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[2019] ZAECPEHC 55
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De Vries v South African Teachers Union and Another (3327/2018) [2019] ZAECPEHC 55 (3 September 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH
Case
No.: 3327/2018
Date
Heard: 1 August 2019
Date
Delivered: 3 September 2019
In the matter between:
MAURITZ DE
VRIES
Applicant
and
SOUTH AFRICAN
TEACHERS’ UNION
First
Respondent
THE INFORMATION
OFFICER
SOUTH AFRICAN
TEACHERS’ UNION
Second
Respondent
JUDGMENT
EKSTEEN
J:
[1]
The applicant seeks to compel the first
respondent, in terms of the Promotion of Access to Information Act, 2
of 2000 (PAIA), to
furnish him with an array of documents. The first
respondent is a trade union duly registered in terms of the Labour
Relations
Act, 66 of 1995 (the LRA) and the second respondent is
cited as the information officer of the first respondent.
[2]
The documents sought as set out in the notice of
motion are:
“
1.1
The budgets for the SOUTH AFRICAN TEACHERS UNION for the years 2015,
2016, 2017 and 2018 as referred
to in its Constitution;
1.2
The minutes of all meetings of the SOUTH AFRICAN TEACHERS UNION’s
National Advisory
Committee for the years 2015, 2016, 2017 and 2018;
1.3
The minutes of Provincial Standing Committee meetings for the SOUTH
AFRICAN TEACHERS UNION
for all provinces, in proof of their
respective compliance with their constitutional duty to consider new
membership applications
for the years 2014, 2015, 2016, 2017 and
2018;
1.4
All recommendations made to the SOUTH AFRICAN TEACHERS UNION’s
Standing Committee
in respect of finances and the reports in terms of
section 13.4 of its constitution for the years 2015, 2016, 2017 and
2018;
1.5
Minutes of the Eastern Cape Provincial Executive Committee of the
SOUTH AFRICAN TEACHERS
UNION, for its meeting of 23 February 2018;
1.6
The instruction by the national office of the SOUTH AFRICAN TEACHERS
UNION to Provincial
Secretaries instructing them as to their choice
of sponsors;
1.7
The minutes of the meeting/s in which Mr Klopper was authorised or
instructed to institute
legal proceedings and/or to seek a
restraining order against businessman, Mr Michael Pashut, on behalf
of SOUTH AFRICAN TEACHERS
UNION members, and the resolution
authorising such action;
1.8
The SOUTH AFRICAN TEACHERS UNION minutes of the meeting in which the
decision was taken
to appoint security guards at Lombardi in 2018;
1.9
All documents relating to the payment by SOUTH AFRICAN TEACHERS UNION
for such security
guards, identifying the budget section from which
such payments emanated;
1.10
The mandates obtained from members authorising all proposed
amendments to the constitution of the SOUTH AFRICAN
TEACHERS UNION
and the notices addressed to its provincial branches and to its
members in respect of such proposed amendments,
since 1997;
1.11
All minutes of the meetings of the SOUTH AFRICAN TEACHERS’
UNION, authorising the establishment of
Finansiële Dienste van
Suid Afrika (Pty) Ltd (“FINSA”) and the South African
Education Foundation (“SAEF”)
and T.O. Onderlinge
Maatskappy (“TOO”) which have special group or other
relationships with the SOUTH AFRICAN TEACHERS
UNION, or being
entities holding common management with it, whose members or office
bearers may hold personal or other interests
in such entities;
1.12
Proof of each and every payment of monies made by the SOUTH AFRICAN
TEACHERS UNION to TOO, FINSA and SAEF
during 2015, 2016, 2017 and
2018, reflecting the dates, amounts and payees and the purpose of the
payment;
1.13
Proof of each and every payment of monies received by the SOUTH
AFRICAN TEACHERS UNION from TOO, FINSA and
SAEF reflecting the dates,
amounts and payer and purpose of payment in each case;
1.14
Proof of each and every payment made by the SOUTH AFRICAN TEACHERS
UNION to its management employees and
the executive officer bearers
for the years 2016, 2017 and 2018, reflecting the dates, amount and
name of payees and the purpose
of each payment; and
1.15
All agreements concluded between the SOUTH AFRICAN TEACHERS UNION,
FINSA and SAEF.’
