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[2019] ZAECMHC 18
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Paul v MEC for Health,Eastern Cape Provincial Government and Others ; Mbobo v MEC for Health ,Eastern Cape Provicial Government and Others; Ncumani v MEC for Health, Eastern Cape Province and Others (5031/2018; 5108/2018; 5689/2018) [2019] ZAECMHC 18; [2019] 3 All SA 879 (ECM) (29 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICAN
EASTERN
CAPE LOCAL DIVISION; MTHATHA
CASE NOs. 5031/2018;
5108/2018;
5689/2018
In
the matter between:
NDIPHIWE
PAUL APPLICANT
vs
THE
MEC FOR HEALTH, EASTERN CAPE
PROVINCIAL
GOVERNMENT 1
ST
RESPONDENT
CHIEF
EXECUTIVE OFFICER,
MTHATHA
GENERAL HOSPITAL 2
ND
RESPONDENT
DEPUTY
INFORMATION OFFICER,
MTHATHA
GENERAL HOSPITAL 3
RD
RESPONDENT
And:
SIMANGELE
MBOBO APPLICANT
vs
THE
MEC FOR HEALTH, EASTERN CAPE
PROVICIAL
GOVERNMENT 1
ST
RESPONDENT
INFORMATION
OFFICER,
BEDFORD
ORTHOPEDIC HOSPITAL, MTHATHA 2
ND
RESPONDENT
And:
KANGELWA
NCUMANI APPLICANT
vs
MEC
FOR HEALTH,
EASTERN
CAPE PROVINCE 1
ST
RESPONDENT
SUPERINTENDENT
GENERAL,
DEPARTMENT
OF HEALTH,
EASTERN
CAPE PROVINCE,
DR
THOBILE
MBENGASHE 2
ND
RESPONDENT
THE
DESIGNATED INFORMATION OFFICER,
BUTTERWORTH
HOSPITAL 3
RD
RESPONDENT
JUDGMENT
JOLWANA
J
Introduction
[1]
The applicants approached this court in terms of the Promotion of
Access to Information Act (PAIA)
[1]
seeking certain relief against the respondents. Principally the
applicants sought orders directing the respondents to furnish
them
with their hospital records to enable them to institute actions for
damages arising from alleged negligent treatment at various
hospitals. These matters together with other matters on the
roll were initially heard by the Judge President in motion court
who,
acting in terms of
section 14
of the
Superior Courts Act 10 of
2013
[2]
, directed that they
shall be heard by a specially constituted court. These matters
were selected for hearing as they exhibit
features common to all the
applications.
[2]
The decision to constitute a special court was, in part, informed by
the fact that PAIA applications in this Division form the
bulk of the
court rolls in most, if not all motion court sittings. Very few
of them comply with PAIA requirements resulting
in most of the
matters being removed from the roll, only to be re-enrolled without
amendment. This is obviously an untenable
situation which the
Judge President determined would best be addressed by a special court
providing comprehensive guidance in respect
of PAIA applications.
[3]
This judgment only deals with PAIA applications in respect of the
right of access to records of public bodies.
The
constitutional and legal framework for PAIA applications.
[4]
Section 32 of the Constitution
[3]
provides thus:
“
32 (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.”
[5]
PAIA is the legislation envisaged in section 32 (2) of the
Constitution. It seems to me that ordinarily applications in
terms of PAIA need not refer to section 32 or any other provision of
the Constitution for that matter. Referring to or quoting
the
Constitution is to complicate what should be a simple and standard
court application for relief directing access to records
of a public
body where access has either been refused or the so called deemed
refusal (discussed elsewhere in this judgment) is
applicable.
[6]
I am fortified in this view by the sentiments expressed 15 years ago
in the unanimous decision of the Constitutional Court in
Bato
Star Fishing v Minister of Environmental Affairs and Tourism
[4]
.
In the context of the Promotion of Administrative Justice Act
(PAJA)
[5]
the court stated that:
“
[25] The
provisions of section 6 divulge a clear purpose to codify the grounds
of judicial review of administrative action as defined
in PAJA.
The cause of action for the judicial review of administrative action
now ordinarily arises from PAJA, not from the
common law as in the
past. And the authority of PAJA to ground such causes of action
rests squarely on the Constitution.
It is not necessary to
consider here causes of action for judicial review of administrative
action that do not fall within the
scope of PAJA. As PAJA gives
effect to section 33 of the Constitution, matters relating to the
interpretation and application
of PAJA will of course be
constitutional matters.”
[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.
