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[2023] ZAKZPHC 119
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Khanyile v Director-General Province of KwaZulu-Natal and Others (16707/22P) [2023] ZAKZPHC 119; [2024] 1 All SA 204 (KZP) (19 October 2023)
FLYNOTES:
PAIA – Public service –
Misconduct
allegations
–
Applicant
seeking records relating to forensic investigations into alleged
misconduct – Also seeking records relating
to unsuccessful
posts – Grounds of exceptions discussed – Records for
purposes of legal proceedings – Reports
for purposes of
making decisions – Records that cannot be found –
Records of cabinet and its committees –
Respondents reliance
on grounds misplaced and bald allegations are entirely inadequate
to discharge burden to demonstrate
that report cannot be found –
Decisions refusing to grant access to records set aside –
Director-General ordered
to provide records.
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION,
PIETERMARITZBURG
CASE
NO: 16707/22P
In the matter between:-
NOKUTHULA GLADNESS KHANYILE
APPLICANT
and
THE
DIRECTOR-GENERAL
PROVINCE
OF KWAZULU-NATAL
FIRST RESPONDENT
THE
PREMIER OF KWAZULU-NATAL
SECOND
RESPONDENT
THE
MEC: KWAZULU-NATAL
DEPARTMENT
OF SOCIAL DEVELOPMENT
THIRD
RESPONDENT
THE
MEC: KWAZULU-NATAL
DEPARTMENT
OF TRANSPORT
FOURTH
RESPONDENT
THE
MEC: KWAZULU-NATAL TREASURY
FIFTH RESPONDENT
JUDGMENT
ANNANDALE
AJ:
[1]
This application concerns the applicant’s right of access to
information.
It is brought in terms of section 78 of the Promotion of
Access to Information Act 2 of 2000 (PAIA) to compel production of
records
which the respondents have refused to disclose.
[2]
PAIA was
enacted to give effect to the right of access to information
enshrined in section 32 of the Constitution, subject to justifiable
limitations including
the
reasonable protection of privacy, and good governance.
Its
objects include the promotion of transparency, accountability and the
effective governance of all public bodies.
[1]
[3]
As
functionaries
exercising
a public power or performing a public function in terms of any
legislation, and
departments
of state or administration in the provincial sphere of government,
the respondents are public bodies as defined in section
1 of PAIA.
Requesters are entitled to the records of public bodies regardless of
the reasons given for requesting access or the
information officer’s
belief as to what the requester’s reasons are for requesting
access, provided only that they
comply with the procedural
requirements of PAIA.
[2]
If the
requester
has complied with the relevant procedure, access can only be refused
on
grounds contemplated by Chapter 4. Consequently,
if
the requester has complied with PAIA and the information does not
fall within one of the grounds of exclusion, there is no discretion
on the part of the public body or the court to refuse access.
[3]
[4]
Section
81(3) of PAIA places the burden of establishing that a refusal of a
request complies with the provisions of the act on the
party invoking
the exemption from disclosure. Applications in terms of section 78
are civil proceedings,
[4]
so
that evidentiary burden must be discharged on a balance of
probabilities.
[5]
[5]
The applicant is the former Head of the KwaZulu Natal Department of
Social
Development (the Department of Social Development) which is
the third respondent. The information at issue comprises: the records
of a meeting of the Provincial Executive Committee relating to an
agenda item concerning the applicant; the reports of two forensic
investigations into her alleged misconduct which were conducted by
the office of the second respondent (the Premier) and the fifth
respondent (the Provincial Treasury); and records relating to her
unsuccessful applications for the posts of head of the Department
of
Social Development, and of the fourth respondent (the Department of
Transport).
[6]
The present application follows a largely unsuccessful request for
access
to information made to the first respondent (the
Director-General) in her capacity as the Information Officer in the
office of
the Premier, and the Premier’s dismissal of an appeal
against the Director-General’s refusal to provide most of the
information requested.
[7]
The Department of Social Development made common cause with the
Director-General
and the Premier in opposing the application and
persisting in refusing access on various grounds. The Department of
Transport did
not file a notice to oppose. The Provincial Treasury
did, but thereafter failed to file an answering affidavit, despite a
court
order directing the first to third and fifth respondents to
file their answering affidavits by a specified date.
[8]
This does not however mean that the application insofar as it
pertains
to the records of the Department of Transport and the
Provincial Treasury is uncontested. Although the Department of
Transport
and the Provincial Treasury did not participate directly in
this application, the Director-General and the Premier dealt with all
the requests for information, including those relating to the records
of the fourth and fifth respondents. The answering affidavit
is
attested to on behalf of the first to third respondents, but resists
disclosure of all the categories of information. I therefore
regard
the exemptions from disclosure which have been relied on by the first
to third respondents as being invoked also on behalf
of the fourth
and fifth respondents insofar as the latter’s records are
concerned. I consequently refer to the first to fifth
respondents as
‘the respondents’ unless the context requires
differentiation.
[9]
Given the scheme of PAIA set out above, it will be apparent that the
issue
in this application is whether the respondents have discharged
the burden of establishing that their refusal of the requests
complies
with the provisions of PAIA on which they rely.
[10]
A summary of the factual context within which the application arises
is necessary properly
to frame the issue engaged. The exposition of
the relevant facts which follows is common cause unless otherwise
indicated.
The
facts
[11]
The applicant was appointed as Head of the Department of Social
Development on 1 November
2014 for a period of five years. All things
being equal therefore, her term of office would have come to an end
on 31 October 2019.
During 2019 however, the Member of the Executive
Committee of the Province of KwaZulu-Natal (the MEC) responsible for
the Department
of Social Development changed. Disputes and
difficulties arose between the applicant and the new MEC and
allegations were made
by unnamed parties that the applicant was
guilty of financial and human resources management misconduct.
[12]
As a result of these allegations, the Premier decided to extend the
applicant’s contract
beyond 31 October 2019 and temporarily
redeploy her to his office to allow for a pre-investigation screening
to take place.
[13]
On 13 November 2019 there was a meeting of the Provincial Executive
Committee (the PEC
meeting). It is not in dispute that a resolution
was taken at the PEC meeting to extend the applicant’s
contract of
employment beyond 31 October 2019. Whether other
decisions were taken at that meeting entitling the applicant to
reinstatement
as Head of the Department of Social Development as well
as contractual damages is hotly contested.
