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[2019] ZAGPPHC 107
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Ngubeni v Mobile Telephone Networks (Pty) Ltd (37790/2017) [2019] ZAGPPHC 107 (18 March 2019)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
THE
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
Case
No.: 37790/2017
18/3/2019
ln the matter between.
BOB
FANIE
NGUBENI
Applicant
and
MOBILE
TELEPHONE NETWORKS (PTY) LTD
Respondent
JUDGMENT
MNGQIBISA-THUSI,
J
[1]
The applicant seeks relief in terms of s 78(2)(d)(i)
[1]
read with s 82
[2]
of the Promotion of Access to Information Act
[3]
("the Act"), for Information held by the respondent
pertaining to the following documents:
1.1
Service level agreement between MTN and
Optical Mediaworx (Pty) Ltd:
1.2
Site register for Hallelujah Street.
Nellmaplus for 6 October 2016;
1.3
Occurrence register for Hallelujah
Street, Nellmaplus for 6 October2016:
1.4
Incident report for incident on 6
October 2016;
1.5
Municipal authority to conduct ground
works; and
1 6
ICASA certificate to conduct ground works for fibre cables.
[2]
Section 32(1)(a) and (b) of the Constitution provide that everyone
has the right of
access to any information held by the State as well
as by another person that is required for the exercise or protection
of any
rights. The right of access to information as enshrined in s
32 of the Constitution was brought into effect by s 50(1) of the Act
which reads as follows
(1) A
requester must be given access to any 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 or any ground for
refusal contemplated in Chapter
4
[4]
of this Act".
[3]
It is not in dispute that the respondent is a private body
[4]
On
6 October 2016, the applicant, Mr Bob Fanle Ngobern, allegedly fell
into a construction hole on or around Halleluja Street, Nellmaplus,
Mamelodi. The hole was not cordoned off. As a result of the fall the
applicant allegedly sustained injuries and received medical
treatment
after being admitted to hospital.
[5]
In
his founding affidavit deposed by Mr Swan. the applicant's attorney,
on 22 November 2016 the applicant he approached N S Swan
Attorneys to
represent him In an action he intended instituting for a claim 'or
damages suffered as a result of the injuries he
sustained After the
applicant's attorneys discovered that
the
manhole was linked to the
respondent, Mobile Telephone Networks (Pty) Ltd, which was at the
time conducting ground work for the
installation of fibre-optic
connection cables in the area, on 13 December 2016 the attorneys sent
a letter by fax (lax number (011)
912 3131) to the respondent
Attached to the letter was Form C
of
the Act in which the documents
sought were requested from the respondent.
[6]
According to the applicant the respondent did not. however respond to
the letter,
leading to the applicant launching these proceedings. It
is the applicant's contention that by failing to respond to his
request
witn1n 30 days of the letter being faxed, the respondent is,
in terms of s 58 of the Act. deemed to have refused the request.
There
is nothing to controvert the applicant's linking of the
respondent with the manhole complained of In its answering affidavit
in
response to the allegation on the link. the respondent proffers a
bare denial without substantiating its denial
[7]
Section 58 provides that.
"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)
[5]
,
the head of the private body is, for the purposes of this Act,
regarded as having refused the request".
[8]
The
respondent opposes the granting of the application on the ground that
the applicant failed to comply with the provisions oi
the Act. in
particular, s 53(1) read with s 51(1). s 53(2)(f); and s 54 of the
Act.
[9]
In
Its answering affidavit the respondent denies receiving the request
sent to it as alleged by the applicant The respondent avers
that if
indeed the applicant did fax the request, he failed to use the Fax
number of its information officer as reflected in its
manual which is
on its website.