The
road map in PAIA applications
[9]
The starting point in PAIA applications is section 11 of PAIA which
reads:
“
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.”
[10]
One of the things which stand out in section 11 is that compliance
with the procedural requirements of PAIA is not optional.
If
any of the procedural requirements is not complied with, the
requester is not entitled to the record. The court is similarly
not at liberty to waive the peremptory provisions of section 11(1).
On a proper construction of section 11(1) it is clear
that both the
requester’s entitlement to be given access to a record of a
public body and the obligation imposed on the requester
to comply
with all the procedural requirements of PAIA are couched in
peremptory terms. In the absence of full compliance
with the
procedural requirements of PAIA the information officer is entitled
to refuse access and to not provide the record.
The court may
also not order the provision of the record to the requester unless it
is satisfied that there has been full compliance
with all the
procedural requirements. In
President
of the Republic of South Africa v M & G Media Ltd
[6]
,
the Constitutional Court explained the provisions of section 11 in
the following terms:
“
[9] 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
“must” be given access to the report
so
long as the request complies with the procedures outlined in the
Act
[7]
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.”
[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.
[12]
Section 14(1) provides:
“
(1) Within six
months after the commencement of this section or the coming into
existence of a public body, the information officer
of the public
body concerned must compile in at least three official languages a
manual containing –
(a) a
description of its structure and functions;
(b) 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 deputy information officer of the body designated in terms of
section 17 (1);
(c) a
description of the guide referred to in section 10, if available, and
how to obtain access to it;
(d)
sufficient detail to facilitate a request for access to a record of
the body, a description of the subjects on which
the body holds
records and the categories of records held on each subject;
(e) the
latest notice, in terms of section 15 (2), if any, regarding the
categories of records of the body which are
available without a
person having to request access in terms of this Act;
(f) a
description of the services available to members of the public from
the body and how to gain access to those
services;
(g) a
description of any arrangement or provision for a person (other than
a public body referred to in paragraph (a)
or (b) (i) of the
definition of ‘public body’ in section 1) by
consultation, making representations or otherwise, to
participate in
or influence –
(i) the formulation
of policy; or
(ii) the exercise
of powers or performance of duties, by the body;
(h) a
description of all remedies available in respect of an act or a
failure to act by the body; and
(i)
such other information as may be prescribed.”
[13]
Recently Mbenenge JP had occasion to consider the provisions of
section 14 of PAIA in
Makhambi
v MEC for Health, Eastern Cape and Another
[8]
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.
[16]
Section 18 of PAIA provides for the manner in which the request for
access to information is to be made as follows:
“
18 (1) 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.
(2) The form for a
request of access prescribed for the purposes of subsection (1) must
at least require the requester concerned
–
(a) to provide sufficient
particulars to enable an official of the public body concerned to
identify –
(i) the record or records
requested; and
(ii) the requester;
(b) to indicate
which applicable form of access referred to in section 29(2) is
required.
(c) to state
whether the record concerned is preferred in a particular language;
(d) to
specify a postal address or fax number of the requester in the
Republic;
(e) if, in
addition to a written reply, the requester wishes to be informed of
the decision on the request in any other
manner, to state that manner
and the necessary particulars to be so informed; and
(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 information officer.”
[17]
In order to comply with section 18 proper and full completion of the
prescribed form is required. Where a public body
has designed
and published its own form it follows that the request must be made
in that prescribed form. A covering letter
cannot be used to
supplement information that must be contained in the prescribed
form. Alternatively, a request can be made
by completing form
A
[9]
which is a form that
applies to all public bodies and is designed in compliance with all
the requirements of section 18.
[18]
Only once a proper request for access to the record in the prescribed
form has been sent to the correct information officer
at the address
reflected in the manual can the provisions of section 25(1) of PAIA
kick in. Section 25(1) provides that,
as soon as reasonably
possible but within 30 days of receiving a request for access to
information, an information officer must
decide whether to grant the
request or not and notify the requester about his or her decision.
Only after the 30 day period
has elapsed will the deeming provisions
of section 27 apply. 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.”
[19]
The provisions of sections 25 and 27 are very important because more
often than not requests for access are ignored by information
officers. On a proper understanding of the relationship between
sections 25 and 27 it is not necessary for numerous letters
to be
sent to an information officer reminding him or her to respond to the
request for access. For the same reason, in a
court application
in terms of section 78 the prayer frequently inserted in the notice
of motion for the court to direct the information
officer to make a
decision is misplaced. This is so because after the 30 day
period has elapsed and the information officer
has not responded,
there is a decision - that of a deemed refusal in terms of section
27.