[14]
Two full-blown forensic investigations were conducted into the
allegations of misconduct,
which culminated in written reports (the
investigation reports). The investigation into alleged financial
misconduct was undertaken
by the Provincial Treasury, while the human
resources related investigation was conducted by the office of the
Premier. No disciplinary
or other charges were ever proffered against
the applicant as a result of the reports.
[15]
It is unclear from the papers exactly when the pre-investigation
screening and the investigations
themselves commenced, or when the
investigation reports were finalised, save that the results of the
investigations were apparently
known by 25 March 2020 when the
applicant states the former Premier advised her that she had been
exonerated by both investigations.
[16]
The applicant was therefore disappointed when she was not
re-appointed as Head of the Department
of Social Development despite
having been shortlisted for that position and interviewed on 30 April
2020. She was dismayed when
she was not even shortlisted for the post
of Head of the Department of Transport for which she applied at some
point in 2020.
[17]
Believing these career setbacks to be the result of the investigation
reports or the dissemination
of false information regarding what the
investigations had found, on 10 December 2021 the applicant made four
applications in terms
of PAIA to the Director-General. She sought
access to the following four categories of information:-
[a]
both investigation reports;
[b]
the records of the PEC meeting
insofar as it related to the agenda
item pertaining to the applicant, including the memorandum sent to
the PEC, any presentations,
discussions and decisions taken at the
meeting relating to the applicant, the minutes and the audio
recordings of the deliberations;
[c]
the scoresheets populated by each panel member
in respect of the
applicant’s application for the post of Head of the Department
of Social Development, the minutes and voice
recording of the
applicant’s interview and the assessment discussions relating
to the applicant;
[d]
the list of applicants for the post of Head
of the Department of
Transport and the minutes of the shortlisting meeting insofar as they
pertain to the applicant, together with
reasons why she was not
shortlisted.
[18]
On 15 December 2021 the Director-General wrote to the applicant
explaining that the office
of the Premier would not be able to deal
with the request within 30 days as envisaged by section 25(1) of
PAIA, because there was
a need to provide notification to third
parties as contemplated by Chapter 5. By 9 May 2022 there was still
no response. The applicant
consequently demanded the records by 18
May 2022, failing which she indicated she would pursue legal avenues.
[19]
This galvanised a response the day before the applicant’s
deadline. The response
dealt with all the categories of documents
requested, there being no suggestion that the applicant should have
directed any of
her requests elsewhere.
The
Director-General provided only the minutes of the interviews for the
position of Head of the Department of Social Development,
a summary
reflecting the totals of the scoresheets for the applicant (but not
the audio recordings or the scoresheets of each panel
member) and the
minutes of the meeting of the shortlisting committee for the position
of Head of the Department of Transport
with the names of the
other candidates redacted because that constituted personal
information protected in terms of the
Protection of Personal
Information Act, 4 of 2013
. An appeal to the Premier for access to
the balance of the information followed, albeit out of time.
[20]
By then, the applicant had instituted proceedings against the Premier
and the Department
of Social Development out of the Pietermaritzburg
High Court under case number 1536/22P for reinstatement or
contractual damages
(the reinstatement application). In her appeal
submission, the applicant made no secret of the fact that she wanted
to use at least
some of the requested information in the
reinstatement application and to clear her name. The exact date on
which the reinstatement
application was launched was not canvassed on
the papers. It is therefore not apparent whether it had already been
instituted when
the initial request for information was substantially
refused in May of 2022. It was however dismissed after all the
affidavits
had been filed in the present proceedings.
[21]
The Premier considered the appeal on its merits and dismissed it in
October 2022. The applicant
having complied with the necessary
procedural requirements, the present proceedings were then launched
on 30 November 2022, well
within the 180-day period for their
institution prescribed by
section 70(2)(e)
of PAIA.
[22]
The respondents oppose the application relying on the following
provisions in Chapter 4
of PAIA:
section 7
which provides that the
act does not apply to records requested for criminal or civil
proceedings after their commencement;
section 44
which pertains
to the records of public bodies containing opinions, advice, reports,
or recommendations;
section 23
which relates to records which cannot
be found, and
section 12
which exempts the records of Cabinet and its
committees from disclosure under the act.
Interpretation
of exemptions and sufficiency of evidence
[23]
Before
dealing
with each of the grounds of exemption upon which the respondents
rely, it is necessary to consider how the exemption provisions
must
be construed and what is required for the respondents to discharge
the burden resting on them.
[24]
In
PFE International Inc (BVI) and Others v Industrial Development
Corporation of South Africa Limited
2013(1) BCLR 55 (CC) (
PFE
International
) para 18, the Constitutional Court held that
a restrictive interpretation of the ambit of
section 7
was required
so as to limit the exclusion to the circumstances contemplated in
that section and thereby ensure greater protection
of the right of
access to information to which PAIA seeks to give effect.
[25]
The
same approach should in my view apply to the construction of all
exemption provisions by parity of reasoning, whether they exclude
the
application of PAIA, constitute mandatory refusal provisions or
confer a discretion on state actors to refuse access. Such
an
approach would also be congruent with
the
objects of PAIA as set out in
section 9
which include the promotion
of transparency and accountability, and the injunction in
section
2(1)
of PAIA that a court must prefer any reasonable interpretation
of the provision that is consistent with the objects of the act over
any alternative interpretation that is inconsistent with those
objects. Other courts have adopted this approach in relation to
section 36
of PAIA relating to the mandatory protection of commercial
information
[6]
and
section 44
[7]
upon which the respondents rely.
[26]
I turn then to the manner in which public bodies are required to
discharge the evidentiary
burden. The Supreme Court of Appeal and the
Constitutional Court had occasion to deal with the requirements in
this regard on three
occasions in connection with attempts by the
Mail & Guardian newspaper to obtain access to a report prepared
by two senior
judges on their visit to Zimbabwe shortly before the
2002 presidential elections in that country. In the Constitutional
Court judgment,
President
of the RSA and Others v M & G Media Ltd
2012
(2) BCLR 181
(CC)
(
Mail
& Guardian CC)
para 23 the Court explained:-
‘
The
proper approach to the question whether the state has discharged its
burden under
section 81(3)
is therefore to ask whether the state has
put forward
sufficient evidence
for a court to conclude that,
on the probabilities, the information withheld falls within the
exemption claimed.’
