In the High Court of South Africa
(Cape of Good Hope Provincial Division)
Case Number : 9987/2001
In the matter between :
ECAAR South Africa
1 st Applicant
The President of the Republic of South Africa
The Minister of Finance
The National Government of the Repubilc of South Africa
The Speaker of Parliament
Heads of Argument on behalf of the Applicant
On the roll: 19 March 2003
Prepared by :
Adv Norman Arendse SC
On Instructions from :
Murphy Wallace Slabbert Inc
(a) The Main Application
1. On 21 November 2001, applicants launched an application (“the main application”) seeking, inter alia, relief of a constitutional nature concerning the decision of second respondent made in and during January 2000 to enter into foreign loan agreements and export guarantees in respect of frigates, submarines, fighter aircraft, fighter trainer aircraft and utility helicopters (“the arms deal”).
2. On 3 January 2002 first, second and third respondents on 3 january 2002, gave notice of their intention to oppose and on 10 January 2002 fourth respondent gave notice of her intention to oppose.
3. Answering affidavits were filed on behalf of:
3.1. the First, Second and Third Respondents on 6 March 2002; and
3.2. the Fourth Respondent on 7 March 2002.
b) The Discovery Application
4. In the answering affidavits in the main application, various documents were referred to by the respondents.
5. On 18 April 2002, the Applicants’ attorney addressed a letter to the Respondents’ attorneys requesting documents (“the requested documents”) which were referred to in, but which were not attached to the Respondents’ answering affidavits, namely:
5.1. Several loan agreements (“the loan agreements”), dated 24 and 25 January 2000, between the Government of the Republic of South Africa and international banking institutions. These were mentioned in paragraphs 6.3.1 to 6.3.4 of the answering affidavit of MARIA DA CONCEICAO DAS NEVES CALHA RAMOS (“Ramos”), on behalf of the First, Second and Third Respondents, in the main application.
5.2. Documentation evidencing a recommended design allegedly approved by Parliament on 22 May 1998. This was mentioned in paragraph 30 of the answering affidavit of Ramos in the main application.
5.3. The duly minuted decision taken by Cabinet to purchase the equipment needed to retain the effective defence capability of the SANDF. This was mentioned in paragraph 33 of the answering affidavit of Ramos in the main application.
5.4. The documents containing the advice of the International Offers Negotiating Team (“the IONT”) and the financial working group. These appear to be contained in the Affordability Study, a copy of that Report is required. These were mentioned in paragraph 36 of the answering affidavit of Ramos in the main application.
5.5. The purchase contracts entered into by the Government as buyer and the Arms manufacturers as sellers (“the purchase contracts”). These are referred to in paragraph 37 of the answering affidavit of Ramos in the main application. On 18 April 2002, applicants’ attorneys addressed a letter to respondents’ attorneys in which the documentation referred to, but not attached, to the respondents’ answering affidavits, was requested.
6. On 24 April 2002, respondents’ attorneys responded to applicants’ attorneys’ request for documentation in the negative.
7. On 5 July 2002, applicants launched an application in terms of Rule 30A, read with Rule 35(12), for an order compelling respondents to make discovery (“the discovery application”) of the documents referred to in the answering papers filed in the main application.
8. On 18 July 2002, the first, second and third respondents gave notice of their intention to oppose the discovery application.
9. On 10 October 2002, the first, second and third respondents filed answering affidavits in the discovery application.
10. On 6 February 2003, the applicants filed replying affidavits in discovery application.
11. The discovery application was set down for hearing on 19 and 20 March 2003. These Heads of Argument deal with the discovery application.
12. The respondents have taken two points in limine in the main application, which points have been repeated in the discovery application, namely that:
12.1. The Applicants’ lack standing; and
12.2. This Court has no jurisdiction to hear the matter.
13. The Respondents thereafter raise several factors which they allege relieve them of the burden to discover the requested documents in terms of Rule 35(12).
14. In these heads of argument the issues of jurisdiction and standing will be dealt with first and thereafter the merits of the discovery application. In conclusion it will be argued that applicants are entitled to the discovery of the documents referred to in paragraph 30 of the founding affidavits of applicants in the discovery application.
15. The Applicants first call into question the factual existence of the First Applicant. To the extent that this argument has any validity, the Second Respondent has locus standi.
16. The traditional grounds for standing as reflected in Jacobs en ‘n Andere v Wacks en Andere 1992 (1) SA 521 (A) at 534A-D stated that in factual circumstances applicants’ interests must be real (not abstract or academic) and present (not hypothetical).