Background
[3]
The applicant is the school principal at the
Sunridge Park School in Port Elizabeth, a longstanding member of the
first respondent
and previously a member of its Provincial Executive
Council. It is his perception that the affairs of the first
respondent,
including the financial affairs, have been mismanaged by
its senior office bearers at national level. He was unhappy
with
the explanations he received in response to enquiries and
accordingly he established a pressure group under the name “Forum
for Concerned SATU Members”. Thereafter he resigned from
the Provincial Executive Council. By virtue of the conclusion
I
have reached it is not necessary for purposes of this judgment to set
out the alleged mismanagement in greater detail.
Suffice it to
record that shortly after his resignation as aforesaid he submitted a
“REQUEST FOR ACCESS TO RECORD OF PUBLIC
BODY”,
purportedly to the second respondent, on 25 May 2017 under cover of a
letter setting out his concerns and advising
of allegations of
mismanagement. Included in the documentation so requested was
all the documents listed above and the “manual”
required
by s 14 of PAIA. I shall revert to the significance hereof
later.
[4]
The first respondent reacted, somewhat belatedly,
under the hand of its deputy president, on 13 July 2018. He
recorded,
inter alia
:
‘
We have perused
your request for the documents of (SATU) as set out in Annexure A of
your letter.
In terms of
Section 50
of
the
Promotion of Access to Information Act … to
get access to
the records of private bodies, a requester must establish that “
the
record is required for the exercise or protection of any rights
”.
The (SATU) is a labour
union acting on behalf of its members in various capacities. We
fail to see what type of right you
in your capacity as a member, seek
to exercise or protect …
…
Kindly furnish us with
full particulars regarding the right(s) you seek to exercise or
protect to enable the National Executive
Committee to consider your
request.
…
The (SATU) is
prima
facie
of the opinion that you are not
entitled to any of the information sought and hereby afford you the
opportunity to advance arguments/information
to the contrary.
As far as the PAIA Manual is concerned, the (SATU) is not legally
obliged to have such manual.’
[5]
This letter elicited an immediate response from
the applicant. He declined to provide particulars of the right
which he sought
to exercise and did not avail himself of the
opportunity to explain why the record is required for the exercise or
protection of
such right. Rather, he recorded:
“
The need to obtain
the documents which I have requested has already been explained.
I do not understand why you believe that
I do not have a right to
protect, by asking for the documents. There is a reasonable
belief, that (SATU), as my union which
is required to serve my
interests as a member, has acted unlawfully and contrary to my rights
to independent, effective and honest
union representation, without
undue or extraneous influence or the pursuit of personal gain and
conflict of interest. In
fact the entire membership has that
right and as has already been explained, the activities of the senior
membership of (SATU)
have been called into question without proper
explanations being furnished.
The
reluctant approach which you have adopted in your response lends
further credence to my concern especially because there can
surely be
no reason not to furnish the documents.
I
have been advised to submit to (SATU) a Notice of Appeal, which I am
attaching. I do hope that you will reconsider and that
it will
not become necessary to request a court to compel compliance.”
[6]
This correspondence foreshadowed the central
dispute which emerges in the present application. The
applicant, in his founding
papers, asserts, without ever engaging the
merits of the assertion, that the first respondent is a public body
and that he is therefore
entitled to the documentation requested.
In his founding papers he refers to the first respondent’s
letter dated 13
July 2018 which I have set out earlier. His
response thereto is dismissive of first respondent’s enquiry.
He
simply states:
‘
32.
The First Respondent specifically relies on section 50 of the
Information Act and suggest that
I “… must establish”
that I have a right to protect. Firstly, section 50 relates to
Private Bodies and
not to Public Bodies and would therefore be
irrelevant. Secondly, the Information Act does not require that
I “must
establish” any right, in the sense that I have a
duty to convince the First Respondent of the merit of my purpose.
As I understand the Information Act, it merely requires that I assert
such a right.
33.
I respectfully draw attention to section 11(3) of the Information Act
which provides that
a requester’s right of access is not
affected by any reasons which the requester gives for requesting
access. Accordingly,
it is not for the First Respondent to
question the reasons for my request.’