[20]
The next step is that of an internal appeal. The process for an
internal appeal is provided for in sections 75 and 76
of PAIA.
The internal appeal process is triggered either in terms of section
25(3), in which case the information officer
must provide adequate
reasons, or in terms of section 27 which is a deemed refusal where a
period of 30 days has elapsed and there
has been no response from the
information officer.
[21]
Section 75 provides as follows;
“
75 Manner of
internal appeal and appeal fees
(1) An internal
appeal –
(a) must
be lodged in the prescribed form –
(i) within 60 days;
(ii) if notice to a
third party is required by section 49(1)(b), within 30 days after
notice is given to the appellant of the decision
appealed against or,
if notice to the appellant is not required, after the decision was
taken;
(b) 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;
(c) must
identify the subject of the internal appeal and state the reasons for
the internal appeal and may include any
other relevant information
known to the appellant;
(d) if,
in addition to a written reply, the appellant wishes to be informed
of the decision on the internal appeal
in any other manner, must
state that manner and provide the necessary particulars to be so
informed.
(e) if
applicable, must be accompanied by the prescribed appeal fee referred
to in subsection (3); and
(f)
must specify a postal address or fax number
(2) (a) If an
internal appeal is lodged after the expiry of the period referred to
in
subsection (1)
(a), the relevant authority must, upon good cause shown, allow the
late lodging of the internal appeal.
(b) If that
relevant authority disallows the late lodging of the internal appeal,
he or she must give notice of that decision
to the person that lodged
the internal appeal.
(3) (a) A requester
lodging an internal appeal against the refusal of his or her request
for access must pay the prescribed
fee (if any).
(b) If the
prescribed appeal fee is payable in respect of an internal appeal,
the decision on the internal appeal may be deferred
until the fee is
paid.
(4) As soon as reasonably
possible, but in any event within 10 working days after receipt of an
internal appeal in accordance with
subsection (1), the information
officer of the public body concerned must submit to the relevant
authority –
(a) the internal appeal
together with his or her reasons for the decision concerned; and
(b) if the internal
appeal is against the refusal or granting of a request for access,
the name, postal address, phone and fax number
and electronic mail
address, whichever is available, of any third party that must be
notified in terms of section 47 (1) of the
request.”
[22]
It is clear from the provisions of section 75 (1) that the appeal
must be sent to the information officer. There is therefore
no
legal basis for sending the appeal to any other person or the MEC as
is often done in matters that come before this court.
Once the
information officer receives an internal appeal, subsection (4) gives
him or her a maximum of 10 working days thereafter
to submit to the
relevant authority the internal appeal together with his or her
reasons for the particular decision.
[23]
It follows that where an internal appeal is sent to the MEC or any
authority other than the information officer concerned,
the latter is
denied an opportunity to follow the process provided for in
subsection (4). That process includes the submission
of his or
her reasons for the refusal, which must be adequate reasons, sending
those together with the appeal to the relevant authority.
Where
an internal appeal is sent directly to the relevant authority the
latter is simply unable to apply his or her mind
to the appeal itself
together with the reasons for the refusal and decide the matter
accordingly.
[24]
Where the appeal has been lodged in a manner contrary to the clear
provisions of section 75 (1) it follows that no valid appeal
has been
lodged. In a court application in terms of section 78 in which
the appeal was sent, not to the information officer,
but to the MEC
or another authority the court is obliged to dismiss the
application. That this is so is made even more clear
when the
provisions of section 77 (1) (a) and (b) are considered.
Section 77 reads as follows:
“
77 (1) The
decision on internal appeal must be made with due regard to –
(a) the particulars
stated in the internal appeal in terms of section 75(1) (c)
(b) any reasons submitted
by the information officer in terms of section 75 (4) (a)”
[25]
The reasons submitted by the information officer to the relevant
authority form part of the information that must serve before
the
relevant authority. In my view the appeal authority has no
jurisdiction to consider and decide on an appeal in which
the
information officer has been side-lined and the appeal was lodged
directly with that authority.
[26]
In terms of section 77(3) the relevant authority must decide on the
appeal as soon as reasonably possible but in any event
within 30 days
of receiving the internal appeal from the information officer.
If this period of 30 days elapses without the
relevant authority
having decided the appeal and informed the requester about his or her
decision, section 77 (7) deems that internal
appeal to have been
dismissed.
[27]
It is only the dismissal of the internal appeal by the relevant
authority with adequate reasons being provided together with
the
notice of dismissal or the deemed dismissal in terms of section 77(7)
that paves the way for a court application in terms of
section 78.