This approach has, however, been altered by section 38 of the Constitution.
16.1. The main application concerns a review the lawfulness of certain exercises of power in the arms acquisition process and in securing the underlying financial agreements. This is a constitutional matter.
16.2. As will be argued below, the discovery application also raises constitutional issues relating to the right of access to information and the access to courts.
16.3. In determining such constitutional matters, the interim Constitution of the Republic of South Africa, Act 200 of 1993 and the final Constitution of the Republic of South Africa, Act 108 of 1996 (“the Constitution”) significantly expanded the class of persons having the right to approach a competent court.
17. Section 38 of the Constitution states:
"Enforcement of rights"
Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are –
(a) Anyone acting in their own interests;
(b) Anyone acting on behalf of another person who cannot act in their own name;
(c) Anyone acting as a member of, or in the interests of, a class or group of persons;
(d) Anyone acting in the public interest; and
(e) An association acting in the interests of its members”.
18. The Applicants rely on sections 38(a), (c), (d) and (e) for standing.
19. In relation to section 38(c) of the Constitution, the Applicants bring this application on behalf of all poor people in South Africa. It should further be noted that unlawful administrative action of the kind in the main application affects everyone. Section 6(1) of the Promotion of Administrative Justice Act 3 of 2000, thus states that –
“Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action”.
The Second Applicant, as a citizen and thus a member of the South African public, has an interest in ensuring that South African public bodies conduct themselves within their powers. Even if Second Applicant does not allege that he will be directly affected by the respondents’ unlawful conduct, he nevertheless has standing to challenge that conduct.
20. The leading decision on section 38(c) of the Constitution is The Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government v Ngxuza and Others 2001 (4) SA 1184 (SCA). In that case four individual Applicants sought to reinstate the disability grant they had been receiving which the province had, without notice to them, terminated. In addition they sought relief on behalf of tens of thousands of disability grantees they alleged were in a similar predicament to themselves in that they too, had had their grants unfairly and unlawfully terminated. At issue was the entitled to bring a class action of this sort.
21. The salient features of the judgment are as follows:
“In the type of class action at issue in this case, one or more claimants litigate against the Defendant not only on their own behalf but on behalf of all other similar claimants. The most important feature of the class action is that other members of the class although not formally and individually joined, benefit from, and are bound, the outcome of the litigation unless they invoke prescribed procedures to opt out of it.
It is precisely because so many in our country are in a poor position to seek legal redress, and because the technicalities of legal procedure, including joinder, may unduly complicate the attainment of justice, that both the interim and the Constitution created the express entitlement that “anyone” asserting in the Bill of Rights could litigate “as a member of, or in the interest of, a group or class of persons”.
The persons on whose behalf the litigation was brought were “scattered throughout the Eastern Cape many of them in small towns and remote rural areas”. What they have in common is that they are victims of official excess, bureaucratic misdirection and unlawful administrative methods”.
22. The court accordingly held that the method of proceeding was sanctioned by the Constitution.
23. A wide range of persons may be affected by unlawful conduct and in those circumstances it is inappropriate and unjust to require direct and individual harm.
24. In this regard the comments of the Full Bench of this Court in the Rail Commuter Action Group and Others v Transnet Limited t/a Metro Rail and Others, unreported decision of Davis et van Heerden JJ under case number 10968/2001 delivered on 6 February 2003 at pages 622 – 629, are also of significance.
25. The approach of the respondents, that the applicants do not have standing, effectively leaves the respondents free to act unlawfully until someone with sufficient resources and determination to challenge the conduct, and who is directly affected by the allegedly unlawfully entered into arms deal can raise a Court challenge. The better approach, it is submitted, is to prevent the unlawful conduct of the respondents from occurring on application by a person or persons such as the applicants.
26. The broader approach also better accords with section 38 of the Constitution.
27. It hardly needs to be emphasised that section 39(2) of the Constitution enjoins this Court to develop the common law in a manner which promotes the spirit and purport of the Constitution. The common law principles relating to standing must be developed in light of the Constitution.
28. In the circumstances, it is inconsistent with the law of standing and section 38 of the Constitution specifically to deny applicants standing on the ground that they are not directly affected by the entering into of the arms deal.
29. The respondents’ contention that the Cape High Court does not have jurisdiction to consider the main application and accordingly the discovery application, is presumably based in part on the decision in Minister of Law and Order v Patterson 1984 (2) SA 739 (A).