[7]
The first respondent, on the other hand, contends
that it is a private body. A private body does not have an
information officer
in terms of PAIA and neither s 11(3) nor s 14
(which relates to the manual requested) find application to private
bodies.
[8]
In the face of this dispute, pertinently raised,
the applicant did not file replying papers. Counsel on behalf
of the applicant
chose to argue the matter on the papers as they
stood after filing of the answering papers.
[9]
In its heads of argument the first respondent
raised a number of points
in limine
.
It is necessary to refer to only two of these for the purposes of the
present judgment. Firstly, the first respondent
contended that
this court did not have jurisdiction to adjudicate upon the dispute.
In this regard it alleged that the first
respondent was a private
body having its principle place of business in Garsfontein, Pretoria
and was therefore neither resident
nor domiciled within the area of
jurisdiction of this court. The second issue raised formed the
central dispute between the
parties before me, namely, whether the
first respondent was a public body as defined in PAIA or a private
body.
[10]
Whilst Mr
Pretorius SC
,
on behalf of the first respondent, did not pursue the first of these
arguments with any vigour it is necessary to make a determination
on
the issue in order to assess whether the second issue can be
considered.
[11]
Section 78 of PAIA
provides for an application by an aggrieved requester to a court. To
the extent material to this application,
“a court”,
is defined in s 1 of PAIA to be:
“
(i)
a High Court or another court of similar status; or
(ii) …
within
whose area of jurisdiction-
(aa)
…
(bb)
…
(cc)
the
requester or third party concerned is domiciled or ordinarily
resident.”
[12]
PAIA therefor
contains its own jurisdictional provisions. In the
circumstances the first respondent’s assertion in respect
of
jurisdiction cannot be sustained.
[13]
I turn to consider
the second dispute between the parties, namely, whether the first
respondent is a public body, as defined in
PAIA, or a private body.
The significance of the dispute arises from the provisions of s 50
and 53 of PAIA. Section
50 provides:
“
(1)
A requester must be given access to any record of a private body 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.”
[14]
The entitlement to
information in possession of a private body is dependent on the
compliance with the procedural requirements in
PAIA. In order
to comply with the procedural requirements as envisaged in s
50(1)(b)
the request must be submitted in the form prescribed.
Section 53 prescribes the form thus:
“
(1)
A request for access to a record
of a private body must be made in the prescribed form
to the private
body concerned at its address, fax number or electronic mail address.
(2)
The form for a
request for access prescribed for the purposes of subsection
(1) must
at least require the requester concerned-
(a)
…
(b)
…
(c)
…
(d)
to identify the right the requester is seeking to exercise or
protect
and provide an explanation of why the requested
record is required for the exercise
or protection of that right;
(e)
… “
[15]
It is these
provisions which were raised by the Deputy President of the first
respondent in the letter of 13 July 2018. It
is not in dispute
that the request submitted to the first respondent did not identify
the right which the requester is seeking
to exercise or protect and
therefore did not provide an explanation as to why the requested
record was required for the exercise
of the rights identified.
Before me, Ms
Bands
,
on behalf of the applicant, acknowledged that in the event that I
find that the first respondent is not a “public body”
as
defined in PAIA the application must fail.
[16]
A “public
body” is defined in PAIA as:
“
(a)
any
department of state or administration in the national or provincial
sphere of government or any municipality
in the local sphere of
government; or
(b)
any
other functionary or institution when-
(i) exercising
a power or performing a duty in terms of the Constitution or a
provincial constitution; or
(ii) exercising
a public power or performing a public function in terms of any
legislation.”
[17]
The first respondent
clearly does not fit into (a) or (b)(i) of the definition, nor did
the applicant contend that it did.
Ms
Bands
did not argue that the applicant performs a public power in respect
of any legislation. The argument on behalf of the applicant
is
that it is a public body as it performs a public function in terms of
the LRA. The argument flows from the
obiter
dicta
of
Conradie JA in
Mittalsteel
South Africa Ltd (Formerly Iscor Ltd) V Hlatshwayo
2007 (1) SA 66
(SCA) where
he postulated, with reference to English jurisprudence, that in an
era in which privatisation of public services and
utilities has
become common place, bodies may perform what is traditionally a
government function without being subject to control
by any of the
spheres of government and may therefore, despite their independence
from control, properly be classified as public
bodies.
