About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2012
>>
[2012] ZASCA 166
|
|
Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others (864/2011) [2012] ZASCA 166; 2013 (3) SA 315 (SCA) (21 November 2012)
Links to summary
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case no: 864/2011
In the matter between:
M QOBOSHIYANE NO
............................................................
First
Appellant
STANLEY KHANYILE NO
................................................
Second
Appellant
DEPARTMENT OF LOCAL GOVERNMENT
AND TRADITIONAL AFFAIRS, EASTERN CAPE
..........
Third Appellant
and
AVUSA PUBLISHING EASTERN
CAPE (PTY) LTD
...................................................................
First
Respondent
NELSON MANDELA BAY METROPOLITAN
MUNICIPALITY
...............................................................
Second
Respondent
JOHN GRAHAM RICHARDS
............................................
Third
Respondent
Neutral citation:
Qoboshiyane NO v Avusa
Publishing Eastern Cape (Pty) Ltd
(864/2011)
[
2012] 166
ZASCA (21 November 2012)
Coram:
MTHIYANE DP, BOSIELO, LEACH et WALLIS JJA
et PLASKET AJA.
Heard
: 14 November 2012
Delivered
: 21 November 2012
Summary:
Promotion of Access to Information Act 2
of 2000 (PAIA) – report obtained by MEC into maladministration
in a municipality
in terms of s 106(1)
(b)
of the
Local
Government: Municipal Systems Act 32 of 2000
– request for
access by newspaper group – refusal –
ss 44
and
46
of
(PAIA) – report delivered in terms of order of high court –
peremption of appeal – mootness –
s 21A(1)
of
Supreme Court Act 59 of 1959.
ORDER
On appeal from:
Eastern Cape High Court, Port
Elizabeth (Dukada AJ sitting as court of first instance):
The appeal is dismissed with costs
JUDGMENT
WALLIS JA (MTHIYANE DP, BOSIELO, LEACH JJA et PLASKET
AJA concurring)
[1] In August 2009 the MEC
responsible for the Department of Local Government and Traditional
Affairs in the Eastern Cape appointed
Kabuso CC to investigate
concerns of maladministration in relation to the affairs of the
Nelson Mandela Bay Metropolitan Municipality.
The MEC was acting in
terms of s 106(1)
(b)
of the Local Government: Municipal
Systems Act 32 of 2000 (the Systems Act). Kabuso CC’s report
(the Kabuso report) was handed
to the MEC in February 2010. In
November 2010 Avusa Publishing Eastern Cape (Pty) Ltd (Avusa), the
first respondent, which publishes
The Herald and the Weekend Post
newspapers in the Eastern Cape, sought access to the Kabuso report in
terms of the provisions of
the Promotion of Access to Information Act
2 of 2000 (PAIA). The refusal of that request, initially by the
information officer
and on appeal by Mr Qoboshiyane, the first
appellant and the present incumbent of the post of MEC for Local
Government and Traditional
Affairs in the Eastern Cape, led Avusa to
commence proceedings in terms of ss 78 and 82 of PAIA to obtain
access to the report.
[2] The application was granted by Dukada AJ on the
basis that, whilst the MEC had shown grounds for not disclosing the
report in
terms of s 44 of PAIA, it was nonetheless subject to
mandatory disclosure in the public interest under s 46 of PAIA.
He ordered that the report be disclosed within five days. Such
disclosure was duly made at a public ceremony at which the MEC handed
the report to a representative of the newspaper. At the handing over
the MEC made a public statement that although he disagreed
with the
judgment he would deliver a copy of the report and its annexures as
ordered by the court. Eight days later an application
for leave to
appeal was lodged. Some two months later the judge granted leave to
appeal to this court on the basis that there were
no decided cases on
the application of s 46 of PAIA and that the concept of
disclosure in the public interest was important
and likely to arise
again in other cases in the future. He did not address the fact that
the report had already been disclosed.
[3] In their heads of argument the
parties addressed questions of mootness. However, they overlooked the
prior question whether
the appellant’s unequivocal compliance
with the terms of the court’s order perempted the appeal.
Where, after judgment,
a party unequivocally conveys an intention to
be bound by the judgment any right of appeal is abandoned. The
principle can be traced
back to the judgment of this court in
Dabner
v South African Railways & Harbours
,
1
where Innes CJ said:
‘
The rule with regard to peremption is well
settled, and has been enunciated on several occasions by this Court.
