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[2019] ZAECBHC 20
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Mbilini v Minister of Social Development Susan Shabangu and Others (699/2018) [2019] ZAECBHC 20 (10 September 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
CASE
NO 699/2018
In
the matter between:
NTOBEKO
GOODMAN MBILINI
Applicant
and
THE
MINISTER OF SOCIAL DEVELOPMENT
SUSAN
SHABANGU
1
st
Respondent
SUPERINTENDENT
GENERAL,
THE
DEPARTMENT OF SOCIAL DEVELOPMENT
2
nd
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL
DEPARTMENT
OF SOCIAL DEVELOPMENT
3
rd
Respondent
THE
HEAD OF THE DEPARTMENT,
THE
DEPARTMENT OF SOCIAL DEVELOPMENT,
EASTERN
CAPE 4
th
Respondent
JUDGMENT
V
NQUMSE AJ:
INTRODUCTION
[1]
This is an application founded on the Promotion of Access to
Information Act. (hereinafter
referred to as the “PAIA”).
[2]
The applicant is an employee of the Department of Social Development
in the Province
of the Eastern Cape. He launched a request with
the first and second respondents for access to records pertaining to
his
salary deductions.
[3]
The essence of applicant’s contention that results in this
application is that
the respondents refused to give him access to the
full information that he sought in his request.
[4]
As a result he approached this Court for a relief in the Notice of
Motion as follows:
4.1
declaring the respondents to forthwith furnish the applicant with the
following information
relating to the beneficiary / creditor
described as “Russell Inc.” with reference number
2322258216;
4.1.1 copy of
the judgment and / or Emoluments Attachment Order relating to the
entry under heading “Deductions”
(description) on the
salary advice of the applicant;
4.1.2 copies
of the letters and / or statements received from the beneficiaries
(judgment creditors) from 1 May 2017
to date;
4.1.3
printouts of payments made to each of the beneficiaries (judgment
creditors) for the entire period relating to
these deductions;
4.1.4 all
details to be supplied in English and in writing to be emailed to
nico@tellaw.co.za
as referred
in the request of 21 May 2018 within 15 (fifteen) days of the order
sought being granted;
4.1.5
directing that the respondents to pay the costs of this application.
[5]
The first and second respondents do not oppose the application and
they have filed
a Notice to abide the decision of this Court.
FACTUAL
BACKGROUND
[6]
It is common cause that the applicant is employed by the Department
of Social Development
in the Eastern Cape. Upon noticing
certain deductions that are made from his salary he sought
information to this effect
from his employer. Acting on the
strength of the Manual of the National Department of Social
Development, the applicant directed
his Form A request to the
National Department of Social Development on 21 May 2018.
[7]
Failure by the Deputy Information Officer of the Department to
respond to the request
in compliance with section 25, the applicant
on 28 June 2018 lodged an internal appeal in terms of section 75 with
the Deputy Information
Officer. On 2 July 2018 the office of
the first respondent addressed correspondence to the applicant’s
attorneys in
which they advised that, acting in terms of section 20
of the Act, the request of applicant for information has been
transferred
to the Eastern Cape Province, Department of Social
Development.
[8]
On 11 July 2018 applicant’s attorneys received a letter from
the office of the
fourth respondent confirming that applicant’s
request for information has been transferred to their Department from
the National
Department of Social Development. On the following
day, 12 July 2018 the attorneys of applicant responded and for the
sake
of the import of their response, I find it necessary to refer to
its contents which read as follows:
“
We refer to the
abovementioned matter and more particularly to your letter dated 11
July 2018. Please note that you might
have received the
incorrect information from the National Department. We received
correspondence from their office dated
22 June 2018 but only
transmitted to the writer on 2 July 2018. We immediately
responded to the communication and placed
certain aspects on record
for urgent consideration. A copy of our correspondence is
attached hereto for your ease of reference.
We
will however clarify certain aspects directly with yourselves and
will highlight that we are in the appeal stage already.
