JUDGMENT: Delivered on 04 September 2008

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (VENDA PROVINCIAL DIVISION) In the matter between: CASE NO. 15/2008 RECKSON RAVHAUTSHENI SUMBANA MPHAPHULI TRADITIONAL COUNCIL First Applicant Second Applicant VHO-THOVHELE PHASWANA MUSHWA MPHAPHULI Third Applicant and HEAD OF DEPARMENT: PUBLIC WORKS LIMPOPO PROVINCE First Respondent PROVINCIAL GOVERNMENT OF LIMPOPO [DEPARTMENT OF PUBLIC WORKS) Second Respondent MEMBER OF EXECUTIVE COUNCIL FOR PUBLIC WORKS [LIMPOPO PROVINCE] Third Respondent THULAMELA MUNICIPALITY Fourth Respondent JUDGMENT: Delivered on 04 September 2008 SNYMAN AJ [1] The applicants apply for an order directing the respondents to grant access to the records referred to in the applicants' request for access to information dated 5 December 2007 in terms of the provisions of section 18(1) of the Promotion of Access to Information Act, No.2 of 2000 and for an order as to

2 costs on a scale as between attorney and own client. The four respondents are opposing the application. judgment was reserved. The matter was heard on 21 August 2008 and [2] The applicants, through their attorneys, on 5 December 2007 requested access to certain records from the second and fourth respondents in terms of the provisions of section 18 of the Promotion of Access to Information Act, No, 2 of 2000 (hereinafter referred to as the Act), and it is common cause that the second and fourth respondents did not provide the applicants with a decision on this request. As a result hereof, the applicants then, without following the internal appeal procedure referred to in section 74 of the Act, brought this application which was issued by the registrar on 16 January The fourth respondent filed its answering affidavit on 15 February 2008 and raised a point in limine to the effect that, since the applicants did not pursue the internal appeal procedure, the applicants are in terms of the provisions of section 78(1) of the Act precluded from approaching a court for relief. The first, second and third respondents filed their answering affidavit on 4 June 2008 and also raised the point in limine aforesaid. [3] In argument, counsel for the fourth respondent Mr. Cook SC, submitted that the internal appeal procedure and the provisions of section 78 of the Act are mandatory and that the applicants should therefore have followed the internal appeal procedure against the deemed refusal of their request, before launching these proceedings. Mr Sikhwari on behalf of the first, second and third respondents, adopted a similar argument. In view hereof, the four respondents submitted that the applicants' application should be dismissed with costs. [4] In argument, counsel for the applicants Mr. Lebala, made the following submissions:

3 (a) that, in view of the provisions of section 32 of the Constitution of the Republic of South Africa, No. 108 of 1996 (hereinafter referred to as the Constitution), section 27 of the Act seems to contradict the provisions of section 32 of the Constitution, that there is a conflict between the Constitution and the Act and that section 27 of the Act is unconstitutional; (b) that the provision in section 25(3)(c) of the Act to the effect that a requestor may lodge an internal appeal or an application with a court, is contradictory to the provisions of section 74 and 78 of the Act; (c) that the conduct of the respondents is a violation of the Constitution and because it is an administrative action, it does not matter what section 74 or 78 of the Act stipulates and that one has only to look at the conduct of Government; (d) that this Court has a discretion to exempt the applicants from exhausting the internal appeal remedy there being exceptional circumstances and if deemed in the interests of justice. (e) that there is a discretion to condone non-compliance with the provisions of section 78 of the Act as they are not mandatory, where the use of the remedy is discretionary. [5] On the facts in casu, counsel for the parties could not refer me to any authority regarding the provisions of section 78 (read with section 74) of the Act,

