About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 265
|
|
Benatar v Black Academic Caucus (18821/2020) [2021] ZAWCHC 265 (15 December 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
REPORTABLE
CASE NO: 18821/2020
In
the matter between:
DAVID
BENATAR
Applicant
And
THE
BLACK ACADEMIC CAUCUS
Respondent
Bench: P.A.L. Gamble
Heard: 11 October 2021
Delivered: 15 December
2021
This judgment was handed
down electronically by circulation to the parties' representatives
via email and release to SAFLII. The
date and time for hand-down is
deemed to be 12h00 on Wednesday 15 December 2021
JUDGMENT
GAMBLE, J:
INTRODUCTION
1.
Who is the Black Academic Caucus? That is
the question the applicant wants answered and in these proceedings he
seeks to do so by
invoking the provisions of the Promotion of Access
to Information Act, 2 of 2000 (“PAIA” or “the
Act”).
2.
The background to these proceedings is
located in the hallowed halls of academia. At stake is not some
esoteric question of great
scientific or philosophical moment but, it
seems, an issue of accountability arising from a war of words that
were initially exchanged
at that most venerated of academic
gatherings – a faculty board meeting. The battle was waged, not
over the awarding of degrees,
the allocation of offices or the
transformational staffing requirements of a department, but whether
the refreshments on offer
at such meeting should cater for the
dietary requirements of attendees who prefer to adhere to a
vegetarian or vegan diet.
3.
Later, there was public criticism of the
manner in which a student was treated when she was not awarded a
degree due to her absence
from classes.
THE PARTIES
4.
The applicant (“Prof. Benatar”)
is a professor in the Department of Philosophy at the University of
Cape Town (“UCT”),
a position which he held in September
2015. It appears from the context of the application that the
Department falls under the
Faculty of Humanities at UCT.
5.
The respondent is the Black Academic Caucus
(“BAC”), a voluntary association with juristic
personality formed in accordance
with its constitution adopted on 3
rd
November 2015. It is capable of suing (and being sued) in its own
name and has perpetual succession. The declared purposes and
objectives of the BAC are tenfold as its constitution declares. It is
not necessary for present purposes to detail these: a recitation
of
the Preamble to the BAC constitution will suffice.
“
PREAMBLE
WHEREAS WE, members of
the BLACK ACADEMIC CAUCUS are committed to:
CHALLENGE the slow pace
of transformation that continues to maintain hegemonies and
reproduces colonial relations of power.
Advocate for an inclusive
and diverse academic institution that also prioritizes Black staff
and their knowledge.
DO HEREBY today the 3
rd
of November 2015 adopt this constitution of the Black Academic Caucus
at the University of Cape Town (‘UCT’)”
6.
The constitution makes provision for the
establishment of an executive committee of the BAC which comprises a
chairperson, vice-chairperson,
treasurer, secretary and an additional
member. Membership of the BAC is defined with reference to 3
specified categories of natural
persons and the constitution makes
provision for the payment of membership fees, adherence to a members’
code of conduct
and the usual other obligations one would find in
such a voluntary association.
7.
On 26 January 2017, UCT, represented by its
erstwhile Vice-Chancellor Dr. Max Price (“the VC”), and
the BAC, represented
by its erstwhile chairperson, Prof. Shadrack
Chirikure, concluded a written memorandum of understanding in terms
whereof the BAC
was afforded formal recognition as an “Interest
Group” at UCT. That memorandum records that the BAC was founded
in
2012.
THE BAC STATEMENT OF
14 SEPTEMBER 2015
8.
In the founding affidavit herein
Prof. Benatar refers to a statement issued by the BAC on 14 September
2015 (‘the 2015 statement”)
regarding events which
occurred at a meeting of the Humanities Faculty Board on 10 September
2015. The meeting was evidently attended
by the VC, the Dean of
Humanities, Prof. Buhlungu, and a number of other senior scholars in
the Faculty, including Professors Benatar
and Pippa Skotnes. The 2015
statement is lengthy and for the sake of avoiding prolixity I shall
provide a synopsis thereof.
9.
It appears that the agenda for the meeting
included a proposal that vegetarian or vegan food be included on the
menu at Board meetings
and Faculty events. Prof. Buhlungu, who was in
the chair, noted that the issue raised wider considerations than just
the Board
and suggested that it merited consultation with other
members of the Faculty. The BAC supported this saying –
“
Ethics
of diet, the banning of animal products and consumption at
faculty-wide events, are issues that implicate the wider university
community and thus BAC supports the Dean’s proposal to open
this for conversation.”
10.
Profs Benatar and Skotnes and their
supporters felt otherwise and demanded that their proposal be debated
there and then. It is
claimed by the BAC that they were
disrespectful, insulting and condescending towards the Dean and
attacked his integrity. Having
taken up about half the time of the
meeting with their vocal objections, Prof. Benatar’s “group”
is alleged to
have walked out in a huff, slamming the door behind
them. This was cause for further umbrage on the part of the BAC which
castigated
Prof. Benatar for employing, inter alia, “racially
inflective” language.
11.
The BAC went on to criticize Prof. Benatar
for attempting to bully the Dean in the presence of the VC, for using
animal rights as
a wedge to compromise the proper functioning of the
Board and the broader transformation agenda at UCT and for exhibiting
a lack
of basic courtesy “towards a very accommodating Dean”.
12.
The
context of the criticism of the BAC of Prof. Benatar’s
behaviour and utterances in the 2015 statement is cast in the context
of the well-publicised “Rhodes Must Fall” movement
[1]
,
which saw student protests against relics of colonialism on the UCT
campus during that campaign, and the subsequent “Fees
Must
Fall” movement, which was aimed nationally at securing a
reduction in student fees. Prof. Benatar is taken to task in
the 2015
statement for his opposition to the former movement and for
imperiling transformation at UCT.
