THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG

Case No:

In the matter between:

LEON AMOS SCHREIBER - Applicant

and

THE AFRICAN NATIONAL CONGRESS - First Respondent 

FIKILE APRIL MBALULA - Second Respondent 

THAPELO MASILELA - Third Respondent

FOUNDING AFFIDAVIT

I, the undersigned,

LEON AMOS SCHREIBER

state as follows under oath:

1 I am a Member of the National Assembly for the Democratic Alliance, a member of the National Assembly's Portfolio Committee on Public Service and Administration, and the applicant in this urgent contempt application.

2 The facts in this affidavit are true and correct and are within my personal knowledge except where the context indicates otherwise. Legal submissions are made on the advice of my legal representatives.

INTRODUCTION

3 On 2 February 2023, Wepener J gave an order against the first respondent ("the ANC"). As I explain below, the ANC's purported compliance with the order is inadequate and constitutes a breach of the order.

4 The purpose of this application is to obtain relief declaring that the ANC is in breach of an order of this Court, and to compel the ANC to do what is necessary to comply. I also seek an order holding the ANC in contempt for its wilful and ma/a tide non-compliance with the order.

5 I attach a copy of the judgment and Court Order which I mark as Annexure "LAS1".

6 I address the following in the remainder of this affidavit:

6.1 I provide a brief background to the Court Order.

6.2 I set out the ways in which the ANC has failed to comply with the Court Order.

6.3 I explain why I submit that I am entitled to the remedies that I seek.

6.4 Urgency.

PARTIES

7 The first respondent is the ANC, a registered political party with its head office at Chief Albert Luthuli House, 54 Pixley ka lsaka Seme Street, Johannesburg.

8 The second respondent is Mr Fikile April Mbalula an adult male Secretary General of the ANC. His primary place of business is at Chief Albert Luthuli House, 54 Pixley ka lsaka Seme Street, Johannesburg. His further details are unknown.

9 The third respondent is Mr Thapelo Masilela, an adult male strategic support manager in the office of the Deputy Secretary General of the ANC. His primary place of business is at Chief Albert Luthuli House, 54 Pixley ka lsaka Seme Street, Johannesburg. His further details are unknown.

10 The second and third respondents are the office-bearers through whom the ANC has purported to comply with the Court Order. As a result, I seek relief compelling them, together with the ANC to give proper effect to the Court Order.

BACKGROUND

My PAIA application

11 More than three years ago on 11 February 2021, I made a request to the ANC for access to information in terms of section 53(1) of the Promotion of Access to Information Act 2 of 2000 ("PAIA").

12 The ANC claimed it did not receive my request. I therefore delivered a second PAIA request on 22 February 2021. I attach a copy of that request which I mark as Annexure "LAS2".

13 My request sought access to the following information:

13.1 Information on the processes followed and decisions taken by the ANC's Cadre Deployment Committee ("the Committee") between 1 January 2013 and 1 January 2021.

13.2 The full contents of the ANC's cadre deployment policy including any amendments or changes introduced during the period of 1 January 2013 and 1 January 2021.

13.3 Complete minutes including attendance registers for each meeting of the Committee during 1 January 2013 and 1 January 2021.

13.4 A list of all decisions taken by the Committee during 1 January 2013 and 1 January 2021.

13.5 The contents of any email, WhatsApp or other social media exchanges where decisions of the Committee were discussed, deliberated or taken during 1 January 2013 and 1 January 2021.

13.6 Copies of all documents, including CVs and vacancy notices considered by the Committee during 1 January 2013 and 1 January 2021.

13.7 All correspondence communicating the decisions of the Committee to government officials, members of Cabinet, members of selection panels, or any other appointing authorities in the State.

14 The ANC raised no grounds under PAIA to refuse my request but repeatedly refused to make a decision on it. I was eventually forced to approach the High Court in June 2021.

The High Court Order

15 The ANC repeatedly delayed the expeditious determination of my application to the High Court. I set this out in brief to demonstrate how the ANC's conduct was and remains calculated to frustrate and delay my rights.

15.1 The ANC failed to deliver its heads of argument.

15.2 I was forced to bring an application to compel the ANC to deliver its heads of argument in order to set the application down.

