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[2010] ZAGPPHC 5
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Kerkhoff v Minister of Justice and Constitutional Development and Others (2011 (2) SACR 109 (GNP)) [2010] ZAGPPHC 5; 14920/2009 (10 February 2010)
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH
GAUTENG
HIGH COURT, PRETORIA)
Date: 2010-02-10
Case Number:
14920/2009
In the matter between:
KERKHOFF, GEORG
WILHELM
Applicant
and
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
First
Respondent
MINISTER OF
SAFETY AND SECURITY
Second
Respondent
DIRECTOR OF
PUBLIC PROSECUTIONS
Third
Respondent
ADVOCATE J
CRONJE
Fourth
Respondent
CAPTAIN COLLIN
MORRIS, RANDBURG SAPS
Fifth
Respondent
TEDDY BEAR
CLINIC
Sixth
Respondent
OMAR, SHAHEDA
Seventh
Respondent
JUDGMENT
SOUTHWOOD J
[1]
In
his notice of motion the applicant seeks the following final relief:
(1) An order that
the second respondent and/or the third respondent and/or the fourth
respondent and/or the fifth respondent, be
found in contempt for his
or her failure to comply with the Court Orders granted by their
Worships, Mrs. Nong on the 12
th
of June 2008 under case number C488/08, and Mr. L. Matthee, on the
8
th
of October 2009 under case number SH184/08.
(2)
An
order sentencing the second respondent and/or the third respondent
and/or the fourth respondent and/or the fifth respondent to
(i) imprisonment,
suspended on condition that the second respondent and/or the third
respondent and/or the fourth respondent and/or
the fifth respondent
forthwith comply with the court orders granted by their Worships,
Mrs. Nong, on the 12
th
of June 2008 under case number C488/08, and Mr. L. Matthee, on the
8
th
of October 2008 under case number SH184/08;
(ii) a fine,
suspended on condition that the second respondent and/or the third
respondent and/or the fourth respondent and/or the
fifth respondent
forthwith comply with the court orders granted by their Worships,
Mrs. Nong, on the 12
th
of June 2008 under case number C488/08, and Mr. L. Matthee, on the
8
th
of October 2008 under case number SH184/08.
(3) An order
directing
the
sixth and seventh respondents to make the contents of the docket,
such contents as are in their possession, that is the A, B
and C
sections of the docket, and the documents as contained in annexure
‘A’ which is attached to the notice of motion,
available
to the applicant.
(4) An order that
the costs be paid by the second respondent and/or the third
respondent and/or the fourth respondent and/or the
fifth respondent,
jointly and severally, the one to pay, the others to be absolved.
(5) An order that
the costs be paid by the first respondent, sixth respondent and
seventh respondent, in the event that he or she
opposes the matter.
The applicant
persisted in seeking this relief until the applica
nt’s
counsel informed the court, during argument, that the applicant no
longer seeks relief against the second, third, fourth
and fifth
respondents. The merits of the applicant’s cause of action
must nevertheless be considered as the second, third,
fourth and
fifth respondents seek costs orders against the applicant on the
scale as between attorney and own client.
[2] The second to
seventh respondents filed notices of op
position
to the application as well as answering affidavits. The second to
fifth respondents persist in their opposition to the
grant of the
relief sought but on 25 September 2009 the sixth and seventh
respondents withdrew their opposition to the application
and gave
notice that they abide by decision of this court.
[3] This is an
opposed application for final relief. It is well-established that in
such proceedings where there are disputes of
fact the final relief
sought will be granted only if it is justified by the respondent’s
allegations of fact together with
the applicant’s allegations
of fact which are admitted by the respondent, subject to the court’s
power to reject on
the papers bald or uncreditworthy denials or
fictitious disputes of fact raised by the respondent or where the
respondent’s
version is palpably implausible, far-fetched or so
clearly untenable that the court is justified in rejecting it on the
papers
– see
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
at
634G-635C;
Zuma
v National Director of Public Prosecutions
2009
(1) SACR (SCA)
para
26. In the present case there is no request that any of the
respondents’ denials or allegations of fact be rejected
and the
case must be decided on the facts admitted and alleged by the
respondents.