30. That case related specifically to actions sounding in money and on that ground is wholly distinguishable from the present case. Furthermore, the rationale of that case fundamentally based on section 23 of the Constitution of the Republic of South Africa Act 32 of 1961, which stated that Pretoria was the seat of Government for the Republic.
31. This was repeated in section 29 of the Republic of South Africa Constitution Act 110 of 1983.
32. The Constitution has no similar provision. It only states in section 42(6) that the seat of Parliament is Cape Town. The Fourth Respondent is thus based in Cape Town and this Court would have jurisdiction over her and Parliament. 
33. It is also significant that the Second and Third Respondents both have offices in Pretoria and Cape Town.  It would be artificial to hold in these circumstances that only the Pretoria courts have jurisdiction to the constitutionality of conduct by the Respondents.
34. In Ngxuza, supra, at par , the SCA held that in terms of section 39(2) of the Constitution, all courts are enjoined to develop the common law to accord with the Constitution – including the common law of jurisduction.
35. It is submitted that in the interest of fairness of civil proceedings in terms of section 34 of the Constitution, convenience and practicality should also play an increased role.
36. Under the existing common law, convenience is not an independent jurisdictional ground, but it is “a consideration which the court will take into account in proper cases.”
37. It is submitted that this case, in which public power is reviewed by a litigant on behalf of all South Africans, is a proper case for convenience to play an even greater role and even by itself justifies this Court hearing this application.
38. In any event, section 166(c) makes it plain that there is only one High Court, and not different divisions such as local and provincial divisions. 
39. The right to access of documents under Rule 35(12) arises as soon as any explicit, or even implicit, reference is made thereto in an affidavit by the opposing side. 
40. The Rule does not require a detailed or descriptive reference to the documents, and even arises in relation to documents only mentioned in annexures to the affidavit.
41. A prima facie obligation exists on the party who refers to any documents to produce them. The onus rests on the party obliged to produce to prove facts that relieve them of this obligation.
It is certainly not for the Applicants to “further elaborate” on their necessity to access the documents.
42. It appears that the Respondents attempt to discharge this onus by alleging that:
42.1. The documents other than the loan agreements are not relevant to the stated objective of the Applicant to determine if the agreements constituted loans or guarantees.
42.2. The Applicant already has a copy of the design approved by Parliament on 22 May 1998.
42.3. Cabinet minutes are privileged and loan agreements are confidential, and their disclosure would be “contrary to the public interest”.
42.4. Similarly, the loan agreements are confidential and their disclosure would be “contrary to the public interest”.
42.5. No reference was made to the reports of the IONT and the working group, but only to the substance of the advice.
42.6. The documents were Applicants have the ulterior motives of obfuscating their delay in replying in the main application and to engage in a fishing expedition; and
42.7. The Cabinet minutes and the purchase contracts are protected by sections 11A of the Armaments Development and Production Act 57 of 1968 (“the Armaments Act”) and section 118(2) of the Defence Act 44 of 1957 (“the Defence Act”). 
43. Each of these will be dealt with in turn below. However, it is necessary to first highlight that, in general, this analysis must also be informed by the duty to actively promote the rights to:
43.1. Access to information in section 32 of the Constitution of the Republic of South Africa Act 108 of 1996 (“the Constitution”); and
43.2. Access to courts in section 34 of the Constitution.
THE IMPACT OF THE CONSTITUTION OF THE INTERPRETATION OF RULE 35(12):
44. The rules of discovery and the right of access to information are not exclusive and do not replace each other in different settings. The right, as part of a supreme Constitution, must infuse the rules of discovery, which must be developed to accord with the right (in terms of section 39(2) of the Constitution).
45. Mureinik stated that –
“if the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification – a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case afforded in defence of its decisions, not the fear inspired by the force of its command. The new order must be a community built on persuasion, no coercion”. 
46. With regard to the right of access to information in particular, Mureinik continued that it is –
“… a matter of the utmost importance to any effort to bring about a culture of justification. A government which can close its files will be under much weaker pressure to justify its decisions than one which has to open them.”
47. De Waal et al similarly state that –
“[i]n an authoritarian society, power is exercised arbitrarily, without reason or explanation. In an open and democratic society, by contrast, government should be accountable for its actions and decisions, which should be informed by rational considerations that are explicable to those affected by them; democracy is governed by explanation. Accountable government is impossible if the government has a monopoly over the information that informs its actions and decisions.”
48. The value of access to information is “an end in itself”, but the recurring theme is that it also has an “instrumental objective … to foster a culture of transparency, accountability and propriety …”, thus strengthening the foundational constitutional values of in section 1 of the Constitution.
