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2024
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[2024] ZAECELLC 8
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Maguma v Station Commander Fleet Street Police Station and Others (EL683/2023) [2024] ZAECELLC 8 (19 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE
NO: EL 683/2023
In
the matter between:
LUSANDA
RALPH MAGUMA
Applicant
And
THE
STATION COMMANDER,
FLEET
STREET POLICE STATION
1
st
Respondent
SOUTH
AFRICAN POLICE SERVICES,
DEPUTY
INFORMATION OFFICER
2
nd
Respondent
MINISTER
OF THE SOUTH AFRICAN
POLICE
SERVICES
3
rd
Respondent
JUDGMENT
ZONO
AJ
INTRODUCTION
[1]
The
applicant instituted the instant proceedings for a relief in terms of
which the first respondent is directed to provide him
with copies of
the Post Mortem Report of his partner, Thabisa Rasonti who died at
Frere Hospital on 09
th
September 2018. The applicant seeks
costs of the application against the respondents jointly and
severally, one paying the other
to be absolved, on an attorney and
client scale.
[2]
The
applicant contends that on 11
th
April 2022 he requested
copies of the Post Mortem Report relating to the death of his partner
and that information was never given
to him. On 22
nd
September 2022, after the expiry of (30) thirty days from the date of
receipt of the request by the respondents, he lodged an internal
appeal. The internal appeal addressed and ostensibly delivered to the
second respondent, who is cited as South African Police Service,
National Deputy Information Officer (National Deputy Information
Officer). The prescribed (30) thirty days has expired without
any
kind of response relating to the outcome of the internal appeal. The
applicant thereafter resorted to this litigation.
[3]
The
application is strenuously opposed by the respondents. The
application is mainly opposed on legal grounds. The respondents
contend that the request did not meet the mandatory standards and
requirements prescribed by the enabling legislation. They cite
a
number of grounds. Consequently, the respondents assert that the
application is ill-fated.
[4]
Firstly,
the respondents plead non-compliance with the provisions of
Section
34(1) (e) of Promotion of Access to Information Act 2 of 2000 (PAIA)
in that the applicant is not the deceased’s next of kin.
According to this section a person is entitled to be given
information
in terms of the PAIA if he or she is
inter alia
,
deceased next of kin. Applicant’s
locus standi
is placed
in issue.
[5]
Secondly,
the respondents plead non-compliance with Section 18 of PAIA read
with paragraph 5.3(10) of the South African Police Service
PAIA
manual in that the information so requested is insufficiently
particularized and that the information so requested, despite
diligent search could not be found. Request for further particulars
was made to the applicant which particulars were not given
to the
respondents.
[6]
Thirdly,
long after the expiry of sixty (60) days from the receipt of the
request the respondents received the internal appeal and
they
realized that it is defective as it failed to comply with the
provisions of Section 75 (1) (a) (i) of PAIA, in that the internal
appeal was lodged after the expiry of the prescribed sixty (60) days.
[7]
Fourthly,
the respondents contend that the internal appeal was sent to the
incorrect information officer. The respondents do not
set out the
name and the particulars of the correct information officer. No oral
submissions were made to support this assertion.
[8]
The
respondents ask that the application be dismissed for non-compliance
with the imperative provisions of the PAIA. The defects
in the
applicant’s request and internal appeal are fatal.
[9]
It
is therefore common cause that the request for access to information
was made and same was received by the respondents. It is
common cause
further that the internal appeal was lodged outside sixty (60) day
period prescribed by section 75(1) (a) of the PAIA.
DISCUSSION
(i
)
Section 34(2)(e)(i) of PAIA- next of kin- applicant’s
locus
standi
[10]
The
high water mark of respondents’ reliance on the provisions of
Section 34(2) (e) (i) of PAIA is that the applicant, although
that he
had made request for access to information, is not the deceased’s
next of kin.
[11]
Section
34 of PAIA
provides as follows:
“
Mandatory
protection of privacy of third party who is natural person
34.
( 1 ) Subject to subsection (2), the information officer of a public
body must refuse a request for access to a record
of the body
if its disclosure would involve the unreasonable disclosure of
personal information about a third party, including
a deceased
individual.
