About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2011
>>
[2011] ZAECPEHC 42
|
|
AVUSA Publishing Eastern Cape (Pty) Ltd v Qoboshiyane NO and Others (829/2011) [2011] ZAECPEHC 42; 2012 (1) SA 158 (ECP) (20 October 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE HIGH COURT, PORT
ELIZABETH)
CASE NO: 829/2011
In the matter between:
AVUSA PUBLISHING EASTERN CAPE (PTY)
LTD
…...................................
Applicant
and
M QOBOSHIYANE
NO
…...................................................................
First
Respondent
STANLEY KHANYILE
NO
….........................................................
Second
Respondent
DEPARTMENT OF LOCAL GOVERNMENT
AND TRADITIONAL AFFAIRS, EASTERN
CAPE
…........................
Third
Respondent
NELSON MANDELA BAY METROPOLITAN
MUNICIPALITY
…............................................................................
Fourth
Respondent
JOHN GRAHAM RICHARDS
…..........................................................
Fifth
Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
DUKADA AJ
:
Introduction
:
[1] This is an application to obtain
access in terms of the
Promotion of Access to Information Act No.
2 of 2000
(hereinafter called PAIA),
to the full forensic
investigation report prepared by Kabuso CC
(hereinafter referred
to as the Kabuso report)
held by first, second and third
respondents.
B.
Factual Background
:
[2] During 2009 the predecessor of the
first respondent received a letter from the then Mayor of the fourth
respondent in which
concerns were raised about certain acts of
maladministration occurring in the fourth respondent. Pursuant to the
said letter, during
August 2009 the predecessor of the first
respondent, acting in terms of
Section 106 of the Local
Government: Municipal Systems Act No. 32 of 2000
(hereinafter
referred to as the System Act)
, appointed
Kabuso CC
, an
independent firm of forensic investigators to investigate, report and
make recommendations in respect of certain instances
of
maladministration in the fourth respondent.
[3]
Kabuso CC
conducted the
said investigation, prepared and delivered a report to the
predecessor of first respondent in February 2010.
[4] The first respondent assumed his
present position as the Member of the Executive Council in the
Department of Local Government
and Traditional Affairs, Eastern Cape
in December 2010. An undated letter was written by the first
respondent to the National Council
of Provinces with the heading
“
PROGRESS REPORT ON FORENSIC INVESTIGATION AT NELSON MANDELA
METRO MUNICIPALITY”
and “
PROCESS PLAN ON TABLING
THE NMBM KABUSO REPORT.”
Another undated letter with
similar contents was written by the first respondent to the Minister
of the Department of Co-operative
Governance, Pretoria, but in
addition it contains a road map of activities done and to be done, by
whom, and time frames. The last
activity recorded is to
"write
to Municipality requesting clarity and additional information on
matters and, the present status of matters"
and the
estimated completion date was 10 February 2011.
[5] First respondent wrote a letter
dated 28 March 2011 to fourth respondent, annexed to his papers as
Annexure
"MQ3"
reading as follows:
“
Dear Honourable
Mayor Wayile
FORENSIC INVESTIGATION-
VARIOUS MATTERS
The abovementioned
refers:
As you are aware in terms
of section 106(1)(b) of the Local Government:
Municipal Systems Act,
2000( Act No.32
of 2000) KABUSO, an independent firm were
commissioned by the Department to conduct a forensic investigation
regarding the various
matters that were raised by Council pertaining
to allegations of maladministration and other acts of serious
malpractice.
In this regard, I hereby
wish to table a condensed report of the material findings
incorporating legal opinion. The said report
reveals a number of
areas of concern of which, the following are transversal:
Lack of leadership and
accountability at both the administrative and political levels;
Lack of Contracts
Management;
Circumvention and
non-compliance with the municipal Supply Chain Management Processes;
Ineffective Legal
Division;
Inability of the
Municipality to properly manage the Tourism/ Development projects;
Ineffective
administration of Disciplinary actions;
The incurrence of
Fruitless and Wasteful expenditure.
I trust that the
municipality would consider the findings of the report, and where
appropriate institute disciplinary, civil and/or
criminal proceeding.
Kindly refer to my specific requests set out in the "Way
Forward" sections contained under each
finding and request that
the municipality submit a written response together with applicable
supporting documentation with 30 calendar
days from the date of this
letter.