[28]
Section 78 reads in part as follows:
“
78 Applications
regarding decisions of information officers or relevant authorities
of public bodies or heads of private bodies.
(1) A requester or third
party referred to in section 74 may 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 on 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)…”
[29]
Only a requester who falls into one of the categories mentioned in
section 78 (2) may approach court for an appropriate relief.
PAIA applications have been authoritatively described in our courts.
In
President
of the Republic of South Africa and Another v M & G Media Ltd
[10]
the Constitutional Court said:
“
[13] Court
proceedings under PAIA are governed by sections 78 to 82.
Section 81 provides that proceedings under PAIA are civil
proceedings
and the rules of evidence applicable in civil proceedings apply.
The burden of establishing that the refusal
of access to information
is justified under the provisions of PAIA rests on the state or any
other party refusing access.
Section 81 provides:
“
(1) For the
purposes of this chapter proceedings on application in terms of
section 78 are civil proceedings.
(2) The rules of evidence
applicable in civil proceedings apply to proceedings on application
in terms of section 78.
(3) The burden of
establishing that –
(a) the refusal of a
request for access; or
(b) any decision taken in
terms of section 22, 26 (1), 29 (3), 54, 57 (1) or 60, complies with
the provisions of this Act rests
on the party claiming that it so
complies.”
[14] In proceedings under
PAIA, a court is not limited to reviewing the decisions of the
information officer or the officer who
undertook the internal
appeal. It decides the claim of exemption from disclosure
afresh, engaging in a
de novo
reconsideration of the merits.
The evidentiary burden borne by the state pursuant to section 81(3)
must be discharged, as
in any civil proceedings, on a balance of
probabilities.”
[30]
In
Transnet
Ltd and Another v SA Metal Machinery Co. (Pty) Ltd
[11]
Howie P expressed the following sentiments which, in my view, remain
the correct legal exposition on proceedings in terms of section
78:
“
[24]
As to the contested issues, it is convenient to begin with a point
raised by the appellant which is really jurisdictional in
nature.
It contended that in an application under s 78 the relevant material
on which a court had to make its decision was
limited to such
material as was before the information officer when access was
refused. That cannot be right. A court
application under
the Act is not the kind of limited review provided for, for example
under the Promotion of Administrative Justice
Act 3 of 2000. It
is much more extensive. It is a civil proceeding like any
motion matter, in the course of which both
sides (and the third
party, if appropriate) are at liberty to present evidence to support
their respective cases for access and
refusal. As the present
matter serves to illustrate, the parties’ respective cases in
such an application will no doubt
in most instances travel beyond the
limited material before the information officer. That
conclusion is reinforced by the
Legislature’s having catered
for the presentation of evidence and the resolution of disputes of
fact by reference to an
onus
of proof. Those
provisions would have been unnecessary if the suggested limitation
applied. Moreover, it is unlikely
that a Court, acting under
section 82, would be sufficiently informed so as to be in a position
to make a just and equitable order
were the limitation to apply.”
[31]
While it is so that section 78 proceedings are civil proceedings like
any other with the normal and usual Uniform Rules being
applicable
and the manner in which factual disputes are dealt with being the
same as in any other application under Rule 6 of the
Uniform Rules,
there is one very important proviso. That very important
proviso is that unlike all other applications in
terms of Rule 6 in
which Form 2 (a) is applicable, there is a specific form of the
Notice of Motion prescribed specifically for
section 78 court
applications. Rules 2 and 3
[12]
of the PAIA rules read as follows:
“
Procedure in an
application to Court in terms of the Act
2. (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 procedure 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.
Applications
3. (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
processes;
(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 subrule (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.”
[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.
The
facts
1.
Ndiphiwe Paul v MEC for Health and two Others
:
[34]
Mr Paul was involved in a motor vehicle accident on 26 December 2017
in Ngqeleni as a result of which he received medical care
and
treatment at Mthatha General Hospital. It is in respect of that
medical care and treatment that he sought access to the
relevant
medical records. His attorney addressed two letters dated 18
June 2018, one to the Chief Executive Officer of Mthatha
General
Hospital (second respondent) and another to the Deputy Information
Officer of Mthatha General Hospital (third respondent).
The
identity of the third respondent vis-à-vis the second
respondent is not clear, nor is it clear why both of them are
cited,
assuming they are different officials.
[35]
In both letters the correct prescribed Form A – Request for
access to record of a public body is completed and attached.
