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[2021] ZAECELLC 9
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Linda Cakwere v Regional Commissioner: DCS (EL 423/2019) [2021] ZAECELLC 9 (25 March 2021)
OF
INTEREST
IN THE HIGH COURT OF
SOUTH AFRICA
(EAST LONDON CIRCUIT
LOCAL DIVISION)
Case No: EL 423/2019
In
the matter between:
LINDA
CAKWEBE
Applicant
and
REGIONAL
COMMISSIONER: DCS
Respondent
JUDGMENT
GOVINDJEE AJ:
[1]
The applicant is employed by the respondent, who is cited in
his
official capacity and from whom requests for access to information
and internal appeals are lodged.
[2]
In essence, the applicant seeks access to information of various
details pertaining to amounts paid by the respondent to the
beneficiary and argues that it has complied with the provisions of
the
Promotion of Access to Information Act
, 2000 (
PAIA /
the Act
). The request appears to be motivated by the need to
determine whether proper amounts have been deducted from the
applicant’s
salary.
[3]
In particular, the applicant seeks copies of the following
documentation:
a.
Emoluments Attachment Order / Judgment authorising the deductions;
b.
Correspondence exchanged between the Respondent and the beneficiary;
and
c.
Details of the payments made by the Respondent to the beneficiary.
[4]
In terms of section 11 of
PAIA
, a requester must be given
access to a record of a public body if:
a. The
requester complies with all the procedural requirements in the 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 part 2
of the Act.
[5]
It is common cause that the request was correctly submitted
and that
there was no response to the request during the 30-day period
prescribed. As such, the request was deemed to be refused
in terms of
section 27 of the Act and a notice of internal appeal followed. There
was again no response, resulting in the application
in this matter
being launched during April 2019. The respondent has since granted
the applicant partial access to the records requested
but has not
acceded to the request to provide a breakdown of amounts paid or fees
charged. The applicant relies partly on the provisions
of the
Basic
Conditions of Employment Act
, 1997 in averring that the
respondent has a statutory duty to account to the applicant in this
respect.
[6]
The respondent has not placed reliance on the defence that
the
records requested cannot be found or do not exist. In terms of
section 23 of PAIA, provision is made for the information officer
of
a public body to notify a requester of that situation by way of
affidavit or affirmation.
[7]
The crisp point to be determined is whether the request can
be said
to be manifestly frivolous or vexatious, or amounts to substantial
and unreasonable diversion of the resources of the respondent,
that
being the only basis for opposing the application. In such a case, in
terms of section 45 of the Act, the information officer
of a public
body may lawfully refuse a request for access to a record.
[8]
In this regard, the respondent questions various statements
appearing
in the founding affidavit, namely that the applicant was not aware of
any judgment against her, that no credit agreement
was entered into,
that the purpose of the deductions are unknown to the applicant, that
she is not indebted to the beneficiary
and that the deductions are
unauthorized.
[9]
The respondent frames the questions to be addressed in this
matter
around these statements, to demonstrate bad faith on the part of the
applicant and to justify the contention that the request
is frivolous
and vexatious. It also raises section 65J(4)(
b
) of the
Magistrates’ Court Act
, 1944 in opposing the
application.
[10]
It is perhaps important to note at this point that ‘record’
is defined
in
PAIA
, as follows:
“’
record’
of, or in relation to, a public or private body, means any recorded
information –
a)
Regardless of form or medium;
b) In
the possession or under the control of that public or private body,
respectively; and
c)
Whether or not it was created by that public or private body,
respectively.”
[11]
Although this point was not taken, I am satisfied that the
information sought amounts
to a ‘record’ as defined. I am
also satisfied that the information provided to the applicant to
date, particularly
by way of the annexures to the answering
affidavit, fall short of the information requested, bearing in mind
the stated purpose
for the request, which is to ascertain whether
excessive amounts have been deducted. To determine this requires a
proper breakdown
of payments made.
[12]
In
De Lange & another v Eskom Holdings Ltd and others
[2012] (1) SA 280
GSJ) paras 34-35], the court held:
‘
For public
bodies…the requester does not need to explain why it seeks the
information, let alone why it requires it for the
exercise of its
rights. In terms of s11(1) of PAIA a requester of information is
entitled to the information requested from a public
body as long as
it has complied with the procedural requirements set in that Act and
as long as none of the grounds of refusal are applicable
.
Those grounds of refusal are set out in Ch 4 of Part 2 of the Act.
[35] Consequently the
importance of access to information held by the State or public or
State entity as a means to secure accountability
and transparency
justifies the approach adopted in s 32(1)(a) of the Bill of Rights
and in PAIA, namely that, unless one of the
specially enumerated
grounds of refusal obtains, citizens are entitled to information held
by the State or public entity as a matter
of right. This is so
regardless of the reasons for which access is sought and regardless
of what the organ of State believes those
reasons to be.’
[13]
It is also unnecessary for me to comment on the issue of a manual,
and I accept that
the request for information was properly submitted
to the respondent as Information Officer, together with a subsequent
internal
appeal.
