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[2018] ZAFSHC 19
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Kgantsi v Bloem Water (2641/2017) [2018] ZAFSHC 19 (8 March 2018)
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges:
NO
Circulate
to Magistrates:
NO
Application No.: 2641/2017
In
the matter between
PRINCESS
THANDEKA
KGANTSI
Applicant
and
BLOEM
WATER
Respondent
HEARD
ON:
1 MARCH 2018
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
8 MARCH 2018
INTRODUCTION
[1] A
former employee of Bloem Water is at loggerheads with her ex
employer
in respect of access to a transcript and audio recordings
pertaining to her disciplinary hearing. Reliance is placed on the
Promotion
of Access to Information Act, 2 of 2000 ("PAIA")
in order to claim access.
II
THE PARTIES
[2]
Applicant is Princess Thandeka Kgantsi, an unemployed female and
former
employee of the respondent.
[3] Respondent
is Bloem Water, an organ of state as defined in s 239 of the
Constitution,
duly established by the Department of Water Affairs.
Ill
THE RELIEF CLAIMED
[4]
Applicant seeks the following relief as set out in the notice of
motion:
"1.That
the respondent be ordered to provide the applicant's attorneys of
record with the disciplinary hearing transcript and
the audio
recordings of the discipinary proceedings involving the Applicant;
2.That
the Respondent be held liable for the costs of this application on a
party and party scale."
IV
THE DEFENCES
[5] The
Respondent's main defence is based on the premise that the
application is premature
in that the internal appeal proceeedings
provided for in PAIA were not followed prior to the institution of
the application in
this court.
[6] Respondent
also relies on the fact no disciplinary hearing had taken place, that
the parties reached a settlement contained in a written voluntary
separation agreement prior to hearing of any evidence in the
anticipated disciplinary hearing and that the request for access is
frivolous and vexatious.
V
COMMON CAUSE FACTS
[7] Several
material issues are common cause; the sections referred to are in
respect
of PAIA:
7.1
Applicant is a former employee of respondent;
7.2
A voluminous charge sheet was presented to applicant in terms whereof
she had to appear at a disciplinary
hearing arranged by respondent to
be held on 30 May 2016;
7.3
The charges were put to applicant, but the hearing did not proceed
and no evidence was led;
7.4
The proceedings were recorded;
7.5
On 1 June 2016 a detailed voluntary separation agreement was entered
into by the parties, the
applicant having been represented by her
former legal representative;
7.6
In terms of the agreement the respondent agreed to pay applicant's
salary and other benefits until
30 September 2016 although she was
not required to offer her services from date of the agreement;
7.7
Since 20 January 2017 - therefore about eight months since entering
into the agreement - e-mail
correspondence followed between
applicant's new and present attorneys and respondent's attorneys
wherein her attorneys sought access
to the aforesaid information
whilst it was recorded by respondent's attorneys that the matter was
being regarded as finalised because
of the settlement;
7.8
On 8 May 2017 applicant's attorneys wrote a letter to the
respondent's CEO, instructing the CEO
to provide the information set
out in the attached request for access form on or before 19 May 2017;
7.9
Ex facie
the papers before me, there was no reply from the CEO
and on 26 May 2017 the present application was issued;
7.10 When the
application was issued, the 30 day period referred to ins 25 had not
expired;
7.11 Respondent's
CEO, or anyone else of that public body, did not request any
extention of time within which to respond
and as no response was
received, no reasons were advanced for its inaction;
7.12 Applicant relied
in her founding affidavit on this inaction and therefore that the
deeming provision set out in
s 27 was triggered;
7.13 Applicant failed
to lodge an internal appeal in terms of s 74 prior to institution of
this application although
she tried to comply with the Act some two
months after her replying affidavit had to be filed, apparently in an
attempt to cure
the defect;
7.14 In her founding
affidavit applicant alleged "that there are no internal remedies
available to me in terms
of the Act....", but in the replying
affidavit the mistake was admitted; she then complained that
respondent refused to engage
her in the internal appeal process;
7.15 In the founding
affidavit applicant averred that she needed access "to be able
to effectively comply with
the terms of the contract and to protect
my rights against unauthorised disclosure by the employer or its
representatives",
but she made an about turn in reply by stating
the following: "In actual fact it is the very agreement that I
want to challenge
and I cannot do that if I do not have the audio
recording that led to it."
7.16 The respondent's
information officer did not respond to the formal request and
therefore did not provide any reasons
why applicant is not entitled
to access, although it must be clear from the e-mail correspondence
attached to the answering affidavit,
which is not in dispute, what
respondent's defence was from the onset: it held the view that the
matter was settled between the
parties. In the answering affidavit it
is also alleged that the request was frivolous or vexatious,
apparently having in mind s
45, although the section was not
specifically relied on.