A
formal request for access to information of a public body was
submitted on 21 May 2018 to addresses and contact details referred
to
in the Manual for the Department. We wish to highlight that the
telefax number provided does not exist or does not faxes
to be
transmitted. We also submitted the formal request to the email
addresses referred to in the Manual but did not receive
acknowledgement of receipt mails. The writer personally
contacted the National Department (number provided in the Manual)
and
spoke to Eva Matau who provided her email address as confirmation.
We resent the formal request form to the applicable
address on 28 May
2018.
Your
abovementioned letter made mention that the request is transferred in
terms section 20(1)(b) of the PAIA Act, but we need raise
some
concerns regarding the approach adopted. As stated, our formal
request was submitted on 21 May 2018. In terms
of section 20 of
PAIA the information officer must within 14 (fourteen) days transfer
the request to the relevant department.
This needs to be done
prior to the internal appeal process being initiated. You will
agree that the time periods have expired.
Your transfer is
therefore well outside the prescribed time periods and no proper
reasons have been supplied. Our client
suffers prejudice as
amounts have been and are being deducted to which they have no
knowledge. As the appeal was lodged
on 28 June 2018 and
our client’s rights remain reserved should we not receive a
response by 28 July 2018. Unfortunately
our client cannot
withdraw the appeal and allow you to respond to the request on 2
August 2018. The delay will cause immense
prejudice should we
want to challenge the authorised deduction. We once again
highlight that we require the following information,
as requested on
the formal request in terms of section 18:
1. Copy
of the judgment and / or Emolument Attachment Order relating to the
above entries;
2.
Copies of the letters and / or statement received from the
beneficiaries for the past year;
3.
Printout of payments made to each of the above beneficiaries for the
entire period relating to the deductions;
4.
All
particulars to be supplied in writing and in English and to be email
to
nico@tellaw.co.za
. We
therefore await the above information on or before 28 July 2018.”
(
sic)
[9]
In a further response the fourth respondent directed correspondence
to the applicant
in which it stated:
9.1
that they will provide the information by not later than 2 August
2018;
9.2
that the Department of Social Development (Eastern Cape) has its own
Manual (which is attached
on the papers as FA71);
9.3
that they regarded the appeal already lodged with the National
Department as premature.
[10]
The applicant in annexure FA18 of its founding papers, informed the
Department that the applicant
cannot suffer prejudice as a result of
the internal failures of the various Departments of Social
Development or their failure
to adhere to time frames to attend to
the request as required by PAIA. The applicant further disputed
the fourth respondent’s
allegation that the internal appeal was
lodged prematurely. Further, the applicant alerted the fourth
respondent to their
omission to attach the Eastern Cape Department’s
Manual as indicated in their letter (FA17). In essence the
applicant
sought to inform the fourth respondent that notwithstanding
the administrative bungling that is apparent between their respective
Departments, it was demanding that they should adhere to time frames
as provided in PAIA.
[11]
Subsequent to another exchange of correspondence between the fourth
respondent and the applicant
regarding the discrepancies in the
various Manuals of the two Departments and the absence of the
Provincial Department’s
Manual on its website, on 30 July 2018
the applicant was informed by the fourth respondent that the
requested information was granted.
This was done by furnishing
copies of the Emoluments Attachment Order, which was served on the
Department as well as a printout
of all payments that were made to
each of the judgment creditors. The applicant was further
advised that the fourth respondent
is not in possession of copies of
correspondence that may have been exchanged between the creditors and
the Department.
[12]
On 2 August 2018 the fourth respondent acted on its promise and
furnished the applicant with
the following information:
21.1
Emolument Attachment Order (“Re-issue” in respect of
Maurice Shadrack 12 pages);
12.2
extract of the applicant’s salary advices (18 pages).
[13]
Reacting to the information which was furnished, the applicant in
annexure FA 25 attached in
its founding papers complained that the
records which they have received do not provide information as to
when payment was made
and whether it was actually made to the
beneficiaries appearing on the records. The sum total of the
applicant’s contention
is that they have failed to provide the
information they seek and it was the applicant’s view that the
fourth respondent
has no intention to furnish the required
information. According to the applicant the failure to be
furnished with the balance
of the information constitutes a refusal.