[14]
To the extent that it is suggested that the request may be refused
due to the time
it would take to respond to the request, this may be
rejected
in casu
(
Paruk & Partners v eThekwini
Municipality
[
2005] JOL 16287
(D)). That leaves
consideration of ‘frivolous’ or ‘vexatious’,
the former having been held to refer to
something with ‘no
serious purpose’ and the latter meaning to cause ‘annoyance
or distress’ or taking actions
‘purely to cause trouble
or annoyance.’
[(CC II Systems (Pty) Ltd v MGP Lekota NO
2005 JDR 0471 (T) para 34 cited in
Panday
v
UKZN and others
(D8171/2019) para 35.] For this defence
to succeed, it must ‘manifestly’ be that this is the
case, and it is
accepted that this is generally difficult to prove.
The burden is unquestionably on the respondent to put forward
sufficient evidence
for a court to conclude that, on the
probabilities, the information requested falls to be labelled in this
fashion (
President of the RSA v M&G Media Ltd
[2012]
(2) SA 50
(CC) par 23).
[15]
On the approach I take to the matter, it is not open for the
respondent to raise
that aspect before court when the information
officer has not complied with the provisions of s 45 by indicating
that the reason
for the refusal is vexatiousness. Instead, in the
case at hand there is only a ‘deemed’ refusal of request
in terms
of s 27 and I am unable to find that this amounts to a
refusal
in terms of a ground for refusal contemplated in
chapter 4 of part 2. It would have been easy for the respondent’s
officials
to have refused the requests on that basis but they chose
not to do so and to ignore the requests. The deemed refusal is, then,
in fact one for no reason and might suffice for purposes of allowing
the applicant to move on to provide notice of internal appeal.
It
cannot extend to an indication that the request has been refused on
the basis of frivolity or vexatiousness on my interpretation
of the
Act.
[16]
As such, the requestors should have been given access to the records
sought from
the outset, alternatively an affidavit could have been
filed in terms of the Act indicating that the balance of information
sought
(after the initial provision of information) was non-existent.
[17]
I might add as an aside that I have considered many of the various
judgments emanating
from this court in similar matters, and that
there is clearly a need for the full bench of the division, at some
time in the future,
to express its views on the issues raised in
matters of this nature.
[18]
I remain concerned as to why the applicant has chosen to go to these
lengths to obtain
such basic information from the respondent via a
PAIA
application and this affects my view in respect of costs.
The judgment creditor could have been sought and approached on
reasonable
reflection and following basic enquiries, and failing that
the applicant could easily have at least made enquiries from the
names
reflected on the payslip provided to the applicants each month.
[19]
The position might have been different if the applicant had
experienced difficulties
in approaching the judgment creditor or its
attorneys, or approached this court with a
bona fide
explanation as to why this information was being sought from the
respondent instead of the judgment creditor or Russell Inc (the
name
appearing on the payslip). Instead, the applicant implausibly claims
no knowledge of its judgment creditor or, seemingly,
Russell Inc, and
denied the existence of any judgment or emoluments attachment order
authorising salary deduction.
[20]
The respondent’s payslip makes it clear that a reference number
is linked to
‘Russell Inc’ and that an amount of R600 was
deducted. There is no explanation why the applicant did not make
enquiries
from that firm, or indeed why the applicant’s
representative could not do so when briefed.
[21]
This conduct becomes particularly remarkable when considering that
the applicant
‘notes’ in her replying affidavit, that she
signed an acknowledgement of debt and consented to judgment in
respect
of a loan on 9 September 2016 (par 9.3 of answering
affidavit). A pre-agreement statement and quotation for small and
intermediate
credit agreements pertaining to the loan and credit
agreement was also signed by the applicant with African Bank in 2009
reflecting
a R600 instalment. It is also clear from the applicant’s
founding affidavit that she had made enquiries with the respondent’s
officials responsible for salaries at an early stage, and was then
informed that the deduction was in terms of a court order.
Cumulatively, and as was the case in
Wolela v The Minister of
Social Development and Others
(unreported case no. 716/2016,
ECD, Bhisho), it is these circumstances that justify the conclusion
that each party should pay their
own costs.
[22]
I accordingly make the following order:
1.
The respondent is directed to forthwith furnish the applicant
with the balance of the records which include the printout of all
payments made to the beneficiary for the entire period involving the
deductions in favour of Russell Inc with reference number 23216232017
within 15 (fifteen) days.
2.
Each party should pay their own costs.
_________________________
A. GOVINDJEE
ACTING JUDGE OF THE
HIGH COURT
Obo the
Applicant
: Mr N.J
du Plessis, NJ du Plessis &
Associates
Gonubie Mall, Office
20C, 2nd Floor, Main Rd, Gonubie, East London
Tel: (043) 740 0424
Obo the
Respondent: :
Adv Mayekiso
Instructed
by
: State Attorneys,
Permanent Bldg, 42
Terminus St,
East London City Ctr,
East London
Tel: (043) 722 0850
Heard:
: 25 March 2021
Delivered:
: 25 March 2021