Kindly refer to the
condensed report attached hereto marked Annexure A and the schedule
of Abbreviations marked B respectively.
I trust the above is in
order.
Yours in Service delivery
________________________
M. Qoboshiyane
MEC FOR LOCAL GOVERNMENT
AND TRADITIONAL AFFAIRS”
The said letter required fourth
respondent to respond within 30 days and a reply dated 29 April 2011
requested an additional period
of 30 days. First respondent responded
by his letter dated 9 May 2011 and granted fourth respondent more
time to respond, i.e
,
to deliver her response not later than
close of business on Friday 20 May 2011.
C.
Request For Access
:
[6] The applicant lodged a request to
the offices of the third respondent for access to the Kabuso report,
in the prescribed form,
in terms of
Section 18(1) of PAIA read
with Regulation 6 of the Regulations
promulgated in terms of the
said Act.
[7] On 15 December 2010, the second
respondent in his capacity as the Information Officer of the third
respondent replied refusing
access to the Kabuso report giving the
following reasons:
“
The record you are
requesting contains privileged information and is therefore refused
in terms of
section 44(1)(a)(i)
of the
Promotion of Access to
Information Act 2 of 2000
.”
[8] The applicant lodged an internal
appeal against the said decision to the first respondent. On 21
January 2011, the applicant's
attorneys received by telefax, their
Notice of Internal Appeal with an endorsement, the relevant part of
which reads as follows
:
“
dismissed decision
of the deputy Information Officer confirmed.”
The applicant then wrote a letter to
the first respondent indicating that first respondent was obliged to
give notice of the decision
and reasons for the decision on appeal.
First respondent replied per his letter dated 14 February 2011 as
follows:
“
we confirm that in
terms of Section 77 (2) of the Promotion of Access of Information Act
2 of 2000, hereinafter referred to as "the
Act " that the
relevant authority, has confirmed the decision of the Deputy
Information Officer to deny access to the records
in terms of Section
44(1)(a) and (b) of the Act for the following reasons as reflected in
the Act:-
(a) if the records
contain:-
An opinion, advise,
report or recommendation obtained or prepared; or
An account of
consultation, discussion or deliberation that has occurred
including, but not limited to, minutes of a meeting
(b) If-
The disclosure of the
record could easily be expected to frustrate the deliberative
process in a public body or between public
bodies by inhibiting the
candid-
communication of an
opinion, advise, report or recommendation; or
conduct of a
consultation, discussion or deliberation.
We confirm the reason for
refusing access to the KABUSO CC report is that all provisions listed
in Section 44(1)(a) and (b) respectively
are applicable,”
The applicant then launched this
application on 18 March 2011.
D.
Issue
:
[9] The real issue to be determined by
this court is whether the refusal of access to the Kabuso report by
the first, second and
third respondents is justified in terms of
PAIA
.
E.
Legal
principles applicable to the issue
:
[10] At this stage it is apposite to
the quote an opening remark by
Nugent
JA
in
President
of the Republic of South Africa & Others v M & G Media Ltd.
1
“
Open
and transparent government and a free flow of information concerning
the affairs of the State is the lifeblood of democracy.
That is why
the Bill of Rights guarantees to everyone the right of access to ‘any
information that is held by the state’
of which
Ngcobo
J
said
the following in
Brummer
v Minister of Social Development & Others
[2009 (6) SA 232
(cc) para 62]:
‘
The importance of
this right . . . 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.’
But few constitutional
rights are absolute. Generally they are capable of being limited
within the confines of s36. The right of
access to information that
is held by the State has indeed been limited by the
Promotion of
Access to Information Act 2 of 2000
- which fulfills Parliament's
constitutional obligation to enact national legislation to give
effect to the right.”
[11] It is the application of those
limitations mentioned by
Nugent JA
above, in
casu
those
provided for in
Section 44(1)
of PAIA
, which form the subject
of this application.
[12] It is
Section 32 of the
Constitution of the Republic of South Africa
which obliged the
Parliament to enact
PAIA
. The said section provides as
follows:
"Everyone has the
right of access to-
(a) any information held
by the state; and
any information that is
held by another person and that is required for the exercise or
protection of any rights.