15.3 On 25 May 2022, I was granted an unopposed order compelling the ANC to deliver its heads of argument within five days. I attach a copy of this order as Annexure "LAS3".

15.4 The ANC failed to comply with this order.

15.5 My attorneys set the matter down for hearing for 5 October 2022.

15.6 Three days before the hearing, the ANC's attorneys filed a notice of withdrawal, on the basis of which the ANC obtained a postponement of my application.

16 My application was eventually heard before Wepener J on 30 January 2023 and the judgment was handed down on 2 February 2023. The Court Order provides as follows:

"1. The decision of the ANC to refuse Schreiber's request for access to information dated 22 February 2021 is declared unlawful and invalid and is set aside.

2. The ANC is directed to provide all the information and records sought in Schreiber's request for access to information dated 22 February 2021 within 5 court days of service of this order.

3. The ANC shall pay the costs of this application including the costs of two counsel."

The meritless appeals

17 The ANC sought leave to appeal from the High Court. On 21 June, Wepener J denied the ANC leave to appeal on the basis that the appeal lacked reasonable prospects of success and there was no other compelling reason to refer the matter to an appeal court.

18 On 21 June 2023, the ANC filed an application for special leave to appeal to the Supreme Court of Appeal.

19 The Supreme Court of Appeal similarly dismissed the ANC's petition on 4 September 2023. I attach a copy of the SCA's order as Annexure "LAS4".

20 On 29 September 2023, the ANC filed a further application for leave to appeal to the Constitutional Court. That application was filed out of time.

21 On 12 February 2024, the Constitutional Court dismissed the ANC's application with costs. I attach a copy of the Constitutional Court's order as Annexure "LASS".

22 In the result, the ANC was obliged to comply with Wepener J's order within five days, by 19 February 2024.

THE ANC'S FAILURE TO COMPLY WITH THE COURT ORDER

23 On 19 February 2024, the ANC's attorneys delivered a letter together with certain documents in purported compliance with the Court Order. I attach the letter which I mark as Annexure "LAS6".

24 I further attach the following affidavits which accompanied the disclosures:

24.1 The affidavit of Mr Fikile April Mbalula, which I mark as Annexure "LAS7".

24.2 The affidavit of Mr Lungi Mtshali, which I mark as Annexure "LASS".

24.3 The affidavit of Mr Masilela (the second respondent) which I mark as Annexure "LAS9".

24.4

The affidavit of Ms Desmoreen Carolus, which I mark as Annexure "LAS10".

25 I do not attach all of the documents disclosed by the ANC in order not to overburden the Court. I do, however, disclose certain portions thereof, which I refer to below in order to demonstrate the ANC's failure to comply with the Court Order.

26 On 22 February 2024, my attorneys addressed a letter on my behalf to the ANC. It set out the ways in which the ANC had failed to comply with the Court order and demanded that the non-compliance be rectified within two days. I attach a copy of the letter, which I mark as Annexure "LAS11".

27 My attorneys noted the following incidents of the ANC's unlawful non-compliance with the Court Order, the relevant aspects of which I expand on below. Amongst others, the ANC unlawfully and impermissibly -

27.1 redacted the disclosed documents;

27.2 destroyed portions of the record;

27.3 failed to deliver any information for an entire five-year period to which the order related;

27.4 failed to list the decisions taken during the relevant period;

27.5 restricted the scope of communications which it was required to disclose;

27.6 provided hopelessly illegible copies of documents;

27.7 refused to disclose draft minutes of Committee meetings; and

27.8 failed to take adequate steps to obtain the full record of information.

28 The ANC's attorneys responded almost a week later. I attach their letter as Annexure "LAS12". In brief, the ANC denies its non-compliance. It refuses to engage on any of the issues raised and effectively says that my only option was to return to court for relief.

Unlawful redaction of documents

29 The ANC has infringed the Court order by unilaterally redacting and thereby withholding select portions of the documents that have been disclosed. I attach a brief selection of the documents disclosed to demonstrate the nature of the redactions, which I mark as Annexure "LAS13".

30 As is evident from the redactions, the ANC has, amongst others, removed all relevant names from the documents. This includes the names of Committee members, decision makers, ANC officials, government officials, and candidates considered and appointed by the Committee.