(2)
A record may not be refused in terms of subsection (1) insofar as it
consists of information—
(a)
about an individual who has consented in terms of section 48 or
otherwise in writing to its disclosure
to the requester concerned;
(b)
that was given to the public body by the individual to whom it
relates and the individual was informed by or on behalf of the
public
body, before it is given, that the information belongs to a class of
information that would or might be made available to
the public:
(c)
already publicly available;
(d)
about an individual’s physical or mental health, or well-being,
who is under the care of the requester and who is—
(i)
under the age of 18 years; or
(ii)
incapable of understanding the nature of the request, and if giving
access would be in the individual’s best interests;
(e)
about an individual who is deceased and the requester is—
(i)
the individual’s next of kin: or
(ii)
making the request with the written consent of the individual’s
next of kin;
(f)
about an individual who is or was an official of a public body and
which relates to the position or functions of the individual,
including, but not limited to —
(i)
the fact that the individual is or was an official of that public
body;
(ii)
the title, work address, work phone number and other similar
particulars of the individual;
(iii)
the classification, salary scale or remuneration and responsibilities
of the 10 position held or services performed by the
individual; and
(iv)
the name of the individual on a record prepared by the individual in
the course of employment.”
[12]
Anent
to the facts of this case, and from the provisions of Section
34(2)(e)(i) it is plain that a request for access to a record
may not
be refused if it consists of information about an individual who is
deceased and the requester is the individual’s
next of kin. A
prerequisite for provision of information is that the requester must
be a deceased’s next of kin (individuals
next of kin).
[13]
Individuals
next of kin is defined in the Act
[1]
to mean-
“
(
a)
an
individual to whom the individual was married immediately before the
individual’s death;
(b)
an
individual with whom the individual lived as if they were married
immediately before the individual’s death;
(c)
a
parent, child, brother or sister of the individual; or
(d)
if—
(i)
there is no next of kin referred to in paragraphs (a), (b) and (c);
or
(ii) the requester concerned took all reasonable steps to locate such
next of kin but was unsuccessful.”
[14]
I
am of the view that paragraph (b) of the definition applies to the
facts of this case.
[2]
The
applicant avers in the founding affidavit that the deceased, Thabisa
Rasonti, was his partner. It is important to first examine
the
meaning of the “
Partner.”
That
will be done with reference to established legal principles of
interpretation.
[15]
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[3]
“
[17]
The trial judge said that the general rule is that the words used in
a statute are to be given their ordinary grammatical meaning
unless
they lead to absurdity. He referred to authorities that stress the
importance of context in the process of interpretation
and concluded
that:
‘
A
court must interpret the words in issue according to their ordinary
meaning in the context of the Regulations as a whole, as well
as
background material, which reveals the purpose of the Regulation, in
order to arrive at the true intention of the draftsman
of the Rules.’
Whilst
this summary of the approach to interpretation was buttressed by
reference to authority it suffers from an internal tension
because it
does not indicate what is meant by the ‘ordinary meaning’
of words, whether or not influenced by context,
or why, once
ascertained, this would coincide with the ‘true’
intention of the draftsman. There were similar difficulties
in the
heads of argument on behalf of Endumeni. In one paragraph they urged
us, on the basis of the evidence of the actuary who
advised the Fund
to adopt the approach, that the proviso was not intended to cater for
‘a Maltman type of event’ and
in another cited
authorities for the rule that the ‘ordinary grammatical meaning
of the words used must be adhered to’
and can only be departed
from if that leads to an absurd result. In view of this it is
necessary to say something about the current
state of our law in
regard to the interpretation of statutes and statutory instruments
and documents generally.
[18]…
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective not subjective.
A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible
or businesslike for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between
interpretation and
legislation. In a contractual context it is to make a contract for
the parties other than the one they in fact
made. The ‘inevitable
point of departure is the language of the provision itself, read in
context and having regard to the
purpose of the provision and the
background to the preparation and production of the document.”
[16]
The
oxford dictionary
[4]
meaning of
the word “
Partner
”
is-
“
1.
A person who takes part in an undertaking with another or others,
especially in a business or firm with shared risks and profits.
2.
either
of two people doing something as a couple or pair.
3.either
member of a married couple or an established unmarried couple
.”
The
word partner refers to either member of an established unmarried
couple. Parties who are living their lives as a couple or pair
fall
within the definition of a partner.