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."
[13]
Section 44 (1) of PAIA
which is relied on by the first respondent in justifying his refusal
to access reads as follows:
“
44. Operations of
public bodies-
(1) Subject to
subsections (3) and (4), the information officer of a public body may
refuse a request for access to a record of
the body-
(a) if the record
contains-
(i) an opinion, advice,
report or recommendation obtained or prepared; or
(ii) an account of
consultation, discussion or deliberation that has occurred,
including, but not limited to, minutes of a meeting,
for the purpose of
assisting to formulate a policy or take a decision in the exercise of
a power or performance of a duty conferred
or imposed by law; or
(b) if-
(i) the disclosure of the
record could reasonably be expected to frustrate the deliberative
process in a public body or between
public bodies by inhibiting the
candid-
(aa) communication of an
opinion, advice, report or recommendation; or
(bb) conduct of a
consultation, discussion, or deliberation;
(ii) the disclosure of
the record could, by premature disclosure of a policy or contemplated
policy, reasonably be expected to frustrate
the success of that
policy.”
[14] In interpreting the said
Section
44(1),
it is essential to take into account not only the
afore-mentioned
Section 32 of the Constitution,
but also
Section 195
thereof, which deals with the basic values and
principles which must govern public administration which are
inter
alia:
(a) A high standard of professional
ethics must be promoted and maintained;
(b) Efficient, economic and effective
use of resources must be promoted;
(c ) Public administration must be
accountable; and
(d) Transparency must be fostered by
providing the public with timely, accessible and accurate
information.
This section also provides that these
principles apply to administration in every sphere of government,
organs of state and public
enterprises.
[15] Interpreting the word
“
obtain”
contained in
Section
44(1) (a) of the Act
,
Jafta
AJA
(as
he then was)
remarked as
follows in
Minister for
Provincial & Local Government v Unrecognised Leaders, Limpompo
Province (Sekhukhuneland)
2
:
“
However, the
genesis of the legislation was the Constitution and the Act must be
interpreted with due regard to its terms and spirit.
The right of
access to information held by the state is couched therein in wide
terms. Subsection 44 (1) (a) must be construed
in the context of s 32
(1) (a) read with ss 36 and 39 (2) of the Constitution (
cf
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
(CC)
(2004 (7) BCLR687) para [72]). It is clear that s 44 (1) (a) limits
the right to access to information and s 36 of the Constitution
requires that the scope of such a provision be restricted only to an
extent which is reasonable and justifiable. Section 39 (2)
obliges
every court to promote’ the spirit, purport and objects of the
Bill of Rights’ when interpreting any legislation.
It must also
be borne in mind that the Act was enacted in order to give effect to
access to information and promote the values
of openness,
transparency and accountability which are foundational to the
Constitution.”
[16] Commenting on new text 32
(the
predecessor of Section 32)
in
RE Certification of the Constitution of the RSA
3
,
the court remarked as follows:
"……..What
is envisaged by the CP(
sic Constitutional Principle
) is not
access to information merely for the exercise or protection of a
right, but for a wider purpose, namely to ensure that
there is open
and accountable administration at all levels of government".
[17] I fully agree with
Mr
Goosen SC,
Counsel for
applicant, that those provisions of
PAIA
which provides for the refusal of
access to information must be strictly and narrowly construed so that
the broadest effect may
properly be given to
Sections
32
and
195
of the Constitution
.
[18] Where a public body seeks to rely
upon a ground of refusal as provided in Chapter 4 of PAIA, the onus
rests on it to establish
that its refusal of access to the record is
justified in terms of the provisions of PAIA.
4
[19] Turning now to the reasons given
for the refusal of access which the second respondent gave as quoted
in para 6 above.
Section 44
(1)(a)(i)
provides that the
information officer of a public body may refuse a request for access
to a record of a public body- if the record
contains an opinion,
advice, report or recommendation obtained or prepared for the purpose
of assisting to formulate a policy or
take a decision in the exercise
of a power or performance of a duty conferred or imposed by law. The
section does not at all provide
for a refusal of access to a record
of a public body on the ground that
“
it
contains privileged information”.
In
my view
Section 44 (1)(a)(i)
cited by the second respondent in
support of his refusal has no relevance to the reasons given.