13.
The 2015 statement requests Prof. Benatar
to be called to account and concludes as follows:
“
As
BAC, we are appalled by Prof. Benatar’s behaviour, which
appears to undermine transformation. This statement by BAC is
an
attempt to ask the university to think carefully about how debates
are raised within the university. We ask whether the VC intends
to
condemn the conduct of colleagues for actions that perpetuate an
untransformed agenda.
Specifically,
we request the following from the VC:
1.
An indication from the VC on whether Professors Benatar and Skotnes
will be asked to account for their conduct at the meeting.
2. Clear direction
on the issue of whether HoDs and line managers’ performance
assessment will be linked to their commitment
to transformation.
We look forward to your
response.”
The founding affidavit
provides no narrative or history of what subsequently became of the
issues raised by the BAC in the 2015
statement nor of any steps taken
by UCT or either of the parties to this application.
THE BAC STATEMENT OF 2
OCTOBER 2017
14.
In the founding affidavit Prof. Benatar
references a further statement made by the BAC on 2 October 2017
(“the 2017 statement”)
which is entitled “Parading
White Privilege”. The context to the statement is to be found
in its opening paragraph.
“
On
the 29
th
of September, 2017, an article appeared in the
Cape
Times
(Uproar over UCT concession to
miss test for Rocking the Daisies) regarding a lecturer in the UCT
Philosophy Department who granted
concessions to students who had
bought tickets ‘well in advance’ to attend to the Rocking
the Daisies music festival
in Darling.”
Once again I shall
provide a synopsis of the 2017 statement.
15.
The BAC expressed its dissatisfaction with
the alleged unequal treatment in the Philosophy Department of Black
and White students.
Firstly, it said that –
“
(G)ranting
students concessions to attend entertainment events (parties) and
then advantaging them for missed tests is a flagrant
abuse of the
concession system
[2]
.”
16.
Secondly, the BAC referred to an incident
in 2016 involving a Black African student who was –
“
(R)efused…her
DP (duly performed) despite the fact that she had presented evidence
of a debilitating medical condition. The
outcome of her attempts to
challenge her DPR status
[3]
was
that she faced disciplinary action for allegedly defaming the Head of
Department. The same department now has compassion for
students who
bought tickets to attend a music festival in Darling.
An inconsistent approach
in handling the needs of students who face personal
calamities/difficulties and students who want to attend
entertainment
events draws attention to the ways in which racialised class
disparities are reinforced at UCT.”
17.
The 2017 statement concludes as follows.
“
While
there have been positive changes in the institution, in 2017 we again
find ourselves asking some of our colleagues and the
university to
show situational awareness and sensitivity around issues of race,
gender and class. That we have to do this is deeply
disappointing
because it hints that the positive changes that we see are not
lasting or that they are the result of insincere intentions.
We expect that UCT will
act in accordance with its strategic plan and take the opportunity to
ensure that its rules are applied
consistently without favour - as
opposed to merely redirecting this matter back to the lecturer or his
department. In so doing,
UCT should reaffirm that it does not belong
to some, but to all who study and work at the institution. We call on
the university
to pursue a more visible campaign around inclusivity.”
The founding affidavit
again provides no narrative or history of what subsequently became of
the issues raised by the BAC in the
2017 statement nor of any steps
taken in relation thereto by UCT or either of the parties to this
application.
PROF. BENATAR’S
COMPLAINTS REGARDING THE STATEMENTS
18.
In the founding affidavit Prof. Benatar
complains that, in issuing the 2017 statement, the BAC had implied
that –
“
[11]
…as the head of the Philosophy Department I had acted in an
unfair manner to a student, that white students were being
granted
additional privileges and that black students were being humiliated
and traumatized.”
19.
Prof. Benatar goes on to make the following
generalised allegations regarding both the 2015 and 2017 statements.
“
[12]
These statements were a personal attack on my integrity, reputation,
and good name. Furthermore, they constitute unfair discrimination
which impugned upon my right to be treated equally.
[13] Given that the
Respondent has levied these accusations at me, I have a right to know
on whose behalf those accusations were
made. I pause to point out
that these statements were issued under the name of the Respondent as
an association and are readily
available online.
[14] The requested record
is required for the exercise and protection of these rights.”
THE REQUEST UNDER PAIA
20.
After
setting out the contents of s50(1)(a) of PAIA
[4]
,
Prof. Benatar points out that on 18 May 2020 he directed a request
incorporated in the Form C contemplated under s53 of PAIA to
the
erstwhile chair of the BAC, Prof. Phoebe Kisubi-Mbasalaki, for the
following records:
20.1
The complete BAC membership list and office bearers as of September
2015, October 2017 and May 2020;
20.2
The Constitution and founding documents and rules of the BAC; and
20.3
All public statements made by the BAC since its founding.
21.
Prof. Benatar says that there was no
response by the erstwhile chairperson of the BAC to his request
despite numerous attempts at
follow-up and consequently, as of 17
June 2020, there was a deemed refusal for the request in terms of
ss56 and 58 of PAIA. A letter
of demand to the BAC dated 7 December
2020 by Prof. Benatar’s attorneys also having been ignored,
this application was launched
on 14 December 2020.
22.
In the founding affidavit it is said that
the BAC’s deemed refusal was not justified and that it had not
sought to justify
its decisions on either formal or procedural
grounds. Furthermore, it is claimed that none of the grounds for
refusal contemplated
under Ch. 4 of PAIA can validly be claimed by
the BAC and thus it is asserted that the refusal of access to
information was unlawful.
23.
The relief sought in the notice of motion
is for an order –
“
1.