Applicant further contends that the first respondent is for the
purposes
of section 77(7) of the PAIA regarded as having dismissed
its internal appeal. It is worth noting that whilst the process
was now handled by the Provincial Department more particularly the
fourth respondent. The applicant still referred to the
National
Department as having dismissed his internal appeal.
[14]
It is applicant’s contention that he is not indebted to the
beneficiaries in favour of
whom his monies are deducted from his
salary and neither has he authorised such deductions. He
further contends that the
letters of the judgment creditors to the
Department, advising them of the breakdown of the payments received
and outstanding balance
will assist him to know if the deductions are
lawful. Further, the list and details of payments will assist
him in knowing
how much has been paid over to the beneficiaries and
to whom it has been paid, should it be found that the deductions were
lawful.
[15]
Mr Cheriyan who is the acting director – general and deputy
information officer of the
Provincial Department of Social
Development stated in his answering affidavit on behalf of the third
and fourth respondents as
follows:
[16]
That he is the custodian of all the records of the Department.
He avers that the request
for information was directed to their
National Department which subsequently transferred the request in
terms of section 20 of
the Act to the Provincial Department. He
only became aware of the request for the first time on 4 July 2018.
[17]
He contends that the appeal against the National Department is
erroneous and there was thus no
reason to join the first and second
respondents in this application. Upon receiving the request via
transfer on 4 July 2018
he calculated the 30 days period within which
to furnish the information to be expiring on 2 August 2018. He
informed the
applicant’s attorney by a letter dated 11 July
2018 that he would provide the requested information on or before 2
August
2018. According to him, the applicant’s right of
appeal could not accrue after the said date and is therefore
premature
and not permissible under section 78 of PAIA.
[18]
He further stated that he furnished the requested information in a
letter dated 30 July 2018
annexed to the founding papers as F 21 as
well as in another letter dated 2 August, annexure FA 23. He
also furnished the
applicant’s attorney with an explanatory
affidavit in terms of section 23 of PAIA, in which he advised the
applicant of those
records he could not find despite a diligent
search.
[19]
He admits the deductions that have been effected in the salary of the
applicant. He however,
contends that the disclosure of the
identity of the judgment creditors which appear on the pay slips
should have made it easy for
the applicant to obtain the information
he requires. He further submitted that the process leading to
the issuing of garnishee
orders is in the purview of the court, it is
not required of Department to consult with the debtor when they
effect the implementation
of such garnishee orders.
[20]
He further stated that the Provincial Department has its own Manual
which is available on its
website and easily furnished to the members
of the public when so requested. It is his contention that the
appeal which was
addressed to the National Department was misguided
and therefore it is of no relevance to the case against the
Provincial Department.
He contends that, the appeal was lodged
with the wrong body.
[21]
Since the information sought related to documents which are older
than five years which have
been transferred to archives that are not
physically located at the main office of the Department, it was time
consuming to search
for the information and hence their request for
the extension of time. His letter of 2 August 2018 addressed to
the applicant
is a clear demonstration of his transparency, to make
the applicant aware of what was being done about his request.
He refutes
the allegation that he was supine or refusing to reply to
the applicant’s request.
[22]
The fourth respondent submits that in light of the procedure that was
unnecessary which was followed
by the applicant, the relief he seeks
should be dismissed and costs granted against his attorneys
de
bonis propríís
. Its application for costs
de
bonis propríís
is based on the following reasons:
22.1
Applicant’s attorneys have served a large number of identical
applications on their Departments and
other Departments.
22.2
The actual information sought in their application is either within
the knowledge of the applicant or is
easily obtainable from the
judgment creditors whose identities are apparent from the pay slips.
22.3
The argument concerning the appeal process against the National
Department is patently without merit and
has been persisted in the
face of explanation by the respondent.
22.4
Applicant’s attorneys instituted the present application in
full knowledge that the fourth respondent
was engaged in finding the
required information.
22.5 It
is apparent that this application is part of a campaign engaged in by
applicant’s attorney with
the express purpose of gaining costs
orders against Departments of state and without the
bona fide
of prosecuting applicant’s rights in terms of PAIA.