[20] On appeal to the First
Respondent, Applicant received a telefax note reading:-
“
dismissal decision
of deputy information officer confirmed.”
This appears to be a decision of the
First Respondent dismissing Applicant's appeal and confirming the
decision of the Second Respondent.
[21] In a country of ours which is now
enriched with a "culture of justification", in my view, in
matters of this nature,
the afore-mentioned replies by the Second and
First Respondents cannot be described as having complied with the
said culture. On
the “
culture of justification”
Nugent JA,
after quoting with approval Etienne Mureinik
‘
Bridge to where
?
Introducing, the Interim Bill of
Rights'
(1994) 10
SAJHR
31
, remarked as follows in
President of the Republic of South Africa & Others v M &
G Media Ltd supra
in para [11].
“
The 'culture of
justification' referred to by Mureinik permeates the Act. No more
than a request for information that is held by
a public body obliges
the information officer to produce it, unless he or she can justify
withholding it. And if he or she refuses
a request then 'adequate
reasons for the refusal' must be stated (with a reference to the
provisions of the Act that are relied
upon to refuse the request.”
[22] In the light of what is set out
above, it seems to me that second and first respondents in the spirit
of the
"culture of justification"
were obliged to
give adequate reasons for their refusal. In my view, their
afore-mentioned replies fall short of adequate reasons.
[23] When applicant's attorneys
queried the afore-quoted telefax note and called upon the first
respondent to give reasons for his
decisions, the latter replied as
quoted in paragraph 7 above. In his reply first respondent, in my
view, merely regurgitates the
wording of
Section 44(1)(a) and (b)
of PAIA
. This is a similar reply to which
Jafta AJA
(as
he then was) (
referred to in
Minister for Provincial &
Local Government v Unrecognised Traditional Leaders, Limpompo
Province (Sekhukhuneland)
supra
in
para [18]
)
remarked as follows:
“
. . . It is
notable from the quoted provisions of s44(1) that in the answering
affidavit Clerihew [the information officer] merely
repeats the
wording of the section. Clearly, para
(b)
enjoins an information officer to consider all the facts and to
determine whether it could reasonably be expected that a disclosure
of a report would frustrate any of the purposes referred to in s
(1)(b)(i) or (ii).”
[24] The first respondent submits in
his answering affidavit that the disclosure of the entire Kabuso
report, together with all
its annexures, at this stage, is
inappropriate and would inevitably tend to undermine the process
commenced by his predecessor
and which is still underway.
He explained that process as:
His predecessor received a letter
from the Executive Mayor of the fourth respondent on which he raised
her concerns that certain
acts of maladministration were occurring
in the fourth respondent.
Pursuant to the said letter and
acting in terms of
Section 106 (1) (b) of the Local Government:
Municipal Systems Act 32 of 2000
(the Systems Act
) he
requested the
Kabuso CC
to investigate report and make
recommendations in respect of certain specified issues which had
been raised by the fourth respondent.
He sent a written statement to the
National Council of Provinces in terms of
Section 106 (3) (a) of
the Systems Act
, motivating the appointment of
Kabuso CC
,
and also sent a copy of the said statements to the relevant Minister
and the Minister of Finance in terms of
Section 106 (3) (b) of
the Systems Act
.
After receipt of the Kabuso report
and legal opinions in respect thereof, he presented the Kabuso
report to the fourth respondent
for their response to a number of
issues which gave rise to a concern and which were contained in that
report .
He was awaiting the response to the
Kabuso report from the fourth respondent which was due within thirty
days from 29 March 2011.
He further gave fourth respondent an
extension of time, per their request, up to and not later than
Friday 20 May 2011. He had
not received any response to the KABUSO
REPORT from the fourth respondent.
He submitted that, depending upon the
nature of the response received from the fourth respondent (if any)
he would be entitled,
if not indeed obliged, to issue appropriate
directives in terms of section 139 (1)(a) of the Constitution.
He stated that the process which was
commenced by his predecessor and has been continued by himself is a
process which could be
seriously undermined should there be
premature disclosure of what is a “work in progress.”
He put it as follows:
"it is self
evidently not practical or appropriate for such an ongoing
investigation to be conducted in the public domain.