[10] In
terms of s 53(1) a-request to a document (s) of a private body must
be made in the prescribed form
and sent to the private body's
address, fax or electronic address s 51(1) of the Act provides that:·
"(1)
Within six months after the commencement of this section or the
coming into existence of
the private body concerned, the head of the
private body must compile a manual containing-
(a)
The postal and street address. phone and
fax number and if available. electronic mail address of the head of a
private body,
(b)
a description of the guide referred to
in section 10, if available, and how to obtain access to it;
…
(e)
sufficient detail to facilitate a request for access to a record of
the body, deception
of the subjects on which the body holds records
and the categories of records held on each subject..:”
[11] It is
the respondent's contention that it has complied with the prov1s1ons
of s 51 (1) in that It has
published the required manual on its
website and that if the applicant had searched for It would have
discovered the correct fax
number of its information officer lo whom
the request should have been addressed. It was submitted on behalf of
the respondent
that since the fax number used by the applicant is its
general number it did not receive the letter or request and that the
faxed
request letter could have landed anywhere within its premises.
[12]
Without conceding that it received the letter of request, it is the
respondent's contention that the
applicant did not comply with the
provisions of s 53(2)(f)
[6]
of the Act in that in its application form requesting access to the
documents it requires, the author of the form failed to Indicate
In
what capacity he was requesting the information.
[13]
Further, it is the respondent's contention that the applicant failed
to pay the required fee as prescribed
by s 54 of the Act when it
applied for access to the documents requested.
[14]
Although the applicant used an Incorrect fax number in its letter of
request, it is apparent that the
letter did reach the respondent's
offices It cannot therefore be said that the applicant had not
compiled w1tti the provisions
of the Act.
[15] The
contention by the respondent that the applicant's letter of request
is not in compliance with the
provisions of s 53(2)(f) is misplaced.
Accompanying the Form C or the Act was a letter on Swan Attorneys'
letterhead. Furthermore
the covering letter clearly states that
'(w)e
confirm that we are acting on behalf of Mr Ngobeni.
.. ' I am of
the view that even though the attorneys in completing the requesting
form did not Indicate m what capacity they acted,
this non
compliance is not so material that it cannot be condoned.
Furthermore, the respondent's allegation that the applicant
is
non-compliant in that he had not paid the prescribed fee has no merit
S 54(1) of the Act provides that;
“
The head of a private
boarding to who a request for access is made must by notice require
the requester. other than a personal requester
to pay the prescribed
requested fee (if any), before further processing the request".
[16] It
could not have been expected of the applicant's attorneys to
determine what the prescribed fee was
in light of the fact that no
response was received to its request Furthermore, in line with the
provisions of s 7
[7]
of the Act, the information 1s requested before the institution of
any civil claim.
[17] The
only remaining to be decided is whether the applicant has made up a
case to be granted access to
the documents it is requesting access
to. In
Claase v
Information Officer of South African Airways (Pty) Ltd
[8]
court held that,
in an application instituted by a requester aggrieved by a private
body's refusal of a request. "the applicant
need only put up
facts which
prima
facie,
though
open to some doubt, establish that he has a right [for) which access
to the record is required to exercise or protect.
[18] The
threshold that the information must be ‘required for’·
in s 50(1)(a), the court
in
Company
Secretary of Arcelormittal of South Africa and Another v Vaal
Environmental Justice Alliance
[9]
stated that;
"[50] Thus.
the word 'require' Ins 50(1)(a) of the Act should be construed as·
’reasonably required'
in the prevailing circumstances (see
Clutchco
para12)
A scrutinising court should determine whether an applicant for
information did 1ay a proper foundation
tor
why that
document is reasonably ·req01red" for the exercise or
protection of his or her rights"
[10]
.
[19]
However. the right of access to
information Is not absolute S 63(1) of the Act provides that.
"Subject to subsection (2),
the head of private body must refuse the request for access to a
record of the body if its disclosure
would involve the unreasonable
disclosure of personal information about a third
party,
including
a deceased individual”.
[20]
Further,
in terms of s 65 and s 68(a) of the Act a private body must under
certain circumstances refuse access to information in
its possession.
Section 65 of the Act provides that a private body must refuse access
to Its information if disclosure of such
information would be in
breach of a confidentiality agreement between the private body and a
third party On the other hand s 66(a)
provides that:
"The head of a private body -
(a)
must
refuse a request for access to a record of the body if its disclosure
could reasonably be expected to endanger the life or
physical safety
of an individual”.