VI
RELEVANT LEGISLATION
[8]
Section 237 of the Constitution stipulates that "(A)II
constitutional obligations must
be performed diligently and without
delay." Section 32 of the Constitution reads as follows:
"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."
[9]
PAIA was enacted to give effect to the right contained in s 32 (1) of
the Constitution. I quote some of the relevant sections of PAIA:
9.1 An
"information officer" in the case of a public body such as
respondent,
"means the chief executive officer, or equivalent
officer, of that public body or the person who is acting as such."
9.2 The
purpose and objects of PAIA are set out in the preamble and s 9 of
the Act respectively,
inter alia
to give effect to the right
of access to information in the hands of public bodies and private
persons; thereby ensuring transparency,
accountability and effective
governance.
9.3 Section
2(1) stipulates that the courts must, in interpreting the Act,
"prefer
any reasonable interpretation of the provision that is
consistent with the objects of the Act over any alternative
interpretation
of the provision that is inconsistent with those
objects."
9.4 Section
11(1) stipulates as follows:
(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.
9.5
Section 25 states that the information officer to whom the request is
made,
must as soon as reasonably possible, but in any event within 30
days after receipt of the request decide whether to grant or refuse
the request. If the request is refused the information officer must
state the reasons and that the requester may lodge an internal
appeal. The procedure for lodging the appeal and period within which
it has to be lodged must be provided. Sees 25(3).
9.6
Section 45 stipulates that the information officer of a public body
may refuse
a request for access to a record "if the request is
manifestly frivolous or vexatious."
9.7
Section 74 provides for a right of an internal appeal to the relevant
authority,
whilst s 78 states as follows:
(1) A requester or third party
referred to in section 74 may only apply to a court for appropriate
relief in terms of section 82
after that requester or third party has
exhausted the internal appeal procedure against a decision of the
information officer of
a public body provided for in section 74.
(2) A requester-
(a)
that has been unsuccessful in an internal appeal to the relevant
authority of a public body;
(b) aggrieved by a decision
of the relevant authority of a public body to disallow the late
lodging of an internal appeal
in terms of section 75 (2);
(c) aggrieved
by a decision of the information officer of a public body referred to
in paragraph (b) of the definition
of ‘public body’ in
section 1-
(i)
to refuse a request for access; or
(ii)
taken in terms of section 22, 26 (1) or 29 (3); or
(d) ……
(i)
……
(ii)
......,
may, by way of an
application, within 180 days apply to a court for appropriate relief
in terms of section 82.
VII
APPLICATION
OF THE LEGISLATION AND AUTHORITIES TO THE FACTS
[10]
I accept the well-known proposition that, this being an opposed
application, the trite
principles enunciated in
Plascon-Evans
Paints
shall apply. The matter must be considered on the facts
alleged by the respondent (unless these are so far-fetched and
untenable
that it could be rejected, which is not the case
in
casu), together with the facts alleged by the applicant that
respondent cannot dispute. See also:
President of the RSA v M
&
G
Media
2011 (2) SA 1
(SCA) at para [13]. However, the
application can effectively be disposed of on the common cause facts
mentioned
supra.
[11]
I accept that it is not required in s 9(a) of PAIA that the requester
seeking access from
a public body has to advance reasons for the
request. See:
M
& G
Media supra
at para [11].
Clearly, the legislature differentiates between information held by
public bodies and private bodies. In the case
of information held by
private bodies it must be shown that the information is required for
the exercise or protection of any rights.
Chapter 4 of PAIA sets out
the grounds for refusal of access to records.
In casu
s 45 is
of particular importance as will be shown
infra.
[12]
In
Basson v Hugo
&
others
(986/16)
[2017] ZASCA 192
(01 January 2018)the SCA had to consider an appeal by the appellant
whose review application was dismissed in the court a
quo.
The
central issues to be adjudicated were the obligation contained in s
7(2) of the Promotion of Administrative Justice Act, 3 of
2000
(“PAJA”) to exhaust an internal remedy provided for in s
10(3) of the Health Professions Act, 56 of 1974 and whether
exceptional circumstances were shown to exist to exempt the appellant
from this requirement. See paras [11] and [12].The SCA found
that,
for reasons immaterial to this application, several factors mentioned
constituted exceptional circumstances and upheld the
appeal. This
judgment was relied upon by Mr Mene for the submission that the
applicant should be afforded redress notwithstanding
the failure to
exhaust the internal appeal process set out in s 78 of PAIA. I do not
agree. This is not a review application and
PAJA, and particularly s
7 thereof, is not applicable. Contrary to the provisions of PAJA,
PAIA does not contain a similar exception.