This will
inevitably undermine the effectiveness of the investigation and the
willingness of the parties (including the Municipality)
to
co-operate."
[25]
Mr Buchannan SC
, Counsel
for first, second and third respondents submitted that the Kabuso
report was precisely procured to assist the first respondent
in
taking a decision in the exercise of the power and performance of his
duties as conferred and imposed by
Sections 139 and 154 of the
Constitution
. He argued that for the first respondent to take a
decision on appropriate interventions, or a decision on whether an
intervention
would be appropriate at all, in the exercise of the
powers and performance of his duties as conferred and imposed by
Sections 139 and 154 of the Constitution
, it is necessary for
him to afford the fourth respondent an opportunity to respond to the
issues raised by the Kabuso report. He
further submitted that there
are “
the deliberative process(es) in a public body or
between public body bodies”
as contemplated in
Section
44 (1)(b) of PAIA
. He submitted that the premature disclosure of
the Kabuso report will frustrate this process by inhibiting the
candid communication
of the report or recommendation and the further
conduct of the deliberations.
[26] It becomes clear only from the
answering affidavit of the first respondent that the Kabuso report
was commissioned in terms
of
Section 106 of the Systems Act
and that the report they prepared was obtained for the purpose of
assisting the first respondent to decide whether to act in terms
of
Section 139 (1)(a) of the Constitution
.
[27] In a memorandum from the second
respondent to the predecessor of the first respondent, the purpose of
which is described as
“
to obtain approval of the MEC to
conduct an investigation on possible irregularities relating to
development projects at Nelson
Mandela Bay Metropolitan
Municipality”
, the terms of reference of the investigation
are set out on page 2 thereof. The following is written “
Section
106 of the Local Government Municipal Systems Act places
responsibility to the MEC to investigate any allegations of possible
maladministration, fraud and
corruption, occurring/occurred in
a
municipality”
. The said memorandum was signed by
the second respondent on 7 August 2009. I cannot understand why the
second respondent, while
in possession of such information, failed to
give adequate reasons for his refusal of access to the Kabuso report.
[28]
Mr Goosen SC
argued that
while it is not disputed that the first respondent may, consequent
upon findings as to maladministration contained
in the Kabuso report
and depending upon the fourth respondent's responses thereto, decide
to act in accordance with
Section 139 of the Constitution
, the
process of deciding to act in accordance with
Section 139 of the
Constitution
is a matter wholly separate and independent of the
content of the Kabuso report.
[29] With respect, I do not understand
this line of argument. In my view in making a decision in terms of
Section 139 of the Constitution
, the first respondent will
have to consider the contents of the Kabuso report together with the
responses thereto by the fourth
respondent, so as to hear both sides
of the story. The said line of argument, therefore falls to be
rejected.
[30]
Mr Van Rooyen SC
, Counsel
for the fourth respondent, stated that the fourth respondent has come
to Court to explain its position and to support
the first, second and
third respondents. He submitted that the fourth respondent is not in
a position to decide when the KABUSO
REPORT will be made public and
released to the applicant.
[31] It may be mentioned that first
and fourth respondents, just a few days before the hearing of this
application, filed supplementary
affidavits with the consent of the
applicant
[32] In the supplementary affidavit
the first respondent mentioned further that he may also decide to act
in terms of
Section 154 of the Constitution
which enjoins the
Provincial Government to support and strengthen the capacity of the
Municipalities to manage their own affairs
and to perform their
functions through legislation and other measures.
[33] In my view, the first respondent
was justified in terms of
Section 44 (1)(a) and (b) of PAIA
to
refuse access to the Kabuso report.
F.
Public interest
override
:
[34] This matter, however, does not
end there as
Mr Goosen SC
argued that the mandatory or
compulsory disclosure of a record in the public interest in terms of
Section 46 of PAIA
applies in the circumstances of this case.
[35] He argued that the first
respondent is obliged in terms of
Section 46 of PAIA
to
demonstrate the adverse effect or the harm which might arise from the
disclosure of a record which falls within the ambit of
Section 44
(namely an adverse effect on the process of deliberation in either
policy formulation or in the decision as to whether or not to
exercise a public power)
, outweighs the public interest in the
disclosure of evidence of serious contraventions of the law. He
submitted further that the
first respondent bears an evidential
burden in this regard and that the only basis advanced by the first
respondent is that they
are involved in a “
process”
and that the disclosure of the Kabuso report would amount to
disclosure of a “
work in progress.”
