Singwane v Medical Superintendent of the Matsulu Community Health Clinic and Others (3261/2020, 1051/2021, 1063/2021, 299/2021, 300/2021, 579/2021, 581/2021) [2021] ZAMPMBHC 22 (22 June 2021)

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[2021] ZAMPMBHC 22
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Singwane v Medical Superintendent of the Matsulu Community Health Clinic and Others (3261/2020, 1051/2021, 1063/2021, 299/2021, 300/2021, 579/2021, 581/2021) [2021] ZAMPMBHC 22 (22 June 2021)

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
MPUMALANGA DIVISION, MBOMBELA
(MAIN SEAT)
1.
REPORTABLE:
YES
/
NO
2.
OF INTEREST TO OTHER JUDGES: YES/
NO
3.
REVISED.
22
June 2021
CASE NO’s:  3261/2020, 1051/2021, 1063/2021, 299/2021,
300/2021, 579/2021, 581/2021
In the matter between:
LAZARUS
SINGWANE
Applicant
and
MEDICAL SUPERENTENDENT OF THE
First Respondent
MATSULU COMMMUNITY
HEALTH CLINIC
CHIEF EXECUTIVE OFFICER
OF THE MATSULU
Second Respondent
COMMUNITY HEALTH CLINIC
MEC: MPUMALANGA
DEPARTMENT OF HEALTH
Third Respondent
(AND SIX OTHER
APPLICATIONS UNDER SECTION 78 OF THE PAIA ACT)
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email shall be releases
to SAFLII. The date and
time for hand-down is deemed to be 14:00 on 22 June
2021.
JUDGMENT
Roelofse AJ:
[1]
This judgment concerns seven applications that were enrolled
on the unopposed roll before me on 24 May 2021. I deal with all the

applications in this judgment because the applications were all
brought in terms of the provisions of section 78 of the Promotion
of
Access to Information Act, 2 of 2000 (“
PAIA”
). I
reserved my judgment in the applications to have an opportunity to
revisit the provisions of PAIA applications. This type of

applications is often unopposed and dealt with on this court’s
unopposed roll. Often several such applications are on the
courts
unopposed roll on motion days.
[2]
This judgment will show that, despite the Legislature’s
noble aim to provide a comprehensive procedure and system for access

to information through PAIA, parties are already on a road to nowhere
even before their applications reach the court. I hope that
this
judgment will cause the litigants and their legal practitioners to
carefully consider the provisions of PAIA from the time
the need for
access to information arises.
[3]
To communicate what I intend to communicate in this judgment,
I have deemed it necessary to reproduce either in the main test of

the judgment or in the endnote thereof the applicable text of PAIA.
This, I hope, will do away with the need for those who wish
to read
the judgment, to refer to the Act itself.
[4]
I commence this judgment with some remarks over PAIA.
Thereafter I proceed to refer to the provisions of PAIA insofar as
they are
relevant for purposes of deciding the applications. Finally,
I deal with each of the applications and set out in why they are
wanting
of the provisions of PAIA.
Remarks in respect of
PAIA
[5]
Twenty-four years since the commencement of the Constitution
of the Republic of South Africa Act, 1996 (“
the
Constitution”
)
[i]
,
South Africans ought to know by now that access to information is a
fundamental right. Section 32 of the Bill of Rights
[ii]
provides:
“
Access
to information.
(1)
Everyone has the right of access to- (a) any information held by the
state; and any information that is held by another person
and that is
required for the exercise or protection of any rights.
(2)
National legislation must be enacted to give effect to this right,
and may provide for reasonable measures to alleviate the

administrative and financial burden on the state.”
[6]
In
Brümmer
v Minister for Social Development and Others
[iii]
,
the
Constitutional Court explained the importance of the constitutional
right of access to information held by the state as follows:
“
The
importance of this right . . . in a country which is founded on
values of accountability, responsiveness and openness, cannot
be
gainsaid. To give effect to these founding values, the public must
have access to information held by the State. Indeed one
of the basic
values and principles governing public administration is
transparency. And the Constitution demands that transparency
‘must
be fostered by providing the public with timely, accessible and
accurate information’.
Apart from this, access to information is
fundamental to the realisation of the rights guaranteed in the Bill
of Rights. For example,
access to information is crucial to the right
to freedom of expression which includes freedom of the press and
other media and
freedom to receive or impart information or ideas. .
. . Access to information is crucial to accurate reporting and thus
to imparting
accurate information to the public.”(Citations
omitted.)
[7]
PAIA was promulgated in pursuit of sub-section (2) of section
32 of the Constitution.
[iv]
[8]
The purpose of PAIA is:
“
To
give effect to the constitutional right of access to any information
held by the State and any information that is held by another
person
and that is required for the exercise or protection of any rights;
and to provide for matters connected therewith.”
[9]
The objects of PAIA are set out in section 9 of PAIA:
“
(a)
to give effect to the constitutional right of
access to—
(i)        any
information held by the State; and
(ii)       any information
that is held by another person and that is required for the exercise
or protection
of any rights;
(b)
to give effect to that right—
(i)        subject to
justifiable limitations, including, but not limited to, limitations
aimed at
the reasonable protection of privacy, commercial
confidentiality and effective, efficient and good governance; and
(ii)       in a manner which
balances that right with any other rights, including the rights in
the Bill
or Rights in Chapter 2 of the Constitution;
(c)        to give
effect to the constitutional obligations of the State of promoting a
human rights
culture and social justice, by including public bodies
in the definition of “requester”, allowing them, amongst
others,
to access information from private bodies upon compliance
with the four requirements in this Act, including an additional
obligation
for certain public bodies in certain instances to act in
the public interest;
(d)       to establish
voluntary and mandatory mechanisms or procedures to give effect to
that right in
a manner which enables persons to obtain access to
records of public and private bodies as swiftly, inexpensively and
effortlessly
as reasonably possible; and
(e)        generally,
to promote transparency, accountability and effective governance of
all public
and private bodies by, including, but not limited to,
empowering and educating everyone—
(i)        to
understand their rights in terms of this Act in order to exercise
their rights in relation
to public and private bodies;
(ii)       to understand the
functions and operation of public bodies; and
(iii)      to effectively
scrutinise, and participate in, decision-making by public bodies that
affects their
rights.”
[10]
PAIA applies
to records held by public bodies and private bodies regardless of
when the record came into existence.
[v]
[11]
I specifically
refer to some of the definitions contained in section 1 of PAIA
insofar as they are relevant for purposes of this
judgment:
a.
“
application”
means
an application to a court in terms of section 78;
b.
“
head”
of,
or in relation to, a private body means—
-
in
the case of a natural person, that natural person or any person duly
authorised by that natural person;
-
in
the case of a partnership, any partner of the partnership or any
person duly authorised by the partnership;
-
in
the case of a juristic person—
-
the chief executive
officer of equivalent officer of the juristic person or any person
duly authorised by that officer; or
-
the
person who is acting as such or any person duly authorised by such
acting person;
c.
“
information officer” of, or
in relation to, a public body—
-
in the case of a national department,
provincial administration or organisational component—
-
mentioned in Column 1 of Schedule 1 or 3 to
the Public Service Act, 1994 (Proclamation 103 of 1994), means the
officer who is the
incumbent of the post bearing the designation
mentioned in Column 2 of the said Schedule 1 or 3 opposite the name
of the relevant
national department, provincial administration or
organisational component or the person who is acting as such; or
-
not so mentioned, means the Director-General,
head, executive director or equivalent officer, respectively, of that
national department,
provincial administration or organisational
component, respectively, or the person who is acting as such;
-
in the case of a municipality, means the
municipal manager appointed in terms of section 82 of the Local
Government: Municipal Structures
Act, 1998 (Act 117 of 1998), or the
person who is acting as such; or
-
in the case of any other public body, means
the chief executive officer, or equivalent officer, of that public
body or the person
who is acting as such;
d.
“
private body”
means—
-
a natural person who carries or has carried on
any trade, business or profession, but only in such capacity;
-
a partnership which carries or has carried on
any trade, business or profession; or
-
any former or existing juristic person,
-
but excludes a public body;
(e)
“
public body”
means—
(a)
any department of state or administration
in the national or provincial sphere of government or any
municipality in the local sphere
or government; or
(b)
any other functionary or institution when—
-
exercising a power or performing a duty in
terms of the Constitution or a provincial constitution; or
-
exercising a public power or performing a
public function in terms of any legislation;
(f)
“
relevant
authority”
, in relation to—
-
a public body referred to in paragraph (a) of
the definition of “public body” in the national sphere of
government,
means—
-
in the case of the Office of Presidency, the
person designated in writing by the President; or
-
in any other case, the Minister responsible
for that public body or the person designated in writing by that
Minister;
-
a public body referred to in paragraph (a) of
the definition of “public body” in the provincial sphere
or government,
means—
-
in the case of the Office of a Premier, the
person designated in writing by the Premier; or
-
in any other case, the member of the Executive
Council responsible for that public body or the person designated in
writing by that
member; or
-
a municipality, means—
-
the mayor;
-
the speaker; or
-
any other person, designated in writing by the
Municipal Council of that municipality;
(g)
“
request for access”,
in
relation to—
-
a public body, means a request for access to a
record of a public body in terms of section 11; or
-
a private body, means a request for access to
a record of a private body in terms of section 50;
[12]
The legislature deemed it so important that everyone would
know their right of access to information, the manner in which access

