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[2024] ZAECBHC 1
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Information Officer and Another v Elalini Lodge CC t/a Elalini Projects (47/2022) [2024] ZAECBHC 1 (30 January 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
CASE
NO:
47/2022
In the matter between:
THE
INFORMATION OFFICER C/O
1
ST
APPLICANT
THE
STATION COMMANDER BHISHO POLICE
STATION
MINISTER
OF
POLICE
2
ND
APPLICANT
and
ELALINI
LODGE CC t/a ELALINI PROJECTS
RESPONDENT
JUDGMENT
CENGANI-MBAKAZA
AJ
Introduction
[1]
In these proceedings, the Information Officer c/o the Station
Commander
Bhisho Police Station, (the first applicant) and the
Minister of Police (the second applicant) applied for the rescission
of the
order in terms of Rule 42(1(a) alternatively Rule 31(1)(b) of
the Uniform Rules of Court or under common law. This order was
granted in favour of Elalini Lodge cc t/a Elalini project (the
respondent), a close corporation duly registered according to the
Company Laws of the Republic of South Africa and having its principal
place of business at 23 Sili Crescent, Gompo Township, East
London.
On the day of the hearing, the applicants applied that the court
should grant the order in terms of Rule 42(1) (a) of the
Uniform
Rules of Court. The application was opposed by the respondent. In the
respondent’s opposing affidavit, Mr Ayanda
Mbalu (Mr Mbalu)
declared that he represented the respondent in his capacity as its
legal representative. Rule 42(1) of the Uniform
Rules of Court
provides,
“
The
court may, in addition to any powers it may have mero motu or upon
the application of
any
party affected, rescind or vary:
(a)
An order or judgment erroneously sought or
erroneously granted in the absence of any party affected thereby”.
[2]
The respondent’s opposition of the application is based on the
reasons that
will be presented during the course of this judgment.
Factual Background
[3]
Between 15 and 27 November 2009, the respondent
submitted a bid with the Department of Health (DoH) for
accommodation, meals and
conference facilities for 31 community care
workers who attended the Health Care Bridging Course training in
Nelson Mandela Metro.
It was successfully awarded the tender.
Subsequent to the award of the tender, the respondent concluded an
oral agreement with
the MEC for health. According to this agreement,
the respondent would submit invoices to the DoH within five days
after service
completion, and upon receiving the invoice, the DoH
would make direct payment to the respondent’s bank
account.
[4]
The respondent submitted the invoice, however, no payment was made by
the DoH. On
5 September 2012, Price Water Coopers (PWC) presented a
forensic report to the DoH alleging irregularities in the
respondent’s
submitted invoices. Consequently, these alleged
invoices and irregularities became the subject of an investigation by
South African
Police Services (SAPS), specifically the Directorate
for Priority Investigation (Hawks). Subsequently, SAPS submitted a
criminal
case docket to the National Prosecuting Authority, which
declined to prosecute.
[5]
The respondent instituted a civil action against the MEC for health
to recover the
monies due to it. Upon consultation with his legal
representative, Mr Mbalu contended that obtaining copies of the
docket for investigation
against him would assist in the civil claim
with the MEC for Health. On 25 August 2021, Mr Pythagoras Vuyisile
Magqabi (the requester)
formally requested copies of the relevant
docket from the first applicant in terms of the
Promotion of Access
to Information Act, 2 of 2000
( the PAIA). According to the
documents filed, the request was made on behalf of Mr Mbalu in his
personal capacity. In a document
signed on 01 September 2021, the
first applicant informed the requester that he failed to comply with
the provisions of the PAIA
due to the absence of a prescribed form
and indistinct copy of his identity document. Additionally, the first
applicant furnished
the requester with the prescribed form ‘SAPS
512 (n)’.