[17]
Developing a point about their relationship, the applicant avers in
his replying affidavit as follows:
“
9
Ad Paragraph 8 and 9 thereof
The
allegations in these paragraphs are noted, I have the necessary locus
standi in this matter by virtue of the fact that, the
deceased and I
prior to her death had been in a relationship since 2009 living as a
couple with our children who were born of our
relationship. Namely:
Philasande Rasonti, who is 12 years old, Linethemba Rasonti who is 10
years old and Liyabona Rasonti
who is 5 years old….. The
deceased and I had been living together with our children as a family
and we had been considering
marriage but because of financial
inabilities we had put marriage on hold until we were financially
stable to continue our lifelong
partnership. As partners in a
permanent partnership, we had undertaken reciprocal duties and
support towards one another….”
It
is permissible to build on foundational allegations contained in the
founding affidavit
[5]
.
[18]
I
find that the applicant is deceased next of kin. There is judicial
authority for proposition that “
permanent
life partnerships are very much akin to marriages. They are the
foundation of family life”
[6]
.
They
must be accorded the respect they deserved so as to avoid unfair
discrimination. The courts, as another arm of the state, are
enjoined
not to unfairly discriminate anyone on the ground of marital
status.
[7]
Accordingly these
kinds of relationships deserve of legal recognition and protection. I
therefore cannot uphold the respondents’
point of lack of
locus
standi
on the basis of Section 34(2) (e) (i) of PAIA.
(ii)
Insufficient information provided in the request form-section
18 of PAIA read with paragraph
5.3(10)
[19]
The
respondents complain that the records requested are vaguely
described, and as a result of that, despite a diligent search on
behalf of the information officer, the record requested could not be
ascertained. During argument it was said on behalf of the
respondents
that records were diligently looked for but could not be found. After
the launch and service of this application, the
respondents requested
further particulars of the records requested. No further particulars
were given by and on behalf of the applicant.
The respondents averred
that the request lacked key identifiers like reference number from
Frere Hospital or CAS Number and that
rendered it impossible to
ascertain the record.
[20]
Section
18(1) and 2(a)- (f) of PAIA
provides as follows: -
“
18.
(1) A request for access must be made in the prescribed form to
information officer of the public body concerned at his or her
address or fax number or electronic mail address.
(2)
The form for a request of access prescribed for the purposes of
subsection (1) must at least require the requester concerned—
(a)
to provide sufficient particulars to enable an official of the
public body concerned to identify
—
(i)
the
record or records requested; and
(ii)
the requester;
(b)
to indicate which applicable form of access
referred to in section 29(2)
is required;
(c)
to state whether the record concerned is preferred in a particular
language;
(d)
to specify a postal address or fax number of the requester in the
Republic;
(e)
if, in addition to a written reply, the requester wishes to be
informed of the decision on the
request in any other manner, to state
that manner and the necessary particulars to be so informed; and &
if the request is
made on behalf of a person, to submit proof of the
capacity in which the requester is making the request, to the
reasonable satisfaction
of the information officer.
(3)
(a) An
individual who because of illiteracy or a disability is unable
to
make a request for access to a record of a public body in accordance
with subsection (1), may make that request orally.
(b)
The information officer of that body must reduce that oral request to
writing in the prescribed form and provide
a copy thereof to the
requester.”
[21]
Firstly,
respondents’ complaint can be located within the confines of
section
18(2)(a) of PAIA.
It
is encumbent upon the requester to provide sufficient information, in
the prescribed form, to enable an official of the
public body to
identity the record so requested; and the requester
[8]
.
It is further incumbent upon the requester to indicate the
applicable form of access required
[9]
and to specify postal address or number of the
requester; and the manner through which the requester
wishes to be informed of the decision.
[10]
It is necessary to submit proof of the capacity in which the
requester is making the request.
[11]
[22]
The
respondents assert that the provision of section 18 are couched in
imperative terms and they require exact compliance. For that
reason,
the respondents submit that this application must not succeed as
there was no proper and valid request made.
[23]
The applicant countered that argument by submitting that the
respondents, too have not complied with imperative
provisions of
section 19(2) of PAIA. Section 19(2) (a)-(d) of PAIA
provides as follows: -
“
Duty
to Assist
……
(2
)
If a requester has made a request for access that does not comply
with section 18(l), the information officer concerned may not
refuse
the request because of that non-compliance unless the information
officer has—
(a)
notified that requester of an intention to refuse the request and
stated in the notice—
(i)
the reasons for the contemplated refusal; and
(ii)
that the information officer or another official identified by the
information officer would assist that requester in order to make the
request in a form that would remove the grounds
for
refusal;
(b)
given the requester a reasonable opportunity to seek such assistance;
(c)
as far as reasonably possible, furnished the requester with any
information (including information about the records, other
than
information on the basis of which a request for access may or must be
refused in terms of any provision of Chapter 4 of this
Part, held by
the body which are relevant to the request) that would assist the
making of the request in that form; and
(d)
given the requester a reasonable opportunity to confirm the request
or alter it to comply with section 18(l).”
