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[2016] ZAGPJHC 337
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Gafoor v Lakewood Homeowners Association and Another (23709/2015) [2016] ZAGPJHC 337 (8 December 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 23709/2015
Reportable: No
Of interest to other judges: No
Revised.
8/12/2016
In the matter
between:
FEIZAL
GAFOOR APPLICANT
and
LAKEWOOD HOMEOWNERS ASSOCIATION
REGISTRATION
NUMBER 2005/033750/08
FIRST
RESPONDENT
TRAFALGAR PROPERTY AND FINANCIAL
SERVICES (PTY)
LTD SECOND
RESPONDENT
JUDGEMENT
COLLIS AJ:
INTRODUCTION
[1] This is an application brought in
terms of the Promotion of Access to Information Act, 2 of 2002
(“PAIA”), wherein
the Applicant seeks to compel the
Lakewood Homeowners Association NPC, and its agent, Trafalgar
Property Financial Services
(Pty) Ltd, to deliver a set of records
requested under section 50(1).
BACKGROUND
[2] During August
2007, the Applicant purchased an immovable property described as Erf
[…] Lakewood Estate, being unit number
[…], Ormonde
Extension 36 Township.
[3] During or about
February 2014, the Applicant entered into a sale agreement with a
third party to sell the said property. The
Applicant was required to
obtain a clearance certificate from the First Respondent so as to
finalise the sale. At the time, the
Second Respondent (an agent of
the First Respondent) informed the Applicant that before a clearance
certificate could be released
by the First Respondent, the Applicant
was required to pay an amount of R 269 370 in late building
penalties to the First
Respondent. The late building penalties were
incurred in the period June 2009 to December 2013.
[4] The Applicant under protest
proceeded to pay the late building penalties amount in order not to
jeopardise the sale. Pursuant
to the aforesaid payment the property
was ultimately registered into the name of the new owner on or about
23 April 2014.
PRESCRIBED LEGISLATIVE FRAMEWORK
[5] Under section 50(1) of PAIA, a
person is entitled to obtain access to records held by a private body
only 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 Part.”
[6] From the section quoted above
there are two threshold requirements that must be satisfied before
the Act can find applicability
to a private body such as the First
Respondent, namely that:
6.1 Firstly, the records must be
reasonably required for the exercise or protection of any rights.
6.2 Secondly, the request for access
to those records must comply with the procedural requirements of
PAIA.
[7]
Further, access to record is regulated by Section 32 of the
Constitution
[1]
which
provides as follows:
“
S 32(1)
Everyone has the right to 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.”
[8]
In the founding affidavit
[2]
,
the Applicant alleges that after making payment of the penalty
levies, under protest, he instructed his attorney to address a
letter
requesting documentation from the Respondents, for purposes of
computing the penalty amount.
[9] In essence the Applicant alleges
that unless he is furnished with the documentation sought, he would
not be able to prepare
his case challenging his liability for the
penalty. On the 26
th
February 2015 the Applicant had not
received a response to his letter. He then directed a formal request
to the First Respondent
for access to record of a private body, in
terms of section 53(1) of PAIA, read together with regulation 10.
RESPONDENT’S BASIS FOR REFUSAL
TO FURNISH THE DOCUMENTS AS REQUESTED
[10] The Respondents deny any
obligation to provide the Applicant with copies of the requested
documents for the following reasons:
10.1 As the Applicant is no longer a
member of the Association, his rights of access to the Association’s
information are
therefore curtailed.
10.2 During the period that the
Applicant was a member of the Association, he was fully informed of
the late building penalty and
at the time he had every opportunity to
request any additional information.
10.3
The request to be furnished with the said documents is considered to
be pre-action discovery for which the Applicant had no
automatic
right, for his contemplated litigation against the Association. The
Applicant has failed to demonstrate exceptional circumstances
to
justify pre-action discovery.
[3]
[11]
At paragraph 33 to the Answering Affidavit, the Respondents sets out,
that the tax invoice dated 13 March 2014 clearly specifies
the
amounts of the late building penalties for the different periods of
non-compliance. Furthermore, after service of the application
on the
Respondents, the Respondents’ attorney in good faith wrote a
letter to the Applicant on 8 October 2015, wherein the
bulk of the
documents so requested were attached, and an offer was made to pay
the Applicant’s costs in preparing the founding
papers.
[4]
[12] The Respondents explained that
the reasons for the documents not provided were the following:
All
resolutions and minutes pertaining to penalties
[5]
12.1 As the Applicant is no longer a
member of the Association he has no existing right to claim these
documents under the Association’s
Constitution. In this regard
the Applicant has also failed to explain why these documents are
required for the exercise or protection
of any right. All minutes of
all AGM’s have already been provided during October 2015 and
that no signed resolutions pertaining
to building penalties exist as
the Architectural Guidelines provides for the imposition of such
penalties.
List
of Directors and members of the Lakewood Homeowners Association
[6]
12.2 In this regard the Respondents
allege that copies of the minutes of the AGM’s provided contain
a full list of directors
dating back to 2009, but that the Applicant
has no basis to request a list of directors as from inception of the
Association prior
to him becoming a member of the Association.