Declaring that the Respondent’s deemed refusal to provide
access to the information requested by the Applicant in terms
of the
Promotion of Access to Information Act 2 of 2000 (‘PAIA’)
and described in the founding affidavit is unlawful
and in conflict
with the provisions of PAIA and section 32 of the Constitution;
2. Ordering that the
Respondent provide the Applicant within 10 days of the order with the
following records:
2.1 The complete Black
Academic Caucus (‘BAC’) membership list and office
bearers, as of
September 2015
,
October 2017
, and
May
2020
;
2.2 The founding
documents and rules of the BAC, other than its Constitution;
2.3 All public statements
made by the BAC since its founding.
3. Directiing that the
costs of this Application be paid by the Respondent on the attorney
and client scale…”
24.
The drafter of the notice of motion appears
to have thought that the application was one for review under Rule 53
because the notice
of motion also calls for the production by the BAC
of “the record of proceedings sought to be corrected or set
aside, together
with such reasons as they (sic) are by law required
to give or make, and to notify the Applicant that they have done so.”
Further, the applicant reserved the right to amend his notice of
motion and supplement his founding affidavit within 10 days of
receipt of the record as aforesaid. These additional allegations in
the notice of motion are seemingly the result of the drafter
having
used the wrong template and are to be regarded as
pro
non scripto
.
OPPOSITION TO THE PAIA
REQUEST
25.
The answering affidavit in these
proceedings, filed on 8 April 2021, was deposed by the BAC’s
secretary
pro tem
,
Dr Tirivanhu Chinyoka, a lecturer in mathematics at UCT. After
furnishing some background detail to the founding of the BAC and
its
aims, objectives and philosophy, Dr Chinyoka identifies the office
bearers of the BAC elected at its annual general meeting
of 30 June
2020.
26.
After noting that there was an obvious
anomaly between the request filed under s50 of PAIA and the notice of
motion (in that Prof.
Benatar no longer seeks a copy of the BAC’s
constitution) which had gone unexplained, Dr Chinyoka refers to the
provisions
of s50 and focusses on the requirement that the
“requester” under that section of PAIA may only apply for
relief if
the information requested “is required for the
exercise or protection of any rights”.
27.
It is contended that Prof. Benatar failed
to articulate the precise provisions of PAIA upon which he relied or
which he claimed
the BAC had transgressed. The answering affidavit
stresses the importance of this argument as follows.
“
16.2.1.
In terms of PAIA, the Applicant bears the onus to show that the
request falls within the ambit of section 50 of that Act.
I say that
the Applicant has failed to put up any facts in this regard to
discharge the
onus.
16.2.2. The Applicant
must establish that he has a right which access to the record is
required to exercise or protect. I say that
the Applicant has failed
to put up any of the required facts in this regard.
16.2.3. Further, the
principle of subsidiarity dictates that one may not rely directly on
the Constitution in the face of legislation
designed to give effect
thereto.
16.3 PAIA is the
legislation enacted to give effect to the constitutional right of
access to 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.
16.4 Accordingly, any
attempt by the Applicant to place reliance directly on the
Constitution as a basis for the relief that he
seeks would be
impermissible.”
28.
The answering affidavit goes on to
establish the core of the BAC’s attack on the application,
which was also dealt with extensively
in argument by its counsel.
“
18.
I am advised, and say, that for a valid request for information, it
is incumbent upon the Applicant to state what the right
is that he
wishes to exercise or protect, what the information is which is
required and how that information would assist him in
exercising and
protecting that right.
19. I respectfully
reiterate that the Applicant failed in his Request to meet the
required threshold for a valid request, and that
the failure has
simply extended to the papers before this Honourable Court.
20. In the Request, under
G, the Applicant simply indicated, without more, that he sought the
above information in order to exercise
or protect the right to access
to information, and also the rights to equality, human dignity, and
to a good name and reputation.
21. It is unclear what
the Applicant meant by a right to a good name and reputation, as to
whether this is a right that the Applicant
also derived from the
Constitution.
22. I am advised, and
say, that the Applicant in any event failed to demonstrate as to
whether and how each of the records requested
are required for the
exercise or protection of any rights purportedly asserted by the
Applicant.
23. The Applicant went
further in the Request to provide the following explanation for
seeking the information for the exercise
or protection of the rights
which he had set out:
‘
The
BAC has, on at least two occasions made public statements that
mentioned me either by name or by position, and which targeted
me, at
least in part, on the basis of my purported race. The individuals
constituting the BAC remain nameless, despite my repeated
and
reasonable requests for disclosure of their membership list and
office bearers. I wish to know in whose name the BAC has acted,
what
rules govern this body, and what the pattern of its public statements
is,
in order to properly assess my
options for exercising and protecting my rights.’
[Emphasis added]
24. I say, respectfully,
that the above explanation for seeking the information was lacking in
specificity and failed to demonstrate
that each of the items of the
information sought was reasonably required by the Applicant as set
out in PAIA. I further say the
following:
24.1.
It would appear from the explanation above,
that the underlying
reason for the Applicant’s pursuit of the records is that the
Applicant is aggrieved by certain statements
which were previously
made by the BAC.
24.2.
The Applicant is aware however that the
BAC is a recognized
stakeholder at UCT, that it engages through its office bearers as a
corporate body with official UCT structures,
including the Vice
Chancellor, and that it acts on behalf of its membership.
24.3.
The Applicant is fully aware of the rules
that govern the BAC, which
rules are embodied in the BAC constitution, a copy of which was
available to the Applicant and in respect
of which he had possession.
25. I respectfully say,
further, it seems clear that the underlying reasons given by the
Applicant for why the records are required
do not relate to the
exercise of the right to ‘access to information, and also the
rights to equality, human dignity, and
to a good name and
reputation’, but, as the Applicant put it, ‘to properly
assess my options for exercising and protecting
my rights’.
26. As such, the
Applicant failed to meet the required threshold for seeking the
identified records.
27. Accordingly, I say
that the reasons given do not meet the test of the records being
required to ‘exercise or protect’
the right relied upon.”
