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[2018] ZAECPEHC 25
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Mulckhuyse v Minister of Police (2722/2017) [2018] ZAECPEHC 25 (26 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 2722/2017
Date heard: 10 May 2018
Date
delivered: 26 June 2018
In
the matter between
LEENDERT
DIRK
MULCKHUYSE Applicant
And
THE
MINISTER OF
POLICE Respondent
JUDGMENT
GOOSEN,
J.
[1]
This
is an application for access to information brought against the
respondent in terms of the provisions of the Promotion of Access
to
Information Act, Act 2 of 2000 (hereafter ‘PAIA’). The
information sought is that contained in a police investigation
docket. The application is opposed. The principal basis upon which it
is opposed is that the requested information was furnished
prior to
the commencement of the application and that the launch of the
application was unnecessary.
[2]
At
the hearing of the matter it was common cause that the applicant has
been furnished with all of the requested information. Accordingly,
the only issue to be determined by the court is the question of the
costs of the application.
[3]
The
applicant lodged his request for information in terms of PAIA on 9
February 2017. It is common cause that on that day the Information
Officer to whom the request for information was addressed, sent a
letter to the applicant’s attorney requesting certain
information and documents which were required in order to process the
application. It was further common cause that the applicant
supplied
the requested information on 24 February 2017.
[4]
The
applicant contends that he received no response to the request for
access to the requested records within the 30-day period
prescribed
in s 25 (1) of PAIA. He accordingly filed a notice of appeal, in
terms of ss 74 and 75 of the Act, on 16 March 2017.
[5]
On
3 May 2017 the applicant’s attorneys received a request from
the respondent for payment of the fees in respect of the information
sought. The applicant states that the request was complied with on 30
May 2017. Thereafter, on 6 June 2017, the respondent allegedly
partially complied with the applicant’s request for information
by furnishing the A section of the requested docket to the
applicant’s attorneys. However, since the respondent had failed
to furnish the B and C sections of the docket the applicant
was
compelled to bring the present application, in terms of s 78 (2) and
to seek an order in terms of s 82 of PAIA.
[6]
The
applicant launched the present application on 16 August 2017. When
the respondent’s answering affidavit was filed on 19
October
2017, the full extent of the information sought by the applicant was
then furnished.
[7]
There
is, on the papers, a dispute in regard to the above chronology of
events. The principal dispute concerns the question whether
the
appeal lodged by the applicant was lodged prematurely. There is also
a dispute in regard to the date on which the respondent
requested
payment of the prescribed fee and, furthermore, a dispute in relation
to the provision of the requested information,
in particular sections
B and C of the requested docket.
[8]
The
respondent contends that the applicant’s request for access to
the record, lodged on 9 February 2017, was incomplete,
and that it
was only completed upon receipt of the necessary documents which were
supplied on 24 of February 2017. On this basis
it is submitted that
the time period within which the respondent was required to respond
to the request for information only expired
on 24 March 2017. It is
therefore submitted that the lodging of an internal appeal, on 16
March 2017, was premature.
[9]
The
respondent further alleges that on 3 March 2017 a letter, dated 2
March 2017, was telefaxed to the applicant’s attorneys
giving
the applicant notice of the prescribed fee payable in respect of the
request. This document was again sent by telefax on
3 May 2017. It
only received payment of the prescribed fees on 30 May 2017.
[10]
On
6 June 2017, having received payment of the prescribed fee, the
information officer at the Somerset East Police Station forwarded
a
copy of the requested docket to the applicant’s attorneys by
telefax. The respondent states that it included all of the
documents
requested and that the transmission was successful.
[11]
Attached
to the applicant’s papers is a copy of the covering letter
dated 2 March 2017 and two fax transmission reports. One
fax
transmission report indicates a fax transmission on 3 March 2017. The
other indicates a fax transmission on 3 May 2017. These
documents
provide support for the contention that the respondent directed its
request for payment of the prescribed fee to the
applicant on 3 March
2017. This was at a time prior to the applicant’s launch of an
internal appeal based on the deemed refusal
to provide the requested
documents.
[12]
It
is significant that following the further request for payment of the
prescribed fee on 3 May 2017 and the payment thereof on
30 May, that
the requested documents were furnished on 6 June 2017. The respondent
asserts in its answering affidavit that all
of the documents
requested were dispatched to the applicant’s attorney on that
date. The respondent thereafter heard nothing
further from the
applicant’s attorney until the application was commenced on 11
August 2017, two months after the respondent
had furnished the
documents to the applicant.
[13]
These
being motion proceedings in which final relief is sought by the
applicant the well-known rule regarding the resolution of
disputes of
fact, as set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (30 SA 623
(AD) applies. It must therefore be accepted that on 6
June 2017 the respondent furnished the requested documents to the
applicant.
[14]
In
my view, it is significant that following the furnishing of the
documents to the applicant on 6 June, no further correspondence
was
addressed to the respondent. If, as alleged by the applicant, only
section A of the police docket was furnished, then it might
have been
expected that the applicant’s attorneys would have addressed
correspondence to the respondent pointing out that
it had received
only some of the documents requested. It might also have been
expected that the applicant would have sought reasons
for the
purported refusal to furnish the B and C sections of the docket,
since, so far as the applicant was aware, the decision
to provide the
documents was consequent upon a successful appeal lodged by the
applicant. There is, however, no such communication.
Nor is there a
communication of any demand pointing out that the failure to furnish
all of the requested documents would, in the
absence of delivery of
such documents, necessitate an application to this court.
[15]
In
the circumstances, it must be accepted that the launch of these
proceedings was precipitous and not warranted. In the light of
this
finding it is not necessary to deal with the contention raised by the
respondent’s counsel that the internal appeal
was premature and
that the review proceedings are accordingly defective. It suffices to
treat the matter on the basis, as I have
indicated, that the
respondent alleges that it dispatched all the documents sought on 6
June 2017 and that it is common cause between
the parties that on
that day the respondent did furnish certain documents to applicant.
[16]
It
follows from what is set out above and the findings made in relation
to the issues in dispute between the parties, that the applicant
was
not entitled to approach the court for the principal relief sought.
In the circumstances the respondent was successful in the
opposition
to the application. It follows that the appropriate order will be
that the costs should follow the result. I am aware
that the
applicant is seeking to vindicate a constitutional right of access to
information. Ordinarily it would be entitled to
the costs of the
application where such right is vindicated in the process of the
litigation. However, I am not aware of any authority
which suggests
that even in circumstances where a party is not entitled to seek the
relief, that such party is entitled to its
costs.
[17]
In
the result the following order will issue:
The
applicant is ordered to pay the respondent’s costs of the
application.
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Applicant
Adv.
A. C. Moorhouse
Instructed
by RJM Attorneys
For
the Respondent
Adv.
B. Ndamase
Instructed
by the State Attorney