is to be obtained, where access is to be obtained, what to do if
access is refused or in the event of a failure to respond to the

request for information, and the requester’s remedies
thereafter in relation to the request that Section 10 of PAIA
provides
that the Human Rights Commission must, within three years
after the commencement of this section, compile in each official
language
a guide containing such information, in an easily
comprehensible form and manner, as may reasonably be required by a
person who
wished to exercise any right contemplated in this Act.
Clearly this was intended to make PAIA and its provisions readily
available to the public in a manner that could be easily understood.
The Human Rights Commission did so.
[vi]
[13]
Sections 11 and 50 of PAIA gives effect to
the Constitutional Right of access to information held by public and
private bodies respectively.
Section 11
[vii]
reinforces the right of access to information held by public bodies.
Section 50
reinforces the right of access
to information held by private bodies.
[viii]
[14]
Chapter 3
[ix]
of PAIA deals with the manner of access to information is obtained.
It provides for aspects such as delegation, the form of requests,

duty to assist requesters, the transfer of requests, the preservation
of records, fees, records that cannot be found or that do
not exist,
the deferral of access, the extension of period to deal with request
and
the forms of access.
[15]
Section 14 of
PAIA provides for a manual on the functions of and the index of
records held by public body. The section sets out
detail of what must
be contained in a public body’s manual. Sub-section (1)
provides that within six months after the commencement
of section 14
or the coming into existence of a public body, the information
officer of the public body concerned must compile
a manual in at
least three official languages. Section 14(1)(b) provides that
the
postal and street address, phone and fax number and, if available,
electronic mail address of the information officer of the
body and of
every designated information officer of the body.
[16]
Sections 18(1) and 53(1) prescribes
the formal and procedural requirements for a request.
[17]
Section 18 prescribes the form of
requests for access to information to public bodies. Sub-section (1)
of section 18 provides:
“
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 mail address.”
[18]
Section 53
prescribes
the form of requests for access to information in respect of private
bodies. Sub-section (1) of section 53 provides:
“
A
request for access to a record of a private body must be made in the
prescribed form to the private body concerned at its address,
fax
number or electronic mail address.”
[19]
As will appear later in this
judgment, sections 25, 27, 50 and 58 bear particular prominence.
[20]
Section 25 provides as follows:
“
Decision
on request and notice thereof
(1) Except
if the provisions regarding third party notification and intervention
contemplated in Chapter 5 of this Part
[x]
apply, the information officer to whom the request is made or
transferred, must, as soon as reasonably possible, but in any event

within 30 days, after the request is received—
(a) decide in accordance with
this Act whether to grant the request; and
(b) notify the requester of the
decision and, if the requester stated, as contemplated in section
18(2)(e), that he or she wished
to be informed of the decision in any
other manner, inform him or her in that manner if it is reasonably
possible.
(2) If the request for access
is granted, the notice in terms of subsection (1)(b) must state—
(a) the access fee (if any) to
be paid upon access;
(b) the form in which access
will be given; and
(c) that the requester may
lodge an internal appeal or an application with a court, as the case
may be, against the access fee to
be paid or the form of access
granted, and the procedure (including the period) for lodging the
internal appeal or application
as the case may be.
(3) If the request for access
is refused, the notice in terms of subsection (1)(b) must—
(a) state adequate reasons for
the refusal, including the provisions of PAIA relied upon;
(b) exclude, from such reasons,
any reference to the content of the record; and
(c) state that the requester
may lodge an internal appeal or an application with a court, as the
case may be, against the refusal
of the request, and the procedure
(including the period) for lodging the internal appeal or
application, as the case may be.”
[21]
Section 27 provides:
“
Deemed
refusal of request
If an information officer fails
to give the decision on a request for access to the requester
concerned within the period contemplated
in section 25(1), the
information officer is, for the purposes of this Act, regarded as
having refused the request.”
[22]
Section 50 provides:
“
Right
of access to records of private bodies
(1) A requester must be given
access to a record of a private body if—
(a) that record is required for
the exercise or protection of any rights;
(b) that person complies with
the procedural requirements in this Act relating to a request for
access to that record; and
(c) access to that record is
not refused in terms of any ground for refusal contemplated in
Chapter 4 of this Part.
(2) In addition to the
requirements referred to in subsection (1), when a public body,
referred to in paragraph (a) or (b)(i) of
the definition of “public
body” in section 1, requests access to a record of a private
body for the exercise or protection
of any rights, other than its
rights, it must be acting in the public interest.
(3) A request contemplated in
subsection (1) includes a request for access to a record containing
personal information about the
requester or the person on whose
behalf the request is made.”
[23]
Section 58 provides:
“
Deemed
refusal of request
If the head of a private body fails to give the
decision on a request for access to the requester concerned within
the period contemplated
in section 56(1), the head of the private
body is, for the purpose of this Act, regarded as having refused the
request.”
[24]
Chapter 4 of PAIA
[xi]
provides for the refusal of requests. As the applications before me
were founded upon deemed refusal as contemplated in section
27 and
58, I need not venture into the issue of refusal of the request for
the other reasons provided for in PAIA.
[25]
Section 51
provides for the manual of a private body. Sub-section (1) provides
that within six months after the commencement of
this section or the
coming into existence of the private body concerned, the head of a
private body must compile a manual containing
information that is
prescribed. Section 51(1)(a) provides that the postal and street
address, phone and fax number and, if available,
electronic mail
address of the head of the body.
[26]
PAIA provides
for a right to an internal appeal if a requester of access to
information held by certain public bodies is aggrieved
by either a
failure by the information officer of a public body to respond to a
request for information or if the request is refused
or deemed to
have been refused. No internal appeal lies against a decision of a
private body.
[27]
Section 74 of
PAIA provides for the right of appeal. Section 74 only refers to a
requester and third party in relation to public
bodies as defined in
under paragraph (a) of the definition of “public body” in
section 1 of PAIA, that is administrations
in the national,
provincial and local spheres of government.
[28]
Section 75 of
PAIA provides for the manner of internal appeal, and appeal fees.
[29]
Section 76 of
PAIA provides for notice of the appeal to, and representations by
other interested persons.
[30]
Section 77 of
PAIA provides for the decision on internal appeal and notice thereof.
[31]
An internal
appeal must be delivered or sent to the information officer of the
public body concerned at his or her address, fax
number or electronic
mail address (section 75(1)(b).
[32]
The provisions of section 77 of
PAIA sets out what must be done by the relevant authority after the
appeal is delivered. Sub-sections
(2), (4), (5) and (6) of section 77
provide:
“
(2)
When deciding on the internal appeal the relevant authority may
confirm the decision appealed against or substitute a new decision