(emphasis added).
[27]
As evidence
is required, reciting the language of the statute,
ipse
dixit
affidavits and affidavits that merely assert the conclusion that a
particular exemption applies are insufficient, the public body
is
required to lay a factual basis for its reliance on specific
provisions.
[8]
[28]
If the
public body is unable to discharge its burden, and does not give any
indication that its inability to do so arises from other
provisions
of the act,
[9]
then the state
actor has only itself to blame.
[10]
The respondents here invoke no such inability.
[29]
Section
81(2)
of PAIA makes the rules of evidence in civil proceedings
applicable to applications in terms of
section 78.
The evidence must
therefore be put before the court on affidavit and by a person who
has knowledge of the facts to which they speak.
[11]
Those fundamental requirements assume importance in this case for two
reasons.
[30]
First, presumably in an attempt to deal with the challenges created
by the fact that the
respondents’ affidavit is terse in the
extreme, the heads of argument filed on behalf of the respondents
contained a number
of factual averments which do not appear on the
affidavits. They are not evidence and fall to be ignored.
[31]
Second, the deponent to the respondents’ affidavit is a
principal state law advisor
and deputy information officer in
the office of the Premier. She states, in boilerplate fashion, that
she has personal knowledge
of the contents of her affidavit because
she dealt with the application for access to information, but that
fact on its own
does not give the deponent personal knowledge of
everything canvassed in her affidavit. The deponent does not state
that she dealt
with both the initial request for access and the
appeal and to what extent she dealt with the request for information.
She did
not sign either the original decision letter or the appeal
decision. If she did deal with both the initial request and the
appeal,
despite her name not appearing on the decision letter, that
would seem to render the appeal right somewhat illusory. The deponent
does not state that she has seen all the information requested and
evaluated it to come to the conclusion that the outstanding
records
fell within the exemptions upon which respondents rely, much less
disclose a factual foundation for such a conclusion.
[32]
I return to
this later in the judgment. For present purposes suffice it to state
that her affidavit calls to mind what Nugent JA
said of the
affidavits filed by the state respondents in the first decision of
the Supreme Court of Appeal in the Mail & Guardian
saga:
[12]
‘
[18]….A
t
another time courts were regularly confronted with laws that
precluded them from going behind conclusions and opinions formed
by
public official
s
[19]
The affidavits that have been filed by the appellants are reminiscent
of affidavits that were customarily filed in cases of
that kind. In
the main they assert conclusions that have been reached by the
deponents, with no evidential basis to support them,
in the apparent
expectation that their conclusion put an end to the matter. That
is not how things work under the Act. The
Act requires a court to be
satisfied that secrecy is justified and that calls for a proper
evidential basis to justify the secrecy.’
[33]
Applications
in terms of section 78 of PAIA are not review proceedings. They
entail a reconsideration of the merits
de
novo
on the evidence put before the court, which may well go beyond what
served before the information officer or the appeal authority.
[13]
They are therefore in the nature of a wide appeal.
[14]
As such, the principle applicable in reviews that a decision maker is
bound by the reasons given for their decision at the time
it was
made,
[15]
does not apply in
the same way. The public body must justify its refusal on the
evidence in the application. Whether a public body’s
refusal to
grant access passes muster therefore falls to be determined with
reference to the grounds upon which it relies in that
affidavit, not
the grounds upon which it may have relied at an earlier stage in
proceedings. However, where the grounds for refusing
access advanced
in the affidavit differ from those relied on at an earlier stage,
that change may be relevant to assessing whether
the grounds relied
on in the answering affidavit should be approached with reserve.
[16]
[34]
It is convenient to consider whether the respondents have discharged
the burden resting
on them with reference first to each of the
exemption provisions on which they rely, rather than by category of
document, as in
various instances, a single section is relied on to
resist disclosure in respect of more than one category. Thereafter, I
deal
with additional considerations which apply in respect of the
records relating to the interviews and shortlisting .
Section
7: records for purposes of legal proceedings after commencement
[35]
It is
appropriate to start by evaluating the validity of the respondents’
reliance on section 7 of PAIA, as it is invoked
as a justification
for the refusal of access to all the information sought. The purpose
of section 7 is to prevent
a
dual system of access to documents and
information
that would be disruptive to court proceedings.
[17]
[36]
Section 7(1) reads:
‘
7.
Act not applying to records requested for criminal or civil
proceedings after commencement of 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 the purpose
referred to in paragraph (a) is provided for in any
other law’.
[37]
The Director-General did not rely on section 7 as a ground for
refusing access in
May 2022, but the Premier did so when
dismissing the appeal in October 2022 and the respondents persist in
such reliance in their
answering affidavit.
[38]
The respondents submit that as the applicant stated repeatedly in her
appeal that the documents
were essential or required for purposes of
the reinstatement application, she clearly requested the documents
for the purposes
of those proceedings and access was correctly
refused in terms of section 7.
[39]
That
submission cannot be sustained for two reasons, both of which stem
from the conjunctive nature of the requirements of section
7.
[18]
The provision ‘lays down three conditions’,
[19]
all of which must be established by the party seeking to invoke the
exemption. The respondents’ difficulty relates to the
first two
requirements which are interlinked: that the record must be requested
for the purpose of civil or criminal proceedings
and that the request
be made after the commencement of those proceedings.
For
the purpose of civil or criminal proceedings
[40]
Insofar as the first requirement relating to the purpose for which
the information is requested,
the respondents are not entirely
accurate in their reference to the reasons cited by the applicant in
her appeal submission. Dealing
with the documents generally,
the applicant did state that they were ‘intertwined with’
the reinstatement application
and that it was therefore critical that
she pursue her request for the information. She however went on to
say:
‘
Furthermore,
I want to use the requested information, particularly the forensic
reports, to clear my name that was grossly mudded
during the
well-orchestrated smear campaign through the social and mainstream
media that occurred in 2019.’