4 [6] The long title to the Act states that the Act was enacted: "To give effect to the constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights, and to provide for matters connected therewith". The preamble recognises the Act's need to give effect to the right in section 32 of the Constitution and, subject to reasonable and justifiable limitation under section 36 of the Constitution, the need to foster transparency and accountability in public and private bodies. [7] The objects of the Act are set out in section 9, and the relevant parts thereof insofar as this application is concerned, are: "(a) to give effect to the constitutional right of access to - (i) any information held by the State, and (b) (c) (d) to establish voluntary and mandatory mechanisms or procedures to give effect to that right in a manner which enables persons to obtain access to records of public and private bodies as swiftly, inexpensively and effortlessly as reasonably possible; (e) " [8] In CASU, it is common cause that the respondents (and then in particular the second and fourth respondents) are public bodies as defined in paragraph (a) of the definition of "public body" in section 1 of the Act - the said paragraph (a) refers to "any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government". At this stage I must stress that there are

5 two different categories of public bodies, namely those defined in paragraph (a) and those defined in paragraph (b) of the definition of "public body" in section 1 of the Act, and different procedures as to an internal appeal and applications to a court apply to these two categories of public bodies. [9] In Part 4 Chapter 2 (sections 78-82) of the Act applications to court are regulated. The heading of Chapter 2 reads; "Applications to Court". For purposes of this judgment the provisions of section 78(1) and (2) of the Act are applicable, and the relevant parts thereof read as follows: "78. Applications regarding decisions of information officers or relevant authorities of public bodies or heads of private bodies. - (1) A requester or third party referred to in section 74 may only apply to a court for appropriate relief in terms of section 82 after that requester or third party has exhausted the internal appeal procedure against a decision of the information officer of a public body provided for in section 74. (2) A requester - (a) (b) (c) (d) that has been unsuccessful in an internal appeal to the relevant authority of a public body; aggrieved by a decision of the information officer of a public body referred to in paragraph (b) of the definition of "public body" in section 1 - (1) to refuse a request for access; or (ii) may, by way of an application, within 30 days apply to a court for appropriate relief in terms of section 82."

6 [10] Section 78(1) of the Act refers to a requester referred to in section 74 of the Act, and it is apposite to quote this section: "74. Right of internal appeal to relevant authority. - (1) A requester may lodge an internal appeal against a decision of the information officer of a public body referred to in paragraph (a) of the definition of "public body" in section 1 - (a) to refuse a request for access; (b) " It is important to also note that the heading to this section reads: "Internal appeals against decisions of information officers of certain (my emphasis) public bodies". From the wording of this heading and the wording of section 74(1) of the Act, it is abundantly clear that the provisions of the section are only applicable where there was a refusal of access by an information officer of a public body referred to in paragraph (a) of the definition, and not in regard to a public body referred to in paragraph (b) of the definition of "public body". This section confers a right of appeal to the relevant authority to a requester that is not satisfied with a decision refusing access, and such requestor may (if he so wishes) appeal against such decision. [11] The wording of section 78(1) of the Act is in my view very clear and unambiguous, and can have only one meaning: where a public body referred to in paragraph (a) of the definition of "public body" is involved, a requester may only apply to a court for appropriate relief after that requester has exhausted the internal appeal procedure provided for in section 74 of the Act, This provision is clearly mandatory and there is no room for a finding that it is either only permissive or discretionary. Apart from a finding that the words used are per se mandatory, the provisions of section 78(2)(a) of the Act provide further