for it.
(4) The relevant authority
must, immediately after the decision on an internal appeal—
(a)
give notice of the decision to—
(i) the appellant;
(ii) every third party informed
as required by section 76(1); and
(iii) the requester notified as
required by section 76(7); and
(b)
if reasonably possible, inform the appellant about the decision in
any other manner stated
in terms of section 75(1)(d).
(5) The notice in terms of
subsection (4)(a) must—
(a)
state adequate reasons for the decision, including the
provision of this Act relied
upon;
(b)
exclude, from such reasons, any reference to the content of the
record;
(c)
state that the appellant, third party or requester, as the case may
be, may lodge an application
with a court against the decision on
internal appeal—
(i) within 60 days; or
(ii) if notice to a third party
is required by subsection (4)(a)(ii), within 30 days after notice is
given, and the procedure for
lodging the application; and
(d)
if the relevant authority decides on internal appeal to grant a
request for access and notice
to a third party—
(i) is not required by
subsection (4)(a)(ii), that access to the record will forthwith be
given; or
(ii) is so required, that
access to the record will be given after the expiry of the applicable
period for lodging an application
with a court against the decision
on internal appeal referred to in paragraph (c), unless that
application is lodged before
the end of that applicable period.
(6)
If
the relevant authority decides on internal appeal to grant a request
for access and notice to a third party—
(a)
is not required by subsection (4)(a)(ii), the information officer of
the body must forthwith
give the requester concerned access to the
record concerned; or
(b)
is so required, the information officer must, after the expiry
of 30 days after
the notice is given to every third party concerned,
give the requester access to the record concerned, unless an
application with
a court is lodged against the decision on internal
appeal before the end of the period contemplated in subsection
(5)(c)(ii) for
lodging that application.”
[33]
With the
relevant provisions of PAIA dealt with above, it is now time to turn
to the provision that caused me to be seized with
the applications,
namely sections 78 and 79 of PAIA. Section 78 of PAIA gives a remedy
to an aggrieved requester while section
79 provides for the
procedure.
[34]
Section 78 of PAIA provides:
“
(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 1—
(i) to refuse a request for
access; or
(ii) taken 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) taken in terms of section
54, 57(1) or 60,
may, by way of an application,
within 180 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
(c)
aggrieved by a decision of the head of a private body in
relation to a request
for access to a record of that body,
(c) 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 180 days
apply to a court for appropriate relief in terms of section 82.”
[35]
Section 79 of PAIA sets the
procedural requirements an an application to court in terms of
section 78:
“
Procedure
(1)
The Rules Board
for Courts of Law, established by section 2 of the Rules Board for
Courts of Law Act, 1985 (Act 107 of 1985), must
before 28 February
2009, subject to the approval of the Minister, make rules of
procedure for—
(a) a court in respect of applications in terms of
section 78; and
(b) a court to receive representations ex
parte referred to in section 80(3)(a).
(2) …..
[36]
Rules of Procedure for Application to Court in terms of PAIA
was promulgated in GNR.965 of 9 October 2009 (Government Gazette No.

32622) (“
the Rules”
). The full text of the Rules
is recorded in the endnote
[xii]
.
[37]
The form that is set out in the Annexure to the Rules is
also reproduced in the endnote for ease of reference.
[xiii]
[38]
Section 82 provides for the decisions of the court in
applications under section 78 of PAIA:
“
Decision
on application
The
court hearing an application may grant any order that is just and
equitable, including orders—
(a)
confirming, amending or setting aside the decision which is the
subject of the application concerned;
(b)
requiring from the information officer or relevant authority of a
public body or the head of a private body to take such action
or to
refrain from taking such action as the court considers necessary
within a period mentioned in the order;
(c)
granting an interdict, interim or specific relief, a declaratory
order or compensation;
(d)
as to costs; or
(e)
condoning non-compliance with the 180 day period within which to
bring an application, where the interests of justice so require.”
[39]
It cannot be
gainsaid that, when considering the provisions of PAIA:
“
[7]
It is demonstrably clear from the provisions of PAIA that the
legislature has gone to great lengths in codifying a user friendly

legislative road map for applications under PAIA. This road map
starts when an initial application for access to information is
made
to an information officer long before a court application in terms of
section 78 of PAIA is made or even conceptualised. It
is evident from
PAIA that the legislature had in mind an uncomplicated and
inexpensive procedure in which a request for information
is made and
access thereto is given administratively, a court application being
the exception rather than the rule.
[8]
However, the life experience of ordinary South Africans, at least
within the area of jurisdiction of this Division, has shown
that
requests for access to information, constitutional as they are, are
regarded with disdain and are consequently ignored. This
attitude by
state functionaries has resulted in ordinary South Africans having to
resort to the courts, burdening court rolls with
court applications
which are largely unopposed. This burdens the fiscus with unnecessary
costs orders in circumstances where scarce
resources are severely
challenged by competing needs. The time may have arrived for costs
orders in deserving cases to be made
against the respective officials
who unnecessarily force ordinary citizens, many of whom may be poor,
to go to court to enforce
a right that is enshrined in the
Constitution and incontestable.
”
[xiv]
The applications
[40]
I now turn to the applications that were before me.
[41]
After having considered the relevant provisions of PAIA
against the applications that were before me, I was of the
preliminary view
that applications that did not comply with the
provisions of PAIA or the Rules or both.
[42]
Having regard to what was decided and ordered in
Paul v MEC
where the applications were dismissed for want of compliance with the
provisions of PAIA, I caused a directive to be sent to the

applicants’ attorneys as follows:
“
1.       The
applicants in [the respective cases] are hereby directed to furnish
heads of argument
setting out why the applications should not be
dismissed for want of compliance with the provisions of section 78 of
PAIA read
with GNR.965 of 9 October 2009:  Rules of Procedure
for Application to Court in terms of PAIA (Government Gazette No.
32622);
2.
The applicants are directed to deliver the heads of argument to this
court’s
registrar by email by no later than 16:00 on Friday, 21
May 2021.”
[43]
The applicants’ legal practitioners
delivered heads of argument as directed.
They also
appeared at the virtual hearing of the applications. I allowed them
to make submissions.
The Singwane application (Case Number: 3261/20)
[44]
In this application, the applicant is a brother of a deceased
who passed away after allegedly being treated at the Matsulu
Community
Clinic in Kaapmuiden. The applicant’s attorney
requested the deceased’s medical records by completing the form
prescribed
by PAIA. No information was forthcoming. The attorney
lodged an internal appeal by submitting the prescribed form. No
decision
was forthcoming. This led to the application being launched.
[45]
The request for information form and the appeal form were sent
to a host of email addresses. No evidence was presented as to the

identities or designation of the persons to whom the forms were sent.
[46]
The respondents were cited as: the M
edical
Superintendent of the Matsulu Community Health Clinic; the Chief
Executive Officer of the Matsulu Community Health Clinic
and the MEC
of the Mpumalanga Department of Health.
[47]
The applicant’s attorney deposed to
the founding affidavit in the application.
[48]
The application was served upon an employee
at the MEC’s office, the State Attorney and an employee of the
clinic. It is important
to note that the sheriff's return records
that there is no information officer at the clinic.
[49]
In the notice of motion, the applicant sought the medical
records and costs to be paid on an attorney and client scale by the
respondents.
The Mnisi application
(Case Number: 1051/2021)
[50]
In this application, the applicant
was allegedly injured in a motor vehicle accident and allegedly
suffered serious injuries. The
applicant was treated at the Kiaat
private hospital in Mbombela.
[51]
The respondents were cited as the hospital
manager of the Kiaat Hospitaal and the administration and buildings
manager of the Kiaat
Private Hospital.
[52]
The applicant's attorney sent a partly
completed RAF1 form
[xv]
.
In paragraph 5 of the founding affidavit the applicant's attorney
alleges as follows:
“
T
he
applicant's attorney preceded with a request to obtain the completed
RAF1 from the First Respondent. The request in terms of
the
Promotion
of Access to Information Act 2 of 2000
and supporting documents were
emailed to the first respondents place of business on 8 November 2019
and is attached hereto marked
Annexure “B”.
[53]
The “Annexure B” referred to in the quoted
paragraph is an email to which a letter requesting information as
well as
the RAF1 from and documents setting out proof of the
authority of the attorney were attached. Same was sent to an email
address
which seems to belong to the Kiaat Private Hospital.
[54]
The Kiaat Private Hospital was requested to complete the
medical information on the RAF1 form. It failed to do so.
[55]
In the notice of motion, the applicant sought the completion
of the RAF1 form and costs against both respondents jointly and
severally.
The Mbatha application
(Case Number: 1063/2021)
[56]
In the Mbatha application, the applicant intends to
institute action on behalf of her minor child pursuant injuries the
child
allegedly suffered during birth at the Themba Hospital. The
applicant’s attorney requested the minor’s medical
records
by completing the form prescribed by PAIA. No information was
forthcoming. The attorney lodged an internal appeal by submitting
the
prescribed form. No decision was forthcoming. This led to the
application being launched.
[57]
The request for information form and the appeal form were sent
to a host of email addresses. No evidence was presented as to the