[24]
Firstly,
the operation of this section can only be triggered by requesters
non-compliance with the provisions of section 18(1) of
PAIA. Section
18(1) of PAIA requires that a request for access must be made in the
prescribed form to the information officer of
the public body
concerned at his or her address or fax number or electronic address.
Section 19(2) of PAIA
ex facie
does not generally deal with
non-compliance with the general provisions of PAIA or section 18 of
PAIA. It appears to be dealing
with compliance with section 18(1) of
PAIA. However contextual reading of the Act and the SAPS PAIA Manual
demonstrates that the
Deputy information officer may not refuse
request on account of insufficiency of information contained in the
request.
[25]
Complaint
about provision of sufficient particulars in the prescribed form are
not outside the scope of operation of section 19(2)
of PAIA, regard
being had to the provisions of paragraph 5.5 of the SAPS PAIA Manual.
Respondents’ duty to assist is not
limited to the completion of
prescribed form and its transmission to the Information Officer.
Reliance on the provisions of section
19(2) of PAIA for proposition
that the respondents are enjoined to give the requester notice of
non-compliance and to seek assistance
is not misplaced. Proper
characterization of respondents’ case in this regard falls four
squarely within the ambit of section
18(1) and 18(2) of PAIA. Both
subsections must be read conjunctively to give proper context.
[12]
[26]
Even
if I am wrong on my interpretation, I find solace on the provisions
of paragraph 5.5 of SAPS PAIA Manual which in relevant
parts provides
as follows: -
“
The
requester must complete a request form … and the Deputy
Information Officer must assist to ensure that the request complies
with the requirements of the Act. The Deputy information officer may
not refuse the request if it is not fully or correctly completed.
The
deputy Information officer will notify the requester by means of a
notice of intended refusal form [SAPS S129(0)] of his or
her
intention to refuse the request. In such an event the requester may
then provide more detailed information regarding the request
.”
It
is therefore not opened to the respondents to refuse request for
information (such to include deemed refusal) on account of
insufficient particulars provided in the prescribed request form.
Insufficiency of information is not a ground for refusing the
request. On this ground respondents’ point cannot be upheld.
[27]
Provisions
of Section 19(2) of PAIA are couched in peremptory terms. If a
provision is couched in a negative form, it is to be regarded
as a
peremptory rather than a directory mandate.
[13]
In
Moroka
v Premier of the Frere Stat Province and others
[14]
the
SCA pronounced on the usage of the phrase “
may
not”
as follows:
“
[
22]
I
agree with the first respondent’s submissions that as a general
rule the word ‘may’ in a statute confers the
power to
exercise a discretion. However, in the present matter the power to
exercise a discretion is couched in the negative which,
in my view,
in effect, takes away the power to exercise a discretion. Simply put,
on a purposive and contextual construction of
s 25(5), the phrase
‘may not’ means that the Commission did not have the
necessary authority to deal with the dispute
referred to it after six
months of coming into operation of the Amendment Act.”
[28]
The
word “
may”
in Section 19(2) of PAIA is coupled
with the word “
not
” which is a clear indication
that the refusal of request is prohibited in circumstances where the
requester has not been
given a notice to either seek assistance to
comply with the Act or provide more detailed information regarding
the request. The
prohibition operates to nullify the act, (in this
case refusal to access to information) performed contrary to it.
Similarly, failure
to do what the provisions of section 19(2) of PAIA
require of the respondents is a nullity.
[29]
What
is done contrary to the prohibition of the Law is not only of no
effect, but must be regarded as never having been done-and
whether
the Law giver has expressly so decreed or not; the mere prohibition
operates to nullify the Act.
[15]
Alternatively, respondents’ failure to give applicant the
required notification and refused access to record is null and
void.
[30]
The
test applicable to examine whether the particulars provided by the
requester is sufficient is an objective one. For one to know
if the
information required is sufficient or not, he must have regard to
what is contained in the prescribed request form and accompanying
documents.
[31]
Part
B of the prescribed request form is completed. Part B is the apart
that requires information about the particulars of the requester.
The
requester Sinethemba Madikazi, who provides his identity number
postal and email addresses, together with his contact numbers.
In
Part C he states that he makes the request in his capacity as an
attorney of the applicant.