31 In its letter and Mr Mbalula's affidavit, the ANC claims to have made these redactions in order to comply with the Protection of Personal Information Act 4 of 2013 ("POPIA").

32 The ANC's conduct in unilaterally effecting these redactions before disclosing the documents is unlawful and constitutes a breach of the Court order.

33 POPIA does not require or authorise the ANC to make these redactions.

34 I am advised that section 26 of POPIA read with section 27(1)(b) has the effect of generally prohibiting the processing of personal information but this prohibition does not apply if the processing is necessary for the establishment, exercise or defence of a right or obligation in law (section 27(1)(b)).

35 This reflects the general authorisation in section 11(1)(c) of POPIA which allows personal information to be processed if it complies with an obligation imposed by law on the responsible party.

36 The ANC plainly has a duty in law to comply with the Court Order. As a result, POPIA does not prevent it from processing personal information in order to do so.

37 In any event, even if POPIA did preclude certain disclosures (which it does not), the provisions of PAIA, and thus the Court Order, take precedence. Section 5 of PAIA provides that it applies "to the exclusion of other legislation that... (a) prohibits or restricts the disclosure of a record of a public or private body; and (b) is materially inconsistent with an object, or a specific provision, of this Acf'.

38 Disclosure of the complete unredacted records is required in order to comply with the Court Order, which does not contemplate any redactions or exclusions.

39 The High Court's reasoning demonstrates, moreover, how the redaction of names would obstruct the very exercise of rights that its Order was intended to facilitate. Amongst others, the Court considered at paragraph 17 of its judgment that I intended, as a member of Parliament, to use the information to exercise my right and duty of oversight over appointments of individuals to organs of State and their performance. As the Court held: "That right and duty necessitates the disclosure of facts in relation to the appointment of individuals." To remove the identity of those individuals who were appointed and of those who participated in the process fundamentally undermines the purpose of the Court order.

40 As I explained in my affidavit in the application before Wepener J, the purpose of accessing the Committee's records would be to understand, amongst others, which positions have been targeted in the past for deployment, whether there was any unlawfulness in the process, who the beneficiaries were, and what the motivations and incentives were in making particular appointments. This, I explained, would provide information that is crucial to me exercising my role as a member of Parliament and of the Portfolio Committee on Public Service and Administration to reviewing key appointments and transactions in the public sector that may require further investigation and political oversight.

41 If the identities are concealed of the beneficiaries of deployment, of those who decided to deploy them in the Committee, and those in government who executed the Committee's decisions, the disclosed information is largely useless to me in exercising my rights and duties as a parliamentarian. Without the names of persons implicated, I cannot determine who benefited from deployment, and what the Committee's and government officials' motivations and incentives were. Without the names of these parties, I cannot enquire into the legality of any particular appointment process because I simply do not know who was appointed, by whom, and under whose influence.

42 If the identity of those appointed is concealed, it is not possible to determine the impact of the policy of cadre deployment on the organs of state that they were deployed to.

43 As a result, any processing of personal information which is entailed by making that disclosure is permissible under POPIA because it constitutes compliance with a legal obligation which the ANC has.

44 Mr Mbalula's contention that POPIA required the ANC to carry out the redactions is unsustainable. The duty to disclose the full records in terms of a Court Order constitutes an obligation imposed by law as contemplated in sections 11 and 27 of POPIA and, accordingly, must be complied with and the processing is authorised in terms of those provisions.

45 In any event, the only time at which it may have been permissible for the ANC to raise concerns about the disclosure of personal information was when the ANC dealt with my PAIA request.

46 If there was any genuine confidentiality or privacy concern arising out of the disclosure of the documents sought, the ANC was required to refuse the request for access on this basis in terms of section 63(1) of PAIA. The general duty on the ANC in section 63(1) of PAIA to refuse to disclose personal information is repeated in section 23(4)(a) of POPIA.

47 The ANC did not do so.

48 As a result, if the ANC wished to redact portions of the records it would have had to justify those redactions in the litigation in response to my PAIA request. Any such redaction would then have formed part of the debate before Wepener J, and if the ANC's concerns were held to be justified, would have formed part of his order. The ANC cannot now unilaterally redact the documents, having failed to raise this issue in the litigation.

