address (paras 33 and 49.2). The fact that NDoH reported to Parliament that the vaccine manufacturer insisted on far reaching indemnities and establishment of a vaccine injury fund, during negotiations was misleading considering that many lives were lost daily to the COVID-19 pandemic. In De Lange and Another v Eskom Holdings Ltd and Others 2012 (1) SA 280 (GSJ) the court remarked that a party that intends to rely on a confidentiality clause to withhold disclosure is expected to show the nature of the confidence, aspects of the agreement covered by the duty of confidence and whether the duty contains any exceptions under s 37(1)(a) of PAIA or pursuant to a court order (para 128). The NDoH failed to discharge the burden of proof that disclosure of confidential information would constitute an action of breach of duty of confidence owed to the third party.

Lesetsa Teffo BA (Unin) LLB LLM (Unisa) is Head: Legal Services, Legal Services and Compliance at the University of the Free State State and a Mediator (Accredited by Conflict Dynamics).

This article was first published in De Rebus in 2023 (Dec) DR 45.

De Rebus