Much of the remainder of
the answering affidavit is devoted to putting up the BAC’s case
on the merits of the complaints levelled
against it by Prof. Benatar
and accordingly need not be traversed in this judgment.
THE REPLYING AFFIDAVIT
29.
On 10 May 2021 the Judge President granted
an order by agreement that the matter be set down on the opposed
motion roll on 11 October
2021 notwithstanding that Prof Benatar had
not filed a replying affidavit: this only occurred on or about 5 July
2021. Much like
the founding affidavit, the reply is fairly concise
and largely argumentative as to whether the professor is entitled to
the relief
that he seeks herein.
30.
At the risk of some repetition, I shall
cite the reasons advanced in reply (to the extent that they may be
admissible or relevant)
for the PAIA request.
“
18.
Being provided with the information that I seek will provide me with
the ability to engage the individuals that sullied my good
name,
attacked my reputation, undermined my dignity, and discriminated
against me. Instead of having to confront the faceless entity
of the
BAC it is vital that I am told in whose name the BAC acts so that I
can know who my accusers are…
20. I have also asked for
all public statements made by the BAC since its founding. This
information will enable me to determine
if there is a pattern in the
statements made by the BAC, to determine if there are statements that
refer to me and which I am currently
unaware of, and to determine if
I am being victimized by the BAC in a manner that is similar or
different to other targets of the
BAC…
22. The principle of
restorative justice is founded on the idea that people who have had
an acrimonious encounter are able to restore
their relationship
through an open process of healing and discussion. This is not
possible if one of the parties remains hidden.
Therefore, it is
necessary that I am provided with the information which I seek.”
WHAT IS THE PURPOSE OF
THE APPLICATION?
31.
It merits mention that Prof. Benatar does
not articulate with any degree of precision, either in the founding
or the replying affidavits,
how he intends exercising his proclaimed
legal rights once he has been granted access to the information
requested from the BAC.
Having said in the PAIA request form that he
needed the information in order to be in a position to consider how
to exercise his
rights, the case seems to have drifted in reply into
the somewhat nebulous realm of “restorative justice”
embracing
a desire that the professor and the BAC restore an
undefined and allegedly established relationship through “an
open process
of healing and discussion.” The Court is, however,
not enlightened as to what the basis of this process will be, nor how
it will be advanced. After all, as they say, it takes two to tango,
and without a foundational basis for engagement, the prospect
of
restoring an alleged relationship appears to be still-born.
32.
What is clear from the papers is that Prof.
Benatar did not make any attempt to engage contemporaneously with the
BAC after the
publication of either the 2015 or 2017 statements.
Rather, the application under s53(1) of the Act commenced with the
filing of
the statutory Form C on 18 May 2020, almost 5 years after
the issuing of the first statement and nearly 3 years after the
second.
The BAC points out that the PAIA application came in the
midst of the early stages of the Covid19 pandemic when the country
was
under a severe Level 4 lockdown. Significantly, the Form C
document identified Dr Phoebe Kisubi-Mbasalaki as “The Head”
of the BAC and consequently Prof. Benatar had knowledge that she was
an office bearerof the BAC at the time.
33.
The application for information had been
preceded by an exchange of emails between Prof. Benatar and Dr
Kisubi-Mbasalaki between
4 and 11 May 2020. In the correspondence of
4 May 2020 Prof. Benatar addressed Dr Kisubi-Mbasalaki as “the
current Chair
of the…BAC...at UCT.” The email dealt only
with the 2017 statement and effectively accused the BAC of defaming
him
as the Head of Department. In that regard, Prof. Benatar accused
the BAC of furthering the earlier defamation of himself by Ms
Mkhumbuzi and of not affording him the opportunity to correct certain
alleged inaccuracies therein. There is no threat to sue the
BAC for
defamation or to take any other legal action against it nor to engage
with it in relation to the issues complained of,
nor, importantly, is
there any reference to the 2015 statement.
34.
The email concludes with a “request
and a two-part question.”
“
The
request is to please supply me with the BAC’s full current
membership list, as well as the one from October 2017. In each
case
please indicate who the office bearers are and were.
The question is: Am I
correct in thinking that no current public listing is available of at
least the office-bearers of the BAC?
If so, why is that?”
35.
Despite follow up emails to her on 11 and
18 May 2020, Dr Kisubi-Mbasalaki did not favour the professor with
the courtesy of a reply.
In the answering affidavit herein Dr
Chinyoka candidly admits that the request was intentionally ignored
by the BAC.
“
[31]
The BAC took the view that Prof Benatar had no legal cause or right
to the information sought under PAIA, and so did not want
to give him
any credence by way of a response. Prof. Benatar’s e-mails were
provocative and condescending. The best way to
deal with them was
simply to ignore them.”
36.
From May to November 2020, matters appear
to have gone nap after the PAIA application was served on Dr
Kisubi-Mbasalaki. And, then
after an unexplained hiatus of 6 months,
the professor took up the cudgels again. The replying affidavit shows
that on Tuesday
24 November 2020, Prof. Benatar addressed an email to
Prof. Nomusa Makhubu, enquiring whether she was still then the
interim chair
of the BAC, and if not, who the current chair was.
Prof. Makhubu was also asked whether the BAC posted such information
publicly.
37.
When Prof. Makhubu did not reply, Prof.
Benatar then approached a member of the university’s
administrative staff, Mr Royston
Pillay, by email on Thursday 26
November 2020 asking whether he knew if details of the BAC’s
office-bearers were listed publicly.
After no reply from Mr Pillay,
Prof. Benatar was referred by an auto-reply response on the former’s
email account in the
event of urgency, to Dr Karen van Heerden, then
the Acting Registrar of UCT. Claiming that the matter was indeed
urgent, on Tuesday
1 December 2020, Prof. Benatar requested a
response from the Acting Registrar who informed him that she was busy
with other matters
but would endeavour to respond later.