49 My attorneys demanded in their letter that the ANC disclose the unredacted documents. The letter made clear the above deficits in the ANC's claim to protection under POPIA. That the ANC failed to disclose the unredacted documents thereafter, and offered no meaningful response to the legal issues raised in my attorneys' letter, demonstrates its wilfulness in disrespecting the Court Order.

Admission to destroying significant parts of the records

50 Mr Masilela, an official of the ANC, is presented by Mr Mbalula in his affidavit as the primary custodian of the Committee's records: he is the only person whose communications were disclosed by the ANC.

51 Mr Masilela states under oath in paragraph 6 of his affidavit, that during 2023 he destroyed a large volume of information that the ANC was required to disclose under the Court Order. He says:

"During 2023, my personal email which I used for the Deployment Committee was full. In an attempt to free up space, I sorted emails by size and deleted the majority of the big files. A number of emails which relate to the Deployment Committee were included".

52 This conduct constitutes an offence in terms of section 90(1) of PAIA which provides that:

"(1) A person who with intent to deny a right of access in terms of this Act-

(a) destroys, damages or alters a record;

(b) conceals a record; or

(c) falsifies a record or makes a false record, commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding two years."

53 It would appear from his affidavit that Mr Masilela, acting on the ANC's behalf,

destroyed the emails after the Court Order had been granted, in the course of 2023.

54 As the primary custodian of the Committee's records, Mr Masilela would have been aware of the High Court order. He would certainly have been consulted by the ANC's legal representatives in their opposition to my application and the subsequent applications for leave to appeal.

55 His destruction of the information and its timing demonstrates that Mr Masilela's conduct was conducted wilfully and with the intent of denying my right of access in terms of PAIA. It accordingly constitutes a criminal offence under PAIA. It also demonstrates the extent to which the ANC has acted to subvert the Court Order.

56 I intend to lay a criminal charge against Mr Masilela shortly. I shall provide the Court with a copy of the charge sheet and case number when it is available.

57 In addition to his conduct being a crime under section 90(1) of PAIA, Mr Masilela's conduct is plainly contemptuous of the Court Order, both personally and as a representative of the ANC.

Withholding information for a five-year period

58 The ANC has defied the Court Order by failing to disclose any minutes, attendance registers, communications or decisions of the Committee's proceedings for a five-year period from 1 January 2013 to May 2018. This is the

very same period in which the ANC's and the country's current President, Cyril Ramaphosa, was the chairperson of the Committee.

59 Mr Mbalula claims in paragraph 10 of his affidavit that:

59.1 "There are no minutes of meetings for this period as minutes were not kept".

59.2 He says that Ms Carolus and Mr Mtshali confirm this in their affidavits and that it is confirmed by the report of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector ("the Zondo Commission"). I attach the extracts from the portion of the Zondo Commission report that Mr Mbalula refers to as Annexure "LAS14".

59.3 Mr Mbalula says further that decisions by the Committee during this period could not be retrieved because there are no minutes to confirm what decisions were taken.

60 The ANC's claims are not credible.

60.1 This is clear from the very first page of the minutes of 11 May 2018 that it disclosed and which I attached as "LAS9". The 11 May 2018 minutes state that "The minutes of the previous meeting held on 19/03/2018 were adopted." The disclosed minutes themselves therefore prove that minutes existed for the preceding period.

60.2 The ANC has also at no stage, following my PAIA request or during the litigation, stated that the record or any portion thereof does not exist.

60.2.1 If the ANC intended to rely on the alleged non-existence of the requested information, it was obliged by section 55 of PAIA, after the request was received, to confirm on oath that the information did not exist and the steps it had taken to locate the information. It failed to do so.

60.2.2 To the contrary, the ANC's initial communications with me on my PAIA request expressed a willingness to disclose the requested information but for its technical objections. The author, Mr Krish Naidoo, inferred his knowledge of the record and that it existed. I attach Mr Naidoo's letter as Annexure "LAS15", where he states in the final paragraph that "The required information will be made available once the DA has satisfied the legal requirements".