[6]
The requester completed the prescribed form, attached a legible copy
of his identity
document and submitted his request to the first
applicant. In paragraph D (i) of his request, the requester specified
the purpose
for which the request was sought. He informed the first
applicant that the request was related to a pending civil action
against
SAPS and that the notice under
Section 3
of the Institution
of Civil Proceedings Against Certain Organs of the State, Act 40 of
2002 was already filed to the SAPS.
[7]
In a document dated 14 September 2021, the first applicant notified
the requester
that his request did not comply with PAIA requirements.
According to PAIA, so he was informed, access to information does not
apply
to records requested for civil proceedings that have already
commenced. On 11 October 2021, the requester lodged an internal
appeal
claiming that 30 days had elapsed without any response or
consideration to his request dated 26 August 2021. It was noted that
in his application for an internal appeal, the requester used form
J751, a form that is prescribed for the Department of Public
Service
and Administration for the lodgement of the internal appeals in PAIA
matters.
The impugned order
[8]
On 17 February 2022, the respondent initiated legal proceedings by
filing an application,
seeking an order in terms of Section 82 of the
PAIA at Bhisho High Court (the court) under case number 47/2022. The
named parties
in the application included the information officer
c/o, The Station Commander, Bhisho Police Station as the first
respondent and
The Minister of Police as the second respondent. The
application sought a directive compelling to provide the applicant
with copies
of the docket under Cas No: 83/03/2013. Additionally, it
sought an order directing the respondent to bear the costs of the
application
jointly and severally between attorney and client scale.
[9]
The notice of motion was accompanied by a founding affidavit of Mr
Mbalu. According
to the return of service dated 03 February 2022,
Captain Daniso who is stationed at Bhisho Police Station was served
with the court
process. The court process was also served on the
office of the State Attorney and a local office of the Minister of
Police at
Griffiths Mxenge’s building, Zwelitsha on 4 and 17
February 2022 respectively. The notice of set-down was served at the
Bhisho
Police Station and Office of the State Attorney, East London
on 06 and 11 April 2023 respectively.
[10]
On 01 March 2022, the court granted an order against the first and
the second applicant in the
following terms:
“
1.
That the first Respondent is ordered to provide the Applicant with
the copies of the docket under Case No. 83/03/2013
2. The Respondents to pay
the costs of this Application jointly and severally.”
The
parties’ contentions
[11]
The applicants argued that the order was erroneously granted by
reason of the fact that incomplete
information was presented to the
court by the respondent. In support of this assertion, the applicants
argued that the order was
granted despite the respondent’s
failure to adhere to the mandatory requirements of PAIA. The
applicants further challenged
the manner in which the order was
sought before court. The second ground for seeking rescission of the
order lies with the fact
that the order was granted against the
second applicant in circumstances where he was not served with the
application papers. In
amplification, the second applicant referred
to section 2 of the State Liability Act 20 of 1957(the State
Liability Act) which
provides:
“
the
plaintiff or the applicant, as the case may be, or his or her legal
representative must – (a) after any court process
instituting
proceedings and in which the executive authority is cited as a
nominal defendant or respondent has been issued,
serve
a copy of that process on the head of the department concerned at the
head office of the department
……”
(emphasis added)
[12]
The respondent resisted the application for the rescission of the
order, asserting that the court
documents were properly served to the
applicants. It was contended that the applicants had the opportunity
to participate in the
legal proceedings but chose not to do so.
Furthermore, the respondent maintained that there was full compliance
with the PAIA and
when the first applicant failed to accede to his
request, he lodged a proper application to the court compelling the
applicants
to furnish him with copies of the docket.
The
law
[13]
To be successful, a party seeking an order for the rescission of
judgment or order must demonstrate
that the default judgment or order
was erroneously sought or erroneously granted. In
Bakoven
LTD V GJ Howes (PTY) (LTD
[1]
,
Erasmus J held:
“
Rule
42(1)
(a)
of the Uniform Rules of Court is a procedural step
designed to correct expeditiously an obviously wrong judgment or
order. An order
or judgment is 'erroneously granted', within the
meaning of Rule 42(1)
(a)
, when the Court commits an
'error' in the sense of a 'mistake in a matter of law appearing on
the proceedings of a Court of record'.