[4] The applicant,
a Catholic priest, faces seven charges in the Brits regional court:
three counts of sexual assault (contravening
s 5(1) of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007)
(‘the Act’); three counts
of compelling or causing
children to witness a sexual act (contravening s 21(1) of the Act)
and one count of assault. The state
intends to call the five
complainants, all boys aged 10 or 11, to testify against the
applicant. The state intends to use the
provisions of section 170A
of the Criminal Procedure Act, 51 of 1977 (‘CPA’) to
enable the five complainants to testify
with the assistance of an
intermediary. This means that at the commencement of the trial the
state will request the court to appoint
an intermediary or
intermediaries to assist the complainants to give evidence. To
assist the court to make its decision the state
obtained intermediary
reports from the sixth respondent’s employee, Shaheda Omar
(seventh respondent) who is a qualified
social worker. The seventh
respondent’s reports indicate that the five complainants should
testify through an intermediary.
The applicant intends to oppose the
appointment of an intermediary or intermediaries to assist the
complainants. The applicant
wishes the complainants to testify in
open court without the protection that section 170A of the CPA
affords to children, particularly
those under the age of 14 years.
The applicant intends to attack the seventh respondent’s
assessment of the five children
and the reports which she prepared.
According to the applicant’s attorney the applicant wishes to
show, before the trial
commences, that the evidence of the five
complainants is neither competent nor admissible. For that reason
the applicant seeks
the seventh respondent’s working papers
containing the raw data from which she compiled her reports. These
are the documents
listed in the Annexure ‘A’ which is
attached to the notice of motion. The sixth and seventh respondents
refuse to
make these documents available to either the prosecution or
the defence.
[5] To properly
appreciate what the applicant intends to do the relevant procedure
must be understood. The relevant provisions
of section 170A of the
CPA provide as follows:
‘
(1)
Whenever
criminal proceedings are pending before any court and it appears to
such court that it would expose any witness under the
biological or
mental age of eighteen years to undue mental stress or suffering if
he or she testifies at such proceedings, the
court may, subject to
subsection (4), appoint a competent person as an intermediary in
order to enable such witness to give his
or her evidence through that
intermediary.
(2)(a) No examination,
cross-examination or re-examination of any witness in respect of whom
a court has appointed an intermediary
under subsection (1), except
examination by the court, shall take place in any matter other than
through that intermediary.
(b) The said intermediary may, unless
the court directs otherwise, convey the general purport of any
question to the relevant witness.
(3) If a court appoints an
intermediary under subsection (1), the court may direct that the
relevant witness shall give his or her
evidence at any place –
(a) which is informally arranged to
set that witness at ease;
(b) which is so situated that any
person whose presence may upset that witness, is outside the sight
and hearing of that witness;
and
(c) which enables the court and any
person whose presence is necessary at the relevant proceedings to see
and hear, either directly
or through the medium of any electronic or
other devices, that intermediary as well as that witness during his
or her testimony.’