[23]
In his replying affidavit the applicant contends that Eva Motau never
advised his legal representatives
that his request had not been
lodged in the prescribed manner. Consequently he and his legal
representative laboured under
the impression that his request was
being attended to. In the absence of a decision on his request
he was entitled to lodge
the appeal. It is only during the
appeal stage that his request was transferred to the Provincial
Department. He further
submits that due to the deemed refusal
and the appeal procedure that followed, section 20 was no longer
applicable and the transfer
of his request did not nullify his
appeal.
[24]
He further stated that it was no longer available to Mr Chariyan to
take a decision since by
operation of law there was already a deemed
refusal.
[25]
He further stated that the failure by the second respondent to deal
with his request is causing
him to suffer prejudice since he is not
aware of any judgments against him. Whilst he admits receiving
the Emoluments Attachment
Order authorising the deductions, as well
as copies of his salary advices confirming the deductions, he did not
receive any proof
of payments made by the Department. It is
only the Department and not the creditors that can furnish such proof
of payment.
[26]
He confirms receiving the section 23 affidavit, however, he disputes
that it complies with the
provisions of section 23 instead it was
intended to mislead. He further contends that the details of
the creditor, Russel
Inc. lacked the contact details of the creditor
and it was therefore impossible to ascertain who the creditor was.
He also
contends that his employer would be in a better position to
know this creditor as they ought to have written authorisation for
the deductions.
[27]
He further contends that his employer was under an obligation to
discuss any issue that may have
an effect on his salary. Had
his employer done so, he would have been involved in the
implementation process and the deductions
would not have caused him
to be unable to provide for his family. He laments that it is
almost 6 months since his request,
and is yet to be provided with the
records of the actual payments which is the only portion of the
records that he regards as still
outstanding.
[28]
He submits that a punitive cost order against his attorney is an
attempt to discourage him from
exercising his constitutional right
since his attorneys did not act out of malice when they launched this
application.
[29]
The issues to be determined as I see them are;
29.1
whether the applicant had complied with section 11 of the Act when he
referred his request to the National
Department of Social
Development;
29.2
whether the applicant was furnished with the required information as
envisaged under PAIA. If so, whether
there was a need for this
application; and
29.3
whether the respondents are entitled to the order dismissing the
application with costs on a punitive scale
including or alternatively
with costs being awarded
de propríís.
THE
LAW
[30]
PAIA finds its existence in section 32 of the Constitution of the
Republic of South Africa
[1]
which reads:
“
(1)
Everyone has the right of access to –
(a)
Any information held by the State; and
(b)
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.
[31]
PAIA is the national legislation to give effect to the right of
access to information and is
the principal legal source that defines
the right of access to information.
[32]
In
Afriforum
v Emadlangeni Municipality
[2]
Makgoka J summarized the purpose of PAIA at paragraph 5 aptly as
follows:
“
The purpose of
PAIA is two-fold: to faster a culture of transparency and
accountability in public and private bodies by giving effect
to the
right of access to information; and to promote a society in which the
citizens have effective access to enable them to more
fully exercise
and protect their rights. In the preamble to PAIA, it is
recognized that the system of government in South
Africa before 27
April 1994, amongst others, resulted in secretive and unresponsive
culture in public bodies, which often lead
to an abuse of power and
human rights violations.”
[33]
Section 11 of PAIA reads:
“
11.
Right of access to records of public bodies
(1)
A requester must be given access to a record of a public body of –
(a)
that requester complies with all the 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.”
[34]
In
President
of the Republic of South Africa v M & G Media Ltd
[3]
the Constitutional Court reiterated that compliance with section 11
of PAIA by both the requester as well as the public body who
is in
custody of the information requested is peremptory.
[35]
The crux of the argument of the applicant is that he complied with
the requirements set out in
PAIA in its request for information and
thus followed the procedure laid down in the Manual of the National
Department of Social
Development, after its search for the Manual of
the Provincial Department yielded no positive results. It was
only when no
response was forthcoming that he lodged the internal
appeal. The applicant has further argued that the transfer of
the request
to the Provincial Department by the National Department,
purportedly acting in terms of section 20 of PAIA was well out of
time.