[18]
In his discussion of
the English law, Conradie JA referred to
De
Smith, Woolf and Jowel: Judicial Review of Administrative
Action
(1995)
5ed at 167 where they say:
'For
a great many years, the way in which the courts have identified the
activities which are subject to public law is by deciding
whether or
not they are activities to which the High Court's supervisory
jurisdiction of judicial review may be invoked by aggrieved persons.
In the past, this was mainly done by asking what was the
source
of the power
being exercised by the
decision-maker whose action was impugned. Where the power was
statutory or, more recently, derived from the
prerogative, then that
jurisdiction could be invoked. Where, however, powers were conferred
solely by a contract (such as an arbitration
agreement or an
agreement governing the relationship between members of an
unincorporated association), judicial review
generally was
not available. Today, the courts recognise such an approach is too
restrictive and they are now influenced by the
type of
function
performed
by the decision-maker whose
action is challenged. Where a body is carrying out a public function
(such as that undertaken
by a non-government regulatory organisation
in relation to the area of activity which is subject to its control),
the courts will
consider intervening to require compliance
with the principles of judicial review. This is the case even if the
body
is non-statutory, exercising powers which are not derived either
from legislation or the prerogative.
A
body is performing a ''public function'' when it seeks to achieve
some collective benefit for the public or a section of the public
and
is accepted by the public or that section of the public as having
authority to do so. Bodies therefore exercise public functions when
they intervene or participate in social or economic affairs in the
public interest. This may happen in a wide variety of ways.
For
instance, a body is performing a public function when it
provides ''public goods'' or other collective services, such
as
health care, education and personal social services, from funds
raised by taxation.'
[19]
On the strength
hereof it was argued that the first respondent seeks to achieve some
collective benefit for a section of the public
(being its membership)
and its membership accepted that it has the authority to do so.
In doing so, so the argument goes,
it dispersed public funds, being
the subscriptions fees of its members. These functions, it was
contended, are performed
in accordance with the LRA.
[20]
Attractive as the
argument may appear at first glance, I consider that it is
misguided. The first respondent does not perform
its functions
in terms of the LRA. It is true that the first respondent is a
registered trade union as provided for in the
LRA. That does
not mean that it carries out its operations in terms of the LRA, on
the contrary, it does so entirely independently
in the interest of
its members. The LRA merely regulates the registration of trade
unions, it does not regulate the operation
of the trade union.
Whatever functions the first respondent may perform are therefore not
performed in terms of any legislation.
[21]
I do not consider
that De Smith
et
al
had in mind
the membership of a voluntary organisation when referring to a
section of the public. It seems to me that every
voluntary
organisation seeks to achieve some collective benefit for its
membership and its members, invariably, accept that it
has the
authority to do so. That does not render their management
functions “public functions”.
[22]
The Supreme Court of
Appeal in
Mittalsteel
proceeded, after the reference to De Smith
et
al
, at para [21]
to explain that:
“
The
authors also discuss various tests employed by English courts to
determine whether a body is subject to judicial review of its
actions. They are, in summary:
1. whether,
but for the existence of a non-statutory body, the government would
itself almost inevitably have intervened
to regulate the activity in
question;
2. whether
the government has encouraged the activities of a body by providing
underpinning for its work or weaving
it into the fabric of public
regulation or has established it under the authority of government;
3. whether
the body was exercising extensive or monopolistic powers.”
First
respondent does not appear to me to fall into any of these categories
and certainly it does not carry out functions which
are traditionally
government functions.
[23]
Moreover, the funds
dispersed by the first respondent are raised by the subscriptions
paid by its members. It is not derived
from taxation and can
hardly be described as public funds.
[24]
In the circumstances
the first respondent is a private body. In order to obtain
documentation from the first respondent the
applicant is required to
comply with the provisions of s 50 and 53 of PAIA. He was
alerted thereto by the first respondent
in its letter of 13 July 2018
and he consciously resolved not to do so. In these
circumstances the application must fail.
[25]
In the result, the
application is dismissed with costs.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicant: Adv I Bands
instructed by Randell & Associates,
Port
Elizabeth
For
Respondents:Adv G C Pretorius SC instructed by Erasmus Inc,
Pretoria c/o Annali Erasmus Inc, Port Elizabeth