[6] In
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development, and Others
2009
(2) SACR 130
(CC)
the
Constitutional Court exhaustively considered the constitutionality,
meaning and implementation of subsection (1) of section
170A read
with subsection (3). With regard to the need for intermediaries to
be appointed, particularly for young children, the
court considered
the effect of a trial on a child witness (paras 100-109) and was
clearly of the view that in most cases involving
sexual offences this
would be essential to avoid undue mental stress or suffering. With
regard to implementation the relevant
parts of the judgment may be
summarised as follows:
(1) Ordinarily the procedure that
would be followed in all matters involving child complainants in
sexual offence cases is that
the child would be assessed prior to
testifying in court to determine whether the services of an
intermediary should be used and,
if the services of an intermediary
are indicated, the state would apply at the commencement of the trial
for the appointment of
an intermediary (paras 111 and 112);
(2) However, even where the prosecutor
does not raise the question of the appointment of an intermediary the
judicial officer must
of his or her own accord, raise the need for an
intermediary to assist the child complainant in a sexual offence case
in giving
his or her testimony (paras 111 and 113). This means that
in every trial in which a child is to testify, the court must enquire
into the desirability of appointing an intermediary (para 114);
(3) The nature of the enquiry that is
required is not akin to a civil trial and there is no burden of
proof. It is an enquiry which
is conducted in the interests of a
person who is not a party to the proceedings but who possesses
constitutional rights. The overriding
consideration at the enquiry
is to prevent the child from exposure to undue stress that may arise
from testifying in court. (This
is comprehensively described by the
court in paras 100-109.) What is required of the judicial officer is
to consider whether,
on the evidence presented to him or her, viewed
in the light of the objectives of the Constitution and the
subsection, it is in
the best interests of the child that an
intermediary be appointed (paras 114-115);
(4) Following the approach outlined in
the judgment not only protects child complainants from unnecessary
trauma, it helps to ensure
that the trial court receives evidence
that is more freely presented, more likely to be true and better
understood by the court.
Given the special vulnerability of the
child witness, the fairness of the trial accordingly stands to be
enhanced rather than
impeded by the use of these procedures. These
special procedures should not be seen as justifiable limitations on
the right to
a fair trial, but as measures conducive to a trial that
is fair to all (para 116).
[7] It is clear that the enquiry has a
narrow focus: to determine whether it is in the best interests of
the child that an intermediary
be appointed. It is not concerned
with whether the child is competent to give evidence or whether the
child’s evidence is
admissible, credible or reliable. These
are issues which will arise in the trial and will be decided by the
court in the light
of all the evidence. It is significant that
section 170A makes provision for a simple procedure for the
appointment of an intermediary
and essential jurisdictional fact:
i.e. when it appears to the court that the relevant witness would be
exposed to undue mental
stress and suffering: and that no provision
is made for the accused to oppose the appointment of an intermediary.
While an accused
must have a right to be heard on the issue it seems
to me that in the case of a witness of ten or eleven it is very
unlikely that
a court would conclude that it is not in the interests
of the witness to appoint an intermediary. As pointed out by the
Constitutional
Court the appointment of an intermediary will ensure
that the trial is fair.
[8] To make out a case for contempt of
court the applicant must prove the following beyond reasonable doubt:
(1) that an order was made against the
respondent;
(2) that the respondent has knowledge
of the order, either as a result of service or notice;
(3) that the respondent has not
complied with the order; and
(4) that the respondent’s
non-compliance with the order is wilful and
mala
fide
.
Once the applicant has proved that an
order was made against the respondent, that the respondent has
knowledge of the order and
that the respondent has not complied with
the order the respondent bears the onus of proving that he or she did
not do so wilfully
and
mala
fide
. If the respondent
fails to advance evidence that establishes a reasonable doubt as to
whether non-compliance was wilful and
mala
fide
, contempt will have
been established beyond reasonable doubt. The applicant will then be
entitled to a declarator and other appropriate
remedies – see
Fakie NO v CC II Systems
(Pty) Ltd
[2006] ZASCA 52
;
2006 (4)
SA 326
(SCA)
paras 6-10.
[9] To make out a case for the other
substantive relief sought (i.e. that the sixth and seventh
respondents make available to the
applicant the documents listed in
annexure ‘A’ to the notice of motion) the applicant must
demonstrate that he has
a right to have access to the documents. In
this regard, in the founding affidavit the applicant relies on the
court order made
by the regional magistrate, Brits, on 8 October 2008
and section 32(1)(b) of the Constitution. The applicant does not
attempt
to make out a case in terms of the Promotion of Access to
Information Act 2 of 2000 (PAIA). As far as the court order is
concerned
the applicant regards the documents listed in annexure ‘A’
to the notice of motion as part of the docket which the district
court on 12 June 2008 ordered the prosecution to hand over to the
applicant. The third and fourth respondents deny that these
documents form part of the docket.