[32]
Part
C of the prescribed form is not fully completed. There is no
certification by the person on whose behalf the request is made.
The
certificate provides a space for the identity number of person on
whose behalf the request is made, as well as his full names.
However,
the certificate is required to be completed only if the person on
whose behalf the request is made has orally authorised
the requester
or by means of a letter to make the request on his or her behalf; or
if the documentary proof of capacity to act
on behalf of another
person cannot be attached or is not attached to the form.
[33]
In
the prescribed request form there is no indication that there was a
documentary proof of capacity attached thereto. A letter
dated 11
th
April 2022
[16]
lists in its
penultimate paragraph documents that were attached to it. The
following documents were attached thereto: special power
of attorney,
consent form, client’s ID copy and PAIA request form. Special
power of attorney and consent form
[17]
authorised the requester to obtain the documents on behalf of the
person on whose behalf the information is requested. Accordingly,
a
certificate was not necessary to be completed.
[34]
Part
D concerns the particulars of record. It requires the description of
record or relevant part of the record. In dealing with
that the
requester filled in only the following words:
Post-Mortem.
No
other information is given in the prescribed form concerning the
description of the record. It must be borne in mind that no
information is given in the prescribed form about the particulars of
the deceased, the medical institution in which she was admitted
or
attended to, her identity numbers or date of birth etcetera.
[35]
However,
the letter dated 11
th
April 2022, under cover of which the
prescribed request form was submitted to the respondents, discloses
the name of the deceased,
Thabisa Rasonti in the first paragraph
thereof. The same paragraph states that the deceased passed away at
Frere Hospital on 11
th
September 2018 after having given
birth to a child at Notyatyambo Clinic Mdantsane on 17
th
July 2018. There was no identity number or date of birth of the
deceased.
[36]
The
respondents cite circumstances which rendered production of
information impossible. They cite as a reason the unavailability
of
CAS Number in the request form. That was the main reason. Regarding
the particulars of record and description thereof, the prescribed
request form in Part D provides as follows:
“
(a)
Provide full particulars of the record to which access is
requested,
including the reference number,
if that is known
to you,
to enable the record to be located.”
The
respondents record their complaint in their Answering affidavit
around this as follows: -
“
16…...
the omission of the reference number or any key identifier either
from the Frere Hospital or the CAS Number rendered
it cumbersome and
impossible to ascertain the record and information sought.”
The
answering affidavit was deposed to by Samantha Slater, who describes
herself as “
an adult female employed as Commander: Civil
Litigation Centre: East London.”
On that basis she is
duly authorised to attest and depose to the answering affidavit.
[37]
SAC
D Openshaw, who describes herself as an adult female employed as the
Station Deputy Information Officer at the East London:
Fleet Street
Police Station, states in her confirmatory affidavit as follows:
“
6.
The first difficulty I encountered in processing the request for
information was that there was no CAS Number written on the
request
for information albeit the prescribed form provides for such
reference.”
According
to Ms Openshaw, the only hindrance to the processing of request was
lack of CAS Number. She specifically did not confirm
that
unavailability of reference number from Frere Hospital was her
impediment in processing the request. Accordingly I do not
accept
those allegations as evidence before this court
[18]
.
[38]
Part
D (a) of the prescribed form contemplates that reference number of
any kind, including CAS Number, may not be known to the
requester.
Unavailability of reference number does not vitiate a request made in
terms of the empowering provision. The proviso
in Part D (a) of the
request form envisages that a request may successfully be made
without a reference number, if sufficient particulars
are provided to
enable the record to be located.
[39]
It
is true that the information provided in the prescribed request form
is far from being sufficient. However, the prescribed form
in Part D
(b) thereof provides for a separate folio to be used, setting out
sufficient information and be attached to the request
form. In this
case, a letter dated 11
th
April 2022 which I regard to be
the separate folio, referred to in the prescribed request form was
used. The letter bears the SAPS
date stamp of 11
th
April
2022, acknowledging receipt thereof, which is the same date of
signature of the prescribed request form. As demonstrated
above it
provides information about the full names of the deceased, Hospital
where she passed away, the date of death, the name
of the clinic
where she gave birth. That information or those particulars are
sufficient to enable the information officer to locate
the record. On
this ground too respondents’ point cannot succeed.
[40]
It
is apparent from the respondents’ confirmatory affidavit that
the information officer was in possession of the death certificate.