It follows that a Court, in
deciding whether a judgment was 'erroneously granted', is, like a
Court of appeal, confined to the
record of proceedings. In
contradistinction to relief in terms of Rule 31(2)
(b)
or
under the common law, the applicant need not show 'good cause' in the
sense of an explanation for his default and a
bona fide defence.
Once the applicant can point to an error in the proceedings, he is
without further ado entitled to rescission.
It is only when he cannot
rely on an 'error' that he has to fall back on Rule 31(2) (b)
(where he was in default of delivery of a notice of intention to
defend or of a plea) or on the common law (in all other cases).
In
both latter instances he must show good cause.”
[14]
The starting point is whether the application in terms of Rule 42(1)
(a) was brought to court within
a reasonable time. The impugned order
was granted on 01 of March 2022. When the applicants were served with
the order, they immediately
approached counsel for consultation. On
13 May 2022, counsel started to prepare court papers. Considering
these facts, which
are common cause, I am persuaded that the
application for rescission of the order was attended to within a
reasonable period. Regrettably,
both parties’ actions are to
blame for the delay in the completion of this application. A judgment
is considered erroneously
granted if, at the time of granting it,
there were facts unknown to the court and these facts, if known,
would have barred the
granting of the judgment.
[2]
Was
the order of the 01
st
March 2022 erroneously sought and
granted?
[15]
In this Division, there is a wealth of precedent which provides
insight on how PAIA applications
should be handled. In
Paul
v MEC for Health, Eastern Cape Provincial Government and Others;
Mbobo v MEC for Health, Eastern Cape Provincial Government
and
Others; Ncumani v MEC for Health, Eastern Cape Province
[3]
, Jolwana J (with Brooks J concurring) held:
“
[9]
the starting point in PAIA applications is section 11 of PAIA which
reads: 1. A requester must be given access to a record of
a public
body if – (a) that requester complies with all the procedural
requirements in this Act relating to a request for
access to that
record………..
[10]
One of the things which stand out in the section 11 is that
compliance with the procedural requirements of PAIA is not optional.
If any of the procedural requirements is not complied with, the
requester is not entitled to the record.
The court is similarly
not at liberty to waive the peremptory provisions of section 11(1).
On a proper construction of section 11(1) it is clear that both the
requester’s entitlement to be given access to a record
of a
public body and the obligation imposed on the requester to comply
with all the procedural requirements of PAIA are couched
in
peremptory terms.
In the absence of full compliance with the
procedural requirements of PAIA, the information officer is entitled
to refuse access
and not to provide the record. The court may also
not order the provision of the record to the requester unless it is
satisfied
that there has been full compliance with all the procedural
requirements.’
(Accentuation added)
[16]
The legal framework for court proceedings under PAIA are firmly
established through by sections
78
[4]
to 82
[5]
. Section 81 provides
that the proceedings under PAIA are civil proceedings and the rules
applicable in civil proceedings apply.
[17]
The relevant Rules 2 and 3 of PAIA
[6]
(the Rules) are as follows:
“
Procedure
in an application to Court in terms of the Act
(2)(1)
The procedure prescribed in these Rules must be followed in all
applications contemplated in section 78 of the Act.
(2)
Unless as otherwise provided for in these rules, the rules governing
the procedure in the court to which an application in terms
of these
rules is brought shall apply with appropriate changes unless directed
by the court.
Applications
3.
(1) An application contemplated in section 78 of the Act must be
brought on notice of motion that must be correspond substantially
in
accordance with the form set out in the Annexure to these rules
addressed to the information officer or head of a private body
as the
case may be
(2)…………………………………:
(a)………………………………….-
(i)……………………………………
(ii)…………………………………..
(3)
The notice of motion referred to in subrule (1) must be supported by
an affidavit and be accompanied by true copies of all documents
upon
which the applicant intends to rely.