[36]
Mr Buchannan SC
submitted
that in order to justify disclosure, the public interest served by
revealing a record evidencing a substantial contravention
of the law
must “
clearly outweigh”
the harm to the interest
protected by the ground. He argued that the Kabuso report is
currently the subject of deliberations which
will ultimately assist
the MEC in taking a decision on the appropriate interventions. Until
the deliberative process is complete,
speculation and conjecture as
to the Kabuso report as well as the Municipality's responses thereto
will undermine, rather than
assist the MEC's decision making process
the premature disclosure of the Kabuso report, as a deliberative
material will result
in public confusion.
[37] He submitted further that the
public interest is served by preserving the integrity of the
deliberative process of both the
provincial department and the
Municipality and that the disclosure of the Kabuso report at this
stage would adversely affect these
deliberative processes and it
would be contrary to public interest to do so.
[38]
Mr Goosen SC
further
argued that the first respondent's concern about the “
process
being undermined”
is based on no evidence and that it
instead appears to reflect a distrust of the public and lack of
confidence in the institutions
of democratic accountability which our
Constitution establishes. He further submitted that this is premised
on a paternalistic
conception that decision making should be shielded
from public scrutiny lest public opinion shapes the decisions to be
made.
[39] Whilst I agree with
Mr
Buchanna SC
that the deliberative process of the first, third and
fourth respondents ought to be protected in terms of
Section 44
(1)(b) of the Act
, however, there is a disturbing factor in this
matter which is the apparent lack of appreciation of the essence of
time as will
appear here-under:
The Kabuso report was delivered to
the predecessor of the first respondent in February 2010.
First respondent, per a letter dated
28 March 2011, sent a condensed report of the Kabuso report to the
fourth respondent.
The fourth respondent responded by a
letter dated 29 April 2011 requesting a full copy of the Kabuso
report and that the time
for their response be extended to 30 days.
First respondent replied per a letter
dated 9 May 2011 giving them additional time to respond, i.e not
later than 20 May 2011
and also advising them that the full Kabuso
report will be made available to them by the State Attorney.
Fourth respondent received the full
Kabuso report together with its annexures on 3 May 2011.
On 20 May 2011 the Executive Mayor of
the fourth respondent furnished the first respondent with responses
to the issues raised
in the Kabuso report but first respondent was
not satisfied therewith.
On 22 June 2011 first respondent
wrote a letter to fourth respondent calling for a more detailed and
particularised response within
30 days.
On 1 August 2011 second respondent
met the Mayor of the fourth respondent and impressed upon him the
significance of providing
appropriate and adequate responses to the
issues raised in the Kabuso report with a degree of expedition. The
Mayor undertook
to finalise the responses by no later that 31 August
2011, after which responses would be tabled before the Municipality
Council
for consideration and endorsement.
As at 1 September 2011 when this
application was heard the fourth respondent had not yet fully
responded to the issues raised
in the Kabuso report as requested by
the first respondent.
[40] From the above outline of events
and times it is clear that the “
process”
between
the first respondent and the fourth respondent has been going on as
from 3 May 2011 and as at the date of hearing of this
application it
was still going on, that covers a period of about four months. To
complicate matters this Kabuso report has been
with the predecessor
of the first respondent as from February 2010.
[41] The fourth respondent in her
answering affidavit says “obtaining of legal opinions [by the
first respondent] from Senior
Counsel on the various aspects raised
in the Kabuso report occurred from March 2010 to October 2010 and
that the consolidation
of the Kabuso report and the legal opinions
took a further two months". She seems to seek cover from that
statement to justify
her delay in furnishing a response to the first
respondent.
[42] To me, it seems, even the said
time taken by the first respondent in obtaining legal opinions and
consolidating them and the
report, cannot be described as a
reasonable one.