60.2.3 The ANC vehemently opposed the Court Order but never suggested that a part of the record did not exist. It failed to raise this as a defence at any stage in the litigation.

60.3 The PAIA request is in any event not limited to minutes of Committee

meetings but extends to all information on the processes and decisions of the Committee during the period 2013 - 2021. Therefore, even if meeting minutes were not kept between 2013 - 2018 (which I deny) this does not preclude the ANC from disclosing other sources of information on the Committee's processes and decisions during this time. It is not credible for the ANC to claim that there exists no documentary or digital trace at all of any communications on the Committee's processes during this five-year period.

60.4 The portion of the Zondo Commission report which Mr Mbalula annexed to his affidavit in fact confirms that there exists information relating to the Committee's processes during the 2013-2018 period. At paragraph 394, President Ramaphosa is reported as stating under oath, "/ think those who are in charge will just take notes and just record a decision and it is then communicated". The Court Order required the ANC to disclose all of this information, including the "notes" taken, the decisions recorded, and the communication of those decisions as referred to by President Ramaphosa.

60.5 Having heard extensive evidence on the issue, the Zondo Commission Report held at paragraph 396 that it was "improbable that there are no records of the Committee's activities between 2012 and 2017' and referred, amongst others, to the ANC's history of always ensuring important meetings are minuted.

60.6 Mr Mbalula states at paragraph 10(a) of his affidavit that the fact that minutes were not kept is confirmed by Ms Desmoreen Carolus and Mr Lungi Mtshali who he says "were often present during those meetings" during the period December 2012 to December 2017. However, the affidavits of Ms Carolus and Mr Mtshali do not confirm the allegation:

60.6.1 To the contrary, Ms Carolus states that she had nothing to do with the Committee at paragraph 5 of her affidavit and that "it never came across my desk in any form". There is therefore no basis for her to swear to whether or not records of the Committee's meetings and decisions were made.

60.6.2 Mr Mtshali does not state the period in which he acted as the coordinator in the office of the Deputy Secretary General or on what basis he would have knowledge of whether or not the Committee kept minutes or any other recording of its meetings. He discloses no efforts to locate his laptop or extract the documents thereon nor of any efforts to locate or extract documents or communications relating to the Committee which would likely have been stored on his email account.

61 This aspect of the ANC's non-compliance with the Court Order was raised in the letter to the ANC sent by my attorneys in order to afford it an opportunity to rectify its deliberate omissions. The ANC's curt response in its letter demonstrates its disregard for the Court Order.

62 Further to this five-year gap, it is apparent from the minutes that were disclosed that the minutes of the following meetings were also omitted by the ANC, in further defiance of the Court Order:

62.1 21 May 2018.

62.2 6 August 2018.

62.3 All meetings between the period of 22 March to 19 August 2019.

62.4 12 November 2019.

Limiting the scope of communications disclosed

63 The ANC defied the Court Order by failing to disclose all of the communications of its members and staff relating to the Committee's practices.

63.1 As stated in paragraph 10(e) of Mr Mbalula's affidavit, the ANC has unilaterally decided to limit the scope of the information it disclosed to those between Mr Masilela and the members of the Committee.

63.2 The ANC was required to provide "any and a/f' such communications where decisions of the Committee were discussed, deliberated or taken. This includes communications between Committee members.

63.3 In particular, it was obliged to disclose communications relating to the Committee's work by and involving President Cyril Ramaphosa, who was the chairperson of the Committee between 2013 and 2018.

63.4 Moreover, the ANC has only disclosed a select portion of largely illegible communications from Mr Masilela from 2020 and a few from 2019 and 2021. This excludes, amongst others, any and all emails, WhatsApps or other social media exchanges where decisions of the Committee were discussed, deliberated or taken during 2013 - 2018.

63.5 The ANC has failed to disclose any of the attachments included in the portions of select WhatsApps and Emails that were disclosed. I attach a brief selection of those communications to indicate the presence of attachments which the ANC has precluded from disclosure. I mark this as Annexure "LAS16".

64 These omissions were also raised in the letter to the ANC sent by my attorneys.

It failed to rectify this obvious non-compliance.