38.
Dr van Heerden did indeed revert to Prof.
Benatar after hours on the same day, explaining by email that she was
unable to assist,
while noting that she had sent an urgent message to
Mr Pillay. To this Prof. Benatar responded –
“
Thanks
for your reply and for having looked into this. Identifying the
current office bearers of the BAC is a perennial problem.
They do not
keep a public record of these details. They often do not reply to
email enquiries for this information and Royston
is sometimes unaware
who the current Chair is. I hope that he has now established who the
current chair is and will reply either
to you or me.”
At 21h24 that night Mr
Pillay replied to Prof Benatar and told him that Dr Chinyoka was the
secretary of the BAC.
39.
The founding affidavit was then deposed to
on 11 December 2020 and, as I have said, the application was launched
on 14 December
2020 with the answering affidavit being filed on 8
April 2021.
40.
The BAC has placed the relevance of the
application, and the alleged protection of Prof. Benatar’s
rights directly in the
spotlight. Its counsel, Mr. Sidaki made plain
during argument that the professor bore the onus of establishing that
he was entitled
to the requested information and that he had advanced
no legally tenable basis therefor.
41.
In argument, Mr. Oppenheimer, counsel for
Prof. Benatar, eschewed any reliance on a claim for damages for
defamation (or any other
form of
injuria
)
or constitutional damages. Ultimately, said counsel, the case was
grounded on the principle of restorative justice. Manifestly,
any
action based on wrongs (whether under the common law or statute)
committed in 2015 and 2017 have prescribed. Counsel confirmed,
too,
that no proceedings of any sort were pending before any court,
tribunal or private body.
THE APPROACH TO PAIA
IN OUR COURTS
42.
The right relied on by Prof. Benatar is
protected in the Bill of Rights under s32 of the Constitution, 1996,
which reads as follows.
“
Access
to information
32. (1) Everyone has the
right of access to—
(a)
any information held by the state; and
(b)
any information that is held by another
person and that is required for the exercise or protection of any
rights.
(2) National legislation
must be enacted to give effect to this right, and may provide for
reasonable measures to alleviate the
administrative and financial
burden on the state.”
43.
In
PFE
International
[5]
the Constitutional Court provided the following background to the
right and the legislation promulgated to enforce it.
“
[3]
The importance of this right has been explained by this Court in
Brümmer
v Minister for
Social
Development and Others
.
[6]
In that case the Court said: ―
‘
The
importance of this right too, in a country which is founded on values
of accountability, responsiveness and openness, cannot
be gainsaid.
To give effect to these founding values, the public must have access
to information held by the State. Indeed, one
of the basic values and
principles governing public administration is transparency. And the
Constitution demands that transparency
must be fostered by providing
the public with timely, accessible and accurate information ‘.
. .. Apart from this, access
to information is fundamental to the
realisation of the rights guaranteed in the Bill of Rights. For
example, access to information
is crucial to the right to freedom of
expression which includes freedom of the press and other media and
freedom to receive or
impart information or ideas.’ (Footnotes
omitted.)
[4] PAIA is the national
legislation contemplated in section 32(2) of the Constitution. In
accordance with the obligation imposed
by this provision, PAIA was
enacted to give effect to the right of access to information,
regardless of whether that information
is in the hands of a public
body or a private person. Ordinarily, and according to the principle
of constitutional subsidiarity,
claims for enforcing the right of
access to information must be based on PAIA.”
The BAC, as a “private
body”, would fall within the category of “private person”
referred to in this judgment.
44.
S2(1) gives direction as to the
interpretation of PAIA.
“
When
interpreting a provision of this Act, every court must prefer any
reasonable interpretation of the provision that is consistent
with
the objects of this Act over any alternative interpretation that is
inconsistent with those objects.”
45.
Fundamental to the enforcement of an
applicant’s rights under PAIA are the provisions of s50(1)
thereof.
“
(1)
A requester must be given access to any record of a private body if –
(a)
that record is required for the exercise or
protection of any rights;
(b)
that person complies with the procedural
requirements in this Act relating to a request for access to that
record; and
(c)
access to that record is not refused in
terms of any ground for refusal contemplated in Chapter 4 of this
Act.”
46.
As already alluded to, the focus of the
BAC’s refusal to adhere to Prof. Benatar’ s request is
grounded in s50(1)(a):
there is no suggestion that there has been
non-compliance with the procedural requirements of PAIA nor that the
refusal is based
on any of the grounds permitted in Ch. 4 of the Act.
47.
In
Metro
Inspection Services
[7]
,
Streicher JA discussed the import of the right protected under s32 of
the Constitution in circumstances which prevailed prior
to the
promulgation of PAIA.
[8]
That
fact notwithstanding, the approach adopted was synonymous with an
application under PAIA.
“
[28]
Information can only be required for the exercise or protection of a
right if it will be of assistance in the exercise or protection
of
the right. It follows that, in order to make out a case for access to
information in terms of s 32, an applicant has to state
what the
right is that he wishes to exercise or protect, what the information
is which is required and how that information would
assist him in
exercising or protecting that right.”
48.
More
recently, in
Manuel
[9]
,
the Gauteng High Court discussed the import of s50(1)(a). The matter
involved an application by a former cabinet minister for
access to
documentation allegedly held by the respondents which he said
demonstrated that he and his wife had been the subject
of unlawful
surveillance. The applicant had come across an article in an online
news and opinion service, the Daily Maverick, titled
“
#Gupta
Leaks: Guptas spied on Manuel, Malema and bank bosses”
.
The article, he claimed, established that his personal information
had been obtained unlawfully and he thus requested access to
certain
records held by the respondents with a view to identifying the
appropriate defendants in order to exercise his constitutional
right
to privacy.
49.
