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[2014] ZAGPJHC 242
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City of Johannesburg and Others v Wideopen Platform (Pty) Ltd (A5055/13) [2014] ZAGPJHC 242 (16 October 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: A5055/13
DATE:
16 OCTOBER 2014
In
the matter between:
CITY
OF JOHANNESBURG
........................................
First
Appellant
TEMBISA
ZWANE N.O
...........................................
Second
Appellant
CONNY
BAPELA N.O
...............................................
Third
Appellant
And
WIDEOPEN
PLATFORM (PTY) LTD
............................
Respondent
Coram:
MAILULA ET
WEPENER
JJ
ET
GAIBIE AJ
Heard:
15 OCTOBER 2014
Delivered:
16 OCTOBER 2014
Summary:
Legislation – declaration of invalidity – Parliament
failing to correct inconsistency within time period allowed
by
Constitutional Court – only time period declared invalid –
section still operative without any time-bar
JUDGMENT
WEPENER
J:
[1]
This appeal (with the leave of the court a quo) centres around the
consequences of Parliament’s failure to enact legislation
which
the Constitutional Court declared invalid by declaring that the words
‘within 30 days’ contained in s 78(2) of
the Promotion of
Access to Information Act 2 of 2000 (PAIA)
[1]
to be invalid.
[2]
[2]
The declaration of invalidity was suspended for a period of 18 months
from the date of the declaration in order to enable Parliament
to
enact legislation to correct the inconsistency which resulted in the
declaration of invalidity.
[3]
[3]
The appellant’s case is that as a result of the failure of
Parliament to cure the defective provision the entire s 78(2)
of PAIA
became invalid. We are consequently called upon to interpret, in so
far as it may be necessary, the
Brümmer
judgment. In order to do so the approach set out by Wallis JA
[4]
is apposite:
‘
Over
the last century there have been significant developments in the law
relating to the interpretation of documents, both in this
country and
in others that follow similar rules to our own. It is unnecessary to
add unduly to the burden of annotations by trawling
through the case
law on the construction of documents in order to trace those
developments. The relevant authorities are collected
and summarised
in
Bastian Financial Services (Pty) Ltd
v General Hendrik Schoeman Primary School
.
The present state of the law can be expressed as follows:
Interpretation is the process of attributing meaning to the words
used
in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading
the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its coming
into existence. Whatever the nature of the document, consideration
must be given to the language used in the light of the ordinary
rules
of grammar and syntax; the context in which the provision appears;
the apparent purpose to which it is directed and the material
known
to those responsible for its production. Where more than one meaning
is possible each possibility must be weighed in the
light of all
these factors. The process is objective, not subjective. A sensible
meaning is to be preferred to one that leads to
insensible or
unbusinesslike results or undermines the apparent purpose of the
document. Judges must be alert to, and guard against,
the temptation
to substitute what they regard as reasonable, sensible or
businesslike for the words actually used. To do so in
regard to a
statute or statutory instrument is to cross the divide between
interpretation and legislation; in a contractual context
it is to
make a contract for the parties other than the one they in fact made.
The “inevitable point of departure is the
language of the
provision itself”, read in context and having regard to the
purpose of the provision and the background to
the preparation and
production of the document.’(footnote omitted)
[4]
The unitary exercise to interpret the meaning of documents is in
harmony with
Finishing
Touch 163 (Pty) Ltd
[5]
where the Supreme Court of Appeal said in relation to the
interpretation of court orders that:
‘
The
starting point is to determine the manifest purpose of the order. In
interpreting a judgment or order, the court's intention
is to be
ascertained primarily from the language of the judgment or order in
accordance with the usual, well-known rules relating
to the
interpretation of documents. As in the case of a document, the
judgment or order and the court's reasons for giving it must
be read
as a whole in order to ascertain its intention. See
Firestone
South Africa (Pty) Ltd v Genticuro
AG1977 (4) SA 298 (A).’
[5]
In my view, it is quite clear that the challenge in the
Constitutional Court was directed at the 30 day period.
[6]
In addition Ngcobo J (as he then was) in discussing time-bars said:
‘
The
principles that emerge from these cases are these: time-bars limit
the right to seek judicial redress. However, they serve an
important
purpose in that they prevent inordinate delays which may be
detrimental to the interests of justice. But not all time
limits are
consistent with the Constitution. There is no hard-and-fast rule for
determining the degree of limitation that is consistent
with the
Constitution. The “enquiry turns wholly on estimations of
degree.” Whether a time-bar provision is consistent
with the
right of access to court depends upon the availability of the
opportunity to exercise the right to judicial redress. To
pass
constitutional muster, a time-bar provision must afford a potential
litigant an adequate and fair opportunity to seek judicial
redress
for a wrong allegedly committed. It must allow sufficient or adequate
time between the cause of action coming to the knowledge
of the
claimant and the time during which litigation may be launched. And
finally, the existence of the power to condone non-compliance
with
the time-bar is not necessarily decisive.’