The form is correctly filled in with all the necessary details.
It appears that there was no response to this request,
which was sent
by registered mail to the Chief Executive Officer, Mthatha General
Hospital, Private Bag X5014, Mthatha, 5099.
The address used
for the third respondent is the same and the letter was posted in
like manner.
[36]
Annexure NP1 referred to in the founding affidavit is a copy of the
applicant’s identity document. However, in
the
supplementary affidavit annexure NP1 is a few pages of the manual.
This is not explained in the supplementary affidavit.
Furthermore,
the address reflected in the attached pages of the manual is the
physical address of the second and third respondents
which is
different to the address reflected in the request for access form,
the proof of postage and the covering letter.
The supplementary
affidavit does not deal with these discrepancies. It also does
not explain where the address to which the
letters were posted, being
Private Bag X5014, Mthatha, 5099 was taken from as it does not appear
in the manual at all.
[37]
The applicant alleges that a period of 30 days having elapsed with no
response having been received from either the second
or third
respondent he regarded the request as having been refused in terms of
section 27 of PAIA, the so called deemed refusal.
He thereupon
lodged an internal appeal with the first respondent.
[38]
In
Makhambi
[13]
the court stated that section 14 of PAIA must be read together with
section 16. I agree and I add thereto Rule 3 of the Rules
of
Procedure for Application to Court in terms of PAIA. Without
derogating from the importance of the other provisions of
PAIA and
the PAIA Rules I must emphasize that the three pieces of legislation,
namely, sections 14 and 16 and Rule 3 are inseparable,
conjoined
triplets in all cases where a section 78 application is made.
This is not to say that they must be specifically
referred to in the
affidavit but it must appear from the founding affidavit that there
is compliance therewith as explained above.
[39]
In this matter the appeal was sent to the first respondent.
This might explain why the first respondent is cited in the
first
place. The reason given in the affidavit for citing the first
respondent is said to be the fact that in terms of section
74 (1) of
PAIA the first respondent is the relevant authority for decisions on
subsequent appeals. Whilst this may be so,
section 75 (1) (b)
requires the internal appeal to be delivered or sent to the
information officer. In this case the internal
appeal was sent
to the first respondent contrary to the clear provisions of PAIA.
It follows that the internal appeal was
incorrectly lodged and
therefore PAIA was not complied with in so far as the appeal
procedure is concerned, a fatal defect.
[40]
This brings me to the citation of the first respondent as a party to
these proceedings. Besides the fact that a proper
appeal being
properly lodged should not be lodged with the first respondent, Rule
3 (1) provides:
“
An
application contemplated in section 78 of the Act must be brought on
notice of motion that must correspondent substantially in
accordance
with the form set out in the Annexure to these rules,
addressed
to the information officer
[14]
or the head of a private body, as the case may be.”
There
is simply no basis for citing the first respondent in an application
contemplated in section 78 of PAIA. Mr Maliwa,
counsel for the
applicant tried to make some argument based on sections 1 and 2 of
the State Liability Act
[15]
.
Sections 1 and 2 of that Act provide:
“
1. Claims
against the State cognizable in any competent court
Any claim against the
state which would, if that claim had arisen against a person, be the
ground of an action in any competent
court, shall be cognizable by
such court, whether the claim arises out of any contract lawfully
entered into on behalf of the State
or out of any wrong committed by
any servant of the State acting in his capacity and within the scope
of his authority as such
servant.
2.
Proceedings to be
taken against executive authority of department concerned
(1) In any action or
other proceedings instituted by virtue of the provisions of section
1, the executive authority of the department
concerned must be cited
as nominal defendant or respondent.
(2) …”
Upon even a cursory
reading of these two sections it becomes immediately clear that the
executive authority of the department can
be and must be cited as
nominal defendant or respondent in two instances only. The
first instance is when a claim arises
out of any contract lawfully
entered into on behalf of the State. The second instance or
cause of action is any wrong committed
by any servant of the State
acting in his capacity and within the scope of his authority as such
servant.
[41]
In my view, PAIA applications are neither founded on any contract nor
on any wrong committed. They are an enforcement
of a
constitutional right of access to information to which, unless the
State is legally justified in refusing access to the required
record,
citizens must ordinarily and without having to resort to court be
given access. It might be that the record, once
received, is
intended to be used to found or prove a claim based on a contract or
a wrong committed by a State official.
However, PAIA
applications are not concerned with what the information is to be
used for. That is the very reason why section
11 (3) provides:
“
11
(3) any 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.”