In assessing the enforceability of Mr
Manuel’s request for information under PAIA, with reference to
various of the established
authorities, Weiner J remarked as follows.
“
[28] In
establishing that information is required for the exercise or
protection of a right, Manuel is required to satisfy two distinct
requirements. His counsel referred to various authorities in this
regard. In summary, and based upon such authorities, the requisites
are the following:
(a)
Firstly, he must identify the right that he seeks to exercise or
protect,
and show that
prima facie
, he has established that he
has such a right. In respect of section 50(1)(
a
) of PAIA the
word ‘any’ before the word ‘right’ has been
held to mean that the broadest possible interpretation
must be given
to what qualifies as a right for purposes of the section.
(b)
Secondly,
he must demonstrate how the
information
will assist in exercising or protecting the right in question. He
must thus establish a connection between the information
requested
and the right sought to be exercised or protected and must ‘…“lay
a proper foundation for why that
document is reasonably ‘required’
for the exercise or protection of his or her rights”…’
As was
held in
Unitas
Hospital v Van Wyk
,
[10]
while it does not suffice for Manuel simply to ‘want’ or
‘desire’ the Records, or state that they are merely
‘useful’ or ‘relevant’, he does not need to
establish that they are ‘essential’ or ‘necessary’.
Instead, the information must provide Manuel with ‘assistance’
in the sense of ‘substantial advantage or an element
of need’.
This requirement, which is ‘accommodating, flexible and in its
application fact-bound’, means only
that the information must
be ‘…“reasonably” required in the
circumstances.” (Authorities otherwise
omitted)
50.
The learned Judge then referred to
allegations made by Mr Manuel in the papers in which he clearly
articulated the rights which
he sought to vindicate.
“
[30] Manuel
acknowledges that he might have various legal remedies by which he
can exercise or protect his right to privacy. Some
of the causes of
action and/or remedies to which he refers include:
(a)
The
actio iniuriarum
, which would enable Manuel to sue
for damages for the violation of his right to privacy.
(b)
If the person/s who violated such rights is/are within the
employ of the state (which, according to the Article, might well be
the
case), Manuel may also have a remedy arising from a breach of a
statutory duty.
(c)
If the disclosure and the surveillance of Manuel’s
movements involved members of the Intelligence Services, he might
have
claims arising from certain statutes relating to the
Intelligence Services.
(d)
If these unlawful activities are ongoing,
he would be entitled to interdictory relief to protect against
the ongoing and future invasion of his privacy.
[31] Manuel submits that
the Records would provide him with assistance in the sense of
substantial advantage or an element of need.
In the absence of the
Records, he does not know who his defendant would be, or what cause
of action he has against such defendants.
With the Records, he will
be able to formulate his cause of action and identify the
defendants.”
51.
In the result, the learned Judge found, on
the facts before her, that Mr Manuel was entitled to the information
requested.
“
[44]
In my view, Manuel is entitled to use PAIA to establish who his
defendants might be and/or what cause of action he has against
them.
He does not require the Record to assess his prospects of success,
which would amount to pre-litigation discovery. Thus,
the request is
permitted under PAIA and does not amount to pre-litigation
discovery.”
52.
In this matter, not only must Prof. Benatar
establish the right(s) which he intends to assert, he must also
establish the further
criterion contemplated under s50(1)(a) that the
requested information is “required” to enable him to
“exercise
or protect…any [of his] rights.”
53.
The element of “requirement”,
which has been the subject of much judicial debate since the
promulgation of PAIA, was
summarized as follows by Brand JA in
Unitas
Hospital
.
“
[18]
I respectfully share the reluctance of Comrie AJA
[11]
to venture a formulation of a positive, generally applicable
definition of what ‘require’ means. The reason is
obvious.
Potential applications of s 50 are countless. Any
redefinition of the term ‘require’ with the purpose of
restricting
its flexible meaning will do more harm than good. To
repeat the sentiment that I expressed earlier: the question whether
the information
sought in a particular case can be said to be
‘required’ for the purpose of protecting or exercising
the right concerned,
can only be answered with reference to the facts
of that case having regard to the broad parameters laid down in the
judgment of
our courts, albeit, for the most part, in a negative
form.”
54.
Finally, at para [21] of
Unitas
Hospital
the learned Judge of Appeal
stressed that the provisions of s50 of PAIA should not be permitted
to be used for a pre-litigation
fishing expedition: this would defeat
the purpose of the discovery procedure (with its own discrete set of
established principles)
once the action had been commenced.
EVALUATION OF THE
REQUEST
55.
Considering
Prof. Benatar’ s request in the light of these authorities, I
am driven to conclude that he has failed to establish,
with the
requisite degree of accuracy, what the right is that he wishes to
exercise or protect and how the information requested
from the BAC
will assist him in exercising or protecting such right.
[12]
56.
The
case commenced with the issuing of the Form C notice to the BAC. In
the passage referred to above, Prof. Benatar states in that
notice
that he requires the information (or, more correctly the “Record”
as it is called in PAIA) “in order to
properly assess my
options for exercising and protecting my rights.” In such
circumstances, Prof. Benatar is not entitled
to the record as Gorven
AJA held in
Mahaeene
[13]
.
“
[17]
It seems clear that the underlying reasons given for why the records
are required do not relate to the exercise of the right
to claim
damages but to the evaluation of whether the appellants should do so
or not. The reasons given, therefore, do not meet
the test of the
records being required to ‘exercise or protect’ the right
relied upon.”
57.
The
case in the founding affidavit is purportedly made out in para’s
12 -14 thereof.
[14]
These
allegations do not say what course of action at law Prof. Benatar
intends pursuing.
58.
It
seems that the high-water mark of the case (as eventually articulated
in the replying affidavit and as counsel for the professor
submitted)
is that he is considering embarking on a process based on the
principle of restorative justice. This process has not
been explained
by Prof. Benatar and it is difficult to understand the right intended
to be exercised, given that the term is customarily
associated with
criminal proceedings. The following extract from the website of the
Western Cape Government demonstrates how restorative
justice is
ordinarily understood.