relevant information officer or the identities or designation of the
persons to whom the forms were sent.
[58]
The respondents were cited as: T
he
Deputy Information Officer of the Themba Hospital and the MEC:
Mpumalanga Department of Health.
[59]
In the notice of motion, the applicant sought the medical
records and costs to be paid by the respondents on an attorney and
client
scale.
[60]
The applicant’s attorney deposed to
the founding affidavit in the application.
[61]
The application was served upon an employee
of the Themba Hospital and an employee at the MEC’s office.
The Ndlovu application (Case Number: 299/2021)
[62]
In the Ndlovu application, the applicant
intends to institute action on behalf of her minor child who was
allegedly
born with defects in the Themba Hospital. The applicant’s
attorney requested the minor’s medical records by completing

the form prescribed by PAIA. No information was forthcoming. The
attorney lodged an internal appeal by submitting the prescribed
form.
No decision was forthcoming. This led to the application being
launched.
[63]
The request for information form and the appeal form were sent
to a host of email addresses. No evidence was presented as to the

relevant information officer or the identities or designation of the
persons to whom the forms were sent.
[64]
The respondents were cited as: T
he
Deputy Information Officer of the Themba Hospital and the MEC:
Mpumalanga Department of Health.
[65]
The applicant’s attorney deposed to
the founding affidavit in the application.
[66]
The application was served upon the Deputy
Information officer of the Themba Hospital and an employee at the
MEC’s office.
[67]
In the notice of motion, the applicant sought the medical
records and costs to be paid on an attorney and client scale.
The Bhiya application
(Case Number: 300/2021)
[68]
In the Bhiya application, the
applicant intends to institute action on behalf of her minor child
who was
allegedly born with defects at the Themba Hospital. The
applicant’s attorney requested the minor’s medical
records
by completing the form prescribed by PAIA. No information was
forthcoming. The attorney lodged an internal appeal by submitting
the
prescribed form. No decision was forthcoming. This led to the
application being launched.
[69]
The request for information form and the appeal form were sent
to a host of email addresses. No evidence was presented as to the

relevant information officer or the identities or designation of the
persons to whom the forms were sent.
[70]
The respondents were cited as: T
he
Deputy Information Officer of the Themba Hospital and the MEC:
Mpumalanga Department of Health.
[71]
The applicant’s attorney deposed to
the founding affidavit in the application.
[72]
The application was served upon the Deputy
Information officer of the Themba Hospital and an employee at the
MEC’s office.
The Mdluli application
(Case Number: 579/2021)
[73]
In the Mdluli application, the
applicant intends to institute action arising from injuries he has
allegedly sustained in a motor vehicle accident. Accident was
reported at the Siyabuswa Police Station. The applicant’s
attorney
requested the accident report by completing the form
prescribed in PAIA.
[74]
The applicant attached to his affidavit what appears to be an
extract from the SAPS Access to Information Manual setting out the

contact details of the SAPS at National Level. and the Siyabuswa
Police Station. The form requesting access to information was
sent to
the information officer of the Siyabuswa Police Station as well as
the information officer of the National office of the
SAPS. It was
sent by email, fax and by registered post to the addresses indicated
in the manual.
[75]
No decision was forthcoming. This led to an appeal by the
applicant, completed in the prescribed form and sent to the national
information
officer of the SAPS. The appeal was sent by email, fax
and registered post to the national information officer of the SAPS,
as
appears from the information manual.
[76]
No decision was forthcoming on the appeal. The applicant
relies on the deeming provisions for launching the application.
[77]
The notice of motion contained the following prayers:
“
1.
The
first Respondent's dismissal of Applicant’s internal appeal
against the third respondent's refusal to access information
dated 9
January 2021 is hereby reviewed and set aside.
2.        The Third
respondent's refusal to grant access to information date 26 May 2020
is hereby
reviewed and set aside.
3.        That the
third respondents be and are hereby ordered to, within 10 business
days of service
of this order:
(i)
To finish
Applicant’s Attorneys, Sibanyoni Attorneys, with the complete
copies of police docket under Siyabushwa cas number
340/08/2017 and
accident report number 02/08/2017, within ten (10) days of the court
order; and
(ii)        The
Respondents be and are hereby ordered to pay the costs of the
application, jointly
and severally, one paying and the other be
absolved, on the Attorney and own Client Scale.
3.
Further
and/ or alternative relief.”
[78]
The respondents were cited as: T
he Minister
of Police, the National Information Officer and the Deputy
Information Officer of the Siyabuswa Police Station.
[79]
The applicant’s attorney deposed to
the founding affidavit in the application. In paragraph eight of the
founding affidavit,
the applicant's attorney sets out as follows:
“
T
he
application is a review in nature. This is a review application in
terms of Promotion of Access to Information Act 2 of 2000

(hereinafter called the “the PAIA”). In this application,
the applicant approaches the honorable court to review and
set aside
the refusal of applicant’s request to access information and
the subsequent dismissal of applicants internal appeal
against such
refusal.”
[80]
The application was served upon the State
Attorney, a person employed at the legal department of the National
Deputy Information
Officer of the SAPS and upon Captain Makinda, the
deputy information officer of the Siyabuswa police station.
The Prinsloo
application (Case Number: 581/21)
[81]
In the Prinsloo
application, the applicant was allegedly injured by a vehicle while
he
was on duty at his place of employment. The Compensation fund has
compensated him, but the applicant now apparently needs a letter
or
certificate from the Compensation Fund reflecting how much he was
paid by the Compensation fund. According to the applicant’s