[10] The applicant alleges that the
police docket consists of three sections: section A, containing
witnesses’ statements
taken by the investigating officer;
expert reports and documentary exhibits: section B containing
witnesses’ reports and
memoranda: and section C containing the
investigation diary – see
Shabalala
and Others v Attorney-General of Transvaal & Another
[1995] ZACC 12
;
1996
(1) SA 725
(CC)
para 10.
The docket obviously includes the intermediary reports compiled by
the sixth and seventh respondents which, it is not
disputed, were
handed to the applicant’s legal representatives after the
district court made its order on 12 June 2008 and
before the regional
court made its order on 8 October 2008. The documents listed in
annexure ‘A’ are the seventh respondent’s
working
papers containing the raw data used by the seventh respondent to
compile the reports and have never left the possession
of the sixth
and/or seventh respondents. The sixth and seventh respondents regard
these documents as confidential and refuse to
make them available to
the fifth respondent (the investigating officer) or the fourth
respondent (the prosecutor who is to conduct
the trial in the Brits
regional court).
[11] In
Shabalala
at 756I-757I the
Constitutional Court stated the legal position with regard to
disclosure of documents in the police docket to be
as follows:
‘
1. The ‘blanket docket
privilege’ expressed by the rule in
R
v Steyn
1954 (1) SA
324
(A)
is inconsistent
with the Constitution to the extent to which it protects from
disclosure all the documents in a police docket, in
all
circumstances, regardless as to whether or not such disclosure is
justified for the purpose of enabling the accused properly
to
exercise his or her right to a fair trial in terms of s 25(3).
2. The claim of the accused for access
to documents in the police docket cannot be defeated merely on the
grounds that such contents
are protected by a blanket privilege in
terms of the decision in
Steyn’s
case.
3. Ordinarily an accused person should
be entitled to have access to documents in the police docket which
are exculpatory (or which
are
prima
facie
likely to be helpful
to the defence) unless, in very rare cases, the State is able to
justify the refusal of such access on the
grounds that it is not
justified for the purposes of a fair trial.
4. Ordinarily the right to a fair
trial would include access to the statements of witnesses (whether or
not the State intends to
call such witnesses) and such of the
contents of a police docket as are relevant in order to enable an
accused person properly
to exercise that right, but the prosecution
may, in a particular case, be able to justify the denial of such
access on the grounds
that it is not justified for the purposes of a
fair trial. This will depend on the circumstances of each case.
5. The State is entitled to resist a
claim by the accused for access to any particular document in the
police docket on the grounds
that such access is not justified for
the purposes of enabling the accused properly to exercise his or her
right to a fair trial
or on the ground that it has reason to believe
that there is a reasonable risk that access to the relevant document
would lead
to the disclosure of the identity of an informer or State
secret or on the grounds that there was a reasonable risk that such
disclosure
might lead to the intimidation of witnesses or otherwise
prejudice the proper ends of justice.
6. Even where the State has satisfied
the Court that the denial of access to the relevant documents is
justified on the grounds
set out in para 5 hereof, it does not follow
that access to such statements, either then or subsequently must
necessarily be denied
to the accused. The court still retains a
discretion. It should balance the degree of risk involved in
attracting the potential
prejudicial consequences for the proper ends
of justice referred to in para 5 (if such access is permitted)
against the degree
of the risk that a fair trial may not enure for
the accused (if such access is denied). A ruling by the court
pursuant to this
paragraph shall be an interlocutory ruling subject
to further amendment, review or recall in the light of circumstances
disclosed
by the further course of trial.’