48.1. In Khala v Minister of safety and Security 1994 (4) SA 218 (W) at 225B – C, the Court held that –
purpose of s23 [of the IC] is to enable a person to gain access to information
held by the State in order to create, and thereafter to maintain, an open and
democratic society. One of the
tests to be decided in applying whether any fundamental right … should be
limited is that the limitation is justifiable in ‘an open and democratic
Against this backdrop, the Court gave the right a generous interpretation and viewed any limitation with circumspection.
48.2. Constitutional Principle IX of the IC similarly noted that “[p]rovision shall be made for freedom of information so that there can be an open and accountable administration at all levels of government.”
In Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC at pars  – , the Court held that this Principle was “directed at promoting good government” and did not only envisage “access to information merely for the exercise or protection of a right, but for a wider purpose, namely to ensure that there is open and accountable administration at all levels of government”
48.3. In Dagg v Canada (Minister of Finance) 1997  SCRO, the Canadian Supreme Court held that access to information operated on the premise that politically relevant information should be distributed as widely as possible.
49. The rules of discovery must be read to accord with and must be developed to encourage these principles of openness and accountability.
50. It is submitted that Rule 35(12) provides a vital tool of access to information, and that limiting the application of this rule is tantamount to a violation of the right to access to information.
51. Section 34 of the Constitution explicitly protects the rights of civil litigants to a fair trial.
52. Even in the pre-constitutional era, in Crown Cork and Seal Company Inc and Another v Rheem South Africa and Another 1980 (3) SA 1093 (W), the Court “stressed” that –
“care must be taken not to place undue or unnecessary limits on a litigants right to a fair trial, of which discovery often forms an important part.”(emphasis added)
53. Section 35(3) of the Constitution lays out the requirements for fairness in criminal proceedings. Significantly, section 35(3)(a) refers to the need for information by the accused.
54. The importance of information in civil trials is no less marked. It is submitted that Rule 35(12) provides a vital and essential incidence of fairness in civil trial. Once again, the limitation of the application of this Rule is tantamount to a violation of the right to a fair trial.
55. It is important to note that, unlike Rules 35(1), (3) and (11), the relevance of the document is not an explicit requirement in Rule 35(12).
55.1. In Magnum Aviation Operations v Chairman, National Transport Commission, and Another 1984 (2) SA 398 (W) at 400C – D, the Court appears to interpret this Rule as containing no requirement of relevance. Rather, the “ordinary grammatical meaning of the words is clear: once you make reference to a document, you must produce it. Even more so in this case where the implication [is that if the Applicant could see the documents], it might well have come to a different conclusion.”
55.2. In Gorfinkel, supra, at 773H – 774H, the Court held that there is an implicit requirement that the documents sought must be relevant to some degree, not privileged and must still be in the possession of the party who mentioned them.
56. In Universal City Studios, supra, at 347B – C, the Court gave the clear example that “if a wife seeking to prevent her husband from assaulting her were to allege that he assaulted her shortly after she read the evening paper, there being no relevance alleged of the newspaper, one could hardly imagine that her husband, the respondent, would be entitled to the production of that newspaper.”
57. However, the requirement of relevance appears to be lower than that in other sub-rules. It is submitted that it should be sufficient for a Court to conclude that relevant material may exist.
58. Information may, further, lead to a train of investigation.
59. In Unilever plc and Another v Polagric (Pty) Ltd 2001 (2) SA 329 (C), at 339D – F, the Court held that –
“[t]he documents may well, and probably do, contain a great deal of information which supports the applicants’ case in the main application. However, the possibility can certainly not be excluded, in my view, that they contain material, or the absence of material, which may be adverse to the case”.
The Court continued, at 340G, that where a deponent to an affidavit refers to a document, it can usually be inferred that, in the absence of a clear disclaimer, that the document is relevant.
60. It is submitted that the same principles apply in the present discovery application. The references by the Respondents to all of the documents requested were not merely incidental, but were intended to prove that the underlying finance agreements and the arms acquisition process itself were rational. The mere fact that the Respondents felt it necessary to refer to these documents, proves at the very least that the documents may be relevant.
61. The Respondents attempt to argue that the requested documents, especially the purchase contracts, are irrelevant as they relate to the purchase contracts and not to the loan agreements. The attempt in the main application to drive a wedge between the purchase contracts and the loan agreements will not, with respect, succeed. It is tantamount to arguing that the purchase of a house has nothing to do with a mortgage.
