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National Ports Act, 2005 (Act No. 12 of 2005)

Notices

Directives in terms of Section 30(3) of the Act

Directives

Chapter 8 : Confidential Information Submitted to the Regulator

25. Claims of confidential information and determination by the Regulator

 

(1) For the purposes of these directives "confidential information" means information that—
(a) belongs to a person or an organ of state; and
(b) a person or organ of state could legitimately refuse to disclose on any mandatory or discretionary ground set out in Chapter 4 of the Promotion of Access to Information Act, 2 of 2000; or
(c) has a particular economic value; and is not generally available to or known by others, the disclosure of which could—
(i) result in a significant adverse effect on the owner of the information, or on the person that provided the information; or
(ii) give a significant competitive advantage to a competitor of the owner; or
(iii) which, if disclosed, would be likely to endanger health, safety or security in a port.

 

(2) Any person may in any submission made to the Regulator identify information that the person claims to be confidential information.

 

(3) A person, when making a claim in terms of subdirective (2), must support that claim with—
(a) a written statement in the prescribed form motivating why the information should be recognised as confidential information; and
(b) either—
(i) a written abstract of the information in a non-confidential form; or
(ii) an affidavit setting out the reasons why it is impossible to comply with subparagraph (i).

 

(4) All information which a person claims is confidential information must be clearly marked as such.

 

(5) The Regulator shall advise the party claiming that the information is confidential in writing before disclosing any of the information marked as confidential information and provided in terms of subdirective (4) to any third party or disclosing it for the purposes of any investigation, appeal, hearing or other public process.

 

(6) The Regulator may, if it has determined that information is not confidential, advise the person claiming that it is confidential that the information will be available for public disclosure twenty days after date of receipt by that person of the written confirmation of the Regulator's determination.

 

(7) The Regulator may, when making any decision, take confidential information into account in making its decision.

 

(8) If the Regulator's reasons for the decision would reveal any confidential information, the Regulator must provide a copy of the proposed reasons to the party that it claimed the information was confidential and shall not publish or disclose such reasons to a third party until twenty days have passed from the date of receipt of the proposed reasons by the party that had claimed the information was confidential.

 

(9) A party may apply to the appropriate High Court, subject to that Court's rules, within twenty days after receiving the notification that the information will be available for public disclosure or after receiving a copy of the proposed reasons, for an appropriate order to protect the confidentiality of the information.

 

(10) If a party applies to the High Court in terms of subdirective (8) the Regulator must not make the information available for public disclosure or publish the proposed reasons as the case may be until such application is finalised.

 

 


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