The complaint about conflicting dates of death cannot avail the
respondents of any defence. I therefore find that the respondents
were in possession of the relevant information that would enable the
information officer to locate the required record.
[41]
In
a nutshell the respondents’ point about insufficiency of
particulars provided in the prescribed request form cannot be
upheld.
The respondent cannot sit still and do nothing because he or she
perceives the information given in the prescribed request
form to be
insufficient. The legislative requirement permits of an engagement
and deliberative process once the information officer
perceives that
the provided information is insufficient. The stance taken by the
respondents is contrary to the intention of the
legislature and
purpose of the legislation and therefore untenable. I agree with
applicant’s submission that relevant provisions
of PAIA provide
an assistive than adversarial mechanism to obtain record or
information in the possession of public body.
[42]
Respondents’
defence about insufficient information is an afterthought and
opportunistic. It was available to the respondents
to communicate
with the applicant the alleged difficulties. That would be in line
with the very purpose of the legislation (PAIA),
namely, an assistive
mechanism that creates an engagement and deliberative process.
[19]
I find support for this proposition in paragraph 5.5 (4) of SAPS PAIA
Manual which provides as follows:-
“
If
a requested record cannot be found or does not
exist the deputy information officer will in an affidavit
or in
a statement under affirmation give full account of all steps
taken to find the record in question or to determine
whether
the record exists including all communications with every person
who conducted the search on behalf of the
information officer
.”
No affidavit or statement under affirmation was ever prepared by the
respondents in line with this provision.
Issues
raised in court
[43]
The
court raised an issue about the non-payment of request fee which was
admittedly not paid. The applicant contended that no notice
was given
to him for payment of the fee. The applicant relied on the provisions
of Section 22 (1) of PAIA which read as follows:
-
“
(1)
The information officer of a public body to whom a request for access
is made, must by notice require the requester, other than
a personal
requester, to pay the prescribed request fee (if any), before further
processing the request
.”
[44]
Paragraph
5.5(3) of SAPS PAIA Manual makes it abundantly clear in the following
words: -
“
The
deputy information officer will, upon receipt of a request for access
made on a properly completed request form, unless the
request is
transferred, complete the notice of fee payable-form [ SAPS S12(b)]
and informed in this manner of the requester fee
payable (only where
applicable) and the place where the fee must be paid, before the
request will be processed any further.”
No request fee was
therefore necessary to be paid as no notice in terms of the
empowering provision was made to the applicant for
such payment.
(iii)
Defective internal Appeal-Section 75(1) of PAIA
[45]
The respondents contend that the applicant’s internal appeal is
defective as it was lodged way outside
the prescribed 60-day period.
Section 75 (1) (a) (i) of PAIA provides as follows:
“
75
.
(1) An internal appeal —
(a)
must be lodged in the prescribed form—
(i
)
within 60 days…”
This
is not in dispute. However, the applicant in reply makes out a case
founded on the provisions of Rule 27 of the Uniform Rules.
In the
founding affidavit, there is no case made out founded on the
provisions of Rule 27 of the Uniform Rules. Simple put, no
allegations made in the founding affidavit to support a relief sought
in the notice of motion for condonation of time limits prescribed
by
the Rules of this court.
[46]
Diemont
JA
in the
Director
of Hospital Services v Mistry
[20]
put this
point aptly as follows:-
“
When,
as in this case, the proceedings are launched by way of notice of
motion, it is to the founding affidavit which a judge will
look to
determine what the compliant is. As was pointed out by
Krause
J
in
Pountas’
Trustee v Lahanas
1924 WLD 67
at 68
and has been said in many other cases. “…..An applicant
must stand or fall by his petition and the facts alleged therein
and
that, although sometimes it is permissible to supplement the
allegations contained in the petition, still the main foundation
of
the application is the allegation of facts stated therein, because
those are the facts which the respondent is called upon either
to
affirm or deny
.”
[21]
.
It
is impermissible to make out a case in reply as that amounts to
litigation by ambush.
[47]
Even
if I may be found to be wrong on the above finding, the application
would still not succeed on other grounds. No good cause
has been
shown. The applicant should have furnished an explanation of his
default sufficiently full to enable the court to understand
how it
really came about and to assess his conduct and motive
[22]
.
[48]
Firstly,
Rule 27 of the Uniform Rules caters for situation where the applicant
seeks an order extending or abridging any time
prescribed
by the Uniform Rules
or
by an
order
of court.