attorney (who deposed to the founding affidavit), the absence of
confirmation of what amount the applicant was paid prevents his
Road
Accident Fund claim from being finalized.
[82]
The applicant attached to his affidavit the prescribed
“Request for Access to Record of Public Body” form. The
form
was sent under the applicant’s attorney’s cover
letter
to the Compensation fund's deputy
information officer per email. The email address to which the letter
was sent is recorded as
Vuyo.Mafata@labour.gov.za
.
[83]
The deponent also attaches to his founding
affidavit what appears to be an extract from the Department of
Labor’s information
manual. Only one page was attached. On that
page the contact details of the information officer appears. The
information officer
is recorded as ‘Thobile Lamati’ who
is the Director-General of the department. This person's postal
address, contact
numbers and email address is given. The email
address is recorded as
Thobile.Lamati@labour.gov.za
.
[84]
No decision was forthcoming. This led to an appeal by the
applicant, completed in the prescribed form and sent to the same
person
as to who the request for access to information was sent at
the same email address.
[85]
No decision was forthcoming on the appeal. The applicant
relies on the deeming provisions for launching the application.
[86]
The notice of motion contained similar prayers to the ones in
the Mdluli application.
[87]
The respondents were cited as: T
he Minister
of Employment and Labour, the National Deputy Information Officer and
the Deputy Information Officer of the Comoensation
[sic] Fund.
[88]
The applicant’s attorney deposed to
the founding affidavit in the application. Paragraph 8 of the
founding affidavit contains
the same allegation as in paragraph 5 of
the Mdluli application.
[89]
The application was served upon the State
Attorney, a registry clerk of the Information officer of the
department of labour and
employment and the legal clerk of the  at
employed at the legal department of the National Deputy Information
Officer.
Discussion
[90]
All the applications were brought under the provisions
of section 78 of PAIA after the requests for access to information
were not reacted to at all and no decision was given by the public
and private bodies.
[91]
The applicants for access to information requested from public
bodies relied upon the deeming provisions in section 27 and
77(7)
[xvi]
of PAIA.   The applicant for information held by the
private body relied upon section 58
[xvii]
of PAIA.
[92]
Rule 3(1) provides that an application under PAIA must be
brought on notice of motion that must correspond substantially in
accordance
with the form set out in the Annexure to the Rules,
addressed to the information officer or the head of a private body,
as the
case may be. Compliance with the Rule is set in peremptory
terms. From this Rule, it is clear that:
a.      Applications under section 78 of
PAIA must be brought on notice of motion;
b.      The notice of motion must
substantially correspond with the Annexure to the Rules;
c.      The application must be addressed to
the information officer in the case of a request for information
from
a public body and in the case of a private body, the head of the
private body;
[93]
Save for the Prinsloo and Mdluli applications, none of the
other applications substantially complied with the Annexure to the
Rules
in that:
a.      The respective notices of motion did
not include the words “IN TERMS OF THE
PROMOTION OF ACCESS TO
INFORMATION ACT No. 2 OF 2000
” appearing in the Annexure; and
b.      No reference is made to paragraph
(iii) of the Annexure which sets out as follows:
“
In
default of your complying with
rule
3 (5)
of the Promotion of Access
to Information Rules, the applicant may request the clerk of the
court or the registrar as the case may
be, to place the application
before the Court for an order in terms of section 82 (b) of
PAIA.”
[94]
I am of the view that the
Rules’
inclusion of the specific words “
IN
TERMS OF THE
PROMOTION OF ACCESS TO INFORMATION ACT No. 2 OF 2000
”
in the Annexure is for good reason. It is clearly intended to
immediately make it clear to whomever the notice of motion is
delivered
to that the application pertains to access to information
in terms of PAIA.
[95]
With regards to the second defect identified above, the
purpose of the inclusion of these words are important within the
whole scheme
of PAIA.
Rule 3(5)
provides as follows:
“
The
information officer or head of a private body, as the case may be,
must—
(a)
immediately after receipt of the
application, notify, in writing, all other persons affected, of the
application and attach a copy
of the application to such notice; and
(b)
within 15 days after receipt of the
application—
(i)
file with the clerk of the court or the
registrar, as the case may be, two true copies of the request and the
notification sent
to the requester in terms of
section 25
(1) (b)
of PAIA;
(ii)       notify the
applicant in writing that the requirements of subparagraph
(i)
have been complied with; and
(ii)
serve on the applicant a true copy of the
reasons, if they have not yet been provided.
[96]
Rule 3(5)
is cast in peremptory terms. It must be
complied with, and the information officer of a public body or head
of a private body must
comply with its provisions. In addition, he or
she must act immediately.
[97]
Sub-rule 3(5)(a) serves to protect the interests of persons
who may have an interest in the disclosure of the information. This
is important because once they have notice of the application, they
may want to exercise their rights to the extent that they have
not
already done so.
[xviii]
They
may have no knowledge of the request and the notice of the
application provided for in this sub-rule may be the first time
they
receive notice of the request.
[98]
Section 25
of PAIA provides for a decision on the request and
notice thereof. Yet again, sub-rule 3(5)(a) serves important
purposes. Clearly
the purpose is to notify the court and the
applicant of the decision on the request, and it gives notice
thereof. In my view, it
serves three purposes; Firstly, it gives the
public or private body an opportunity to either consider or
reconsider the request.
It might nudge the bodies to react to the
request if they have not already done so or to find the request if
they have not already
become aware of the request. Secondly, it
serves to give notice of the decision if the bodies have not done so
already or if the
decision for some or other reason did not come to
the notice of the applicant. Thirdly, it obliges the body concerned
to serve
the applicant with the reason/s if same has not yet been
provided. For obvious reasons, service of the reason/s for the
refusal
of the request will inform the applicant’s further
prosecution of the matter.
[99]
In terms of Sub-rule (6) of
Rule 3
, the applicant may request
the clerk of the court or registrar to place the application before
the court for an order in terms
of
section 82
(
b
) of
PAIA. In terms of
section 82(b)
, the court may order the information
officer or relevant authority of a public body or the head of a
private body to take such
action or to refrain from taking such
action as the court considers necessary within a period mentioned in
the order. This would,
in the context of sub-rule (6) of
Rule 3
, mean
that the court may order compliance with the provisions of sub-rule
(5).
[100]
Rule 3(1)
provides that all applications in terms of
section
78
of PAIA must be addressed to the information officer concerned. It
therefore follows that in all PAIA applications, the relevant

information officer must be cited. Who the relevant information
officer is, is clearly defined under the definition of “information

officer” in
section 1
of PAIA. It is not enough to simply
direct the request or application or appeal to “the information
officer”. Each
body has a post filled by a person designated as
its information officer. So for instance, according to the
definition, the information
officer of the Mpumalanga Department of
Health is the Head of the Department of Health.
[xix]
That is the person to whom the request or the appeal or the
application must be directed. The public body’s information
manual must show the identity of the person who must receive the
request or appeal or address or the application and his/her contact

details.
[101]
Neither PAIA nor the Rules expressly state who should be cited
as the respondent/s in the application. For a determination of that

issue, the provisions of
sections 74(1)
and
78
read with
section 82
must be analysed.
[102]
Section 74
provides
for a right of appeal by the requester to the relevant authority
against a
decision of the
information officer of a public body referred to in paragraph (a) of
the definition of “public body”
in
section 1
of PAIA:
to
refuse a request for access; or taken in terms of
section 22
,
26
(1)
or
29
(3). A
third party may lodge
an internal appeal against a decision of the information officer of a
public body referred to in paragraph
(a) of the definition of “public
body” in
section 1
to grant a request for access.
[103]
Section 78(1)
and
78
(2) sets out the jurisdictional
requirements for an approach court for relief in terms of
section 82.
[104]
In terms of
section 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.
[105]
In terms of the provisions of
section 78(2)
a
requester: that has been unsuccessful in an internal appeal to the
relevant authority of a public body; or is 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)
; or is 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 refuse a request for access; or taken in terms of
section 22
,
26
(1) or
29
(3); or aggrieved by a decision of the head of
a private body: to refuse a request for access; or taken in terms of
section 54
,
57
(1) or
60
. These requesters may, by way of an
application, within 180 days apply to a court for appropriate relief
in terms of
section 82.
[106]
It is apparent from the reading of
the immediately preceding provisions that PAIA differentiates between
requesters that is aggrieved
by the different public bodies defined
in terms of paragraphs (a) and (b) of the definition of a public body
in
section 1
of PAIA.
[107]
Requesters for access to information
held by public bodies defined in paragraph (a) of the definition of
“public body”
in
section 1
of PAIA (or third parties)
must appeal before they may approach court whereas requesters of
access to information held by public
bodies as defined in paragraph
(b) of the definition of “pubic body” in
section 1
of
PAIA need not first appeal the decision of the information officer
before they approach court under
section 78.
[108]
One therefore has to turn to the
definition of a “pubic body” in
section 1
of PAIA to
determine whether the internal appeal procedure provided for must
first be exhausted.
[109]
A public body under paragraph (a) of
the definition is
any department of state or administration in
the national or provincial sphere of government or any municipality
in the local sphere
or government. A public body under paragraph (b)
of the definition is any
other functionary or
institution when: exercising a power or performing a duty in terms of
the Constitution or a provincial constitution;
or exercising a public
power or performing a public function in terms of any legislation.
[110]
In instances where an appeal lies,
the appeal must be delivered or sent to the information officer of
the public body concerned
at his or her address, fax number or
electronic mail address.
[1]
The appeal lies to the relevant authority.
[2]
[111]
“
Relevant authority” is
only defined in section 1 of PAIA in relation to a public body as
defined in paragraph (a) of the definition
of a “public body”
in section 1 of PAIA – i.e
any department of state or
administration in the national or provincial sphere of government or
any municipality in the local sphere
or government. There is no
“relevant authority” for public bodies as defined in
paragraph (b) of the definition of
“public body” because
no appeal lies against a decision of such a public body.
[112]
Who should then be the respondent in an
application in terms of sections 78(1) to 78(2)(b)? It is the
relevant authority’s
decision that is challenged. In addition,
section 82 provides for relief, not only against information officers
– it also
provides for relief against relevant authorities. In
the case of an application in terms of sections 78(1) to 78(2)(b), it
is the
relevant authority’s decision that is challenged. It
follows that the relevant authority has a direct and substantial
interest
in the proceedings and must be joined in the proceedings.
Whether the relevant information officer has to be joined as a
respondent because the appeal must be delivered or sent to the
information officer of the public body concerned at his or her
address,
fax number or electronic mail address I do not decide. In my
view, a failure to join the information officer in an application in