[36]
He also argued that without the furnishing of the information as to
when the monies were paid
and whether they were paid to legitimate
beneficiaries, the Department has failed to comply with the statutory
provisions of PAIA.
[37]
In
casu
the applicant, acting on the procedure as laid down in
the Manual of the National Department made his request to the
National Department.
The National Department did not advise him
to direct his request to the Provincial Department but instead
entertained his request
through Ms Eva Motau, who informed his
attorneys to direct the request relating to applicant’s salary
to herself. There
appears to be no reason why Ms Motau did not
inform the applicant to direct his request to the Provincial
Department or point him
to the provincial Manual which contains
information to whom the request should be directed.
[38]
I am inclined to agree with the applicant that upon the failure of
the National Department to
respond to his request at the expiration
of the 30 day period, as prescribed in section 25 of PAIA, he was
entitled to lodge an
internal appeal with the National Department
that was ceased with his request. I therefore do not agree with
the contention
that the internal appeal was premature.
[39]
The first and second respondent opted not to file answering
affidavits to the averments made
by the applicant against them.
In the result there is no explanation proffered as to why the
transfer of the request to the
Provincial Department was not done
within the 14 days period as required in section 20. Neither is
there any explanation
why the applicant was only notified on 02 July
2018 after the lodging of the internal appeal, that his request has
been transferred
to the Provincial Department.
[40]
The answering affidavit of the third and fourth respondent has also
not addressed these concerns
save to submit that what can be inferred
from the transfer letter of the National Department is that the
request was incorrectly
addressed to it. It may be helpful in
this regard to recite the letter which reads as follows:
“
We acknowledge
receipt of your request for information in terms of the Promotion of
Access to Information Act, 2000 (Act No. 2 of
2000 herein after
referred to as PAIA) for access to personal information of the
officials mentioned below in terms of section
18(1) of PAIA.
1.
----------------
2.
-----------------
3. Mr
Ntobeko Goodman mbilini
4.
--------------
5.
--------------
6.
--------------
7.
--------------
This
is to bring to your kind attention that the Deputy Information
Officer has considered your PAIA request and wish to inform
you that
the information requested is closely connected to the functioning of
the Eastern Cape Department of Social Development.
We have
therefore transferred your request to the Eastern Cape Department of
Social Development in terms of section 20(1)(b) of
the PAIA to the
address below . . .”
[41]
Nowhere in the letter is it expressly mentioned that the request was
incorrectly addressed to
the National Department. Instead the
writer of the letter chose to use the words as they appear in the Act
that the information
sought is ‘closely connected’ to the
Provincial Department of Social Development hence the transfer of the
request.
[42]
I also find it concerning that the Deputy Information Officer of the
third and fourth respondent
avers in his affidavit that the transfer
was communicated to the applicant’s attorneys by a letter dated
22 June 2018 whereas
the applicants were only advised of the transfer
by means of an email of Dorothy Mathebula dated 02 July 2018.
Once again
no reason was proffered as to why was applicant only
advised of the transfer approximately 11 days later, since the 22
June 2018
when the transfer letter was signed. This date of 22
June 2018 is very significant in the scheme of things since it was
the
expiry of the 30 days period within which a decision ought to
have been taken by the first and second respondents whether they are
granting the request or not. It is my view that had this letter
been dispatched as at the date on which it was signed, whilst
it
would still be out of time of the 14 days period within which the
transfer ought to have been done, this may have prevented
applicant
from lodging an internal appeal. In essence there may not have
been a need to lodge an internal appeal as it would
have been
nugatory to do so.
[43]
As alluded to above that the lodging of the internal
appeal by the
applicant was reasonable if regard is had to the time periods
prescribed in section 25 of PAIA. The third respondent
relied
on section 20(4) of PAIA, and argued that the time periods envisaged
in section 25 were incorrectly calculated by the applicant.
[44] Section
25(1) provides:
“
(1)
Except if the provisions regarding third party notification and
intervention contemplated
in Chapter 5 of this Part 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 wishes 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 requester 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
this Act 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.”