Providing illegible documents

65 The ANC has failed to comply with the Court order insofar as it has provided certain documents which are entirely illegible. The obviously poor quality of these documents exemplifies the obstructiveness of the ANC's approach to fulfilling the Court order. Because these documents are drawn from digital communications, there ought to be no reason why a legible copy cannot be obtained.

66 On receiving the ANC's disclosure, I instructed my attorneys to request from the ANC's attorney to be provided with legible copies of the WhatsApp communications. The document subsequently provided continued to include indecipherable information.

67 I attach an extract of the illegible information which I mark as Annexure "LAS17".

68 The ANC failed to rectify this non-compliance on being notified of it in detail by my attorneys' letter.

Refusing to disclose draft minutes

69 Mr Mbalula states at paragraph 10(b) of his affidavit that minutes of meetings that were not officially adopted have not been disclosed. This is impermissible and in breach of the Court order.

70 The Court order obliges the ANC to disclose all information on the processes and decisions of the Committee during the period 2013 - 2021. This would include documentary records of meetings in the form of notes and draft minutes, whether or not those minutes were ultimately adopted by the Committee.

71 The fact that draft minutes which were prepared by a staff or Committee member were not ultimately adopted may impact the interpretation or reliability of the minutes as an accurate record of the proceedings, but it does not preclude them from disclosure.

72 This too was raised by my attorneys in their letter to the ANC on which issue no response was received.

Taking inadequate steps to locate the record

73 The steps allegedly taken by the ANC to locate the requested information are inadequate and do not amount to reasonable compliance with the Court Order.

74 Mr Mbalula states only that the files of the late Ms Duarte were searched and that staff members who provided secretarial services to the Committee were consulted. Mr Mbalula does not state:

74.1 which staff members were consulted; or

74.2 that any or all of the still living members of the Committee during 2013 - 2021 were consulted or their files examined.

75 Jarringly absent is any effort to obtain communications from President Ramaphosa. Despite being the Chairperson of the Committee for the entire five­ year period for which the ANC claims it mysteriously lacks any documentation, President Ramaphosa fails to depose to an affidavit stating that he has no records in his email, WhatsApps or other records of the Committee's activities.

76 Had the ANC genuinely tried to make a full disclosure as the Court order requires it to do, it would have timeously contacted and obtained information from each and every member of the Committee during the period 2013 to 2021. It has had over three years since my request was made to do so. The superficiality of its efforts demonstrates its lack of respect for the Court Order.

THE ANC'S NON-COMPLIANCE IS CONTEMPTUOUS

77 I am advised that an applicant who alleges contempt of court must show that:

77.1 a court order was granted against the contemnor;

77.2 the contemnor was duly served with the order or has knowledge of it; and

77.3 the contemnor failed to comply with the court order.

78 The ANC is apparently aware of the Court Order and has acknowledged it under oath. I have also detailed several instances of the ANC's non-compliance with it.

79 I am advised that in this context, the ANC's wilfulness and ma/a tides are presumed unless it can provide sufficient evidence otherwise.

80 It is nonetheless apparent that the ANC's non-compliance with the Court Order is both wilful and ma/a tides. I say so for the following reasons:

80.1 First, the most startling demonstration of the ANC's wilfulness and bad faith is in Mr Masilela's admission under oath to intentionally destroying documents after the Court Order had been granted.

80.2 Second, the ANC's excuses for failing to comply with the Court Order are themselves unlawful.

80.2.1 The ANC's alleged confidentiality concerns (insofar as its unlawful redactions are concerned) are contrived. The ANC failed to raise

these issues over the past three years since I made my application and prosecuted it through the courts. Either it infringed section 63(1) of PAIA or it is an ex post facto fabrication in an effort to resist the court ordered disclosure.

80.2.2 Similarly, the ANC's claims regarding the absence of documents from 2013 to 2018 are made for the first time now. Either the ANC infringed section 55 of PAIA or these documents in fact exist and have been wilfully withheld.

80.3 Third, the ANC's non-compliance and disrespect of judicial authority takes place in the context of its repeated delays, non-compliance with a previous court order, and meritless applications for leave to appeal. Dippenaar J, in describing the ANC's postponement in the preceding litigation said that "One is left with the distinct impression that it is a delaying tactic". The ANC's non-compliance with the Court Order is a deliberate continuation of those tactics in light of the looming elections.