terms of sections 78(1) to 78(2)(b) will not constitute a
non-joinder.
[113]
In my view, in the absence of an express provision in PAIA
that the relevant authority must be cited as respondent, the common
law
rules pertaining to the joinder of parties apply. In this regard,
it was said as follows in
Morudi and Others v NC Housing Services
and Development Co Limited and Others
[2018] ZACC 32
at paras 29
and 30:
“
[29].
Surely, that makes each potential shareholder listed in annexure “M”
to have a direct and substantial interest
in the outcome of the
dispute. More specifically, a determination of who the shareholders
were, and in what proportion, would have
a direct impact on the
individual rights of each potential shareholder; it could even be
prejudicial to those rights. That made
them necessary parties and
they were thus entitled to joinder of necessity. Brand JA writing for
a unanimous Court in Cape Bar
Council said:
“
It has by now become settled law that the
joinder of a party is only required as a matter of necessity –
as opposed to a matter
of convenience – if that party has a
direct and substantial interest which may be affected prejudicially
by the judgment
of the court in the proceedings concerned. The mere
fact that a party may have an interest in the outcome of the
litigation does
not warrant a non-joinder plea. The right of a party
to validly raise the objection that other parties should have been
joined
to the proceedings, has thus been held to be a limited one.”
(References omitted.)
[30]
In Amalgamated Engineering, Fagan AJA states:
“
Indeed
it seems clear to me that the Court has consistently refrained from
dealing with issues in which a third party may have a
direct and
substantial interest without either having that party joined in the
suit or, if the circumstances of the case admit
of such a course,
taking other adequate steps to ensure that its judgment will not
prejudicially affect that party’s interests.”
(References
omitted.)
[114]
In
Paul v MEC
, the following was said at paras. 32 and
33:
“
[32]
What immediately becomes clear from the correct reading of PAIA and
the rules is that at no stage does a requester have to
communicate
with the relevant appeal authority. When the request for access is
made it is made to the information officer. When
the appeal against
refusal, actual or deemed refusal, is made that appeal is sent to the
information officer. Finally when the
section 78 court application is
ultimately launched there is only one respondent and it is still the
information officer in terms
of subrules 3 (5) and (6) of the PAIA
rules.
[33]
I pause here to emphasize that the whole scheme of PAIA is such that
there is no basis for citing the relevant appeal authority
in the
court application in terms of section 78. By the same token any
relief sought against the relevant appeal authority is inappropriate

and should ordinarily result in the dismissal of the application in
all cases where the internal appeal was not sent to the information

officer. However, in my view, if proper procedure is complied with
when the request is made and the internal appeal is sent to
the
information officer to whom the request for access was made, the
court may not dismiss the application simply because the appeal

authority is also cited and some form of relief against him or her,
which is obviously incompetent is sought. In this event the
court can
always refuse to grant that particular relief and make an appropriate
order for costs.”
[115]
It is with the utmost hesitation and with the greatest of
respect that I must differ from the view of the court in
Paul v
MEC.
In my view, the relevant authority as defined in section 1
of PAIA is a necessary party to the proceedings in all applications
contemplated in sections
78(1) to 78(2)(b) of
PAIA
.
In applications under sections
78(2)(c) to (d), the information officer is the only person that must
be joined for the issue of
an internal appeal does not arise.
[116]
The applications before me (save for the Mnisi and the
Prinsloo applications) pertained to a decision of public bodies
contemplated
in paragraph (a) of the definition of “public
body” in section 1 of PAIA. In the Singwane application,
information
was sought from the Matsulu Community Health Clinic. The
relevant authority is the Mpumalanga MEC for the Department of Health
and she was the only the respondent that had to be joined. Same
applies to the Mbatha, Ndlovu, Biya and Singwane applications. In
the
Mdluli application, information was sought from the Siyabuswa Police
Station. The Minister of Police, as the relevant authority
as defined
in section 1 of PAIA was the only respondent that had to be joined.
Other defects in the
applications
[117]
Save for the Prinsloo and Mdluli applications, no evidence or
corroboration was presented as to the identity of the information
officer of the relevant public body or the head of the private body.
In addition, no evidence was presented as to the contact details
of
the information officers or the head of the private body. Without
this crucial evidence, it is impossible for the court to determine

whether the request was properly addressed and delivered, if the
appeals were properly addressed and delivered and whether the

applications were properly addressed and served.
[118]
The only way the court will most likely be able to
determine if a request or appeal is properly addressed or delivered
is
to have regard to the information manual of the body concerned.
Without at least an extract from an information manual, the court

will not be able to make a finding in this regard. So, for instance,
save for the Mdluli application, the request for access to

information and the appeal were sent to a host of email addresses,
none of which the court was able to verify as being the contact

details of the relevant information officer or head of the private
body.
[119]
In the Prinsloo application, the letter to which the request
and the appeal were appended, were addressed to the Deputy
Information
Officer of the Compensation fund with an email address
appearing on the letter. The letter was sent as an attachment per
email
to another email address than the one appearing on the letter.
An extract which appears to be from the information manual of the

Compensation Fund was attached to the papers. In that document, the
information officer’s email as indicated is different
from the
email addresses to where the request and appeal were sent. I can
therefore not find that in the Prinsloo application that
the request
or the appeal was properly addressed.
[120]
It follows that, because service of the application must be
effected upon the relevant information officer or head of the private

body, without corroborated evidence over the identity, location and
contact detail of the information officer or the head of the
private
body, the court is unable to make a finding in respect of proper
service of the application. This applies to the Mnisi
application.
[121]
MEC v Paul
, the following was said at paras. 11 and 13
to 15:
“
[11]
I turn now to deal with some of the procedural requirements
prescribed by PAIA. As simple a matter as whether the correct request

in the prescribed form was sent to the correct information officer at
the correct address can easily turn into a complicated argument
in
court that does not bring the requester any closer to accessing the
required record and increases, unnecessarily, the costs
of
litigation. These features may well limit access to justice, a
constitutional imperative. In order to reduce the occurrence
of such
barriers the legislature imposed certain obligations on public bodies
to direct their information officers to make available
clear
guidelines to members of the public on how the information they hold
is to be availed to requesters.
Recently
Mbenenge JP had occasion to consider the provisions of section 14 of
PAIA in Makhambi v MEC for Health, Eastern Cape and
Another8 and
stated that:
‘
[14] The section must be read together with
section 16, which provides:
‘
The
Director General of the national department responsible for
government communications and information services must at that

department’s cost ensure the publication of the postal and
street address, phone and fax  number and, if available,

electronic mail address of the information officer of every public
body in every telephone directory issued for general use by
the
public as are prescribed.’
[15]
Upon a proper reading of these sections it is the manual of a public
body contemplated in section 14 that sheds light regarding,
inter
alia, the address to which a request and, where applicable, an appeal
should be sent; the functionary to whom the request
should be made
and a description of remedies available to an aggrieved requester
before court proceedings can be instituted. All
these facts gleaned
from the manual must be alleged in the affidavit filed in support of
an application challenging the refusal
and/or failure to consider and
make a decision on a request for access to information. Needless to
say the address used to request
the information from the information
officer must be that referred to in the manual. It would also perfect
the cause of action
for the applicant to annex the relevant pages of
the manual. In this way, it would not be left to a judge to trawl the
manual or
telephone directory to verify the correctness of the
address and the addressee. It is not hard to envisage a situation
where a
public body has not complied with section 14 and has thus not
compiled a manual. In that event, it should be available to the
aggrieved
person to seek a mandamus compelling the public body
concerned to compile the manual.”
[14]
I agree with the sentiments of the learned Judge President in this
regard. However, a few remarks are apposite. Firstly, an
applicant’s
cause of action in these circumstances does not become perfect on the
annexation of the relevant pages of the
manual. All that the
annexation does is to make it easy for a judge to verify the
information contained in the founding affidavits.
In the absence of
those pages a judge hearing the application does not have to trawl
the manual or the telephone directory to verify
the correctness of
the address and the addressee. The proceedings under PAIA are no
different from other civil proceedings and
are founded on our
adversarial adjudication system. It is not the duty of a judge to
verify the correctness of the information
alleged in the founding
affidavit. All that is necessary is that “[a]ll these facts
gleaned from the manual must be alleged
in the affidavit filed in
support of an application challenging the refusal and/or failure to
consider and make a decision on a
request for access to information.”
“
[15]
It has never been a requirement in our law to annex pages of
departmental documents where proper reference is made to them
in an
affidavit. Were that to be insisted upon not only would there be a
substantial increase in litigation costs, PAIA applications
would
become unnecessarily cumbersome. Furthermore, it would change the
texture of PAIA applications when compared to other ordinary