[45]
I find it concerning for the first respondent to keep
the applicant
waiting without making any decision on his request until the
expiration of the 30 days period and also failing to
transfer his
request on time upon realising that the information sought is in the
possession of another public body, but only do
so when the applicant
has taken a further step to lodge an internal appeal.
[46]
When the matter was still in the province of the National
Department
it is my view that section 20(4) did not arise. When the period
mentioned in section 25 expired, the deeming provision
in section 27
was triggered. Section 27 provides that “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.” It follows
that the next step following a deemed
refusal is an internal appeal
in terms of section 75. Up until when the applicant was
informed of the transfer of his request
the steps he took were
appropriate and in accordance with the provisions of PAIA.
[47]
I now turn to deal with what transpired after the request
was
transferred to the third respondent (Provincial Department) and when
the applicant was informed thereof. It has to be
borne in mind
that when the request was transferred the internal appeal had already
been lodged and was still pending. It
is common cause that the
third respondent received the transfer request on 4 July 2018 and
advised the applicant’s attorney
by letter dated 11 July 2018
that they will provide the requested information by not later than 2
August 2018. It is further
common cause that on 30 July 2018
applicant was furnished with the information through a letter dated
30 July attached in the founding
affidavit marked FA 21. In
addition the third respondent furnished the applicant’s
attorneys with an explanatory affidavit
as envisaged in section 23 of
the Act, in which it explained about the records that could not be
found despite a diligent search.
[48]
At this stage the matter had taken a different turn.
It is
clear that from this juncture onwards the applicant was now dealing
with the Provincial Department and this ought to have
had a bearing
on how the matter was further handled.
[49]
It is not in dispute that the thirty (30) days period
within which
the first respondent was required to decide on the internal appeal
was to end on 28 July 2018. However, on 2
July 2018, applicant
was advised that the request had been transferred to the Provincial
Department. Upon the Provincial
Department becoming aware of
the transfer, they did not sit on their laurels and folded their
arms. They addressed a letter
to applicant’s attorneys
acknowledging the transfer of the request from the National
Department as well as making an undertaking
in various letters that
they will furnish the applicant the requested information before 2
August 2018.
[50]
On 30 July 2018 before the 2 August on which the third
respondent had
set to furnish the information, the applicant was furnished with the
necessary information. The question arises
whether the
applicant had a reason to still pursue the appeal lodged with the
National Department in light of this development.
Section 77(3)
of the Act, provides that the relevant authority must decide on the
appeal as soon as reasonably possible but in
any event – within
30 day of receiving the internal appeal from the Information
Officer. If the 30 days lapses without
there being a decision
made, in terms of section 77(7) the internal appeal is deemed to have
been dismissed. The next available
remedy will be for the
applicant to seek relief by way of an application in terms of section
78 from the court.
[51] Section
78 of PAIA provides:
“
(1) A
requester or third party referred to in section 74 may only apply to
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 the 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 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)
. . .”
[52]
Admittedly, the transfer in terms of section 20 took place well
outside the 14 day period.
However, it has to be borne in mind
that when the transfer took place the
dies
within which a
decision for the internal appeal had to be made had not yet lapsed.
The applicant was now well aware that the
information sought is to be
obtained from the Provincial Department. I find it
inconceivable why the applicant saw it necessary
to keep the appeal
process running against the first and second respondent. This
is further complicated by the fact that
the appeal could not run
against the third and fourth respondents since it was not lodged with
them. Even if it was, it is
my view that it had for all intends
and purposes complied with the request, when it furnished the
applicant with the information
on 30 July 2018.
[53]
Before I express my view on how the applicant should have dealt with
this matter post the transfer
of the request, I find the remarks
expressed by Jolwana J in
Ndiphiwe
Paul v the MEC for Health, Eastern Cape and Others
[4]
very instructive where the learned Judge stated: “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.
”
(my underlining for emphasis) The principle laid down
above, in conjunction with the objects of PAIA should
be borne in
mind by both the requester and the public or private body from which
the information is sought.