(4)
the affidavit referred to in subrule (3) must:
(a)
state out the facts and circumstances upon which the
application is based;
(
b)
state whether internal appeal procedure contemplated in section 74 of
the Act has been exhausted and if not, the reasons for
failing to
exhaust such procedure; and
(c)
explain the relevance of each document upon which the applicant
intends to rely’.( my underlining)
[18]
I now proceed to deal with the first error that was highlighted by
the applicants. When the application for
default order was heard on
01 March 2022, the respondent’s affidavit was very thin, to the
extent that it partially failed
to adhere with Rules 2 and 3 of the
PAIA. A reading of the court record revealed no indication that the
respondent was granted
an exemption from complying with these Rules.
Presented below is an excerpt from the affidavit sworn in by the
respondent in his
application pursuant to Section 82 of PAIA:
“
10.
Thirty (30) days has prescribed by the
PAIA lapsed with no response forthcoming from the office of the
Deputy Information Officer.
11.
My legal representative advised me that the Respondent’s
failure or refusal to access information his/her disposal (sic)
is a
deemed refusal in terms of PAIA and that the recourse available to me
is to appeal the decision
.
12
.
On the 12
th
of October 2021, my attorneys of record acting on my instruction,
lodged and served an internal appeal, via e-mail. Copies of the
cover
letter with enclosures thereto and from ‘B’ for internal
appeal are annexed hereto marked; ‘EL5’
and ‘EL 6’
respectively.
13.
On the 15
th
of October, the first Respondent served my attorneys of record with a
notice of Intended Refusal via email, a copy of which is
annexed
hereto marked ‘EL 7’ respectively
.”(Italics
added)
[19]
Paragraphs 10, 12 and 13 of the respondent affidavit partially
contradict the full conspectus
of facts and the circumstances
surrounding the request to the first applicant. Considering the
background of this case, it is clear
that the first applicant raised
concerns about Mr Mbalu’s request multiple times through his
legal representative. Gleaning
from the record, it is evident that
the requester encountered difficulties in adhering to the proper
procedural aspects of PAIA
and thus the first applicant provided
guidance on potential solutions, advising him on the option to seek
assistance, free of charge,
from his office. When the request was
refused, he was advised that the PAIA is not applicable in
circumstances where civil or criminal
proceedings have already
commenced
[7]
. In order to
overcome this barrier, counsel for the respondent argued that the
civil case that had already commenced when the request
was made, was
against MEC for health and not SAPS. With respect, this argument is
misleading. In his application for the request,
the requester averred
that a case was pending against SAPS. The belated letter that the
respondent’s legal representative
wrote to the first applicant,
where he indicated that there would be no legal proceedings pending
against SAPS is irrelevant for
purposes of compliance with the
requirements of PAIA. Our courts have emphasized that a cover letter
cannot be used to supplement
information that must be contained in a
prescribed form.
[8]
I am privy
to the provisions of Section 11 (3) of the PAIA which provides,
‘
A
requester’s rights of access contemplated in subsection (1) is,
subject to this Act, not affected by-(a) any reasons the
requester
gives for requesting access; or
(b)
the information officer’s belief as to what the requester’s
reasons are for requesting access.’
In
my considered opinion, the relevance of this point lies with the fact
that in the affidavit in support of the application for
an order in
terms of Section 82 of the PAIA, the respondent ought to have
declared that there was a civil case that had already
commenced in
respect of the same set of facts. By so doing, the court
contemplating an order by default, would have had an opportunity
to
consider the provisions of Section 7 of the PAIA in its entirety.
Default judgment proceedings bear similarities to ex parte
proceedings, which imply that there is a duty of disclosure. This
duty requires counsel to disclose even the adverse factors in
the
case. If the court’s decision would have been affected by such
material factors, then there has been a breach of the
duty to
disclose. Whether the breach was wilful or mala fide is irrelevant.