80.4 Fourth, the ANC has been afforded an opportunity to correct its non­ compliance with the Court Order by my attorneys' letter. Yet it persists in refusing to abide by the Court Order.

80.5 Fifth, the ANC has refused to abide by a reasonable tender in my attorneys' letter for a neutral third party to attempt to extract the information destroyed by Mr Masilela and other information on his hard drive or laptop and that of Mr Mthali that the ANC alleges to be inaccessible. If the ANC had any concern to respect the Court Order, and was being truthful about the inaccessibility of certain excluded information, it would have accepted that tender.

80.6 Finally, I am advised that, considered cumulatively, the ANC's conduct and the multitude of ways in which it has attempted to undermine the Court Order leave no room for doubt that it is acting both wilfully and in bad faith in its non-compliance.

81 But even if this Court finds for some reason that the respondents non-compliance was not ma/a tide (which is denied), I am advised that it is nonetheless appropriate and competent for this Court to grant declaratory and mandatory relief to give effect to the Court Order. I have sought such relief in paragraphs 3, 4 and 5 of the notice of motion.

THE APPLICATION IS URGENT

82 I am advised that contempt proceedings are inherently urgent because contempt threatens the courts' authority and the rule of law, which harm is exacerbated the longer the defaulting party is allowed to remain in contempt. The harm to the public caused by ongoing, wilful default of a court order cannot be suitably addressed in the ordinary course.

83 There are, in addition, four further reasons that make the application urgent.

84 First, as the ruling party in South Africa, the ANC's wilful defiance of a court order constitutes a particularly acute assault on the integrity of the judiciary. It signals to South Africans that, as far as the ruling party is concerned, court orders need not be obeyed.

85 Second, over a year has passed since the Court Order and over three years since I made my initial PAIA application. The ANC took all available steps to delay implementation of that order. If this application is heard in the ordinary course, I will likely have to wait months if not years for the relief to which the Constitutional Court has now held that I am entitled.

86 Third, Wepener J granted the Court Order because I required the information to protect my rights and to uphold my duties as a Member of Parliament in the public interest. The longer I am deprived of access to this information, the longer my rights are harmed and my legal duties obstructed.

87 Fourth, the ANC's stratagem of delaying disclosure of the information has an obvious explanation: the looming election and the ANC's desire to keep the electorate in the dark. If this matter is heard in the ordinary course, this insidious strategy will succeed.

88 I have explained above the ways in which the Court held the information to be necessary for me to fulfil my rights and duties as a Member of Parliament. These are functions that are public facing and which serve the public interest.

89 Cadre deployment has become a hotly debated and influential issue in the upcoming general election that is scheduled for 29 May 2024. Cadre deployment goes to the heart of how we expect the public service to be filled, funded and operated in a democratic State. It is also central to corruption and maladministration in the State.

90 If information about how cadre deployment is actually practiced - and in relation to whom - remains in the dark, citizens will be left to grapple with only the rhetoric of political parties to guide their views on this critical issue. This is undemocratic and undermines the very purpose of PAIA and the constitutional right of access to information. Citizens should be able to make up their own minds on the issue. They can only do so if all of the court ordered information is disclosed in full.

91 If the ANC is allowed to abuse the court process and undermine the Court Order to delay disclosure further, citizens will be facing the general elections without the information they require to exercise an informed decision at the polls.

92 I therefore submit that the order I seek in prayer 1 of the notice of motion should be granted.

PRAYER

93 I pray that the Court grant me the relief I seek in my notice of motion.

94 Finally, I pray for punitive costs. Such an order is warranted by the ANC's obstruction of my rights and disrespect of this Court's authority.

LEON AMOS SCHREIBER

I hereby certify that the deponent knows and understands the contents of this affidavit and that it is to the best of his knowledge both true and correct. This affidavit was signed and sworn to before me at BELLVILLE on this the1st day of MARCH 2024, and that the Regulations contained in Government Notice R.1258 of 21 July 1972, as amended, have been complied with.

Issued by the DA, 7 March 2024