[15]
“
SUMMARY
Concerns
about the effectiveness of traditional criminal justice systems have
given rise to new approaches to criminal justice.
One such approach
is Restorative Justice, a theory that focuses on reconciling and
reintegrating offenders into society rather
than on retribution. This
theory and its practical applications are explained briefly in this
short article.
WHAT
IS RESTORATIVE JUSTICE?
Restorative
justice is a theory of justice that relies on reconciliation rather
than punishment. The theory relies on the idea that
a
well-functioning society operates with a balance of rights and
responsibilities. When an incident occurs which upsets that balance,
methods must be found to restore the balance, so that members of the
community, the victim, and offender, can come to terms with
the
incident and carry on with their lives.
In
order for this to happen, the offender must accept responsibility for
the fact that his or her behaviour has caused harm to the
victim, and
the victim must be prepared to negotiate and accept restitution or
compensation for the offender's wrongdoing. In essence,
restorative
justice aims as far as possible to 'put right the wrong'. It is based
on the idea that we are all connected, that crime
is a violation of
relationships, and that such violations create obligations.
Although
formal 'restorative justice programmes' were first introduced in
countries such as Australia and New Zealand, restorative
justice
concepts are certainly not new to South Africa. In many South African
communities, the way of dealing with children has
traditionally
included mechanisms that encourage children to take responsibility
for their actions. This includes outcomes such
as an apology,
restitution and reparation, and restoring relationships between
offender and victim.
In
addition, where a community is involved, meetings are held publicly
so as to provide everyone with a sense of ownership in the
process.
This is still evident in the way traditional courts function and the
principles they uphold. Offenders in most cases are
not separated
from their support system of family and close relatives, and those
closest to offenders hold them responsible. In
other words, concepts
that have now been labelled restorative justice have been in use in
South African communities for some time…”
59.
It is significant, as I have pointed out,
that the papers make no mention of any response, whether
contemporaneous or later, by
Prof. Benatar to the 2015 statement. Yet
he seeks now, some 6 years later, to engage in an undefined and
nebulous process long
after he appears to have buried the proverbial
hatchet. Similarly, the 2017 statement, which appears to be far less
direct in its
criticism of Prof. Benatar than the 2015 document, has
not been shown to have resulted in any further interaction between
the parties.
The BAC therefore was entitled to assume that Prof.
Benatar did not intend taking the matter further and is hardly likely
to embark
now on any so-called “restorative justice”
process.
60.
Moreover, Prof. Benatar has not referred to
any legal process, programme or forum in which his recently
proclaimed desire for “restorative
justice” vis-à-vis
the BAC might be founded, commenced and pursued. The Court is left in
the dark as to why, after
all these years, he now wishes to engage
again with his erstwhile
bete noir
.
61.
In the result, I have come to the
conclusion that the application fails to clear the first statutory
hurdle.
62.
But, if I am wrong on this score, I
consider that Prof. Benatar has in any event stumbled at the second
hurdle – that of establishing
“requirement”.
Viewing the two statements contextually, it is clear that they were
issued by the BAC acting in its
collective capacity. Further, its
constitution informs Prof. Benatar of its objectives, its broader
constituency and its status
as a legal
persona.
Accordingly, any legal or other process aimed at exercising the
professor’s legal rights thus lies against the BAC as such
and
falls to be commenced against the BAC, for that is the entity which
has been directly (in the case of the 2015 statement) and
possibly
also impliedly (in the case of the 2017 statement) critical of Prof.
Benatar.
63.
Knowledge of the identity of the office
bearers and/or the membership of the BAC is not required to enable
any legal (or other)
process aimed at seeking the enforcement of
rights and redress to commence, just as any potentially defamatory
statement made on
behalf of a duly constituted voluntary association
such as a political party, a soccer club or a ratepayers’
association,
would not require the injured party to have or demand
knowledge of the identities of the constituent members. In this case,
the
action lies against the BAC, plain and simple.
64.
And, as matters now stand, Prof. Benatar in
fact now knows from the various email exchanges in May and November
2020 as well as
the answering affidavit, who the office-bearers of
the BAC are and what its constitutional foundation and guiding
principles are.
There are two documents issued by the BAC upon which
a claim for the protection of the professor’s alleged good name
and
reputation might be based and he requires nothing more to advance
such claim. To be sure, knowledge of the membership of the BAC
at
various junctures of its existence is no more required to advance a
claim against the voluntary association which allegedly
maligned the
professor than knowledge of a company’s shareholders might be
to initiate a claim against a corporate entity
such as a newspaper or
publishing house for defamation or breach of privacy rights.
65.
The
last part of the request – for production of all statements
made by the BAC concerning Prof. Benatar – is, in the
words of
Brand JA in
Unitas
Hospital
[16]
,
no more than a fishing expedition. A request for that information now
amounts to pre-litigation discovery, to which a PAIA applicant
is not
entitled.
[17]
66.
In the result the application must fail.
COSTS
67.
In the notice of motion, Prof. Benatar asks
for a punitive costs order against the BAC and that it should pay his
costs on the attorney
and client scale. No basis is advanced in the
founding affidavit for this prayer. In the concluding paragraphs of
the answering
affidavit, the BAC gives its reasons for similarly
asking that it be awarded punitive costs. It says that the
application amounts
to a fishing expedition and that Prof. Benatar
was in possession of at least certain of the requested information
before the PAIA
application was launched. He is accused of litigating
frivolously and vexatiously and is accused of abusing the court
process.
68.
At the end of the replying affidavit Prof.
Benatar says the following in responding to para’s 81 to 85 of
the answering affidavit.