[42]
Even the request for access form (Form A) does not call for reasons
to be given because they are not required. What is
required is
sufficient particulars to enable an official of the public body
concerned to identify both the record or records required
as well as
the requester.
[43]
Therefore any reliance on the State liability Act for citing the
executive authority of a public body is, in the first instance
misplaced. In the second instance, it seems to be based on a
propensity to confuse PAIA applications with applications in
respect
of PAJA
[16]
. These two
types of applications are different and should not to be conflated or
confused. PAIA applications must comply
fully with PAIA and any
provisions or procedure under PAJA are of no assistance in the
pursuit of relief under PAIA.
[44]
During argument submissions were made suggesting that the citation of
and the relief sought against the first respondent is
based on the
Eastern Cape Department of Health Promotion of Access to Information
Manual
[17]
. This
submission is similarly misplaced. In part that manual deals
with the appeal procedure as follows:
“
7.4 Appeal
Procedure
An internal appeal in
terms of Section 74 and 75 of the Act must be lodged in a prescribed
form (Form B) within 60 days of the decision
by the Deputy
Information Officer.
·
The internal appeal in the prescribed form must be delivered or sent
to
the Head of Department and/or Member of Executive Authority of the
Eastern Cape Department of Health in its original appeal form
together with an appeal fee supporting the original.
·
Note that the Office of the Member of Executive Authority may
therefore
not be the first port of call or contact when sending the
initial request for records. This office is to be utilized only
for the purposes of receipt in respect of internal appeal, where the
requester is not aware to whom the internal appeal should
be
delivered.”
[45]
The first point to be made is that to the extent that the manual
suggests that an internal appeal can be delivered or sent
to the
Executive Authority like the first respondent, it is incorrect.
The drafters clearly misconstrued the provisions of
section 75 (1)
(b), clear as they are. To the extent that the manual makes
provisions which contradict PAIA, it is invalid
and therefore its
guidance in that regard may not be countenanced. It may
therefore not be used as justification for non-compliance
with PAIA
in sending off the appeal; nor can it be used as the basis for citing
the Executive Authority or seeking relief against
him or her.
[46]
In addition to seeking relief that the second and third
respondents be directed to furnish him with the relevant hospital
records, the applicant also seeks other forms of relief that have
nothing to do with PAIA. For instance relief is sought
for the
exemption from exhausting internal remedies. Being exempted
from exhausting internal remedies is not provided for
in PAIA and the
applicant does not explain in his affidavit the basis on which this
relief is sought. The internal remedies
from which the
applicant seeks to be exempted are not disclosed nor is the basis for
seeking to be exempted. The applicant
refers to section 75
without specifying on which of the four subsections this relief is
based. In any event the heading to
section 75 refers to the
manner of internal appeal and appeal fees. As the heading
clearly anticipates, all the subsections
deal with the process and
procedure of lodging of an internal appeal. There is no
suggestion of a possible exemption, certainly
not in section 75.
[47]
The applicant also seeks relief directing the respondents to furnish
adequate reasons for the refusal. This is another
example of
incompetent relief based on a misconstruction of PAIA in general and
the relief competent in terms of section 82 in
particular.
Section 82 reads as follows:
“
82 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 the 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.”
[48]
None of the relief contemplated in section 82 includes the
respondents being directed to furnish adequate reasons for a refusal
nor can that relief be based on a concept of just and equitable
orders that a court may grant. This is more so in an
application
such as this one in which no reasons were provided
whatsoever and PAIA deems the application for access to have been
refused.
2.
Simangele Mbobo v The MEC for Health, Eastern Cape Provincial
Government and Another
.
[49]
The notice of internal appeal is on its face addressed to the
Information Officer, Bedford Orthopeadic Hospital, Private Bag
X5106,
Mthatha 5100. There is no explanation in the affidavit why this
address has been used. According to page 11
of the manual, the
address for the second respondent is Bedford Orthopaedic Hospital,
Private Bag X5103, Mthatha 5099. Clearly
the address used on
the internal appeal form (Form B) is not the address reflected in the
manual. However, at paragraph 11
of the supplementary affidavit
the applicant says he sent the internal appeal to the first
respondent. The internal appeal
as it appears at page 28 of the
papers is addressed, not to the first respondent but to the second
respondent. On the applicant’s
own showing she is not
entitled to the relief sought as the internal appeal was not sent to
the second respondent, if her supplementary
affidavit is anything to
go by.
[50]
The covering letter of the internal appeal is addressed to the first
respondent at Private Bag X 0038, Bhisho, 5605.