applications. Our adversarial system requires a respondent to resist
an application, if so advised, and to point out to the presiding

judge that there has been non compliance with the manual and
therefore with PAIA. In the end each case should be determined on
its
own merits and an application should not be refused merely because
the relevant pages of the manual are not annexed in circumstances
in
which the relevant pages or clauses of the manual have been clearly
referenced or quoted.”
I
respectfully agree that the aforesaid approach is the one to be
followed.
[122]
In the Mnisi application (the only application against a
private body), the information was not requested in terms of PAIA. As
will
be recalled, the respondents were required to complete the RAF1
form. The orders that were sought were that the court order the

respondents to complete the RAF1 forms. This application is therefore
fatally defective for lack of compliance with the procedural

requirements in PAIA.
[123]
In the Mdluli and Prinsloo applications, the applicants
seek that the court review and set aside the refusal of their appeals
and
the refusal to furnish the information that was requested.
[xx]
The notices of motion also seek interdicts compelling the public body
to furnish the information that is sought. Having regard
to section
82 of PAIA, the court is entitled to set aside the decision which is
the subject of the application concerned
[xxi]
,
to
require from the information officer or
relevant authority of a public body or the head of a private body to
take such action or
to refrain from taking such action as the court
considers necessary within a period mentioned in the order
[xxii]
and to grant an interdict, interim or specific relief, a declaratory
order or compensation.
[xxiii]
[124]
The Mdluli and Prinsloo
applications’ aim is to obtain the information that was
requested. The failure by the public body
to furnish the information
and to decide the appeal are both founded upon the deeming provisions
in sections 27 and 77(7) of PAIA.
In my view, the relief that may be
granted by the court in terms of the provisions of section 82(b) and
(c) is enough. Prayer 1
of the notices of motion were therefore
entirely unnecessary.
[125]
In addition, in the Mdluli
application, the information sought is held at the Siyabuswa police
station. Siyabuswa falls under the
jurisdiction of the Local Seat of
the Mpumalanga High Court.
[3]
This court does not have jurisdiction to entertain the application.
[126]
In the Prinsloo application, the
information is held by the Compensation Commissioner who is cited at
an address in Pretoria. This
court does not have jurisdiction to hear
the application.
Conclusion
[127]
I may have explored the relevant
provisions of PAIA too extensively for purposes of deciding the
applications. I purposefully did
so. Litigants and their legal
practitioners may find guidance in what is set out in this judgment
when consideration is given launch
and prosecute applications to
court in terms of PAIA.
[128]
I need not dismiss the applications.
Rather, I have concluded that the applications should be struck from
the roll due to their
non-compliance with the procedures prescribed
by PAIA. Due to the defects in the applications, they could not even
proceed to the
merits part of the enquiry. None of the respondents
opposed the applications. No order of costs is made.
In the premises, the
following order is made:
1.        The applications under
case numbers 3261/2020, 1051/2021, 1063/2021, 299/2021, 300/2021,

579/2021 and 581/2021 are struck from the roll.
2.         No cost orders are
made.
Roelofse AJ
Acting Judge of
the High Court
DATE OF HEARING:
24 May 2021
DATE OF JUDGMENT:
22 June 2021
APPEARANCES:
Singwane application (Case Number:
3261/20)
Mnisi application (Case Number:
1051/2021)
Mbatha application (Case Number:
1063/2021)
Ndlovu application (Case Number:
299/2021)
Adv Lindhoudt instructed by Van Zyl
le Roux Attorneys
Mdluli application (Case Number:
579/2021)
Prinsloo application (Case Number:
581/21)
Mr. TJ Sibanyoni
This judgment
was handed down electronically by circulation to the parties’
representatives by email. The date and time for
hand-down is deemed
to be 14:00 on 22 June 2021.
[1]
Section 75(1)(b).
[2]
Section 74(1).
[3]
Schedule B to Notice 1 of 2017 (Government
Gazette 1 September 2017.
[i]
The Constitution was promulgated on 18 December
1996 and commenced on 4 February 1997.
[ii]
Under Chapter 2 of the Constitution). Section
7(1) provides that the Bill of Rights “…
.
is a cornerstone of democracy in South Africa. It enshrines the
rights of all people in our country and affirms the democratic

values of human
dignity, equality and
freedom.”
[iii]
[2009] ZACC 21; 2009 (6) SA 323 (CC); 2009 (11) BCLR 1075 (CC).
[iv]
The Act commenced on 9 March 2001 except ss 10,
14, 16 and 51 which commenced on 15 February 2002. In President of
the Republic
of South Africa & others v M & G Media (Ltd)
2012 (2) SA 50
(CC) para 9 the following was said:
“As is
evident from its long title, PAIA was enacted ―[t]o give
effect to the constitutional right of access to any
information held
by the State‖. And the formulation of section 11 casts the
exercise of this right in peremptory terms
– the requester be
given access to the report so long as the request complies with the
procedures outlined in the Act and
the record requested is not
protected from disclosure by one of the exemptions set forth
therein. Under our law, therefore, the
disclosure of information is
the rule and exemption from disclosure is the exception.”
(References omitted).
Also see:
Competition
Commission of South Africa v Standard Bank of South Africa Limited;
Competition Commission of South Africa v Standard
Bank of South
Africa Limited; Competition Commission of South Africa v Waco Africa
(Pty) Limited and Others (CCT158/18; CCT179/18;
CT218/18)
[2020]
ZACC 2
;
2020 (4) BCLR 429
(CC) (20 February 2020)
at
para 10 where the following was said:
“Against the
backdrop of secrecy that epitomised the apartheid state,10 section
32 of the Constitution constitutes an essential
element of the
constitutional guarantee of an open and democratic society which
requires that the exercise of public power be
transparent and
justified. The preamble to PAIA notes: “[T]he system of
government in South Africa before 27 April 1994,
amongst others,
resulted in a secretive and unresponsive culture in public and
private bodies which often led to an abuse of
power and human rights
violations.”
[v]
Section 3 of the Act.
[vi]
The guide can be found in all the official
languages on the internet at:
https://www.sahrc.org.za/home/21/files/Section%2010%20guide%202014.pdf
[vii]
Under Part 2 of the Act:
“
11.
Right of access to records of public bodies
(1)           A
requester must be given access to a record of a public body
if—
(a)           that
requester complies with all the procedural requirements
in this Act
relating to a request for access to that record; and
(b)
access to that record is not refused in terms of any ground for

refusal contemplated in Chapter 4 of this Part.
(2)           A
request contemplated in subsection (1) includes a request for
access
to a record containing personal information about the requester.
(3)           A
requester’s right of access contemplated in subsection
(1) is,
subject to this Act, not affected by—
(a)           any
reasons the requester gives for requesting access; or
(b)           the
information officer’s belief as to what the requester’s

reasons are for requesting access.”
[viii]
“50.
Right of access to
records of private bodies
(a)
A requester must be given
access to a record of a private body if—
(a)
that record is required for
the exercise or protection of any
rights;
(b)
that person complies with the procedural
requirements in this Act
relating to a request for access to that record; and
(c)           access to
that record is not refused in terms of any ground for refusal

contemplated in Chapter 4 of this Part.
(2)           In
addition to the requirements referred to in subsection (1), when
a
public body, referred to in paragraph (a) or (b)(i) of the
definition of “public body” in section 1, requests
access to a record of a private body for the exercise or protection
of any rights, other than its rights, it must be acting in
the
public interest.
(3)           A request
contemplated in subsection (1) includes a request for access
to a
record containing personal information about the requester or the
person on whose behalf the request is made.”
[ix]
Sections 17 to 28.
[x]
Chapter 5 (sections 47 to 49) deals with third
party notifications and intervention. It pertains to information
held by a public
body. Section 47(1) provides that t
he
information officer of a public body considering a request for
access to a record that might be a record contemplated in section