[41]
The applicant then went on to motivate her requests for each category
of document. In so
doing, she did not state that the records relating
to her unsuccessful applications for the posts of head of the
Departments of
Social Development and Transport are related to the
reinstatement application. The PEC meeting records were however said
to be
central to that application, while the investigation reports
were requested to clear the applicant’s name, especially as the
Director-General had apparently referred to them in her affidavit but
annexed a preliminary report which she represented was the
forensic
report.
[42]
Precious little is said in the affidavits in these proceedings about
the reinstatement
application. The applicant asserts that it relates
to ‘the political machinations of the province of KZN’
and was a
claim for reinstatement to the position of Head of the
Department of Social Development and/or a contractual claim. It is
also
apparent from her appeal submission that the Department of
Transport and the Provincial Treasury are not parties to it, which is
hardly surprising given the nature of the claim. The respondents
state only that the applicant alleged in the litigation that her
contract of employment was extended at the PEC meeting. In that
context, the only documents which could be seen as being requested
for the purposes of the reinstatement application are those relating
to the PEC meeting.
[43]
In her affidavit in the present proceedings, the applicant states
that she requires the
information to ‘clear her name of
spurious and hurtful allegations’. She explains that the
documents might lead to
a press release or a claim for declaratory
relief but she cannot make a decision on whether further court
proceedings might be
warranted until she has seen the documents.
[44]
The respondents do not engage with these assertions meaningfully.
They merely dispute them
‘on the basis that the Applicant has
already been furnished with the records she seeks in relation to the
recruitment process.’
Apart from not being entirely correct on
the facts, that statement takes no account of the balance of the
information the applicant
requested, save that the respondents state
that the applicant had ‘rule 35 to seek documents in relation
to her litigation
with some of the respondents.’ Given the
nature of the applicant’s claim in the reinstatement
application, and the
fact that the Department of Transport and the
Provincial Treasury were not parties to it, the respondents proffer
no answer at
all to the applicant’s reasons for requesting the
documents which are unconnected with the reinstatement application.
[45]
The respondents have therefore failed to discharge the burden on them
to establish the
first requirement in section 7. Nor can they
establish the second.
After
the commencement of such proceedings
[46]
The second requirement in section 7(1)(b) is that the request is made
after
the commencement of the proceedings. In the present
instance the request for information was made on 10 December 2021 and
the reinstatement
application was only instituted at some point in
2022. The respondents’ case ignores this and treats the appeal
as a self-standing
request, rather than the pursuit of the mandatory
domestic remedy for the refusal of the initial request which had been
made before
legal proceedings were instituted.
[47]
Counsel for
the respondents sought to meet this difficulty by submitting that the
phrase ‘commencement of … proceedings’
should be
interpreted to include an intention to commence proceedings in the
future. On the basis of that construction, so the
argument ran, the
applicant’s request for information was an impermissible
attempt at early discovery in the proceedings
she intended to launch
at the time the request was made. As support for this contention,
counsel relied on the judgment of Sutherland
J in
Mahaeene
and another v Anglogold Ashanti
[2016] 1 All SA592 (GJ) (
Anglogold
Ashanti)
[20]
which held that ‘commencement of proceedings’ was not
limited to the service of summons or a notice of motion but could
include earlier steps in the litigation process.
[21]
[48]
Anglogold Ashanti
concerned an application for access to
information of a private body, to which a requester is not entitled
as of right. That distinction
however matters not, as counsel relies
on the judgment insofar as it dealt with what is contemplated by the
phrase ‘commencement
of such proceedings’ in section 7,
which applies to all requests whether made to public or private
bodies as the text of
the provision makes plain.
[49]
Anglogold
Ashanti
is
not authority for construing ‘commencement of proceedings’
in the manner contended for by the respondents. Whilst
there is a
‘degree of generality intrinsic in the phrase “commencement
of such …proceedings,”’
[22]
it is not infinitely elastic.
[50]
In
accordance with the principles that a restrictive interpretation of
section 7 is required and that its purpose is to ensure that
PAIA is
not used to interfere with litigation or to obtain early discovery,
save in exceptional circumstances,
[23]
Anglogold
Ashanti
made it clear that the earlier steps prior to the institution of
litigation which might constitute the commencement of proceedings
are
‘litigious steps in pursuit of particular relief’.
[24]
Those litigious steps must be evinced by ‘an outward and
visible act’
[25]
that
marks the beginning of the proceedings. An outward manifestation is
necessary as the determination of whether section 7 applies
is
objective.
[26]
[51]
In
Anglogold Ashanti
, at the time the request for information
was made, an application for the certification of a class was
pending. The request was
made with a view to enabling the requesters’
attorney who had been instructed to pursue the prospects of a damages
action
against the holder of the information, to advise on whether
the applicants should bring an action or not and if so, whether to
join in the class action which would ensue if the certification
application were successful or to opt out. Here, by contrast, at
the
time of the request in December 2021, there was no outward or visible
act in the form of a litigious step in pursuit of the
proceedings the
applicant instituted the following year. Consequently, no objective
determination that section 7 applied could
have been made at the time
of the applicant’s initial request.
[52]
There is an
additional difficulty for the respondents in this regard.
Anglogold
Ashanti
stressed
that the word ‘such’ in the phrase ‘commencement of
such… proceedings’, should not be overlooked
as it
performed the important function of linking the proceedings in
question with the purpose for which the request was made.
[27]
The court held that what was required was an objective determination
of whether the information procured was to be used in relation
to the
participation of a person in
such
proceedings. The respondents cannot demonstrate that link given their
failure to refute the applicant’s case that she required
the
documents for purposes other than the reinstatement application and
still wishes to obtain them to clear her name.
[53]
The
respondents rightly did not argue that the language of section 7
could be disregarded so as to eliminate the requirement that
the
request be made before the commencement of proceedings in
circumstances where proceedings are instituted subsequent to
the request, merely because the purpose of section 7 is to prevent
a
dual system of access to documents and information that would be
disruptive to court proceedings.
[28]
Not only would such a construction do unjustifiable violence to the
language of the provision, in a hearing
de
novo
after the dismissal of those proceedings, it would not serve the
purpose to which section 7 is directed.