Proof of
postage by registered mail at page 34 of the papers shows that the
letter is addressed to the same address. None
of these glaring
discrepancies is dealt with in the supplementary affidavit. It
is also not explained why there is no proof
of postage of the notice
of internal appeal (form B) to the Information Officer of Bedford
Hospital to whom on the face of the
form, the appeal is addressed.
After all, it is to the second respondent that the notice of internal
appeal must be sent.
[51]
In the notice of motion the following relief is sought:
“
1. The second
respondent be and is hereby directed to consider and decide upon the
applicant’s request for access to the copies
of, but not
similar to, patient’s admission records, history, clinical
findings and doctor’s progress notes, x-ray
results,
anaesthetic, operation and recovery room records, in-patient
medication management chart, case sheet, continuation sheet,
hospital
clinical card including discharge summary and thereafter notify the
applicant in accordance with
section 25
(1) (b) of the
Promotion of
Access to Information Act 2 of 2000
, through her attorneys of record,
of the decision, within 30 (thirty) days from the date of service of
this order by the applicant’s
attorneys upon the second
respondent.
2. In the event of the
second respondent refusing to furnish the applicant with the
requested genus of documents specified in paragraph1
supra
,
the second respondent be and is hereby directed to furnish the
applicant with adequate reasons, through her attorneys of record
within 30 [Thirty] days from the date of service of this order by the
applicant’s attorneys upon the second respondent.
3. The applicant be and
is hereby exempted, in the interest of justice, from first exhausting
such internal remedies as may exist
in law.
4. The respondents be and
are hereby directed to pay costs of this application on a party and
party scale, jointly and severally,
the one paying the other to be
absolved from liability.
5. Granting the applicant
such further and/or alternative relief.”
[52]
All of these prayers, save for prayer 4 are incompetent. Prayer
4 wrongly seeks costs against more than one respondent.
It
follows that even if the papers had been properly drawn, which they
were not, and did not suffer from the many fatal defects
which are
present, the application would still fail because the relief set out
in all the prayers may not be granted in a PAIA
application.
3.
Kangelwa Ncumani v The MEC for Health, Eastern Cape & 2 Others.
[53]
In this matter I will not deal with the citation of the parties as it
was the same as in the other two applications and was
sufficiently
dealt with therein. Although some competent relief is sought,
the applicant also sought some incompetent relief.
I do not
intend to deal with this aspect as it has been sufficiently dealt
with in the other applications.
[54]
At paragraph 7.1 of the founding affidavit, the applicant makes a
bald allegation that the third respondent is the designated
information officer in terms of the manual. Thereafter the
whole manual which consists of 33 pages is annexed. This
is
simply wrong and is to be frowned upon. This court’s
decision in
Makhambi
makes it clear that all the relevant
facts which are gleaned from the manual must be alleged in the
affidavit. Simply annexing
the whole manual is not only poor
draftsmanship but also the sort of conduct that seeks to
unjustifiably and unnecessarily increase
costs.
[55]
In this application the whole factual background which may be
relevant to the case which the applicant may institute against
the
first respondent in due course is given, which is unnecessary.
Furthermore, a number of the provisions of the Constitution
are
referred to as having been infringed. All of this is totally
unnecessary and only serves to turn a simple PAIA application
into a
complex, bulky and expensive one. To illustrate this penchant
for citation of unnecessary and often times irrelevant
constitutional
provisions the applicant makes the following allegations in the
founding affidavit:
“
38
Respondents’ conduct complained of, herein, constitutes an
infringement of my right:-
38.1 envisages section 32
(1) (a) and 32 (1) (b) of Act 108 of 1996,
38.2
to access personal information in terms of
section 15
(1) of the
National Health Act 61 of 2003
read with
section 1
of the
Promotion
of Access to Information Act No.2 of 2000
;
38.3
to human dignity enshrined in section 10 of the Constitution Act,
(No. 108 of 1996).
38.4
to a fair and just public administration as provided for in section
195 of the Constitution Act, (108 of 196) read with a national
legislative framework promulgated to ensure the promotion of the
values and principles provided for in section 195, aforesaid.”
[56]
None of these constitutional provisions needed to be referred to in
this application. This is besides the fact that some
of them
are not even remotely relevant in this case nor are there averments
in the affidavit that presage any reference to them.
[57]
The notice of internal appeal (form B) is addressed to the first
respondent which is incorrect as already stated above.