34(1), 35(1), 36(1), 37(1) or 43(1) must take all reasonable steps
to inform a third party to whom or which the record relates
of the
request.
Sub-sections (2) to (4) of
section 47 sets out the time for giving notice to third parties and
the manner in which notice must
be given. Sections 34(1), 35(1),
36(1), 37(1) and 43(1) deals with the mandatory protection of the
information of third parties.
It sets out the classes of persons
entitled to protection and the nature of the protected information.
[xi]
Sections 33 to 46.
[xii]
GNR.965 of 9 October 2009:  Rules
of Procedure for Application to Court in terms of the
Act
(
Government
Gazette
No.
32622)
DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
The Rules Board for Courts of Law has under section 79
of the Promotion of Access to Information Act, 2000 (Act No. 2 of
2000),
made the rules in the schedule.
SCHEDULE
1.   Definitions.
—
In
these rules—
(
a
)
any word or expression to which a meaning has been
assigned in the Act shall bear the meaning so assigned; and
(
b
)
any word or expression to which a meaning has been
assigned in the rules governing the procedures of the court in which
an application
in terms of these rules is brought, shall bear the
meaning so assigned, and unless the context otherwise indicates—
“
Act”
means the
Promotion of Access to Information Act, 2000 (Act No. 2 of 2000);
“
clerk
of the court”
means
a clerk and assistant clerk of the court appointed under section 13
of the Magistrates’ Courts Act, 1944 (Act No.
32 of 1944);
“
decision”
means a decision
in respect of which an application in terms of section 78 of the Act
is brought;
“
deliver”
means serve copies
on all parties and file the original with the registrar or clerk of
the court as the case might be; and
“
registrar”
means a registrar
and assistant registrar appointed under section 34 of the Supreme
Court Act, 1959 (Act No. 59 of 1959) or a
registrar appointed under
any law not yet repealed by a competent authority and in force,
immediately before the commencement
of the Constitution of the
Republic of South Africa, 1996, in any area which forms part of the
national territory.
2.   Procedure
in an application to court in terms of the Act.
—
(1)  The
procedure prescribed in these rules must be followed in all
applications contemplated in section 78 of the
Act.
(2)  Unless as otherwise provided for in
these rules, the rules governing the procedures in the court to
which an application
in terms of these rules is brought shall apply
with appropriate changes, unless otherwise directed by the court.
3.   Applications
.—(1)  An
application contemplated in section 78 of the Act must be brought on
notice of motion that must correspond
substantially in accordance
with the form set out in the Annexure to these rules, addressed to
the information officer or the
head of a private body, as the case
may be.
(2)  The notice of motion must—
(
a
)
set out an address within eight kilometres of the court to which the

application is brought, where the applicant will accept notice and
service of all process;
(
b
)
call upon the respondent—
(i)
to give notice, within 15 days after receipt of the application,
of
his or her intention to oppose the application, which notice shall
also contain an address within eight kilometres of the
court to
which the application is brought where notice and service of
documents will be accepted; and
(ii)
to file any answering affidavit within 15 days after service of
the
notice of intention to oppose the application; and
(
c
)
inform the respondent that—
(i)
if no notice to oppose the application is delivered in terms
of
subrule
(2) (
b
) (i)
;
or
(ii)
if notice of intention to oppose has been delivered but no answering

affidavit is delivered in terms of
subrule
(2) (
b
) (ii)
,
the matter will be placed on the roll for hearing without further
notice.
(3)  The notice of motion referred to in
sub-rule (1) must be supported by an affidavit and be accompanied by
true copies
of all documents upon which the applicant intends to
rely.
(4)  The
affidavit referred to in
subrule
(3)
must—
(
a
)
set out the facts and circumstances upon which the application is

based;
(
b
)
state whether the internal appeal procedure contemplated in section

74 of the Act has been exhausted and if so, provide particulars of
the manner in which and date upon which the internal appeal

procedure was exhausted and if not, the reasons for failing to
exhaust such procedure; and
(
c
)
explain the relevance of each document upon which the applicant

intends to rely.
(5)  The information officer or head of a
private body, as the case may be, must—
(
a
)
immediately after receipt of the application, notify, in writing,

all other persons affected, of the application and attach a copy of
the application to such notice; and
(
b
)
within 15 days after receipt of the application—
(i)
file with the clerk of the court or the registrar, as the
case may
be, two true copies of the request and the notification sent to the
requester in terms of section 25 (1) (
b
) of the
Act;
(ii)
notify the applicant in writing that the requirements of
subparagraph
(i)
have
been complied with; and
(iii)
serve on the applicant a true copy of the reasons, if they have not

yet been provided.
(6)  The applicant may, if
the information officer or head of a private body as the case may
be, fails to comply with
the provisions of
subrule
(4)
,
request the clerk of the court or the registrar as the case may be,
in writing, to place the application before the court for
an order
in terms of section 82 (
b
)
of the Act.
4.   Representations.
—
(1)  Representations
contemplated in section 80 (3) (
a
)
of the Act must be—
(
a
)
made under oath in writing, and supported by documentary proof,

where applicable; and
(
b
)
filed with the clerk of the court or the registrar as the case may

be, at least five days before the date of the hearing of the
application.
(2)  The
court receiving the representations referred to in
subrule
(1)
shall
take the steps that it may deem appropriate to bring the
representations to the attention of the parties to the application.
5.   Court
fees.
—
Any
application in terms of these rules shall be subject to the payment
of the court fees applicable in the court in which the
application
is brought, unless waived by the court at its discretion on such
grounds as it deems appropriate.
6.   Short
title.
—
These
rules may be called the Promotion of Access to Information Rules.
7.   Commencement.
—
These
rules come into operation on
16
November 2009.
[xiii]
ANNEXURE
TO THE PROMOTION OF ACCESS TO INFORMATION RULES PROMOTION OF ACCESS
TO INFORMATION RULES
NOTICE
OF MOTION
IN
TERMS OF THE
PROMOTION OF ACCESS TO INFORMATION ACT No. 2 OF 2000
IN
THE
COURT
HELD
AT
CASE
NO.
In
the matter between:
Applicant
(Full
name)
and
Respondent
(Full
name)
TAKE
NOTICE THAT
(the
applicant)
intends
to apply for the following order:
and
that the accompanying affidavit of
and
the
documents referred to in
rule 3
(3) (
a
) will be
used in support thereof.
TAKE
NOTICE
further
that the applicant has appointed
(provide
an address within eight kilometres of the court at which the
applicant will accept notice and service of all process
in these
proceedings).
Notice:
(i)
Notice of intention to oppose this application must be given
within
15 days after receipt hereof and must contain an address within
eight kilometres of the court to which the application
is brought,
where notice and service of documents will be accepted.
(ii)
Answering affidavits, if any, must be filed within 15 days after

service of the notice of intention to oppose the application.
(iii)
In default of your complying with
rule
3 (5)
of
the Promotion of Access to Information Rules, the applicant may
request the clerk of the court or the registrar as the case
may be,
to place the application before the Court for an order in terms of
section 82 (
b
)
of the Act.
(iv)
In default of your delivering a notice of intention to oppose, the
matter
will without further notice, be placed on the roll for
hearing after the expiry of the period mentioned in paragraph (i)
above,
on a date fixed by the clerk of the court or the registrar as
the case may be.
SIGNED
at
this
day
of
Applicant/Applicant’s
legal representative
Address
To:
(1)
Respondent:
(Address)
(2)
The
Clerk of the Court or the Registrar of abovementioned court
[xiv]
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), at paras. 7 and 8. The court was
specially constituted by two judges of the Eastern Cape Division of
the High Court for
purposes of considering applications in terms of
section 78 of PAIA.
[xv]
A claim form for the lodging of a claim in terms
of the
Road Accident Fund Act, 1996
.
[xvi]
Which provides as follows:
“
If
the relevant authority fails to give notice of the decision on an
internal appeal to the appellant within the period contemplated
in
subsection (3), that authority is, for the purposes of this Act,
regarded as having dismissed the internal appeal.”
[xvii]
Which provides as follows:
“
If
the head of a private body fails to give the decision on a request
for access to the requester concerned within the period
contemplated
in section 56(1), the head of the private body is, for the purpose
of this Act, regarded as having refused the request.”
No
internal appeal is provided for in the case of private bodies.
[xviii]
Upon receipt of a notification of the request for information in
terms of Chapter 5 of PAIA (THIRD PARTY NOTIFICATION AND
INTERVENTION
as provided for in sections 47 to 49 of PAIA.
[xix]
Section 39 of 30 of 2007. See the definition of
“information officer” in section 1 of PAIA.
[xx]
Prayers 1 and 2 of the notice of the respective
notices of motion.
[xxi]
Section 82(a).
[xxii]
Section 82(b).
[xxiii]
Section 82(c).