I refer to s 78(1) quoted
supra.
Therefore the Sasson judgment is not authority
in
casu.
[13]
I am mindful of the following
dicta
by the SCA in
Mahaeeane
and another v Anglogold Ashanti Ltd
2017 (6) SA 382
(SCA):
[38] Transparency and
access to information are required in order to allow people to enjoy
other fundamental rights. Thus,
for example, the preamble to PAIA
recognises that:
'The system of
government in South Africa before 27 April 1994, amongst others,
resulted in a secretive and unresponsive culture
in public and
private bodies which often led to an abuse of power and human rights
violations;
Section 8 of the
Constitution provides for the horizontal application of the rights in
the Bill of Rights to juristic persons to
the extent required by the
nature of the rights and the nature of those juristic persons.'
[39]
......
In construing these words, the court should, as far as the language
of PAIA permits, adopt a generous and purposive interpretation
that
gives people the full measure of its protections and that promotes
the values of the Constitution. As the Constitutional Court
held in
S
v Mhlungu:
‘
A
constitution is an organic instrument. Although it is enacted in the
form of a statute it is
sui generis.
It
must broadly, liberally and purposively be interpreted so as to avoid
the austerity of tabulated legalism and so as to enable
it to
continue to play a creative and dynamic role in the expression and
the achievement of the ideals and aspirations of the nation,
in the
articulation of the values bonding its people and in disciplining its
Government.'
The
dicta
have
been expressed in not too dissimilar terms in
Brummer v Minister
for Social Development and others
2009 (6) SA 323
(CC) at paras
[62] and [63].
[14]
Mr Mene reiterated the
dictum
by Molemela AJA (as she then
was) in her minority judgment in
Mahaeeane
at para [67]:
"The
seriousness of a decision whether or not to litigate and the
importance of granting access to the information requested
were aptly
described by Cameron J in the following terms in his minority
judgment in
Unitas
(the majority judgment did not take issue
with the dicta expressed in the passage below):
'Institution of
proceedings is an immense step. It involves a massive commitment in
costs, time, personnel and effort. And it is
fraught with risks.
Where access to a document can assist in avoiding the initiation of
litigation, or curtailing opposition to
it, the objects of the
statute suggest that access should be granted.'
I
echo these sentiments."
[15]
In
Dlusha v King Sabata Dalindyebo Municipality and others
2012
(4) SA 407
(ECM) the court was severely critical of the attitude of
the municipality's officials and had the following to say:
"[21]
I refer to the aforegoing decision in an effort to send the clear
message that an applicant who has in good faith and
as of right
requested information in terms of PAIA ought to be dealt with in a
rational, fair and just manner by public authorities.
In an open and
democratic society, government must be accountable for its decisions
and its actions should be informed by rational
considerations that
are explicable to those affected. Public .access to information is
fundamental to encouraging transparency
and accountability in the way
in which government and public authorities operate. Executive action
must not be arbitrary. Arrogant
disregard and failure to positively
engage the public are not values contemplated in the Constitution.
There is no room for a policy
of 'don't ask, don't tell'. In this
case there seems to exist an apparent lack of insight by respondents
into their legal position
as a body that is there in order to serve
citizens and ratepayers. I still do not understand why, if the reason
that applicant
was not furnished the information arose out of the
respondents' perception to be gathered from counsel's heads, this was
not communicated
to applicant as applicant is entitled to be told by
law.
[22]
The nature and extent of a public body's obligation where the right
of access to information is involved is eloquently expressed
in H
Van
Niekerk v Pretoria City Council
1997 (3) SA 839
(T)
([1997]
1 All SA 305).
There Cameron J (as he then was), dealing with a claim
brought under s 23 of the interim Constitution (the precursor to s 32
of
the Constitution}, said at 850A- C:
'In
my view, section 23 entails that public authorities are no longer I
permitted to play possum with members of the public where
the rights
of the latter are at stake. Discovery procedures and common-law
claims of privilege do not entitle them to roll over
and play dead
when a right is at issue and a claim for information is consequently
made. The purpose of the Constitution, as manifested
in section 23,
is to subordinate the organs of State ... to a new regimen of
openness and fair dealing with the public.'"