[12
] The
relevant facts may be summarised briefly as follows:
(1) In February
2008 the applicant’s attorney, Ms. Renate Hertenberger, became
aware that the applicant was being investigated
for allegedly
indecently assaulting four young boys who were members of his First
Communion class. She immediately instructed
counsel and made contact
with the investigating officer (fifth respondent). She did this to
convey to the investigating officer
that there was no case against
the applicant and that he was not a flight risk.
(2) On 5 March 2008
Ms. Hertenberger and counsel met the investigating officer and were
able to satisfy him that the applicant was
not a flight risk and
surrendered the applicant’s passport to the investigating
officer. Thereafter Ms. Hertenberger and
counsel unsuccessfully
attempted to have the case against the applicant withdrawn.
(3) On 5 June 2008 the applicant
appeared in the Brits district court when the case was postponed for
further investigation and
for the state to obtain intermediary
reports.
(4) On 12 June 2008
the applicant applied to the Brits district court for an order that
the whole police docket (i.e. sections A,
B and C) be disclosed to
the applicant. The public prosecutor (not the fourth respondent)
opposed discovery of
sections B and C. After evidence was led regarding the state’s
reasons for not discovering the entire docket the district
court
ordered that the whole docket (i.e. sections A, B and C) be
discovered. Immediately after the hearing copies of the documents
in
the docket were made and were handed to the applicant’s
attorney.
(5) The relevant part of the court
order made on 12 June 2008 states simply – ‘Application
to have B & C part of
the docket granted’. There is no
indication that the order was made against anyone other than the
state and there is no
indication that the parts of the docket to be
discovered included the documents listed in annexure ‘A’
to the notice
of motion.
(6) On 12 August 2008 the applicant
appeared in the Brits regional court and the case was postponed for
trial on 8 and 9 October
2008. The state sought the postponement so
that it could obtain intermediary reports.
(7) On 8 October 2008 the trial was
postponed to 23 March 2009. The trial was postponed because the
German interpreter was not
available. At the hearing, the
applicant’s counsel applied to the court for the applicant to
have access to the tests done
on the complainants and handed in a
list of the documents (annexure ‘A’) to which access was
sought. The prosecutor
(not the fourth respondent) had no objection
to this request and the court ordered –
‘that
defence be supplied with all the issues and documentation raised in
the list annexed hereto annexure “A”’.
The prosecutor
and the applicant’s legal representatives then agreed that the
state would supply the defence with the relevant tests mentioned
in
annexure ‘A’ on 17 October 2008. There is no suggestion
that the documents listed in annexure ‘A’ formed
part of
the docket or were available at court on 8 October 2008. There is
also no suggestion that the seventh respondent was present
when the
undertaking was given and agreed to make the documents available for
the applicant.
(8) The prosecutor in the Brits
regional court (not the fourth respondent) did not make the documents
listed in annexure ‘A’
available to the applicant’s
legal representatives on 17 October 2008.
(9) On 11 November
2008 a meeting was held between the applicant’s legal
representatives and the Deputy Director of Public
Prosecutions, Adv.
Meintjies SC, and the fourth respondent
who
had been appointed to conduct the trial in the Brits regional court,
to discuss
inter
alia
discovery
of the documents listed in annexure ‘A’. The applicant’s
counsel requested Adv. Meintjies’ assistance
in obtaining the
documents and Adv. Meintjies undertook to ascertain from the
investigating officer (fifth respondent) when the
documents would be
provided. The applicant’s counsel also requested permission to
consult with the five complainants which
Adv. Meintjies refused.
(10) After the
meeting the fourth respondent perused the docket and established that
the documents listed in annexure ‘A’
did not form part of
the docket and that they were not in the state’s possession but
were in the possession of the sixth
and/or seventh respondents. The
fourth respondent communicated with the investigating officer to
establish what the situation
regarding the documents was and was
informed by him that the seventh respondent would not make the
documents available as they
were regarded as private and
confidential. Nevertheless, the investigating officer did obtain
pro-forma documents (structural
questionnaires and
anatomical
drawings) and an explanatory note by the seventh respondent with
regard to the techniques used to assess the complainants.