[54]
It follows that the respondents’ reliance on section 7 to
resist disclosure is misplaced.
Section
44: reports for purposes of making decisions
[55]
In their answering affidavit, the respondents rely on section
44(1)(a)(i) and (ii) of PAIA
to justify their refuse to grant access
to the investigation reports and the PEC meeting records. In dealing
with the initial request
for information and the appeal, neither the
Director-General nor the Premier relied on section 44(1) to justify
withholding the
records relating to the PEC meeting, they relied only
on section 12. The Director-General also relied on section 44(2)(b)
as grounds
for refusing access to the investigation reports.
[56]
Section 44 reads in relevant part as follows:-
‘
44.
Operations of public bodies.
—
(1)
… 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 a 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
(2)
… the information officer of a public body may refuse a
request for access to a record of the body if—……
(b)
the record contains evaluative
material, whether or not the person who supplied it is identified in
the record, and the disclosure
of the material would breach an
express or implied promise which was-
(i)
made to the person who supplied the
material; and
(ii)
to the effect that the material or the
identity of the person who supplied it, or both, would be held in
confidence; …’
[57]
A simple
reading of section 44(1) reveals that there is a rider to the option
to refuse disclosure, which applies even where the
records contain
material as specified in sub-sections (a)(i) and (ii). It is not
sufficient for the material of be of the nature
therein described, in
addition, the material must have been 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.’ That purpose must exist at the time the material was
obtained, it is insufficient if the information was
subsequently
utilised for such purpose.
[29]
[58]
The reports were commissioned to investigate allegations of various
forms of misconduct.
They may have been obtained for any number of
purposes and with the view to taking decisions about a variety of
matters if
they revealed misconduct, such as whether to take
disciplinary steps against anyone implicated, or to lay criminal
charges against
those complicit, or revising control systems and
reporting lines in the relevant department, or perhaps even whether
to extend
the applicant’s contract of employment. It will be
apparent from this speculative list that many of the possible
decisions
would not be taken ‘in the exercise of a power or the
performance of a duty imposed by law as required for the information
to fall within the purview of section 44(1)(a)(i).
[59]
While there
are any number of purposes for which the reports might have been
obtained or the PEC meeting held, it is not for the
court to
guess.
[30]
It is for the
respondents to articulate and establish through acceptable evidence
the purposes for which the investigation reports
were obtained and
the PEC meeting held, the nature of the decisions they were to inform
and the law which imposed the duty or conferred
the power to make
those decisions. Only if all these matters were canvassed might the
respondents show that the information fell
within the rider to which
the section 44 exemption from disclosure is subject. The respondents
come nowhere near to meeting this
threshold. Much less do they
explain the basis upon which they purported to exercise the
discretion accorded by section 44 by refusing
disclosure rather than
granting access.
[31]
[60]
The deponent does not disclose the mandates of the investigators, the
purpose for which
either report was obtained, the decision to be
taken or the duty to be exercised, or the law in terms of which the
power to take
the decision was conferred or the duty was imposed.
Instead, the respondents’ reliance on section 44 is contained
in the
following short paragraph:
‘
The
investigation reports are protected from being provided to the
Applicant in terms of section 44(1)(a)(i) of the Act. This section
entitles me to refuse to grant access if the information requested is
a report and/or contains opinions, recommendations and advice.
The
investigation reports are opinions of the investigation panel and
contain recommendations opinions and advice.’
[61]
Those three sentences do not even amount to a recitation of section
44(1)(a)(i) as they
ignore the rider. It appears from the second
sentence that the deponent appreciates she has a discretion and
is not obliged
to refuse access, but she provides no explanation of
how and why she exercised that discretion in the manner she did.
[62]
The respondents have plainly not adduced sufficient evidence upon
which I can be satisfied
that the investigation reports or the
records of the PEC meeting fall within the ambit of the exemption in
section 44(1)(a).
[63]
To the extent they are relevant, the Director-General and the
Premier’s earlier invocations
of section 44 as a basis to
withhold access to the investigation reports, suffer from the same
malaise. The Director-General refused
access to the investigation
reports ‘in terms of section 44(1) of the Act as the
information relates to reports in which
recommendations were made’.
In dismissing the appeal the Premier simply stated that the
investigation reports ‘fall
within the ambit of section 44(1)
of PAIA’ without any further particularity.
[64]
The Director-General also relied on section 44(2)(b) to justify her
initial refusal of
access to the investigation reports:
‘
on
the basis that officials employed with in the Department of Social
Development provided information to the relevant task teams
and
provided such information on the basis of their identities and the
information which they provided would be held in confidence’
[65]
The respondents no longer rely on this sub-section and in any event
provide no factual
basis for its application.
[66]
I therefore find that the respondents have not demonstrated that
access to the investigation
reports and the records relating to the
PEC meeting can be withheld on the basis of section 44.
Section
23: records that cannot be found
[67]
The respondents advance an alternative ground for refusing access to
the Treasury investigation
report in the event that their reliance on
section 44 is not upheld. They assert that the report cannot be found
and so invoke
section 23 of PAIA and submit that they cannot be
compelled to produce it.
[68]
Section 23 of the PAIA sets the bar high in respect of records which
cannot be found or
do not exist. It provides as follows:
‘
23. Records
that cannot be found or do not exist.
—
(1) If—
(a)
all reasonable steps have been taken to find
a record
requested;
and
(b)
there are reasonable grounds for believing that
the record—
(i)
is in the public body’s possession
but cannot be found; or
(ii)
does not exist,
the
information officer of a public body must, by way of affidavit or
affirmation, notify the requester that it is not possible
to give
access to that record.
(2) The
affidavit or affirmation referred to in
subsection
(1)
must
give a full account of all steps taken to find the record in question
or to determine whether the record exists, as the
case may be,
including all communications with every person who conducted the
search on behalf of the information officer.’
[69]
The assertion that the Treasury Report could not be found was not a
ground upon which the
respondents relied to refuse access either in
response to the initial request or in the appeal. It was raised for
the first time
in the answering affidavit. The deponent states that
it was only whilst preparing that affidavit that it was discovered
that the
Treasury report could not be found.