7 substantiation for the fact that the said provisions are indeed mandatory: the said section 78(2)(a) provides that if a requester has been unsuccessful in an internal appeal, such requester may apply to a court for relief. A further indication that these provisions are mandatory where a public body referred to in paragraph (a) of the definition is involved, is the fact that, where a public body referred to in paragraph(b) of the definition is involved, there is no provision for an internal appeal and an aggrieved requester may approach a court directly in terms of the provisions of section 78(2)(c) of the Act. [12] In view of all the aforegoing I therefore find that the provisions of section 78(1) of the Act are mandatory insofar as a public body referred to in paragraph (a) of the definition of "public body" in section 1 of the Act, is concerned. [13] In view of the finding aforesaid, Mr. Lebala's submission that there is a discretion to condone non-compliance with the provisions of section 78(1) of the Act as they are not mandatory cannot therefore be upheld. [14] Mr. Lebala's submission that the conduct of the respondents is a violation of the Constitution and because it is an administrative action, it does not matter what section 74 or 78 of the Act stipulates and that one has only to look at the conduct of Government, is in my view without any legal foundation, for the following reasons: there is absolutely no evidence that the conduct of the respondents in any way whatsoever violated the Constitution. The mere fact that the respondents adopted an alleged "passive" conduct does not mean that they violated the applicants' right to access to information. The respondents (and then in particular the second and fourth respondents) did not provide the applicants with a decision on their request for access, but such conduct is not contrary to the provisions of the Act; section 27 of the Act clearly states that if

8 an information officer fails to give a decision within the period contemplated in section 25(1), the information officer is, for the purposes of the Act, regarded as having refused the request. This is exactly what transpired in casu and there is no room for a finding that the respondents violated the Constitution, and it follows that the provisions of section 74 and 78 of the Act cannot be disregarded. Furthermore, in my view, the alleged conduct is irrelevant as far as this application is concerned; the applicants may raise the "passive" conduct as a reason or ground for any internal appeal to the relevant authority, if they so wish. Mr. Lebala's aforesaid submission cannot therefore be upheld. [15] Mr. Lebala submitted that this Court has a discretion to exempt the applicants from any requirement to exhaust internal remedies, in exceptional circumstances and if deemed in the interests of justice. He further submitted that an interpretation envisaged by the fourth respondent to say the applicants should exhaust internal remedies would unjustifiably limit their rights in terms of section 34 of the Constitution to have justifiable disputes resolved by Courts of law, and he referred to the decision in Earthlife Africa (Cape Town) v Director - General: Department of Environmental Affairs and Tourism and Another 2005(3) SA 156 at par.44. Mr. Cook SC argued that the refusal of the information officer in casu is not an administrative action and referred me to the definition of "administrative action" and in particular to paragraph (hh) thereof, in the Promotion of Administrative Justice Act, No. 3 of 2000 (PAJA) and he submitted that the provisions of this Act are not applicable to the present application. In section 1 of the aforesaid Act "administrative action" is defined, inter alia, as any decision taken, or any failure to take a decision by an organ of state, but does not include, and I quote: "any decision taken, or failure to take a decision, in terms of the provisions of the Promotion of Access to Information Act 2000;" The provisions of PAJA are therefore not applicable to the present

9 application, and this Court cannot therefore consider an order contemplated in section 7(2)(c) of PAJA. The decision in Earthlife supra and relied upon by Mr. Lebala, dealt with PAJA (and in particular with section 7(2)(c) thereof), but this decision is not applicable to the present application. Furthermore, in my view there is no provision in the Act which empowers a court to exempt a requester from exhausting the internal appeal procedure, and in view hereof and in view of my finding that the provisions of section 78(1) of the Act are mandatory, I have no discretion to exempt the applicants from exhausting the internal appeal procedure. [16] It is noteworthy that in their notice of motion the applicants did not ask for an order condoning the non-compliance with the provisions of section 78 and/or for an order exempting them from exhausting the internal appeal procedure. On the contrary, the applicants' attitude was that 'there was no need for an internal appeal to be lodged" (see par on p. 13 of the paginated papers). It was only during argument when the question of exemption and condonation were raised. [17] Mr. Lebala further submitted that the provision in section 25(3)(c) of the Act to the effect that a requester may lodge an internal appeal or an application with a court, is contradictory to the provisions of section 74 and 78 of the Act. This submission cannot be upheld for the following reason: Section 25(3) reads as follows: "If the request for access is refused, the notice in terms of subsection (1)(b) must- (a) (b) (c) state that the requester may lodge an internal appeal or an application with a court, as the case may be, against the refusal of the request, and the procedure