In
addition to that, the grounds of appeal are stated as “failure
to furnish the relevant documentation”. This
is obviously
woefully inadequate and does not comply with section 75 (1) (c) of
PAIA which provides:
“
75 (1) An internal
appeal –
(a) …
(b) …
(c) Must identify
the subject of the internal appeal and state the reasons for the
internal appeal and may include any other
relevant information known
to the appellant.”
[58]
All three applications argued before this court did not comply with
the prescribed notice of motion in differing degrees.
In most
PAIA applications in this Division this has been a problem.
Rule 3(1) of the PAIA rules requires an application contemplated
in
section 78 of PAIA to be brought on notice of motion that must
substantially correspond with the form of notice of motion annexed
to
the rule. Therefore the wanton use and adaptation of Form 2 (a)
annexed to the Uniform Rules is in violation of PAIA and
the PAIA
rules. There is no legal basis for granting any relief in an
application brought on notice of motion in terms of
section 78 where
the form of the notice of motion is not in substantial compliance
with the prescribed form.
[59]
Two of these applications were on the roll as uncontested opposed
matters whereas the first one was not opposed at all.
The
respondents had not filed any answering affidavit in respect of
either of the last two applications and no notice to oppose
was filed
in respect of the first application. No notice of opposition
should be given unless it is the intention of the
respondent in a
PAIA application to oppose it in a constructive manner. The
practice of filing a notice of opposition only,
thereby creating an
uncontested opposed application for no apparent reason, leads simply
to unnecessary delays in achieving access
and an unnecessary increase
in the costs of litigation and is to be discouraged in the strongest
terms.
[60]
The parties, including the state attorney, were invited to prepare
comprehensive heads of argument at very short notice.
Indeed
very useful heads of argument were filed. Mr Jikwana, Mr Maliwa
and Mr Siwahla all appeared for the applicants and
Mr Mapoma appeared
for the respondents. The comprehensive heads of argument that they
filed at very short notice, the thoroughness
of their preparation and
their incisive submissions made the work of dealing with these
matters a great deal easier.
A debt of gratitude is
owed to all of them.
[61]
All three applications are unsuccessful. Therefore, the
following order shall issue:
1. The applications are
dismissed
2. There shall be no
order as to costs.
JOLWANA
J
______________________
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
BROOKS
J
I
agree:
_____________________________
RWN
BROOKS
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the Applicant: S. H. MALIWA WITH M. SIWAHLA
Instructed
by: POYO SIWAHLA INC.
MTHATHA
AND
Counsel
for the Applicant: T.M. JIKWANA
Instructed
by: LUTANGO SIGCAU ATTORNEYS
IDUTYWA
Counsel
for the Respondent: S.X. MAPOMA
Instructed
by: STATE ATTORNEY
MTHATHA
HEARD
ON: 26 FEBRUARY 2019
DELIVERED
ON: 29 MARCH 2019
[1]
Promotion of Access to Information Act 2 of 2000
[2]
Section 14(1)
(a) of the
Superior Courts Act 10 of 2013
provides
that:
“
14(1)(a)
Save as provided for in this Act or any other law, a court of a
Division must be constituted before a single judge when
sitting as a
court of first instance for the hearing of any civil matter, but the
Judge President or, in the absence of both
the Judge President and
the Deputy Judge President, the senior available judge, may at any
time direct that any matter be heard
by a court consisting of not
more than three judges, as he or she may determine.”
[3]
Constitution of the Republic of South Africa, 1996
[4]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC)
[5]
Promotion of Administrative Justice Act 3 of 2000
[6]
President of the Republic of South Africa and Others v M & G
Media Ltd 2012 (2) SA 50 (CC)
[7]
My underlining
[8]
Makhambi v MEC for Health, Eastern Cape and Another (3262/2018)
[2018] ZAECMHC 63 (20 November 2018)
[9]
Forms A & B are attached as annexure B to the Regulations
regarding the Promotion of Access to Information, promulgated in
Government Notice 187, Government Gazette 23119 dated 15 February
2002. (Form A is in respect of a Request for Access to Record
of
Public Body and form B is in respect of Notice of Internal Appeal)
[10]
Note 6 supra
[11]
Transnet Ltd and Another v SA Metal Machinery Co (Pty) Ltd 2006 (6)
SA 285 (SCA)
[12]
Rules of Procedure for Application to Court in terms of PAIA –
published in Government Gazette No. 32622 dated 9 October
2009.
[13]
Note 7 supra
[14]
My underlining
[15]
Act 20 of 1957 as amended
[16]
Promotion of Administrative Justice Act 3 of 2000
.
[17]
PAIA Manual 2015/16