[70]
The applicant contends that this precludes the respondents from
seeking to rely on the
provision now because the affidavits envisaged
by section 23 should be deposed to in response to the request for
access. There
is force to that argument, as section 23(3) of PAIA
provides that the notice in terms of section 23(1) is to be regarded
as a decision
to refuse a request for access to the record. This
signifies that the affidavit envisaged by that sub-section is deposed
to in
response to the application for access, not only once an
application to compel production is brought. It is not however
necessary
for me to decide this issue by virtue of the view I take on
the manner in which the respondents have sought to rely on section
23.
[71]
The deponent to the answering affidavit states only:-
‘
To
the extent that this Honourable Court may find that I did not
exercise the powers conferred on me by section 44(1)(a)(i) of the
Act
properly, I respectfully submit that the Treasury Investigation
report cannot be found after all reasonable steps have been
taken to
find the report.’
[72]
No information whatsoever is given regarding what steps were taken to
find the report,
when or by whom any steps were taken or what each of
those steps revealed. Nor is any communication with any person who
conducted
the search disclosed. The answering affidavit therefore
goes nowhere near satisfying the conjunctive requirements of sections
23(1)(a)
and (b) and section 23(2).
[73]
That lack of detail, in the face of the express requirements of
section 23, is egregious
in and of itself. The fact that the Treasury
report relates to allegations of financial misconduct by the
head of a provincial
government department makes the bald allegation
even less credible. In addition, it is inconceivable there was only
one copy of
the report or that a duplicate could not be obtained from
its author. Unsurprisingly, the respondents do not suggest this to be
case.
[74]
The respondents’ difficulties in attempting to rely on section
23 are compounded
by the fact that in reply, the applicant stated:
‘
I
know for a fact that the Fifth Respondent keeps copies of all its
forensic investigations in various places. The person to whom
the
deponent should speak is one Jessantha Naidoo, the Head of Forensic
Investigations at the Fifth Respondent.’
[75]
Despite
having been given details of the person who would likely be in
possession of the Treasury report or be able to assist the
respondents in locating it, the respondents did not seek to file any
further affidavits dealing with the extent of the enquiries
they had
made in consequence of the applicant’s disclosure, or what was
revealed when they spoke to the person named by the
applicant as
being in a position to assist them in their search. One would have
expected such investigations to be conducted and
an affidavit filed
in that regard.
[32]
[76]
The respondents’ bald allegations are entirely inadequate to
discharge the burden
resting on them to demonstrate that the Treasury
Report cannot be found.
Section
12: records of cabinet and its committees
[77]
The
respondents have throughout relied on section 12(1)(a) to justify
their refusal of access to the records relating to the PEC
meeting.
[33]
[78]
Section 12 of PAIA reads in relevant part: –
‘
12. Act
not applying to certain public bodies or officials thereof.
—
This Act does not apply to a record—
(a)
of the Cabinet and its committees;
(b)
……
(c)
of an individual member of Parliament or of a provincial
legislature in that capacity.’
[79]
The respondents contend that ‘the Cabinet’ in section 12
must be interpreted
to include a provincial executive committee as
that is the cabinet at provincial level.
[80]
The
constitutionality of section 12 has been the subject of some academic
debate,
[34]
but there is no
challenge to its validity in these proceedings. Counsel did not refer
to me to any reported cases dealing directly
with the ambit of
section 12 and I could not find any. It is therefore necessary to
interpret the provision in the usual way, considering
purpose,
language, and context in a unitary exercise, bearing in mind the
additional injunction in section 2 of PAIA that the act
must be
interpreted to accord with the purposes of the legislation set out in
section 9 and the jurisprudence of our apex courts
that exemptions in
PAIA must be restrictively interpreted.
[81]
The purpose
of section 12 appears to be to incorporate the convention of cabinet
secrecy which originated under the Westminster
tradition,
[35]
was transplanted to South Africa and formed part of our
constitutional dispensation prior to 1994. Cabinet secrecy
ensures
‘that the efficiency of the executive is not impeded, and that
a robust and open discussion takes place unhindered
at meetings of
the Cabinet when sensitive and important matters of policy are
discussed’,
[36]
but it
has even deeper roots.
[82]
Cabinet
secrecy is rooted, in part, in the principle of collective cabinet
accountability. The inner workings of cabinet remain
secret so the
whole of cabinet can be held accountable and individual members
cannot distance themselves from cabinet decisions.
The concept
of collective cabinet accountability in the land of its birth is
currently defined in the United Kingdom’s 2022
Ministerial
Code
[37]
as follows:-
‘
2.1
The principle of collective responsibility requires that
Ministers should be able to express their views frankly in the
expectation that they can argue freely in private while maintaining a
united front when decisions have been reached. This in turn
requires
that the privacy of opinions expressed in Cabinet and Ministerial
Committees, including in correspondence, should be maintained…..
2.3
The internal process through which a decision has been
made, or the level of Committee by which it was taken should
not be
disclosed. Neither should the individual views of Ministers or advice
provided by civil servants as part of that internal
process be
disclosed. Decisions reached by the Cabinet or Ministerial Committees
are binding on all members of the Government.
They are, however,
normally announced and explained as the decision of the Minister
concerned. On occasion, it may be desirable
to emphasise the
importance of a decision by stating specifically that it is the
decision of His Majesty’s Government. This,
however, is the
exception rather than the rule..’
[83]
Collective
cabinet accountability remains part of our law and is enshrined in
section 92(2) of the Constitution.
[38]
Section 133(2) of the Constitution also imposes collective
accountability on the members of an executive council of a province.
Whilst this might suggest that ‘the Cabinet’ ought to be
interpreted in the broad manner suggested by the respondents,
the
more limited ambit of responsibility of provincial executives
[39]
and the fact that other federal systems which incorporate cabinet
secrecy provisions do so only at national level,
[40]
militate against such a construction.
[84]
More
importantly, such an expansive construction of ‘the Cabinet’
would be inconsistent with the language of section
12. In this the
regard the use of the definite article in relation to the Cabinet
appears to be significant, as does the fact that
‘the Cabinet’
has a clear Constitutional meaning. There is only one Cabinet in the
country. The Constitution thus consistently
refers to ‘the
Cabinet’ in the singular to denote the national executive.