The third
respondent faxed these documents to the applicant’s attorney on
1 December 2008 under cover of a letter pointing
out that the state
had never been in possession of the documents listed in annexure ‘A’
and that counsel for the state
had been informed that the documents
were private and confidential and would not be made available to the
state or the defence.
(11) On 30 May 2008
the seventh respondent was instructed by the state to ascertain
whether the complainants would be competent
to testify against the
applicant in criminal proceedings and whether an intermediary was
needed. On 9 June 2008 the seventh respondent
conducted interviews
with the complainants, recorded her observations and compiled the
assessment reports. The seventh respondent
then furnished the
reports to the state’s representative with the recommendation
that the complainants would be competent
to testify in the
proceedings through an intermediary. Late in 2008 the investigating
officer communicated with the seventh respondent
and requested her to
furnish him with all the documents relating to the tests which
she
had conducted on the complainants as well as the seventh respondent’s
process notes and summaries. The seventh respondent
refused to
furnish the investigating officer with these documents because of the
sixth respondent’s policy in terms of which
the relevant
documents are considered to be private and confidential. This policy
was formulated because children, their guardians
and their parents,
approach the sixth respondent accepting that their communications
with the sixth respondent will not be disclosed.
Such
confidentiality is essential to maintain the relationship between the
sixth respondent and the people who seek its assistance.
The sixth
and seventh respondents persist in the view that the documents sought
are private and confidential.
(12) The sixth and seventh respondents
have no knowledge of the court order made on 8 October 2008 and they
were not parties to
these proceedings.
[13
] In
view of these facts it is clear that no order was made against the
second, fourth and fifth respondents to discover documents.
At best
for the applicant the fourth respondent, in a representative
capacity, was ordered to discover documents. It is also
clear that
there was full compliance with the district court’s order of 12
June 2008. Copies of all the documents in sections
B and C of the
police docket were made and handed to the applicant’s legal
representatives on 12 June 2008. Insofar as the
third respondent, in
a representative capacity, was, on 8 October 2008, ordered to make
available the documents listed in annexure
‘A’, it is
clear that the third respondent was not and never had been in
possession of the documents and that because
of the sixth and seventh
respondent’s refusal to make the documents available the third
respondent could not comply with
the order. The third respondent has
shown that any non-compliance on his or her part was not wilful or
mala
fide
.
The applicant’s claim for relief based on contempt of court
therefore could not succeed. In the applicant’s heads
of
argument the applicant’s counsel did not make submissions in
support of this relief and at the hearing the applicant’s
counsel informed the court that the applicant was not persisting with
this part of the case. It is clear that the applicant never
had a
case for relief for contempt of court and that the applicant has put
the relevant respondents to considerable trouble and
expense to
oppose the application.
[14] With regard to
the applicant’s claim that the sixth and seventh respondents be
ordered to make available the contents
of the docket and the
documents listed in annexure ‘A’ it is clear that the
applicant has already received copies of
the documents in sections A,
B and C of the docket and that the sixth and seventh respondents are
in possession of the documents
listed in annexure ‘A’,
regard them as privileged and confidential and refuse to make them
available to the applicant
or the prosecution.
[15] The issue is whether the
applicant has demonstrated a right to disclosure of the documents
listed in annexure ‘A’,
which are in the possession of
the sixth and seventh respondents which they refuse to make available
to the applicant. In argument,
consistent with the allegations in
the founding affidavit, the applicant’s counsel contends that
the sixth and seventh respondents
are obliged to make the documents
listed in annexure ‘A’ available –
(1) in terms of the
rules laid down in the
Shabalala
judgment.