The important thing to remember is the fact that a
material breach
occurred, and that would legally warrant the rescission of the
judgment.
[9]
[20]
Furthermore, in contrast with the provisions of Section 75(1) (a) of
PAIA
[10]
, the form used to
lodge an internal appeal was not the one prescribed in the first
applicant’s manual. According to the first
applicant, the
prescribed form to lodge an internal appeal is form SAPS 512(o) which
the requester never used for this purpose.
This fact was never placed
in dispute by the respondent. Although it is possible to argue that
the use of form J751 (form B) was
an alternative route to pursue an
internal appeal, the documentation, in particular EL7 which is
attached to the form is irrelevant
for purposes of an internal appeal
that was lodged to the information officer. It is imperative to note
that an internal appeal
was lodged on 11 October 2021. The document
dated 25 August 2021 is a ‘notice of intended refusal’.
This is a document
where the first applicant advised the requester to
use form SAPS ‘512(n)’ and to provide a clear copy of Mr
Mbalu’s
identity document in his request for access to
information. Clearly, the process of the lodgement of the
internal appeal
requires proper ventilation.
[21]
Another highlighted error by the applicants’ counsel pertains
to the manner of serving
the court processes to the Minister of
Police/the second applicant. Counsel’s reference to Section
2(a) of the State liability
Act is misplaced.
The executive authority of the department can and must be cited as a
nominal defendant or respondent in two instances, namely when
a claim
arises out of any contract lawfully entered into on behalf of the
State. The second instance is where any servant of the
State commits
any wrong while acting within the scope of his authority as a servant
of the State.
[11]
In
Paul
v MEC for Health, Eastern Cape Provincial Government and Others;
Mbobo v MEC for Health, Eastern Cape Provincial Government
and
Others; Ncumani v MEC for Health, Eastern Cape Province
[12]
the
court addressed this issue and held:
“
In
my view, PAIA applications are neither founded on any contract nor
any wrong committed. They are an enforcement of a constitutional
right of access to information to which unless the State is legally
justified in refusing access to the required record, citizens
must
ordinarily and without having to resort to court be given access”
[22]
In my considered opinion, the citation of the Minister of Police as a
second respondent before the
court granting an order by default was
erroneous. Rule 3(1) provides:
“
An
application contemplated in terms of section 78 of the Act must be
brought on notice of motion that must correspond substantially
with
the form set out in the Annexure to these rules,
addressed to the
information officer
or the head of the private body, as the case
may be.”(my underlining).
[23]
The underlying issue of this case demonstrates
that the issue of the request for access to information in terms of
the PAIA was
between the first applicant and the requester. The
communication was confined to Sgt Mjandana (the deputy information
officer)
and not the Minister of Police. Furthermore, the fact that
the respondent opted to cite the second applicant in his application
for default judgment is incomprehensible. This enigma resulted in an
erroneous order being granted against the Minister of Police
/the
second applicant.
CONCLUSION
[24]
In my view, had the court been appraised of
these errors, the application for the default order would not have
been granted.
For all the reasons stated above, the
order dated 01 March 2022 was erroneously sought and granted. The
application for rescission
of the order must succeed.
COSTS
[25]
As a general rule, the costs follow the result. Over the years, the
Supreme Court has developed
a flexible approach to cost orders. There
are instances where, at the discretion of the court, a successful
party may be deprived
of his or her costs.
[13]
[26]
In
Ferreira’s
case
[14]
,
the court held:
“
without
attempting either comprehensiveness or complete analytical accuracy,
depriving successful parties of their costs can depend
on
circumstances such as, for example, the conduct of the parties, the
conduct of their legal representatives, whether a party
achieves
technical success only, the nature of the litigants and the nature of
the proceedings. I mention these examples to indicate
that the
principles which have been developed in relation to the award of
costs are by their nature sufficiently flexible and adaptable
to meet
new needs which may arise in regard to constitutional litigation”
[27]
The first applicant is a public body that has a Constitutional
obligation to provide access to
information to the respondent.