[41]
By contrast, section 125(2) of the Constitution provides that the
executive authority of a province is exercised by the Premier
and the
other members of the ‘Executive Council’, and that there
will be such a council for each province.
[85]
The difference in constitutional nomenclature in respect of national
and provincial bodies
and functionaries is recognised in PAIA, as is
apparent from section 12(c) which refers a member of ‘Parliament
or of a provincial
legislature’. That difference in terminology
and the use of the indefinite article in relation to the provincial
structures
is striking.
[86]
A reading of ‘the Cabinet’ in section 12 as being
confined to that body which
comprises the national executive is
consistent with the language of section 12, its apparent origins, the
requirement for a restrictive
interpretation of exemptions in PAIA
already discussed, and the purposes of the act.
[87]
I consequently find that section 12 of PAIA does not exempt the
records of a provincial
executive committee from disclosure and that
the respondents’ reliance on the provision is misplaced.
[88]
That leaves the respondents’ refusal to produce the records
relating to the applicant’s
unsuccessful applications for the
positions of Head of the Departments of Social Development and
Transport.
Records
relating to the interviews for Head of Department Social Development
[89]
The records requested by the applicant in relation to the interviews
for the post of Head
of the Department of Social Development included
the scoresheets populated by each panel member in respect of the
applicant, the
minutes and voice recordings of the applicant’s
interview and the assessment discussions relating to the applicant.
The respondents
provided redacted minutes and a summary reflecting
the totals of the scoresheets but did not provide the audio
recordings or the
scoresheets of each panel member. The applicant
doubts that the minutes are a proper reflection of the oral
deliberations. In the
appeal the Premier took the view that the
requested documents had been provided and there were ‘no
further or additional
documents available’.
[90]
In her founding affidavit, the applicant confirmed that the meetings
were recorded and
described the pre-printed individual sheets with
comments and scores as the documents she sought. In their answering
affidavit,
the respondents do not engage with her requests for the
individual score sheets or the audio recordings. They do not state
that
audio recordings and the individual score sheets do not exist,
nor do they attempt to provide an evidentiary basis for the passing
statement in the Premier’s appeal decision that no further
documents are available.
[91]
The respondents have therefore not demonstrated that their failure to
give the applicant
access to these records falls within PAIA. Indeed,
having given the applicant the summary of the scores of the
panellists and the
minutes, there is no basis upon which they could
refuse to provide the individual score sheets or the audio
recordings. If such
did not exist then the respondents should have
followed the provisions of section 23 but they have not.
[92]
It follows that the applicant must be given access to the audio
recordings and each panel
member’s scoresheet of her.
Head
of Department of Transport shortlisting records
[93]
The applicant was provided with the minutes of the meeting of the
shortlisting committee
but the respondents refused to provide a list
of candidates the basis of that was personal information protected in
terms of the
Protection of Personal Information Act. In
the present
proceedings, the applicant persists in seeking the schedule of
applicants and incorporated an order in her notice of
motion to
compel production of the audio recordings of the shortlisting
meeting. Both requests can be disposed of easily.
[94]
Applicant's request for the list of all applicants for the post of
HOD Transport flies
in the face of her repeated assertion that she is
seeking information only pertaining to herself. In addition, the list
contains
the personal information of third parties which is subject
to mandatory protection in terms of the
Protection of Personal
Information Act and
section 47
of PAIA, unless the consent of those
parties for the release of the information has been obtained in terms
of
section 74.
The respondents’ refusal to disclose the list of
applicants therefore complies with PAIA.
[95]
Despite what is stated in her founding affidavit, the applicant’s
request for records
regarding the shortlisting process for the
appointment of the Head of the Department of Transport did not
include a request for
audio recordings of the shortlisting meeting.
In that regard, her request stands in contrast to the specific
request for the voice
recordings of the interviews in respect of the
interviews for the position of Head of the Department of Social
Development, particularly
as all four applications for access to
information were submitted simultaneously.
[96]
When I drew this to the attention of counsel for the applicant, he
accepted that the prayer
in relation to the audio recordings could
not be pursed. That concession was rightly made, it would not be
competent to me to direct
production of something which was not
requested.
Relief
[97]
Section 82
of PAIA empowers a court hearing a
section 78
application
to grant any order that is just and equitable. The respondents have
not discharged the burden resting on them to justify
the refusal of
access to the requested records, save for the list of the applicants
for the position of Head of the Department
of Transport and the audio
recordings of the shortlisting meeting for that post. The balance of
the records must therefore be supplied.
[98]
The first respondent is the information officer in the Premier’s
office. All of the
information requests were dealt with under her
auspices. There has never been any suggestion that any of the
requests were misdirected
and should have been sent to the third to
fifth respondents. The fact that the Director General provided the
applicant with records
of the third and fourth respondents also
demonstrates that she is in a position to access and supply the
records of other provincial
departments. These matters indicate that
it would be appropriate that the order directing production of the
records be made against
the Director-General. That is also the form
of the order the applicant sought and the respondents have not
suggested it is inappropriate.
[99]
The applicant has been substantially successful, and costs should
follow the result. As
the first to third respondents effectively
represented the fourth and fifth respondents but the latter took no
part in the proceedings,
it would be appropriate for the costs order
to be made only against the first to third respondents.
[100]
I consequently make an order in the following terms: –
1.
The decisions of the first and second respondents refusing to grant
the applicant
access to the following records are set aside:-
1.1
the report of the Financial Misconduct Investigation involving, Ms
Nokuthula
G. Khanylie;
1.2
the report of the Human Resources Investigation involving Ms
Nokuthula G. Khanylie;
1.3
the minutes and audio recordings of the meeting of the Kwazulu-Natal
Provincial
Executive Committee of 13 November 2019 in so far as they
relate to Ms Nokuthula G. Khanylie, including memoranda submitted or
presented, presentations made and records of decisions taken;
1.4
the audio recordings of the interview with and assessment discussions
in respect
of Ms Nokuthula G. Khanylie by members of the panel which
conducted the interviews for the post of Head of Department of Social
Development KwaZulu-Natal on 30 April 2020;
1.5
the score sheets populated by each panel member in respect of Ms
Nokuthula G.