[21] In
Cape Metropolitan
Council v Metro Inspection Services
[11]
the
court held that
"[28]
Information can only be required for the exercise protection of a
right if It will be of assistance
in the exercise or protection of
the right it follows that in order to make out a case for access to
information... the applicant
has to state what the right is that he
wishes to exercise or protect. what the information is which is
required and how that information
would assist him In exercising of
protecting that right."
[22] It is
the applicant’s contention that it seeks access to the
information requested in order to
institute a delictual claim against
the respondent for the loss suffered as a result of the injuries he
sustained.
[23] In
terms of s 81(3) of the Act the onus to show that the refusal is
justified rests on the body that
has refused the request. However in
its opposition to the application the respondent has not raised any
substantive grounds for
opposing the application.
[24]
Taking into account the objects of the act, in particular, s
9(c)
[12]
.
I am satisfied that the applicant has shown sufficient cause that the
information requested is for the protection of a right,
namely a
delictual claim. l am of the view that the applicant has satisfied
the requirements for access to the Information requested.
[25] WIU,
regard to the issue of costs. I am not convinced that a punitive
order against the respondent
is warranted.
[26] In
the result the following order is made
1.
The
respondent's information officer lo deliver a notice of the required
fees to swan Attorneys within 10 days of this order.
2.
The
respondent is ordered, within 10 days of this order, to furnish the
applicant's attorneys with the following documents
2.1
Service level agreement between MTN and
Optical Mediaworx(Pty) Ltd
2.2
Site register
(or
Hallelujah Street. Nellmaplus for 6
October 2016;
2.3
Occurrence register for Hallelujah
Street, Nellmapius for 6 October 2016;
2.4
Incident report for Incident on 6
October 2016:
2.5
Municipal authority
to
conduct ground works; and
2.6
ICASA certificate to conduct ground
works for fibre cables
3.
The respondent to pay the costs of this
application.
NP
MNGQIBISA-THUSI
Judge of the High Court
For
Applicant Adv I S Ferreira (instructed by N S Swan Attorneys)
For
Respondent Adv N Manaka (instructed by Ledwaba Mazwai Attorneys)
[1]
Section 78(2)(d)(i) of the Act reads as follows: “A
requester-(d) aggrieved by a decision of the head of a private body-
(i) to refuse a request for access; may, by way of application,
within 30 days apply to court for appropriate relief in terms
of
section82.
[2]
Section 82 provides that: "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 . the head of a private body to take such
action or lo
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, e declaratory order or
compensation, or (d) as to costs”.
[3]
Act 2 of 2000
[4]
Sections 62-70 of the Act.
[5]
Section 56(1) reads in part as follows: “Except if the
provisions regarding third party notification and intervention
contemplated in Chapter 5 of this Part apply, the head of the
private body to whom the request is made must, as soon as reasonably
possible, but in any event within 30 days, after the request has
been received or after the particulars required in terms of
section
53(2) have been received- (a) decide in accordance with this Act
whether to grant the request; and (b) notify the requester
of the
decision…”.
[6]
Section 53(2)(1) of the Act provides that: “ The form for a
request for access prescribed for the purposes of subsection
(1)
must at least require the requester concerned- (f) If the request is
made on behalf of a person, to submit proof of the capacity
in which
the requester is making the request, to the reasonable satisfaction
of the head·
[7]
Section 7(1) of the Act provides that: “The Act does not apply
to a record of a public body or a private body if- (a) that
record
is requested for the purpose of criminal or civil proceeding”.
[8]
2007 (5) SA 469
(SCA) at para [8].
[9]
2015(1) SA 515 (SCA).
[10]
See also
Unitas Hospital v Van Wyk & Another
[2006] ZASCA 34
;
2006 (4) SA
436
(SCA) at para
[18]
.
[11]
2001(3) SA 1013 (SCA)
[12]
Section 9(e) reads as follows: “The objects of this act are-
generally, to promote transparency, accountability and effective
governance of all public and private bodies and private bodies b,
including, but not limited to, empowering and educating everyone
–
(i) to understand their rights in terms of this Act in order to
exercise in relation to public and private bodies”.