The Respondents seek to rely on the requested documents to prove that distinction. It is most unfair to allow the Respondents to achieve that aim without providing Applicants an opportunity to consider the documents.
62. In determining relevance, it is also important in the context to bear in mind that provision of the information may lead to an application for amendment of the relief sought, or possibly even to withdraw the application.
It does not assist the Respondents to prematurely object to that amendment based on speculative attempts regarding that potential amendment.
63. As stated above, the Respondents state that, by the Applicants own admission, Second Applicant already has the documents approved by Parliament on 22 May 1998. Accordingly, the Respondents resist discovering these documents.
64. This is no defence. Even under Rules 35(1), (3) and (11), litigants are not released from discovering a document merely because they believe that the opposing party already has a copy of that document.
65. Furthermore, there could be any number of reasons why the Applicant may want a further copy to be discovered. For instance:
65.1. They may wish to verify that the documents actually held are in fact the same as those considered by Parliament and that it is a full copy; or
65.2. It may be that they acquired the documents from a private source, and they wish to regularize the possession of this documentation.
66. The Respondents’ claims to confidentiality of the commercial transactions of the government, as well as the minutes of cabinet are widely stated as being in the public interest. No further explanation is given in this regard.
67. In Unilever, supra, at 339J – 340A, the Court held that confidentiality “… of course, does not per se in our law confer … any privilege against disclosure”.
68. Furthermore, in light of the aims of section 32 of the Constitution referred to above, and specifically the requirements of openness as a founding value, it cannot sensibly be argued that it is in the “public interest” to draw a veil of secrecy over the affairs of the State. On the contrary, these documents should, in the absence of specific and compelling reasons, be made available.
69. The fact that this application seeks information related to military acquisition does not alter this situation.
70. In CCII Systems (Pty) Ltd v Fakie N.O and Others, an unreported judgment of 15 November 2002 in the TPD, the Applicant was an aggrieved, and unsuccessful bidder to supply specialized software and computer systems for the naval Corvettes purchased as part of the arms deal. In order to investigate the lawfulness of its exclusion, the Applicant sought access, in terms of the Promotion of Access to Information Act, to all the documents and draft reports of a joint commission investigating certain alleged improprieties in the acquisition process.
The Respondents raised the defences of privilege and confidentiality “in a generalized way”. The allegation appears to have been that it would –
“not be in the interest of [the] public of South Africa, good governance, proper relationships with major investors and the security of the country that access be granted to the applicant.”
(at par 2)
71. Hartzenberg J held that –
“[i]f regard is had to the media coverage which this matter enjoyed and the prominence of the members of the joint commission this is certainly a case where maximum access is necessary to dispel any suspision of a cover-up. It is not good enough to hide behind generalities … The applicant alludes to conflict of interest and political pressure. If at all feasible such suspisions must be put to rest.”
72. Hartzenberg J continued that in regard to “confidential matters”, section 37 of AIA, an –
“information officer must refuse access if disclosure will lead to a breach of a duty of confidence and may refuse access if disclosure may lead to cutting off a source of information. One can understand the rationale behind the provision. It is in a strange way to be compared with the position of a police informer.”
73. Once again, however, generalities do no not suffice and “it is for the respondents to identify the record which is to be protected and state concisely why it maintains that access to it can be withheld.”
74. The only basis in law to justify the exclusion of cabinet minutes would be by drawing a comparison to their exclusion under section 12 of the Access to Information Act 2 of 2000 (“the AIA”).
75. The constitutionality of this section is not beyond challenge. More importantly for current purposes, the demand for the production of cabinet minutes in this case is not based on the AIA. In the current setting the Respondents, of their own volition, made reference to these documents. They cannot now be seen to claim that these documents are protected.
As stated in Unilever, supra, at 342A, if the confidentiality of documents is compromised, “this is an inevitable consequence of having referred to them …”.
76. Regarding the purported confidentiality of the loan agreements, it is striking that the Respondents:
76.1. on the one hand deny that the loan agreements constitute international agreements, but classify them as ordinary commercial transactions;
76.2. while on the other hand claiming that these are governmental contracts which are inherently secret.
77. An attempt has also been made to address the fears of the Respondents by agreeing to limit disclosure to the court or to the legal advisors. The Applicants do not object to disclosure to the legal representative or the Respondents’ suggestion of judicial disclosure.
78. In Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and Another 1979 (2) SA 457 (W), and Crown Cork and Seal Company Inc and Another v Rheem South Africa and Another 1980 (3) SA 1093 (W), the Courts limited disclosure to legal advisors.