Additional
invoices relating to penalties.
[7]
12.3 In this regard the Applicant
requested all invoices issued from 21 August 2007 to December 2013.
The only invoices relevant
would be those that reflect the late
building penalty which was levied. It is alleged that the Applicant
was issued with invoices
for October, November and December 2010. In
respect of all other periods it was the practice to only issue
invoices upon receipt
of payments, such as the tax invoice issued
during March 2014.
List
of penalties imposed on other owners
[8]
12.4 In this regard
the Respondents refused to furnish this document as it denied that
the Applicant has satisfied the threshold
requirement under section
50(1)(a) of PAIA. What penalties, if any, imposed on other owners has
no bearing on the Applicant in
order for him to protect or exercise
any of his rights.
[13]
The Applicant in his Replying Affidavit
[9]
sets
out, the remainder of the documents that he had not been provided
with are required firstly because he was a former member
of the
Association and as such he is entitled to have access to such
documents. As a former member he was entitled to have received
all
minutes, invoices, records and a list of directors. Furthermore, that
he has a reason to believe, that the building penalty
imposed on him,
was done without proper deliberation and as such he requires a list
of penalties imposed on other owners, in order
to ascertain his legal
rights and to formulate his claim. In addition to the above, the
Applicant further contends, that the number
of directors was not at
all times in accordance with the First Respondent’s memorandum
of association.
[14] At the hearing
of the application, counsel for the Applicant had submitted that the
Applicant only still persist with the application
in so far as para
1.1; 1.7; 1.8 and 1.9 of the Amended Notice of Motion. Counsel also
confirmed that the Respondents no longer
needed to apply for
condonation in respect of their Answering Affidavit which was filed
late.
[15]
In Clutchco (Pty) Ltd v Davis
[10]
it
was held that the phrase: “required for the exercise or
protection of any rights” as mentioned in section 50(1) (a)
means that the record must be “reasonably required.”
15.1
The Applicant must demonstrate some “substantial advantage or
element of need”.
[11]
15.2
“Substantial advantage or need” denotes less than
absolute necessity, but more than mere usefulness.
[12]
[16]
In order to satisfy this threshold requirement, the Applicant must
lay a proper foundation as to why the documents are reasonably
required for the exercise or protection of his or her rights.
[13]
[17] The SCA
explained this burden which an applicant carries in Cape Metropolitan
Council v Metro Inspection Services (Western
Cape) CC as follows:
“
It
follows that, in order to make out a case for access to information
…….an applicant has to state what the right
is that he
wishes to protect, what the information is, which is required, and
how that information would assist him in exercising
or protecting
that right.”
[18] As mentioned
in paragraph 8 above, the Applicant, in relation to his claim to be
instituted, merely sets out that he wishes
to contest his liability
for payment of such penalty and it is for this reason that the said
documents are required. The Applicant
failed to set out how the
information he requires would assist him in exercising or protecting
his right. In this regard
he also provides no specifics as to
the claim he intends to institute and why with the information
already at his disposal he is
unable to formulate his claim.
[19] Having regard to the threshold
requirements set out in section 50(1)( a) and the case law made
reference to above, I am unable
to find that the Applicant reasonably
requires the outstanding documents in order to exercise or protect
any of his rights.
ORDER
[20] In the result I make the
following order:
20.1 The application is dismissed in
so far as paragraphs 1.1; 1.7; 1.8 and 1.9 of the Amended Notice of
Motion.
20.2 The First and Second Respondents
are awarded the costs incurred upon the attendant of two counsel.
___________________
C. J. COLLIS
ACTING JUDGE GAUTENG LOCAL DIVISION
JOHANNESBURG
APPEARANCES:
COUNSEL FOR APPLICANT:
Adv
T. Lipshitz
INSTRUCTED BY:
Yousha
Tayob Attorneys
COUNSEL FOR FIRST
&
J.J. Meiring SC and C. McConnachie
SECOND RESPONDENTS:
INSTRUCTED BY:
Abba
Parak Incorporated
DATE OF
HEARING: 04
August 2016
DATE OF JUDGMENT:
08
December 2016
[1]
Act 108 of 1996
[2]
FA para 11-20 pages 10-13
[3]
AA para 10 pg 52-53
[4]
AA para 40 pg 60
[5]
AA para 45 to48 pg 62
[6]
AA para 51 to 53 pg 63
[7]
AA para 58 to 59 pg 65
[8]
AA para 61 to 65 pg 66
[9]
RA para 38 to 45 pg 215
[10]
Clutchco (Pty) Ltd v Davis
2005 (3) SA 486
(SCA) at paras 12-13
[11]
Company Secretary , Arcelomittal South Africa Ltd And Another v Vaal
Environmental Justice Alliance
2015 (1) SA 436
(SCA) at para 50
[12]
Unitas Hospital v Van Wyk
[2006] ZASCA 34
;
2006 (4) SA 436
(SCA) at para 16
[13]
Le Roux v Direkteur-Generaal van Handel en Nywerheid
1997 (4) SA 174
(T) at para 12