IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CCT CASE NO: 129/11 SCA CASE NO: 910/10 KZD CASE NO: 4663/10 In the matter between:
PFE INTERNATIONAL INC.
(BVI) FIRST APPLICANT
PFE INTERNATIONAL INC.
(LIBERIA) SECOND APPLICANT
VAN DYCK CARPETS
(PTY) LTD THIRD APPLICANT
ZARREBINI, MEHDY FOURTH APPLICANT ZARREBINI, MEHRAN FIFTH APPLICANT
and
INDUSTRIAL DEVELOPMENT CORPORATION OF SOUTH
AFRICA LTD RESPONDENT
RESPONDENT’S PRACTICE NOTE
P a g e 2 __________________________________________________________________________
1. NAME OF PARTIES
As above.
2. NATURE OF THE PROCEEDINGS
The applicants seek leave to appeal against the decision of the Supreme Court of Appeal upholding the respondent’s appeal against the decision of the court a quo.
3. THE ISSUES THAT WILL BE ARGUED
3.1 The interpretation to be placed on the provisions of section 7 of PAIA.
3.2 Whether it is in the interests of justice for leave to appeal to be granted.
P a g e 3 __________________________________________________________________________
4. ESTIMATED DURATION OF ARGUMENT
The respondent will likely argue for no longer than 1 hour.
Argument will be completed in one day.
5. THE RECORD
The portions of the record which we consider to be necessary for the determination of the matter are those to which reference is made in the Written Argument. These essentially are the judgments of the court a quo and the Supreme Court of Appeal and the identified passages in the application papers.
6. SUMMARY OF RESPONDENT’S ARGUMENT
6.1 Before the High Court the applicants sought an order directing the respondent to produce certain information under the provisions of the Promotion of Access to
P a g e 4 __________________________________________________________________________
Information Act. The High Court granted this relief and the
Supreme Court of Appeal substituted the order of the court a quo with an order dismissing the application. The applicants seek leave to appeal against this decision.
6.2 The first issue is whether in terms of section 7 of PAIA a subpoena duces tecum under Uniform Rule 38 is required to secure the production of or access to a record in the hands of a person who is not a litigant. The respondent will contend for an answer in the affirmative, arguing that access to such a record is not available following the processes of PAIA.
6.3 The second issue, if the answer to the first is in the negative, is whether this is a case in which the “other law”
contemplated by section 7 (1) of PAIA has failed to provide for access to records, with the result that the applicants were permitted to employ PAIA. The respondent will submit that the right to issue a subpoena duces tucem in terms of Uniform Rule 38 (1) constitutes a viable legal remedy to access the documents requested in this case, and thereby satisfies the requirements of section 7 (1) (c).
P a g e 5 __________________________________________________________________________
6.4 The respondent will submit that it is not in the interests of justice for leave to appeal to be granted because the applicants’ interpretation of section 7 is implausible and there is no reasonable prospect that this court will reverse or materially alter the decision of the Supreme Court of Appeal.
There are also certain further factors which render it not in the interests of justice for leave to appeal to be granted.
7. AUTHORITIES ON WHICH PARTICULAR RELIANCE WILL BE PLACED
7.1 Ingledew v Financial Services Board 2003 (4) SA 584 (CC).
7.2 In Re: Certification of the Constitution of the RSA, 1996 1996 (4) SA 744 (CC).
7.3 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13.
P a g e 6 __________________________________________________________________________
7.4 National Director of Public Prosecutions v King [2010] 3 All SA 304 (SCA).
7.5 Rail Commuter Action Group v Transnet Ltd t/a Metrorail (No.1) 2003 (5) SA 518 (C).
7.6 Trust Sentrum Kaapstad (Edms) Bpk v Zevenberg 1989 (1) SA 145 (C).
7.7 Unitas Hospital v Van Wyk 2006 (4) SA 445 SCA.