[54]
What is borne out in the facts of this matter is that the court
application was precipitated
as a result of the inadequate
information received by the applicant from the Provincial
Department. The inadequacy or otherwise
of the information that
was furnished can be better explained when regard is had to the
founding affidavit wherein the applicant
states that the information
sought refers to deductions made from his salary and paid to
beneficiaries that are unbeknown to him
and he is not indebted to
those beneficiaries. Neither has he authorised the deductions
from his salary.
[55]
However, applicant admits that he has been furnished with copies of
Emoluments Attachment Orders
(EAO’s) that disclosed the names
of the beneficiaries. Accompanied to the EAO’s were the
payslips which showed
the deductions from the salary of the
applicant. Notwithstanding this information the applicant
insists that it still requires
the printouts of the deductions made
to assist him in ascertaining how much has been deducted, as well as
any letters from the
judgment creditors in which the Department is
advised of the breakdown of payments and the outstanding balances.
According
to the applicant he seeks the letters from creditors on the
breakdown of payments in order for him to know whether the deductions
are lawful. The failure of the third and fourth respondent, so
he argues, to furnish the outstanding information is a demonstration
of a refusal which attracts the step as envisaged in section 77(7) of
PAIA.
[56]
Upon receipt of the Emolument Attachment Order / garnishees, there
appears to be nothing preventing
the applicant from either
approaching the firm of attorneys mentioned in the orders or approach
the clerk of the court from where
the order(s) was issued.
Similarly I cannot find any reason why the applicant is unable to
compute and calculate the amount
that has been deducted from his
payslips which were made available to him. I also fail to
appreciate the reasoning of applicant
that he will only be able to
ascertain the lawfulness or otherwise of the deductions upon receipt
of correspondence which sets
out the breakdown of payments and
balances that are still outstanding.
[57]
This brings me to the question whether the allegation is well founded
that the third and fourth
respondents demonstrated a refusal to grant
the request. If the conduct of the third and fourth respondent
is viewed objectively,
there is no support for the contention that
the request had been refused. Neither do I find that the
explanatory note made
in terms of section 23 was an attempt to
frustrate and deny the applicant the information he required. I
therefore do not
agree with the assertion that the conduct of the
third and fourth respondents was demonstrable of a refusal of the
request.
[58]
In the result I find that this application was unwarranted and ought
to be dismissed.
[59]
I now turn to deal with the aspect of costs. In the initial
stages of this matter the applicant
acted in accordance with the
provisions of PAIA namely section 11. The tardiness of first
and second respondents can undoubtedly
not be countenanced in their
ineptness of handling of the request. However, when the request
was transferred to the Provincial
Department, the matter had another
complexion which required in my view, for the applicant to change
course and not pursue the
internal appeal which was no longer
necessary. It was ill-considered for the applicant to pursue
the appeal, and equally
imprudent for his attorney to pursue a court
application under those circumstances. The sensible approach
was for the applicant
to deal with the Provincial Department only and
according it the time frames as provided in section 25(1) of PAIA.
In my
view, it is only when the applicant did not derive any joy form
the Provincial Department or when it had ignored all its obligations
as prescribed in PAIA, would it be necessary for applicant to launch
this court application.
[60]
Mr Paterson SC for the third and fourth respondent argued that the
conduct of the applicant’s
attorney warrants an order for costs
de bonis proprίίs
.
[61]
In
Multi-Links
Telecommunications Ltd v Africa Prepaid Service Nigeria Ltd, Telkom
SA Soc Limited v Blue Label Telecoms Limited &
Others
[5]
,
the principles relating to costs
de
bonis proprίίs
were re-stated as follows:
“
[34]
Costs are ordinarily ordered on the party and party scale. Only
in exceptional circumstances
and pursuant to a discretion judicially
exercised is a party ordered to pay costs on a punitive scale.
Even more exceptional
is an order that a legal representative should
be ordered to pay the costs out of his own pocket . . . [T] her
obvious policy consideration
underlying the court’s reluctance
to order costs against legal representatives personally, is that
attorneys and counsel
are expected to pursue their client’s
rights and interest fearlessly and vigorously without undue regard
for their personal
convenience. In that context they ought not
to be intimidated either by their opponent or even, I may add, by the
court.