He argues that the documents form part of the docket even though
they are not and never have been physically part of
the docket;
(2) in terms of section 32 of the
Constitution, the relevant part of which provides that –
‘Everyone has the right of
access to –
(b) any information that is held by
another person and that is required for the exercise or protection of
any rights’
[16] The sixth
respondent is a company incorporated in terms of section 21 of the
Companies Act 61 of 1973 and the seventh respondent
is an employee of
the sixth respondent and a private person. Neither is part of the
prosecution. The seventh respondent may become
a witness simply for
the purpose of establishing the need for the appointment of an
intermediary or intermediaries to assist the
complainants to give
evidence. The documents listed in annexure ‘A’ which are
in their possession are not covered
by the rules in the
Shabalala
judgment.
Applicant’s counsel contends that they are because they are
part of the docket but was unable to refer to a judgment
in which
this has pertinently been decided. It is clear that the applicant is
bound by the third and fourth respondents’
denial that these
documents form part of the docket.
[17] As far as
section 32 of the Constitution is concerned the applicant’s
counsel did not provide any authority for the proposition
that the
applicant is entitled to simply rely on this section in the
Constitution and ignore the provisions of PAIA which was enacted
to
give effect to section 32 of the Constitution. In
Institute
for Democracy in South Africa v ANC
2005
(5) SA 39
(C)
para
17 the court found that ‘s 32 of the Constitution provides the
underlying basis for and informs the rights contained
in PAIA, but
that the section itself is subsumed by PAIA, which now regulates the
right of access to information’; that
parties must assert the
right via the Act and therefore that s 32 is not capable of serving
as an independent legal basis or cause
of action for enforcement of
rights of access to information where no challenge is directed at the
validity or constitutionality
of any of the provisions of PAIA. In
support of this conclusion the court quoted with approval the
following passage from
The
Promotion of Access to Information Act Commentary
by
Iain
Currie and Jonathan Klaaren
para
2.12 at 25-26 –
‘When can
the constitutional right of access to information be directly relied
on? The answer is only in the exceptional
case where a provision of
the AIA, other legislation or conduct beyond the reach of the AIA is
challenged as an infringement of
s 32.
This answer is in accordance
with the principle of avoidance which dictates that remedies should
be found in common law or legislation
(interpreted or developed, as
far as possible, so as to comply with the Constitution) before
resorting to direct constitutional
remedies. It is related to the
principle that norms of greater specificity should be relied on
before resorting to norms of greater
abstraction. Most compellingly,
however, deference must be given to the constitutional authority that
s 32(2) accords to Parliament
to give effect to the constitutional
right of access to information. This means that the Act must be
treated as the principal
legal instrument defining and delineating
the scope and the content of the right of access to information,
establishing the mechanisms
and procedures for its enforcement and
limiting the right where necessary. The Constitutional right
therefore recedes to the background,
indirectly informing the
interpretation of the Act but rarely directly applicable.’
I respectfully
agree with the views of the learned authors and the reasoning of the
court in
Institute
for Democracy in South Africa v ANC supra
.
[18] The applicant
is therefore bound to seek access to the documents listed in annexure
‘A’ in accordance with the
provisions of PAIA. The
applicant has not attempted to do so and has simply relied on the
provisions of s 32 of the Constitution.
In argument the applicant’s
counsel conceded that he had not considered the provisions of PAIA
and he was uncertain as to
whether the Act applied or not. First he
submitted that PAIA does not apply and then he submitted that it
does. If the Act does
apply the applicant would have been obliged to
request the access to the documents in the prescribed form and the
sixth and seventh
respondents would have had 30 days to decide
whether or not to comply with the request. PAIA provides in s 65
that the head of
a private body must refuse a request for access to a
record of the body if its disclosure would constitute an action for
breach
of a duty of confidence owed to a third party in terms of an
agreement. In view of the sixth and seventh respondents’
response
to the request it is more than probable that the respondent
would have raised an objection based on s 65. If the Act does not
apply, then the applicant cannot rely on its provisions or s 32 of
the Constitution. He must use the other methods at his disposal,
which, according to his counsel, include a
subpoena
duces tecum
,
a
subpoena
to
the seventh respondent and attempting to obtain the documents through
her. If the seventh respondent refuses to make the documents
available the issue of whether the applicant is entitled to the
documents could then be debated and the trial court would have
to
decide whether the sixth and seventh respondents are obliged to make
the documents available.