This
case is not about the time prescribed by the Rules of this court
(Uniform Rules of court), but the time frames statutorily
prescribed
by the section 75(1)(a)(i) of PAIA. PAIA does not provide for
condonation of appeal period prescribed by section 75(1)(d)(i)
of
PAIA by the court. There must be an application where a good cause is
shown to the appeal authority for the late lodging of
internal appeal
to be allowed.
[23]
In
Casu
there was no application or affidavit where a good cause was shown to
the relevant appeal authority to allow late lodging of the
internal
appeal.
[49]
Where
a statute provides that something must be done within a certain time,
and no power of extension is given to the court, it
is presumed that
the requirement is peremptory, and everything done after that time is
null and void.
[24]
Allowing
late lodging of internal appeal is subject to the good cause having
been shown to the appeal authority by the applicant.
No power is
given to court to allow the internal appeal to be lodged out of time.
Joubert
[25]
echoes
the same sentiments in the following words:-“
(F)
provisions imposing time limits and restrictions(without giving court
a power of extension) are as a Rule peremptory
.”
He further stated that “
as
a general Rule non-compliance with peremptory provisions results in a
nullity
.”
[26]
Peremptory provision requires exact compliance for it to have the
stipulated legal consequences, any purported compliance falling
short
of that is a nullity
[27]
.
[50]
On
the facts of this case I find that, the lodging of the appeal outside
time limits prescribed by the empowering provision, namely
section
75(1) (a)(i) of PAIA, is null and void and it constitutes a nullity.
[51]
In
addition to the above, I am of the view that the use of the word
“
must”
in the provision is a strong
indication that the provisions are peremptory. The provision is
couched in peremptory terms and consequently
requiring exact
compliance.
[52]
About
provisions of section 75(1) the full bench in
Paul
[28]
authoritatively remarked as follows:-
“
[24]
Where the appeal has been lodged in a manner contrary to the clear
provisions of section 75 (1) it follows that no valid appeal
has been
lodged.”
I am constrained to
follow this judgment. Non-compliance with the provisions of section
75(1) must invariably lead to the dismissal
of this application.
[53]
The
doctrine of precedent which requires courts to follow the decision of
coordinates and higher courts on the judicial hierarchy,
is an
intrinsic feature of the Rule of law, which is in turn fundamental to
our Constitution. It obliges courts of equivalent status
and those
subordinate in the hierarchy to follow only the binding basis of a
previous decision.
[29]
[54]
In
the circumstances I would dismiss this application. However, during
argument parties agreed that, if I find against the applicant,
I must
still direct the respondents to submit the appeal records or papers
to the appeal authority for determination. The applicant
insisted on
costs against the respondents. The agreement was subject to the fact
that there is a valid appeal lodged by the applicant.
[55]
I
have found that there is no valid appeal lodged, therefore I cannot
direct that it be submitted to the appeal authority for processing.
In this regard it is pivotal to refer to the provisions of section 78
of PAIA which provides as follows:
“
78
(1)
A requester or third party referred to in section 74
may only apply to a 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
.
(2)
A requester—
(a)
that has been unsuccessful in an internal appeal to the relevant
authority of a public body;
(b)
aggrieved by a decision of the relevant authority of a public body to
disallow the late lodging of an internal appeal in terms
of section
75(2);
(c)
aggrieved by a decision of the information officer of a public body
referred to in paragraph (b) of the definition of “public
body”
in section l-
(i) to refuse a
request for access; or
(ii) ten in terms of
section 22, 26(1) or 29(3); or
(d) aggrieved by a
decision of the head of a private body—
(i)
to refuse a request for access; or
(ii)
ten in terms of section 54, 57(1) or 60, may, by way of an
application, within 30 days apply to a court for appropriate relief
in terms of section 82.
(3)
A third party—
(a)
that has been unsuccessful in an internal appeal to the relevant
authority of a public
body;
(b)
aggrieved by a decision of the information officer of a public body
referred to in paragraph (b) of the definition of “public
body”
in section 1 to grant a request for access; or
aggrieved
by a decision of the head of a private body in relation to a request
for access to a record of that body, may, by way
of an application,
within 30 days apply to a court for appropriate relief in terms of
section 82
.”
Accordingly,
this application must fail, as internal appeal
procedure has
not been exhausted.