Legal practitioners must present their case fearlessly
and vigorously, but always within the context of set ethical rules
that
pertain to them, and which are aimed at prevailing practitioners
from becoming parties to deception of the court. It is in
this
context that society and the courts and the professions demand
absolute personal integrity and scrupulous honesty of each
practitioner . . .
[35]
It is true that legal representatives sometimes make errors of law,
omit to comply fully with
the rules of the court or err in other ways
related to the conduct of the proceedings. This is an everyday
occurrence.
This does not, however,
per se
ordinarily
result in the court showing its displeasure by ordering the
particular legal practitioner to pay costs from his own pocket.
Such an order is reserved for conduct which substantially and
materially deviates from the standard expected of the legal
practitioner,
such as their clients, the actual parties to the
litigation, cannot be expected to bear the costs, or because the
court feels compelled
to mark its profound displeasure at the conduct
of an attorney in any particular context. Examples are,
dishonesty, abstraction
of the interest of justice, irresponsible and
grossly negligent conduct, litigating in a reckless manner,
misleading the court
and gross incompetence and a lack of care.”
[62]
In
Addendorffs
Boerderge v Shabalala & Others
[6]
Mathopo
JA agreed with what was said by Le Grange J in
Thunder
Cats Investments 49 (Pty) Ltd & Others v Fenton & Others
2009 (4) SA 138(C)
at para 30 where it was said “an order to
hold a litigant’s legal practitioner liable to pay costs of
legal proceedings
is unusual and far-reaching. Cost orders of
this nature are not easily entertained and will only be considered in
exceptional
circumstances.”
[63]
Whilst the attorney of the applicant did not acquit himself with the
necessary astuteness and
cannot escape criticism on how he handled
this matter, I am not persuaded that his conduct warrants a punitive
cost order.
It cannot be said that he displayed gross
negligence or recklessness or gross incompetence to attract a
punitive cost order.
In my view, it is sufficient to express my
displeasure in the lack of astuteness on his part without necessarily
ordering a punitive
cost order.
[64]
That being of out the way, I have to consider whether the applicant
as an unsuccessful party
needs to be mulcted with the costs of this
application.
[68]
Relying on the principle laid down by the Constitutional Court in
Affordable
Medicines Trust and Others v Minister of Health and Others
[7]
and
Biowatch
Trust v Registrar, Genetic Resources and Others
[8]
this is a matter where the applicant as an unsuccessful party ought
not to be mulcted with costs. In my view, this is a matter
where an appropriate cost order is for each party to pay its own
costs.
ORDER
[65]
In the result the following order is made.
1.
The application is dismissed.
2.
Each party to pay its own costs.
_________________
V
NQUMSE
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Appellant: Mr
Du Plessis
Instructed
by:
NJ Du Plessis & Associates Inc.
No.
6 Batting road
Beacon
Bay
EAST
LONDON
For
the 3 & 4 Respondents:
Adv. TJM Paterson, SC and Adv. M Mayekiso
Instructed
by: The
State Attorney
No.
17 Fleet Street
EAST
LONDON
Date
Heard:
6
June 2019
Judgment
Delivered:
10
September 2019
[1]
Act 108 of 1996.
[2]
Afriforum
v Emadlageni Municipality
Case
No. (A286/2015) [2016] ZAGPPHC 1222 (27May 2016)
[3]
President
of the Republic of South Africa and Others v M & G Media Ltd
2012(2) SA 50 (CC).
[4]
Paul
v The MEC, Health, Eastern Cape Provincial Government and Others;
Mbobo v MEC, Health, Eastern Cape Provincial Government
and Others;
Ncumani v MEC, Health, Eastern Cape Provincial Government and Others
(5031/2018,
5108/2018, 5689/2018 [2019] ZAECMHC (29 March 2019).
[5]
[2003] 4 All SA 346 (GNP).
[6]
Addendorffs
Boerderge v Shabalala & Others
997/2015)
[2017] ZASCA 37
(20 March 2017).
[7]
.
Affordable
Medicine Trust and Others v Minister of Health and Others
2006(3)
SA 505 (SCA).
[8]
Biowatch
Trust v Registrar, Genetic Resources and Other
2009 (6) SA 232
(CC).