79. However, in Unilever, supra, at 341C – I, the Court noted that –
“[i]t is unwise, in my view, unless very special circumstances exist, to create a situation in which the legal advisors or experts of a party to opposed litigation may find themselves in possession of information which may be highly relevant to the litigant but which they are precluded from commenting to their client. Questions arise which could potentially place the respondent’s legal advisors and experts in an invidious and even untenable position. Serious ethical questions could arise.”
80. Similarly, it is problematic to use a judicial officer to sift through documents and to determine their relevance, particularly in a case where the contents of the documents may lead to an amendment of the relief sought.
81. The Respondents attempt to justify the claims of confidentiality and these mechanisms of limited disclosure based on the perceived threat that if the information is made known to the Applicants, they will publish it generally.
82. This ‘threat’ does not accord with the Applicants’ actual behaviour. The Applicants have acknowledged that they came into possession of certain other contracts. These have not been disclosed publicly. The Second Applicant has also stated that he will only disclose these in the current proceedings in a confidential setting.
This does not accord with the maverick behaviour that the Respondents fear.
83. The Respondents argue that the IONT and working group reports need not be discovered as the Respondents’ answering affidavits only referred to the substance of the advice of these bodies and not the Reports themselves.
84. It is implicit in the Respondents’ version that a Report must have existed containing the findings of the working group and the IONT. It is inconceivable that the Second Respondent only relied on the summary referred to in paragraph 36 of the Answering affidavit of Ramos in the main application.
85. In Protea Assurance, supra, at 248F – 249D, it is clear that implicit reference to a document suffices for the purposes of Rule 35(12).
86. The Respondents have taken the approach, based on the advice of their legal representatives, that it is not necessary to produce the loan agreements as they consider “that this is simply a fishing expedition designed to protract the proceedings and to seek find some alternative basis on which to found the application.”
This is denied.
87. In Unilever, supra, at 335B – G, it was similarly argued that Respondent was relying on the provisions of Rule 35(12) for purposes of obfuscating their delay and as a fishing expedition.
88. In that case, the delays were significantly longer than in the current case. The Court, however, noted its approval of the fact that this point was not relied on further at the hearing of the matter.
89. With regard to the allegation that the request was a “fishing expedition”, the Court held that “… the respondent is, in my view, in circumstances such as these acting within its rights to engage in a certain amount of ‘fishing’, if that is the correct word to use, as long as it relates to what is, or will become, a bona fide basis for resisting the main application.”
(a) The Unconstitutionality of the Provisions
90. In their answering affidavits in the discovery application, the Respondents rely on the provisions of sections 11A of the Armaments Act 57 of 1968 and section 118(2) of the Defence Act to justify the non-disclosure of certain of the documents in this matter. To the extent that these provisions are relevant and applicable, it is submitted that they are inconsistent with the Constitution and invalid, as they violate both the rights to access to information and access to courts as discussed above.
91. The legislative provisions are an inheritance of the past in which secrecy and authority prevailed, particularly in relation to military matters. The sweeping, overbroad terms of these legislative provisions would in all cases completely eradicate the right of access to information, and the right to information in the interests of fairness. In other words, no matter the circumstances of a particular case, these provisions would always trump the rights. This overbreadth cannot be tolerated under the Constitution.
(b) Notice to the Ministers Responsible for the Provisions
92. As these provisions were first referred to by the Respondents in their answering affidavits, no prayer was originally sought in this regard. Accordingly:
92.1. the Minister of Justice and Constitutional Development, who is defined as the Minister responsible for the administration of the Armaments Act; and
92.2. The Minister of Defence, who is defined as the Minister responsible for the Defence Act,
were not cited in accordance with Rule 10A.
93. In Moise v Greater Germiston TLC (Minister of Justice Intervening) 2001 (4) SA 491 (CC), at par , the Court pointed to the underlying rationale that the Minister responsible must be cited as the government “then has the opportunity – indeed the obligation” to defend the enactment.
94. In the present case, the Ministers have been given this opportunity. On 6 February 2003, copies of a full set of the papers in the discovery application were served on the Ministers under cover of a letter explaining that the purpose of this exercise was in order that they could consider joining the proceedings as the constitutionality of the legislative provisions was placed squarely in issue in paragraphs 28 and 29 of the Applicants’ replying papers. 
95. In light of the prima facie violations of the rights mentioned above, it must be determined whether these sections constitute a justifiable limitation of the rights in accordance with section 36 of the Constitution.