“
[63]
I deny these allegations. On the issue of costs, it is evident that I
would not have been furnished with the names of the current
BAC
office bearers without launching this application, on that basis
alone I should be awarded costs. I have made out a proper
case for
the relief that I seek.”
Once again, no case is
advanced for asking for a punitive costs order. In argument, Mr
Oppenheimer persisted with the relief sought
in the notice of motion,
describing the BAC’s approach as “dilatory and
unhelpful”.
69.
In reply, Mr Sidaki levelled similar
criticism at Prof. Benatar, saying that he had presented a case that
was fundamentally flawed
and that a punitive costs order was
warranted in the circumstances.
70.
It is of some concern to the Court that
Prof. Benatar has taken so long to approach the Court – in the
case of the 2015 statement
more than 5 years. And yet, in the
founding affidavit there is very little said about that statement,
the primary focus being on
the 2017 document. When all had been said
and done many years ago, he decided to rely on PAIA without
explaining the obvious hiatus
to the Court.
71.
Further, in his private correspondence on 1
December 2020 with Dr van Heerden, when urgently pressing UCT’s
administrative
staff for information regarding the identity of the
office bearers, Prof. Benatar reverted to a theme that pervaded his
interchanges
in May 2020 with Dr Kisubi-Mbasalaki –
“
Identifying
the current office bearers of the BAC is a perennial problem. They do
not keep a public record of these details. They
often do not reply to
email inquiries for this information and Royston [Pillay] is
sometimes unaware who the current Chair is.
I hope that he has now
established who the current chair is and will reply either to you or
to me.”
72.
Just what Prof. Benatar was about in
seeking this information is not clear from the papers. In the
answering affidavit, Dr Chinyoka
remarks that Prof. Benatar is a
senior academic who has been Head of the Philosophy Department for
more than a decade. It is said
by the BAC that Prof. Benatar is known
by staff and students alike as a person with “enormous clout”
in the university
and that he does not shy away from controversial
issues in the public domain “concerning the exercise of his
authority at
UCT”. It is said further that Prof. Benatar has
been criticized by other academics in the media and that he has
similarly
criticised others on public platforms.
73.
If he was intending to exercise his “clout”
and give the BAC a lesson on what he considered to be ethical conduct
in
academia, this litigation could certainly be categorized as an
abuse of process. But that issue has not been properly ventilated
on
the papers and I can make no finding one way or the other in that
regard.
74.
The
answer on the issue of attorney–client costs is to be found, in
my view, in the old Cape decision in
Alluvial
Creek
[18]
where Gardiner J stated the approach thus.
“
Now
sometimes such an order is given because of something in the conduct
of a party which the Court considers should be punished,
malice,
misleading the Court and things like that, but I think the order may
also be granted without any reflection upon the party
where the
proceedings are vexatious, and by vexatious I mean where they have
the effect of being vexatious, although the intent
may not have been
that they should be vexatious. There are people who enter into
litigation with the most upright purpose and a
most firm belief in
the justice of their cause, and yet whose proceedings may be regarded
as vexatious when they put the other
side to unnecessary trouble and
expense which the other side ought not to bear.”
The
case has been cited with approval on numerous occasions in the
Supreme Court of Appeal.
[19]
75.
In this case, a voluntary association
representing a group of concerned academics has been put to
unnecessary expense in opposing
an application which is without
merit. That constitutes vexatious litigation as contemplated in
Alluvial Creek
and a punitive costs order may be made.
ORDER OF COURT
The application is
dismissed with costs on the scale as between attorney and client
GAMBLE, J
Appearances:
For
the applicant
:
M.
Oppenheimer
Instructed
by Hurter Spies Attorneys, Pretoria
c/o
Marais Muller Hendricks Inc., Cape Town.
For
the respondent:
T.Sidaki
Instructed
by De Klerk & Van Gend Inc.
Cape
Town.
[1]
See for example
Hotz
and others v University of Cape Town
2018 (1) SA 369 (CC)
[2]
The term is not explained in the 2017 statement nor the founding
affidavit.
[3]
The term is similarly not explained in either the 2017 statement or
the founding affidavit.
[4]
I.e. that “
a
requester must be given access to any record of a private body if
that record is required for the exercise or protection of
any
rights.”
[5]
PFE
International Inc. (BVI) and others v Industrial Development
Corporation of South Africa
2013
(1) SA 1
(CC)
[6]
2009
(6) SA 323
(CC) at [62] – [63]
[7]
Cape
Metropolitan Council v Metro Inspection Services Western Cape CC and
others
2001
(3) SA 1013 (SCA)
[8]
As the judgment demonstrates at [25], the vindication of the right
was then advanced under certain transitional provisions then
contained in Item 23 (2)(a) of Schedule 6 to the Constitution.
[9]
Manuel
v Sahara Computers (Pty) Ltd and another
2020 (2) SA 269 (GP)
[10]
[2006] ZASCA 34
;
2006 (4) SA 436
(SCA) at
[16]
-
[17]
[11]
This is a reference to the judgment in
Clutchco
(Pty) Ltd v Davis
2005 (3) SA 486
(SCA) at [13]
[12]
Cf.
Metro
Inspection Services
at [28]
[13]
Mahaeeane
and another v Anglogold Ashanti Limited
2017 (6) SA 382
(SCA) at [17]
[14]
See [19] above
[15]
www.westerncape.gov.za/general-participation/what-restorative-justice
[16]
At [21]
[17]
See
Manuel
at [37] – [44] and the authorities there cited.
[18]
In
re
Alluvial Creek Ltd
1929 CPD 532
at 535
[19]
See for example
Claase
v Information Officer, South African Airways (Pty) Ltd
2007 (5) SA 469
(SCA) at [11];
Boost
Sports Africa (Pty) Ltd v The South African Breweries (Pty) Ltd
2015 (5) SA 28
(SCA) at [27].