[19] The applicant has therefore not
demonstrated a right to access to the documents listed in annexure
‘A’ which are
in the possession of the sixth and seventh
respondents and his application must be refused.
[20] The second,
third, fourth and fifth respondents seek an order for costs against
the applicant on the scale as between attorney
and own client. The
reason for this is that the applicant’s application against
them was vexatious as described in
In
Re Alluvial Creek Limited
1929
CPD 532
at
535. (A passage approved by the Appellate Division in
Johannesburg
City Council v Television and Electrical Distributors (Pty) Ltd and
Another
1997
(1) SA 157
(A)
at
177D-F subject to a rider which is not relevant for present
purposes.) In my view the request is justified. The application
was
launched with little thought as to what had to be proved for relief
based on contempt of court. Despite the fact that the
facts did not
support a cause of action against the second, third, fourth and fifth
respondents the applicant persisted in seeking
the relief until the
decision was taken, during argument, not to seek the relief.
[21] This
application has served no other purpose than to delay the
commencement of the trial by about one year. The one alleged
purpose
of the application is to obtain documents which would enable the
applicant to challenge the complainants’ competence
to give
evidence, credibility and the admissibility of their evidence at a
trial within a trial during the proceedings in terms
of section
170A(1) of the CPA. The other alleged purpose is to obtain the
documents from the sixth and seventh respondents so
that the
applicant can make representations to the Director of Public
Prosecutions regarding withdrawal of the prosecution. In
my view
both purposes are misconceived. As already pointed out, the enquiry
in terms of section 170A(1) of the CPA is limited
to determining
whether or not an intermediary should be appointed to assist the
witness to prevent the witness from being exposed
to undue mental
stress or suffering. The procedure envisaged does not allow for a
trial within a trial of the nature contemplated
by the applicant’s
legal representatives. The issues of competence, admissibility,
credibility and reliability are issues
decided by the trial court in
the course of the trial or at the end of the trial. As far as
representations are concerned the
lack of the documents cannot
prevent the applicant from making proper representations based on the
evidence available and the views
of the expert. In my view the
comments in
Zuma
v National Director of Public Prosecutions and Others
2008
(2) SA SACR 421 (CC)
in
para 65 are applicable.
Order
[22
] 1. The
application is dismissed.
2. The applicant is ordered to pay the
costs of the second, third, fourth and fifth respondents on the scale
as between attorney
and own client.
______________________
B.R.
SOUTHWOOD
JUDGE
OF THE HIGH COURT
I
agree
______________________
J.
HIEMSTRA
ACTING
JUDGE OF THE HIGH COURT
CASE NO:
14920/2009
HEARD
ON: 1 February 2010
FOR
THE APPLICANT: ADV. M.S.M. BRASSEY SC
ADV.
G.E. KERR-PHILLIPS
INSTRUCTED
BY: Schwarz-North Inc.
FOR
THE
1
ST
,
3
RD
AND 4
TH
RESPONDENTS: ADV. L PIENAAR
ADV.
J. CRONJE
INSTRUCTED
BY: Director of Public Prosecutions
FOR
THE 2
ND
AND 5
TH
RESPONDENTS: ADV. D.J. JOUBERT
INSTRUCTED
BY: State Attorney, Johannesburg
FOR
THE 6
TH
AND 7
TH
RESPONDENTS: ADV. G. DAVIDS
INSTRUCTED
BY: Eversheds
DATE
OF JUDGMENT: 10 February 2010