96. In Moisie, supra, at par , the Court further held that once notified, Ministers are obliged not only to submit legal argument, but also to place before the Court “the requisite factual material and policy considerations” to justify any limitation of a right.
To date, no opposition has been noted by the Ministers of Defence, and Justice and Constitutional Development. It is submitted that the failure by the Ministers in this regard must in this case “tip the scales against it and result in the invalidation of the challenged enactment.”
97. The “overbreadth” of the legislative provisions not only supports the conclusion that they prima facie violate the rights discussed above, but also means that this violation cannot be justified.
97.1. In Mistry v Interim Medical and Dental Council of South Africa and Others 1998 (4) SA 1127 (CC) at par , the Court held that the determination of overbreadth was linked to the determination of proportionality.
97.2. In Prince v President, Cape Law Society, and Others 2002 (2) SA 794 (CC) at par , the majority took this further and held that –
“[a] challenge to the constitutionality of legislation on the grounds that it is overbroad is in essence a challenge based on the contention that the legitimate government purpose served by the legislation could be achieved by a less restrictive means.”
98. The Constitutional Court has identified several potential remedies.
99. To the extent that it is possible, all legislation must be “read down” and interpreted in such a way as to save it from unconstitutionality.
100. For current purposes, section 118(2) of the Defence Act may be read constitutionally by interpreting the requirement that the information must be “published” in a restrictive manner.
100.1. In S v Kiley 1962 (3) SA 318 (T), the Court pointed to the difference between the “ordinary meaning” of the word “publish” as “making the information available to the public at large”, and the more specific meaning in the context of the law of defamation. In that case, the Court held that the context and the legislative provision involved demanded that the word be interpreted in the narrower sense.
100.2. In S v Laurence 1975 (4) SA 825 (A), however, the Court adopted the “ordinary meaning” of the word.
100.3. In S v Du Plessis 1981 (3) SA 382 (A) at 404A, the Court held that the corresponding requirement for publication in section 118(1) of the Defence Act meant publication in the media. Making the information available for the purposes of discovery could be easily tailored to avoid general publication in this sense.
101. In order to save section 118(2) of the Defence Act from unconstitutionality, it too should be read in the same manner, and accordingly Respondents may not rely on it to oppose discovery.
102. However, in S v Bhulwana 1996 (1) SA 388 (CC) at pars  to , the Constitutional Court held that a legislative provision can only be read-down if it was “reasonably” capable of a meaning that accorded with the Constitution. If no such interpretation is possible, this Court is constrained by the requirement in section 172(1) of the Constitution to strike the provision down.
103. In this regard it must be noted that although in the same Act:
103.1. Section 118(1) of the Defence Act, on the one hand, is specifically modified with a reference to “any newspaper, magazine, book or pamphlet or by radio”. In interpreting the section the Court in Du Plessis, supra, at 404A, thus adopted the eiusdem generis rule.
103.2. Section 118(2) of the Defence Act, on the other hand, differs in that the word “publish” is not qualified by any reference to specific forms of media, but is instead stated that publication “in any form whatsoever” falls foul of the section.
104. This difference must have been intended to have some meaning, and it is difficult to escape the conclusion that in the context of section 118(2) of the Defence Act, the word “publish” would include the limited distribution of information for discovery purposes.
105. Section 11A of the Armaments Act goes even further and criminalizes the “disclosure” of “any information”. This cannot be sensibly interpreted other than as a very sweeping infringement of the rights discussed above. Similarly, the Respondents’ reliance on the section is to be rejected.
106. In light of the above, it is submitted that the Respondents have no valid reason to avoid the disclosure of the documents mentioned above and listed in paragraph 30 of the Applicants’ founding affidavit in the discovery application.
107. Accordingly, the Respondents have not discharged the onus required to relieve them of the duty to produce these documents in accordance with Rule 35(12).
108. It is submitted that the relief sought in the Notice of Motion of the discovery application should be granted with costs, including the costs of two counsel.
5 March 2003
 Main application, page 148.
 Main application, pages 150-152.
 Main application, page 152.
 For convenience we will refer to all the respondents collectively throughout these Heads of Argument.
 Discovery Application, annexure “TCB 3”, page 96.
 Discovery application, annexure “TCB3”, page 96.
 Discovery application, page 98.
 Discovery application, page 115.
 Discovery application, pages 117 – 118.
 Discovery application, page 176.
 Main application, Notice of Set Down, page 266.
 Main application, pages 181 – 185, Discovery Affidavit page 138.
 Main application, page 187; Discovery application page 137.