[7]
(footnotes omitted)
[6]
In the circumstances, by reading the
Brümmer
judgment and
order as a whole and in the context of the PAIA framework, the
manifest purpose of the order of the Constitutional
Court was to
declare the time-bar provision contained in s 78(2) invalid and not
to strike down the whole of the section.
[7]
Having regard to the approach to interpretation as well as the clear
and unambiguous wording contained in the order of the Constitutional
Court that
’
(t)he
words “within 30 days” in
s 78(2)
of the
Promotion of
Access to Information Act 2 of 2000
are declared to be inconsistent
with ss 32 and 34 of the Constitution and s 78(2) is declared to be
invalid
for that reason.
’
(emphasis supplied)
There
can be no doubt that it is only the time period that formed the
subject of the declaration of invalidity. The court considered
whether the 30 day period was ‘adequate and fair’ in all
the circumstances.
[8]
The right
to obtain redress in terms of s 78 (2) of PAIA and s 32(1) of the
Constitution consequently remained unaffected. The
very fact that the
Constitutional Court held that the provision as such is indeed
unobjectionable (save for the time-bar)
[9]
leads to one conclusion only namely, that the time period only was
declared invalid.
[8]
This, in turn, results in the provisions of s 78(2) remaining alive
but without any time constraint contained therein. Indeed
the right
to access to information could hardly have been abolished by a court
that said:
‘
As
I have held above, s 78(2) has a dual limitation; it limits not only
the right to seek judicial redress, but in effect also the
right of
access to information by imposing a very short time period within
which a person seeking information must launch litigation.
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”.’
[10]
(footnote omitted)
[9]
The appellants’ submission, which will have the effect of
abolishing the respondent’s rights to access to information,
is
consequently wholly untenable as it would deny it a constitutionally
entrenched right.
[11]
Counsel
for the appellant submitted that the respondent had other remedies
outside of PAIA available to it, such as a review, discovery
proceedings and a declarator. These measures are different in form
and nature and are based on different legal principles than
the right
to access to information pursuant to the provisions of PAIA. They
cannot, in my view, replace the respondent’s
constitutionally
entrenched rights as embodied in PAIA.
[10]
Section 173 of the Constitution requires of courts to
‘
.
. . protect and regulate their own process, and to develop the common
law, taking into account the interests of justice.’
It
would hardly be developing the law, or in the interests of justice to
interpret the Constitutional Court as having abolished
the right of
access to information in the event of Parliament failing to amend the
time limit in the section within the time period
contained in the
court order. Such an interpretation would serve to undermine the
purpose of the legislation.
[12]
[11]
In the circumstances, the time period contained in s 78(2) of PAIA
having been set aside, there remained no time limit within
which a
requester could seek access to information, save that a time period
of 180 days was declared to remain operative for a
period of 18
months from the date of the order.
[12]
That being so, I am of the view that the judgment of the court a quo,
holding that s 78(2) of PAIA was without time limits
when
the period of 18 months lapsed until Parliament amended the
section,
[13]
is correct and
unassailable.
[13]
In all the circumstances, I would propose that the appeal be
dismissed with costs.
Wepener
J
I
agree and it is so ordered.
Mailula
J
I
agree.
Gaibie
AJ
Counsel
for Appellant: S Mitchell
Attorneys
for Appellant: Mojela Hlazo Practice
Counsel
for Respondent: GD Wickens
Attorneys
for Respondent: KWA Attorneys
[1]
Section
78(2): ‘A requester-
(a)
that has been unsuccessful in an internal appeal to the relevant
authority of a public body;
(b)
aggrieved by a decision of the relevant authority of a public body
to disallow the late lodging of an internal appeal in terms
of
section 75 (2);
(c)
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-
(i)
to refuse a request for access; or
(ii)
taken in terms of section 22, 26 (1) or 29 (3); or
(d)
aggrieved by a decision of the head of a private body-
(i)
to refuse a request for access; or
(ii)
taken in terms of section 54, 57 (1) or 60,
may,
by way of an application, within 30 days apply to a court for
appropriate relief in terms of section 82.’
[2]
Brümmer
v Minister for Social Development and Others
2009 (6) SA 323 (CC).
[3]
Brümmer
at
352H.
[4]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) para 18. See also
Bothma
– Batho Transport (Edms) Bpk v S Bothma & Seun Transport
(Edms) Bpk
2014 (2) SA 494
(SCA) para 12.
[5]
Finishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and
Others
2013 (2) SA 204
(SCA) para 13.
[6]
Brümmer
paras
48 and 72.
[7]
Brümmer
para
51.
[8]
Brümmer
para
52.
[9]
Brümmer
para
51.
[10]
Brümmer
para
62.
[11]
Section
32(1) of the Constitution:
‘
Access
to information.-( 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.’
[12]
Para
3, above
[13]
Judicial
Matters Amendment Act 42 of 2013 which amended the relevant period
to 180 days.