[16]
Athough I generally agree with the sentiments expressed in
Dh/usa
referred to
supra
and which I shall touch on again
infra,
I do not agree with the court's dismissal of the special plea
based on the failure to lodge an internal appeal. I am with respect
in full agreement with the reasoning of Musi AJP (as he then was) and
his conclusion that non-compliance with the internal appeal
procedure
is fatal for an applicant launching
an
application in terms of
s 82 of PAIA. See:
IH Maritz v Matjhabeng Local Municipality
case
no 20150/2016, an unreported judgment of this Division delivered on
20 July 2017. Like Musi AJP, I am also in respectful agreement
with
the reasoning in
Sumbana and others v HOD, Department of Public
Works, Limpopo Province
2009 (3) SA 64
(V). No doubt, the wording
of s 78(1) is clear and unambiguous. The provision is mandatory. This
must be so, even if the provisions
of s 2(1) and the purpose and
objects of PAIA are taken into consideration. Even a broad, liberal
and purposive interpretation
cannot lead one to a different
conclusion.
[17]
Mr Mene also submitted that the application should succeed insofar as
respondent had frustrated
appellant's right to an internal appeal
procedure. He relied on
Hlaba v MEG for Health, Eastern Cape
2012
(4) SA 401
(ECM) at para [15]. In fact, the
dictum
in this
paragraph was merely echoed in the replying affidavit insofar as
applicant said the following at paragraph 4.4: "...and
the fact
that annexure C was met with silence, I submit that I was refused
engagement in the appeal process". The applicant
is facing three
difficulties with this attitude. Firstly, it is clearly an
afterthought, bearing in mind that she held the view
in her founding
affidavit that no internal remedies were available to her
notwithstanding the fact that she brought her application
in terms of
PAIA. Secondly, the attempt to rely on the internal appeal procedure
several months after receipt of the answering
affidavit cannot cure
the problem she was facing at the time and is still facing now. The
application was and is premature and
it could not be rectified. The
application is also premature for another reason. The respondent's
information officer was not allowed
the 30 days stipulated in s 25
for consideration of the request as mentioned
supra,
but a
mere 11 days. Thirdly,
Hlaba
is distinguishable in that the
applicant unsuccessfully tried to follow an internal appeal process
which was refused.
[18]
The conclusion that the application is premature is really the end of
the case, but the
following comments are made on the basis that it
might be found that I was wrong in coming to the above conclusion. I
accept that
respondent and its attorneys held the view that the
disputes between the parties had been settled and therefore the
request for
access was considered to be frivolous or vexatious.
Settlement is a compromise as defined and discussed by Christie and
Bradfield,
Christie's The Law of Contract in South Africa,
6
th
ed at 473 and further. Compromise, being a contract, is binding on
the parties thereto. When concluded, it disposes of the pending
proceeding and disputes between the parties. See also:
Hlobo v
Multilateral Motor Vehicle Accidents Fund
2001 (2) SA 59
(SCA) at
para [10]. A contract may be set aside on various grounds such as
fraud,
iustus error,
duress, undue influence and a few other
grounds. Although, generally speaking, applicant did not have to
provide reasons for access
to the information officer, I would have
expected her to explain why access was required
in casu
in
light of the written settlement agreement and the correspondence
received from respondent's attorneys prior to the formal request
for
access. In my view respondent could not be faulted for the stance
taken in the answering affidavit.
[19]
Not only was the request filed at a late stage - some eleven months
after the settlement
agreement was entered into - but this
application was also filed at the end of May 2017 and therefore about
a year after the settlement
was reached. Instead of acting swiftly
and in a cheap manner, applicant elected to do nothing for several
months and then embarked
on a slow expensive process such as court
action. If applicant intended to set aside the agreement or take
steps to amend or vary
it, she should have done so much earlier. In
any event, it is still unclear on what grounds she wants to attack
the settlement
agreement and why the transcript and audio recordings
are required before appropriate action is taken.
VIII
COSTS
[20]
I mentioned
supra
that respondent's CEO did not even have the
decency to acknowledge the letter of applicant's attorneys with
accompanying request
for access to information. He/she bluntly
refused to respond to the request. The earlier e-mail correspondence
was between the
attorneys. Respondent's attorneys were apparently
instructed by the Executive: Human Resources at that stage, the same
person that
deposed to the answering affidavit. At all times the CEO,
he/she being the information officer as defined in s1 of PAIA,
remained
as silent as the grave. In my view such arrogant behaviour
is sufficient reason not to award costs to respondent as the
successful
party.
IX
ORDER
[21]
Consequently the following order is issued:
The application is
dismissed, each party to pay her or its own costs.
J.P DAFFUE, J
On behalf
of the applicant:
Adv B S Mene
Instructed
by:
Mudzusi & Partners
Bloemfontein
On behalf of the respondent:
Adv W A van Aswegen
Instructed by:
Kramer, Weihmann & Joubert
Bloemfontein