 Discovery application, pages 12 – 13.
 Main application, page 28-29.
 Pharmaceutical Manufacturers of South Africa: In re ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC) at pars  and .
 Main application, page 3.
 This was similarly contained in stated section 36 of the 1983 “Tricameral Constitution”
 Answering affidavit of Crawford Browne, discovery application, par 70, page 216.
 Discovery application, page 216..
 Pistorious Pollack on Jurisdiction 2ed (Juta, Cape Town 1993) at page 23 ff.
 Compare section 101(1) of the interim Constitution.
 Protea Assurance Company Limited v Waverley Agencies CC 1994 (3) SA 247 (C) at 248F – 249D; Erasmus Superior Court Practice (Juta, Cape Town, looseleaf) at B1-260 and the cases quoted at n7.
 Universal City Studios v Movie Time 1983 (4) SA 736 (D&CLD) at 750 D.
 Gorfinkel v Gross, Hendler & Frank 1987 (3) SA 766 (C) at 774 H-I.
 Answering affidavit of Ramos, discovery application, at par 4 and 5, page 121.
 Answering affidavit of Ramos, discovery application, at par 9, page 126.
 Answering affidavit of Ramos, discovery application, at par 12, page 128
 Answering affidavit of Ramos, discovery application, at par 13 and 18, pages 129 and 132.
 Answering affidavit of Ramos, discovery application, at par 17, page 131.
 Answering affidavit of Ramos, discovery application, at par 14, pages 129 – 130.
 Answering affidavit of Ramos, discovery application, at pars 18 - 19, pages 132-133.
 It is accepted that the discovery application is not an application in terms of the Promotion of Access to Information Act 2 of 2000. This however does not mean that the right to access to information has no application to rules relating to discovery.
 Erasmus, supra, at B1-250.
 “A Bridge to Where? Introducing the Interim Bill of Rights” (1994) 10 SAJHR 31
 At 32
 At 43.
 De Waal et al Bill of Rights Handbook (Juta, Cape Town 2001), at 526
Seminar Report on the Constitutional Right of Access to Information (Konrad Adenauer Stiftung, Johannesburg 2001) at 18.
 De Waal et al, supra, at 577.
 See also Shabalala v Attorney General of the Transvaal 1996 (1) SA 725 (CC)
 See Universal City Studios, supra, at 747A – B.
 Replying affidavit of Crawford Brown, discovery application, par 65, page 206
Founding affidavit of Crawford-Browne, discovery application, par 31.2, page 13; Replying affidavit of Crawford-Browne, discovery application, par 49-50, pages 194-195.
 Answering affidavit of Ramos, discovery application, at par 10, pages 126-128
 At par (15).
 At par (17).
 At par (19).
 See, for instance, White “Open Democracy: Has the Window of Opportunity Closed?” (1998) 14 SAJHR 65, at 73.
 Replying affidavit of Crawford-Browne, discovery application, par 45, page 192-193.
 Answering affidavit of Ramos, discovery application, at par 23-24, pages 135-136.
 Letter from Applicants’ attorneys to Respondents’ attorneys, discovery application, page 100.
 Replying affidavit of Crawford Brown, discovery application, par 64, page 205.
 Answering affidavit of Ramos, discovery application, at par 21, page 134.
 Replying affidavit of Crawford-Browne, discovery application, par 65, page 207.
 Answering affidavit of Ramos, discovery application, at par 21-22, pages 134-135; Replying affidavit of Crawford Brown, discovery application, par 63, page 205.
 Letter from the State Attorney, Pretoria to the Applicants, discovery application, pages 106-7; Answering affidavit of Ramos, discovery application, at par 3, page 120.
 Replying affidavit of Crawford-Browne, discovery application, par 39, page 189.
 Unilever, supra, at 335B – G.
 Unilever, supra, at 335I – J.
 Replying affidavit of Crawford-Browne, discovery application, pars 20-28, page 182-186.
 For instance: Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC) at par ; Mokgoro J in Case and Another v Minister of Safety and Security; Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC) at par  ff; Islamic Unity Convention v IBA and Others 2002 (4) SA 294 (CC) at par .
 Discovery application, page 220 – 221.
 Moisie, supra, at par .
 National Director of Public Prosecutions and Another v Mohamed N.O and Others 2002 (4) SA 843 (CC) at par ; Olitzki Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA) at par ; Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit N.O and Others 2001 (1) SA 545 (CC) at pars  – ; S v Dzukuda and Others; S v Tshilo 2000 (4) SA 1078 (CC) at par (a)