[43] Regarding this aspect of time,
the following statement by the first respondent, in paragraph 5.29 of
his answering affidavit
made on the 15
th
May 2011 is worth
noting and I fully agree with it :
“
Despite the
Municipality requesting a further thirty days to respond to my
detailed request, I have afforded them a further period
to provide
such response by not later that Friday the 20
th
May 2011. It is my view that the Municipality has had more that an
adequate opportunity to respond to issues which, after all arose
within the Municipality itself, related to documents held by the
Municipality, and where they have been in possession of my detailed
request for responses since the end of April 2011.”
[44]
Section 195 (1) (g) of the
Constitution
provides that “
Transparency must be
fostered by providing the public with
timely,
accessible and accurate information”.
(My underlining).
In my view, this section makes time to be of essence in matters of
this nature; but unfortunately the way in
which the fourth respondent
has dealt with the Kabuso report does not reflect an appreciation of
that aspect.
[45] It is common cause that there
were allegations of certain acts of maladministration in the fourth
respondent which raised concerns
to the previous Executive Mayor. As
a consequence thereof the predecessor of the first respondent
appointed Kabuso report CC to
conduct investigations and the Kabuso
report was prepared in respect thereof.
[46] The response by the fourth
respondent to the issues raised in the Kabuso report has been
outstanding for an unreasonable time.
It seems to me the disclosure
of the Kabuso report would reveal a substantial contravention of, or
a failure to comply with the
law. I fully agree with
Mr Goosen SC
that the attitude of the first respondent referred to in para 38
above seem to be rather paternalistic and appears to reflect a
distrust of the public. The right to timely, accessible and accurate
information so aptly described by
Ngcobo J
in the Brummer case
supra
the Constitution demands that it be fostered.
[47] In my view, to withhold access to
the Kabuso report any further will be against public interest that
will be served by revealing
the Kabuso report which evidences a
substantial contravention of the law and such public interest clearly
outweighs the harm to
the interest protected by Section 44(1)(a) and
(b) of the Act.
[48] This view is re-enforced by the
following remarks by the authors Iain Currie and Jonathan Klaaren.
5
“
Moreover, there is
more to the term "public interest" than the aspects
specifically identified in the override (i.e the
public interest in
upholding the law and in awareness of public safety or environmental
risks). There is also a public interest
in furthering the general
goals of the Act i.e facilitating and promoting the disclosure of
information to promote open government
and human rights.”
[49] I therefore, for the reasons
advanced above, find that there is no justification in law for the
first, second and third respondents,
to continue to refuse any
longer, applicant access to the full Kabuso report together with its
annexures.
G.
Costs
:
[50] The fourth respondent has filed
an affidavit opposing the relief sought by the Applicant and has
associated herself with first,
second and third respondent in
opposing the relief sought herein.
I find no reason to treat her
differently in regard to costs. I further find no reason to depart
from the general rule that costs
follow the results.
[51] In the circumstances the
following order is made:
the decisions of the first, second
and the third respondents to refuse applicant access to the Report
prepared by KABUSO cc on
the instructions of the first respondent in
relation to and in respect of an investigation conducted into the
affairs of the
fourth respondent in terms of provisions of
Section
106
of the
Local Government: Municipal Systems Act No. 32 of 2000
,
are hereby set aside;
First respondent and third
respondents are hereby ordered to deliver to the applicant within
five (5) days of this Order a copy
of complete report, together with
its annexures, mentioned in Order (a) above.
First and second, third and fourth
respondents are ordered to pay costs of this application jointly and
severally, the one paying
the other to be absolved.
________________________
D Z DUKADA
ACTING JUDGE OF THE HIGH COURT
For Applicant: Adv G G Goosen SC
Instructed by: Pagdens Attorneys
For First, Second & Third
Respondents: Adv R G Buchannan SC with
ADV G G Ngcangisa
Instructed by: State Attorney
PORT ELIZABETH
For Fourth Respondent: Adv R O Van
Rooyen SC
Instructed by: Doreen Mgoduka
Attorneys
Heard on: 1 September 2011
Delivered on: 20 October 2011
1
2011
(2) SA 1
(SCA) para [1]–[2]
2
2005
(2) SA 110
(SCA) at para 16
3
3
1996 (4) SA 744(CC)
at para 83
4
President
of the Republic of South Africa & Others v M & G Media Ltd
supra at para [14]
5
The
Promotion of Access to Information Commentary (2002) at para 7.13
page 109