SA Airlink is a privately owned airline operator. Mpumalanga Tourism and Parks Agency (MTPA) is an organ of the state tasked with developing market tourism. In 2009, MTPA contracted with Comair, a competitor of SA Airlink, to provide flights between two airports; no tender was issued prior to awarding the contract. SA Airlink, asserting that MTPA unfairly favored Comair, sought a copy of the agreement between MTPA and Comair under the Promotion of Access to Information Act (“PAIA”). MTPA refused the request and denied an appeal, asserting that disclosure would cause Comair to suffer prejudice because the contract contained a confidentiality clause and commercial information.
Under Section 32 of the Constitution of South Africa, every person has a right to information held by the state. Section 11 of PAIA gives effect to this right by requiring state bodies to provide a requester access to records if the requester complies with the procedural requirements in PAIA and no ground for refusal of access under PAIA exists (para. 11). The party refusing access has the burden of establishing that refusal is justified under PAIA (para. 13).
Section 37(1)(a) of PAIA provides that a public body must refuse access to records if disclosure of the records “would constitute an action for breach of a duty of confidence owed to a third party in terms of an agreement.” (para. 21 (citing Transnet Ltd. and Another v. SA Metal Machinery Co (Pty) Ltd. at para. 51)). However, a mere confidentiality clause in an agreement cannot shield the agreement from disclosure (para. 24). Here, the agreement includes a confidentiality clause, but MTPA has not explained why a breach of the clause would result in a successful claim for damages (para. 24).
Section 36 of PAIA requires a public body to refuse a request for information if the record contains commercial information of a third party and disclosure “would be likely to cause harm to the commercial or financial interest of that third party.” However, according to the Court, such harm must be probable, not simply possible (paras. 21, 23). Here, MTPA has not shown that it is probable that disclosure would cause harm to Comair—notably Comair no longer operates the route to which the agreement applies and Comair did not put forth any reason to justify refusal (para. 23).
The Court found that the respondent had not successfully brought forth any reason to refuse access to the records and thus ordered MTPA to produce copies of the agreement (para. 25).
Judgment of the Court.