10 (including the period) for lodging the internal appeal or application, as the case may be". The provisions of subsection (c) are very clear: if one has regard to the totality of this subsection, and in particular to the words "as the case may be", it is clear that the purpose of this subsection is to inform a particular requester whether he may lodge an internal appeal, "as the case may be", that is where a public body referred to in paragraph (a) of the definition is involved or apply to a court where the said public body is not a public body referred to in the said paragraph (a) of the definition and the procedure (including the period for the lodgement of the internal appeal or the application) to be followed. This means that the said notice must, inter alia, refer to the provisions of section 74, 78(1) and 78(2) of the Act. There is in my view no room whatsoever for a finding that the provisions of section 25(3)(c) are contradictory to the provisions of section 74 and 78. [18] The applicants in casu cannot in any event rely on the provisions of section 25(3)(c) of the Act. This section is only applicable where there is a de facto refusal of a request and not where there is a deemed refusal in terms of the provisions of section 27 of the Act, This is apparent from the provisions of section 25(3)(c) read with the provisions of section 25(1)(b) - an information officer must give notice in terms of this section (where there is a de facto refusal), and such notice means notice in writing (see the definition of "notice" in section 1 of the Act). There was in casu a deemed refusal in terms of the provisions of section 27 of the Act and it follows that there was no notice as is envisaged in section 25. [19] Mr. Lebala's submission referred to in par. [4] (a) supra cannot be upheld, for the following reasons: section 27 of the Act does not contradict the provisions of section 32 of the Constitution. Section 27 does not at all have any

11 effect on a person's right to information that is entrenched in section 32 of the Constitution. Section 27 provides only for a deemed refusal of a request and surely a refusal, whether it be a deemed refusal or a de facto refusal, can never per se deny a person his right of access to information. If a requester's request is refused, such requester still has the right of an internal appeal or application to a court (as the case may be) if he is not satisfied with the refusal of his request. Section 27 cannot amount to a denial of access to information and is therefore not contradicting section 32 of the Constitution. Furthermore, it seems as if the Legislature, by stipulating that if the information officer fails to give a decision within the period contemplated in section 25(1) of the Act (30 days), the said officer is regarded as having refused the request, intended in enacting section 27 to eliminate unfounded/unnecessary delays in the finalization of a request-this is in accordance with the objects of the Act as stipulated in section 9(d) to enable persons to obtain access as "swiftly" as possible. There is therefore also no room for a finding that section 27 of the Act is unconstitutional. [20] The objects, and purpose, of the Act are in essence to establish voluntary and mandatory mechanisms or procedures to give effect to the constitutional right of access to information (section 9 of the Act); the provisions of the Act, and then in particular the provisions of section 27, 74 and 78 referred to in casu, do not in any way whatsoever limit and/or impair such constitutional right. It is abundantly clear that the Act provides for mechanisms or procedures in terms whereof a person should exercise his constitutional right of access to information.

12 [21] On the facts in casu, where the respondents (and then in particular the second and fourth respondents) are public bodies referred to in paragraph (a) of the definition of "public body" in section 1 of the Act, the provisions of section 78(1) of the Act are mandatory, and the applicants could therefore only have approached this Court after they have exhausted the internal appeal procedure provided for in section 74. The applicants did not exhaust the said internal appeal procedure, their application is therefore premature and cannot be entertained. It follows that the applicants' application should be dismissed. [22] As far as the costs of the application is concerned, there are no grounds to justify a departure from the general rule that success carries costs. [23] In the result, the following order is made: the applicants' application is dismissed with costs. MM SNYMAN ACTING JUDGE OF THE VENDA HIGH COURT Anton Ramaano Attorneys Counsel: Adv SM Lebala State Attorney Counsel: Adv MS Sikhwari for the Applicants for the 1 st, 2 nd and 3 rd Respondents Themba Mabasa Attorneys c/o Mathobo, Rambau & Sigogo Inc. Counsel: Adv AO Cook SC for the 4 th Respondent