If the conduct of
an unsuccessful litigant is such as to point
indubitably and necessarily to the conclusion that he does not intend
to attack the
judgment, then he is held to have acquiesced in it. But
the conduct relied upon must be unequivocal and must be inconsistent
with
any intention to appeal. And the
onus
of establishing that position is upon the
party alleging it. In doubtful cases acquiescence, like waiver, must
be held non-proven.’
That judgment has been consistently
followed in this court.
2
[4] The facts here are simple. The MEC was ordered to
disclose a copy of the report to Avusa within five days of the
court’s
order. He did so. He did not indicate any reservation
of rights or any intention to appeal at that time. The application
for leave
to appeal was delivered later. There was only one thing
that the MEC had to do in terms of the court’s order and he did
it
without reservation. His conduct was unequivocal and inconsistent
with an intention thereafter to challenge the judgment on its
merits.
The appeal was perempted and must be dismissed. In those
circumstances it is strictly unnecessary for the court to reach
the
question of mootness. However, as it leads to the same result I will
briefly deal with it.
[5] The disclosure of the report
means that any judgment or order by this court will have no practical
effect or result as between
the parties. In the circumstances this
court may dismiss the appeal on that ground alone.
3
The court has a discretion in that
regard and there are a number of cases where, notwithstanding the
mootness of the issue as between
the parties to the litigation, it
has dealt with the merits of an appeal.
4
With those cases must be contrasted a
number where the court has refused to deal with the merits.
5
The broad distinction between the two
classes is that in the former a discrete legal issue of public
importance arose that would
affect matters in the future and on which
the adjudication of this court was required, whilst in the latter no
such issue arose.
In exercising its discretion the court is always
mindful of the wise words of Innes CJ in
Geldenhuys
& Neethling v Beuthin
6
that:
'After all, Courts of Law exist for the settlement of concrete
controversies and actual infringements of rights, not to pronounce
upon abstract questions, or to advise upon differing contentions,
however important.'
[6] The present case raises issues
under the Constitution, because PAIA was enacted to give effect to
the constitutional guarantee
of the right of access to information.
7
There is no provision governing the
business of the Constitutional Court similar to s 21A(1) of the
Supreme Court Act. However,
the court has itself developed
jurisprudence around the issue of mootness that largely parallels
that of this court under s 21A(1).
Thus in
National
Coalition for Gay & Lesbian Equality & others v Minister of
Home Affairs & others
8
it was said:
‘
A case is moot and therefore not
justiciable if it no longer presents an existing or live controversy
which should exist if the
Court is to avoid giving advisory opinions
on abstract propositions of law.’
Although that is the basic principle,
the Constitutional Court has held that, where it is in the interests
of justice to do so,
it has a discretion to consider and determine
matters even if they have become moot.
9
There is little if any discernible
difference between the approach of the Constitutional Court and that
of this court.
10
[7] The starting point of the enquiry
is therefore to identify the issue that the MEC says should be
determined, notwithstanding
the admitted mootness of this appeal. The
reason he gave for withholding the report was that his predecessor
initiated a process
under s 106(1)
(b)
of the Systems Act that resulted in
the production of the Kabuso report. He said that this process was
still incomplete because
he had not yet decided what to do in
relation to the report’s contents. He engaged with the
municipality, but that engagement
was not complete. The municipality
had not decided whether it would take steps pursuant to the report.
Depending on its decision,
he said he would have to decide whether to
exercise his powers to intervene in the affairs of the municipality
in terms of s 139(1)
(a)
of the Constitution. He accordingly
claimed that the process was incomplete.
[8] Insofar as disclosure of the report under PAIA was
concerned the MEC said:
‘…
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 my predecessor and which is still underway.’
He went on to indicate that this did
not rule out the disclosure of the report in due course ‘once I
have taken relevant decisions’.
However, at the time it was
asked for, and for the reasons he had given, he claimed to be
entitled to withhold it in terms of ss 44(1)
(a)
and
(b)
of PAIA. He went on to submit that
the disclosure of the report was not ‘at present’ in the
public interest. He does
not appear to have addressed his mind to
s 46 of PAIA.