Khanylie for the post of Head of Department of Social
Development KZN in respect of the interviews held on 30 April 2020.
2.
The first respondent is ordered to provide the records referred to in
paragraph 1 of this order to the applicant’s
attorneys within
twenty (20) court days of the date of this order.
3.
The first, second and third respondents are directed to pay the costs
of the application jointly and severally,
the one paying the other to
be absolved.
______________________
A.M.
ANNANDALE, AJ
JUDGMENT
RESERVED:
25 JULY 2023
JUDGMENT
HANDED DOWN:
19 OCTOBER
2023
COUNSEL
FOR APPLICANT:
MR S MOODLEY
Instructed
by:
THEMBA SHEZI ATTORNEYS
36 Chearsley Road, Unit 2
Westville
c/o Sugarpalm Gardens
Panorama Gardens
Pietermaritzburg
Email:
themba@thembashezi.com
Tel: 031 262 0866
Ref: SP948/KHA42/22
COUNSEL
FOR FIRST TO THIRD
RESPONDENTS:
MS N NAKO
Instructed
by:
The State Attorney (KwaZulu-Natal)
Durban
6
th
floor,
Metropolitan Life Building
391 Anton Lembede Street
Durban
Senior Assistant State
Attorney
Ms M Dlamini
c/o: State Attorney
(KZN) Satellite Office
Pietermaritzburg
2
nd
floor
Magistrates Court Building
320 Church Street
Pietermaritzburg
Ref: 43/19246/22/K/P14
[1]
Sections 9(a)
and (b) of PAIA.
[2]
Section 11
of PAIA.
[3]
Transnet
Ltd and Another v SA Metal Machinery Co (Pty) Ltd
2006
(6) SA 285
(SCA
)
para 58.
[4]
Section 81(1)
of PAIA.
[5]
President
of the RSA and Others v M & G Media Ltd
2012
(2) BCLR 181
(CC) para 14.
[6]
Van
der Merwe v National Lotteries Board
2014
JDR 0844 (GP);
(38293/2012)
[2014] ZAGPPHC 240 (11 April 2014)
para
21.
[7]
AVUSA
Publishing Eastern Cape (Pty) Ltd v Qoboshiyane NO and Others
2012 (1) SA 158
(ECP) para 17.
[8]
Mail
& Guardian CC
paras
24 – 25.
[9]
Which claims would permit the court to utilise the
‘judicial peek provisions’ in section 80: of
PAIA, see
Mail &
Guardian CC
paras
33 and 113.
[10]
Mail
& Guardian CC
para
25.
[11]
Mail
& Guardian CC
paras
28 – 30.
[12]
President
of the RSA and Others v M & G Media Ltd
2011
(2) SA 1
(SCA) (Mail & Guardian SCA
1).
[13]
Mail
& Guardian CC
para 14
[14]
Cf
Pahad
Shipping CC v Commissioner, SARS
[2010]
2 All SA 246
(SCA)
para 14.
[15]
National
Lotteries Board and others v SA Education and Environment Project
and another
(2012)
4 SA 504
(SCA) paras 24- 8.
[16]
See for example the approach of Cameron J in para 114 of
Mail
&Guardian CC
[17]
Industrial
Development Corporation of South Africa Limited v PFE
International Inc (BVI) and Others
2012
(2) SA 269
(SCA) para 31
[18]
MEC for
Roads and Public Works Eastern Cape v Intertrade Two (Pty) Ltd
2006
(5) SA 1
(SCA) para 12.
[19]
PFE
International
para
20
[20]
An
appeal to the Supreme Court of Appeal reported at
[2017] 3 All SA
458
(SCA) was dismissed by the majority but on different grounds.
The majority therefore did not engage with the high court’s
findings on
section 7:
para 27. The minority appears to have
accepted the principle that proceedings could commence as envisaged
in
section 7
before the service of a summons or application: para
46.
[21]
Paras 27 – 29.
[22]
Anglogold
Ashanti
para 29.
[23]
Unitas
Hospital v Van Wyk and another
[2006] ZASCA 34
;
2006
(4) SA 436
(SCA) paras 19 – 23.
[24]
Para 42.3.
[25]
Para 28.
[26]
Para 42.2.
[27]
Para 30.
[28]
Industrial
Development Corporation of South Africa Limited v PFE
International Inc (BVI) and Others
2012
(2) SA 269
(SCA) para 31.
[29]
Minister
for Provincial and Local Government v Unrecognised Traditional
Leaders, Limpopo Province (Sekhukhuneland)
2005 (2) SA 110
(SCA) paras 15 – 17.
[30]
Mail
& Guardian SCA
1
para 33.
[31]
Cf
Mail
& Guardian SCA 1
,
paras 27 – 30.
[32]
A
fric
Oil (Pty) Ltd v Ramadaan Investments CC
2004
(1) SA 35 (N)
at
38J - 39A.
[33]
In dismissing the applicant's appeal, the Premier also contended
that these documents were classified as contemplated in the
Minimum
Information Security Standards compiled by the State Security Agency
as a result of which access had to be refused in
terms of
section
5(a)
but this ground was not referred to in the answering
affidavit.
[34]
See
for example Iain Currie & Jonathan Klaaren The Promotion of
Access to Information Act Commentary (2002) para 4.7 and K
Malan To
what extent should the Convention of Cabinet Secrecy still be
recognised in South African constitutional law? De Jure
Law Journal,
vol 49, n1, Pretoria 2016.
[35]
Woolman et al C
onstitutional
Law of South Africa
,
Second Edition, Volume 4, Chapter 62, para 62.5(b)
[36]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000
(1) SA 1
(CC) para 243.
[37]
https://www.gov.uk/government/publications/ministerial-code/ministerial-code#ministers-and-the-government
[38]
Which reads: ‘Members of the cabinet are accountable,
collectively, and individually to Parliament for the exercise of
the
powers and performance of the functions.’
[39]
By virtue of section 125(2)(b) of the Constitution.
[40]
Section 34 of Australia’s Freedom of Information Act 3 of
1982 is one such example.
[41]
For example in sections 85,91 and 92.