[15]
Considering the facts of this case, it is apparent that the success
of the applicants was technical in nature. Therefore, it is
my view
that the proper exercise of judicial discretion requires that I make
no order as to costs.
ORDER
[1]
The application for the rescission of the default order dated 01
March 2022 is granted.
[2]
No order as to costs.
____________________________________
N
CENGANI-MBAKAZA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
APPEARANCES:
Counsel
for the Applicants: Adv H.N Miya
Instructed
by : The State Attorney
17
Fleet Street
Old
Spoornet Building
East
London
Counsel
for the Respondent : Adv L. Rusi
Instructed
by :
Magqabi
Seth Zitha Attorneys
No.9
St George Street
Southernwood
East
London
DATE HEARD :
2 November 2023
DATE
DELIVERED
:
30
January 2024
[1]
1992 (2) SA 466
(E) at 466E-G.
[2]
Rossiter
&Others v Nedbank Ltd (96/2014) ZASCA 196 (1 December 2015) at
para 16.
[3]
[2019]
3 All SA 879
(ECM) at para 9.
[4]
Application
regarding decisions of information officers or relevant authorities
of public bodies or heads of private bodies
.
(1) A requester or third party referred to in section 74 may
only
apply to court for appropriate relief in terms of section 82 after
that requester or third party has exhausted the internal appeal
procedure against a decision of the information officer of a public
body provided for in section 74……..( my underlining)
[5]
Decision
on application.
The
court hearing an application may grant any order that is just and
equitable, including orders-(a) confirming, amending or
setting
aside the decision which is the subject of the application
concerned;
(b)
requiring from the information officer or relevant authority of a
public body or the head of a private body to take such action
or to
refrain from taking such action as the court considers necessary
within the period mentioned in the order; (c) granting
an interdict,
interim or specific relief, a declaratory order or compensation; or
(c)
as to costs
[6]
Rules of Procedure for applications to Court in terms of PAIA-
published in Government Gazzette No. 32622 dated 09 October 2009.
[7]
Section
7 of PAIA provides:
“
Act
not applying to records requested for criminal or civil proceedings
after commencement of the proceedings
(1)
This Act does not apply to a record of
a public body or a private body if-
(a)
That record is requested for the
purpose of criminal or civil proceedings;
(b)
So requested after the commencement of
such criminal or civil proceedings, as the case may be; and
(c)
the production of or access to that record for
purpose referred to in paragraph (a) is provided for in any other
law."
[8]
S
Paul
v MEC for Health, Eastern Cape Provincial Government and Others;
Mbobo v MEC for Health, Eastern Cape Provincial Government
and
Others; Ncumani v MEC for Health, Eastern Cape Province
(fn 19 supra) at paragraph 17.
[9]
Hyundai
Motors Distributors (Pty)Ltd and Others v Honourable Mr Justice JMC
Smit and Others
[2000] 1 All SA 259 (T).
[10]
Section 75 of PAIA provides, ‘(1) An internal appeal-(a)
must
be lodged in the prescribed form……..
[11]
The State Liability Act 20 of 1957 (as amended) provides, ‘’1.
Any claim against the state which would, if that claim
had arisen
against a person, be the ground of an action in any competent court,
shall be cognizable by such court, whether the
claim arises out of
any contract lawfully entered into on behalf of the State or out of
any wrong committed by any servant of
the State acting in his
capacity and within the scope of his authority as such servant.’
[12]
[2019] 3 All SA 879
(ECM) at para 41.
[13]
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others 1996 (2) SA 621 (CC) (1996 (4) BCLR 441; [1995] ZACC
2).
[14]
1996 (2) 621 at para 3.
[15]
Section 32 of the Constitution, Act 108 of 1996 provides: (1)
Everyone has the right to access information held by the state,
and
(b) any information that is held by another person and that is
required for the exercise or protection of any rights.