[9] Section 46 is headed ‘Mandatory disclosure in
public interest’ and provides that:
‘
Despite any other provision of this
Chapter, the information officer of a public body must grant a
request for access to a record
of the body contemplated in section
34(1), 36(1), 37(1)
(a)
or
(b)
,
38
(a)
or
(b)
,
39(1)
(a)
or
(b)
,
40, 41(1)
(a)
or
(b)
,
42(1) or (3), 43(1) or (2), 44(1) or (2) or 45, if—
(a)
the
disclosure of the record would reveal evidence of—
(i) a substantial contravention of, or failure to comply with, the
law; or
(ii) an imminent and serious public safety or environmental risk; and
(b)
the public
interest in the disclosure of the record clearly outweighs the harm
contemplated in the provision in question.’
[10] The final stage in an
information officer’s consideration of a request for access to
a record, if circumstances exist
that would otherwise justify
refusing access, must be to consider whether nonetheless the record
must be disclosed under s 46.
The section provides that the
information officer is obliged
11
to disclose the record where two
conditions are met. The first is that disclosure of the record would
reveal evidence of a substantial
contravention of, or failure to
comply with, the law.
12
The MEC accepted that this condition
was met. The second condition is that the public interest in the
disclosure clearly outweighs
the harm contemplated in the provision
under which the record could otherwise be withheld. The section
applies where the record
could otherwise legitimately be withheld for
one of the reasons set out in PAIA and, as the heading makes clear,
disclosure is
mandatory where the conditions set out in the section
are satisfied. If the information officer does not provide access the
court
will order him or her to do so. That is what happened here.
[11] The point of principle that the
MEC claimed arose in this case was that the obligation on the
information officer to make this
mandatory disclosure is subject to a
limitation, where there is an ongoing investigation under s 106
of the Systems Act and
disclosure of a record would tend to undermine
that process or hamper its proper completion. It was submitted that
it is better
that MEC’s should be permitted to complete the
process, and decide what they are going to do about the matters
raised in
a report furnished after an investigation under s 106(1)
(b)
of the Systems Act, before being
obliged to disclose the contents of such reports. On that footing it
was submitted that the public
interest override in s 46 of PAIA
is subject to a limitation that, after some debate, can be formulated
in the following terms:
‘
Where an MEC has called for an
investigation and report under s 106 of the Systems Act, the
information officer must withhold
the report until such time as the
MEC has taken a decision on the steps to be taken in respect of the
contents of the report and
no information officer (and by extension
no court on appeal to it) is entitled in terms of s 46 to order
disclosure of that
report in the public interest.’
[12] There is no warrant in the
language of s 46, as construed in the light of PAIA as a whole
and the broader context provided
by the Constitution, for this
limitation upon the obligations of the information officer. I will
assume in favour of the MEC, without
deciding, the matter being in
dispute, that these considerations may provide a justification for
refusing access to a record under
ss 44(1)
(a)
or
(b)
of PAIA. However, s 46 expressly
operates
after
it has been decided that a record may
legitimately be withheld under
inter
alia
ss 44(1)
(a)
and
(b)
.
These provisions are part of chapter 4 of PAIA, which deals with the
grounds upon which it is permissible to refuse access to
a record.
Some of those grounds are expressed as mandatory (‘must’)
and some are discretionary (‘may’).
Section 33(1), which
commences the chapter, sets out these two categories and adds that
the power to refuse access in each of them
is exercisable ‘unless
the provisions of s 46 apply’. That section contains an
obligation to make disclosure where
the specified criteria are met.
Disclosure is not optional or discretionary. There is an obligation
to permit access.
[13] The structure of chapter 4 of
PAIA is a careful balance between the constitutional right of access
to information in s 32(1)
of the Constitution and the protection
from disclosure of information in certain defined circumstances.
Those circumstances are
in turn divided into two categories –
those where access to a record must be refused and those where access
may be refused.
Finally, in all situations where access must or may
be refused,
13
there is an obligation to afford
access where the record contains certain types of evidence and the
public interest in disclosure
outweighs the harm that will follow
from disclosure.
[14] Counsel could not refer us to anything in either
the language or the context of PAIA that would justify the suggested
restriction
on the language of s 46. When examples were put to
him in argument, in order to test the validity of the suggested
construction,
he repeatedly sought to justify it by reference to ‘the
facts of this case’. All that did was to highlight the point
that the exercise that an information officer must undertake under
s 46 is a careful balancing, on the facts of the particular
case, of the harm that would accrue from permitting disclosure of the
record and the public interest in its disclosure. In other
words the
enquiry in every case is a fact-sensitive one, the outcome of which
will vary from case to case depending on the particular
facts.