[56]
With
regards to costs, there is no innocent party herein. The conduct of
the respondents is not that of an innocent party. They
failed to
assist the applicant when he was making the request for access. They
did that contrary to peremptory provisions of Section
19(2) of PAIA
read with the paragraph 5.5 of SAPS PAIA Manual. Had the respondents
done what was expected of them, perhaps this
application could not
have been instituted. There is a higher duty on the state to respect
the Law, to fulfil procedural requirements
and to tread respectfully
when dealing with rights.
[30]
[57]
The
respondents did not respect applicant’s rights in terms of
Section 32 of the Constitution. PAIA and its Manuals give effect
to
these provisions when conferring rights to citizens and imposes
obligations upon public bodies like respondents. It is those
obligations that the respondents failed to perform.
[31]
Accordingly I find the respondents liable to pay 50% of
applicant’s costs.
[58]
In
the result I make the following order.
58.1
The
application is dismissed.
58.2
The
respondents are directed to pay 50% of applicant’s
party
and party costs.
A.S
ZONO
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the Applicant :
ADV. NYANGIWE
Instructed
by
:
MADIKAZI ATTORNEYS’ INC
Applicant’s
Attorneys
2185
N.U.7
Mdantsane
East
London
5219
Tel:
072 084 948
Red:
MA-INC/LMLMED-091221
E-mail:
madikazisine@gmail.com
Respondent’s
Counsel
:
ADV. MATI
Instructed
by
: STATE
ATTORNEY
Respondent’s
attorneys
Old
Spoornet Building
17
Fleet Street
East
London
Date
heard
:22
nd
February 2024
Date
Delivered:
:19
th
March 2024
[1]
Section
1 of PAIA (definitions).
[2]
An
individual with whom the individual lived as if they were married
immediately before the individual’s death.
[3]
2012(4)
SA 593 at 602-603
[4]
South
African Concise Oxford Dictionary
[5]
Director
of Hospital Services v Mistry
1979 (1) SA 626
(A) at 635H-636A;
Nkume
v Transunion Credit Bureau (Pty Ltd and another
2014 (1) SA 134
(ECM) Para 7.
[6]
Bwanya
v Master of the High Court, Cape Town and others
2022 (3) SA 250
(CC) Para 55-56.
[7]
Section
9(3) of the Constitution:
The
state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including…. Marital
status
…”
[8]
Section
18(2)(a) of PAIA.
[9]
Section
18(2)(b) of PAIA.
[10]
Section
18(2)(d) and (e) of PAIA.
[11]
Section
18(2) (e) of PAIA.
[12]
Cools
Ideas CC v Hubbard and another
2014 (4) SA 474
(CC) Para 28
[13]
G.M
Cockram: Interpretation of Statutes, 3
rd
Ed, Page 163; LAWSA,2
ND
Ed Vol 25, Part
1, Page 399.
[14]
(295/20)
[2022] ZASCA 34
(31March 2022) Para 22.
[15]
Cools
Ideas 1186 CC v Hubbard and another
2014 (4) SA 479
Paragraph 53,90 and 91;
Schriehout
v Minister of justic
e
1926 AD 99
at 109.
[16]
This
date is the same date on which the prescribed form was signed.
[17]
Read
in context and purposively.
[18]
Section
3(1) of Law od Evidence Amendment Act 45 of 1988.
[19]
Section
19(2) of PAIA; Paragraph 5.5(1) of SAPS PAIA Manual.
[20]
1979
(1) SA 626
(A) at 635H-636A.
[21]
Nkume
v Transunion Credit Bureau (Pty) Ltd and another
2014
(1) SA 134
(ECM) Para 7 and cases referred to therein.
[22]
Silber
v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345
(A) at 353 A.
[23]
Section
75(2) (a) of PAIA: Only appeal authority can allow late lodging of
the internal appeal on good cause shown.
[24]
G.M
Cokram: Interpretation of Statutes, 3
rd
Edition, Page 161.
[25]
LAWSA,
2
ND
Edition, Vol 25, Part
1, Page 401
, Para 366.
[26]
LAWSA(Supra) Page 399.
[27]
Shabalala
v Klerksdorp Town Council and Another
1969
(1) SA 582
(T) at 587A-C.
[28]
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 and others
2019 (3) ALL SA 879
(ECM) Para 24.
[29]
True
Motives 84 (Pty) Limited v Mahdi
2009 (4) SA 153
SCA Para 100-101;
Makhanya
v The University of Zululand
2010 (1) SA 62
SCA Para 6.
[30]
MEC
for Health, Eastern Cape and another v Kirland Investment (Pty) Ltd
2014
3) SA 481
Para 82.
[31]
Section
237 of the Constitution.