Assuming, as I have done for the purposes of this argument, that the
grounds advanced by the MEC constituted grounds upon
which he was
entitled (‘may’) to refuse access, there was nonetheless
an obligation on him to weigh the harm that would
arise from
disclosure against the public interest in disclosure. It does not
appear from the record that he undertook that exercise.
In any event
the judge held that the public interest in disclosure outweighed the
harm that would be caused thereby and ordered
him to provide access
to the Kabuso report. In another case the position may have been
different.
[15] Once that conclusion is reached it follows that
there is no point of general importance in this case. The attempt to
formulate
a legal principle is in truth nothing more than a
repetition of the arguments before the judge that the public interest
in disclosure
should not outweigh the harm that would be occasioned
by disclosure in this particular case. The high court decided that
issue
on the facts before it and held that the MEC was obliged to
disclose the Kabuso report in terms of s 46 of PAIA. As he had
not done so, the high court ordered him to do so. He complied with
that order. Whether the judge was right in his conclusion –
and
I do not suggest that he was not right – will not affect the
situation in any way. A decision that he was wrong would
have no
practical effect or result. Accordingly the appeal is dismissed with
costs.
M J D WALLIS
JUDGE OF APPEAL
Appearances
For appellants: R G Buchanan SC (with him G Ngcangisa)
Instructed by:
The State Attorney,
Port Elizabeth and Bloemfontein.
For first respondent: J Brickhill
Instructed by:
Cheadle Thompson and Haysom Inc, Johannesburg;
Webbers, Bloemfontein.
1
Dabner
v South African Railways & Harbours
1920 AD 583
at
594.
2
Standard
Bank v Estate van Rhyn
1925 AD 266
at 268;
Gentiruco AG v
Firestone SA (Pty) Ltd
1972 (1) SA 589
(A) at 600A–D;
Natal Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1) SA 432
(SCA) ([1998]
4 All
SA 258)
at 443F-G;
Samancor Group Pension Fund v Samancor Chrome
& others
2010 (4) SA 540
(SCA) para 25.
3
Section
21A(1) of the Supreme Court Act 59 of 1959.
4
Natal
Rugby Union v Gould
supra
at 441I-445B;
Sea
Melody Enterprises SA v Bulktrans (Europe) Corporation
2002
(4) SA 273
(SCA) para 4 and
Executive
Officer, Financial Services Board v Dynamic Wealth Ltd & others
2012
(1) SA 453
(SCA) paras 43 and 44.
5
See
for example
Port Elizabeth Municipality v Smit
2002 (4) SA 241
(SCA) para 7;
Rand
Water Board v Rotek Industries (Pty) Ltd
2003
(4) SA 58
(SCA) para 18;
Radio Pretoria
v Chairman, Independent Communications Authority of South Africa &
another
2005 (1) SA 47
(SCA) paras
40-41 and
Minister of Trade and
Industry v Klein NO
[2009] 4 All SA
328
(SCA) paras 16-17.
6
Geldenhuys
& Neethling v Beuthin
1918 AD 426
at 441.
7
Section
32 of the Constitution.
8
National
Coalition for Gay & Lesbian Equality & others v Minister of
Home Affairs & others
2000 (2) SA
1
(CC) at footnote 18.
9
See
Independent Electoral Commission v
Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC) para 11;
MEC for Education,
KwaZulu Natal & others v Pillay
[2007] ZACC 21
;
2008
(1) SA 474
(CC) para 32;
Mohamed &
another v President of the Republic of South Africa and others
[2001] ZACC 18
;
2001
(3) SA 893
(CC) para 70;
Pheko &
others v Ekurhuleni Metropolitan Municipality
2012
(2) SA 598
(CC) para 32.
10
Clear
Enterprises (Pty) Ltd v SARS
[2011] ZASCA 164
paras 17 to 20.
11
The
word is ‘must’.
12
There
is a second possibility that it would reveal evidence of ‘
an
imminent and serious public safety or environmental risk’ a
matter not relevant for present purposes.
13
There
is an exception in relation
to certain records of
the South African Revenue Services
.
Access to those records must be
refused under s 35(1) and s 46 does not provide for a public
interest override in relation
to such refusal.