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[2018] ZAECMHC 24
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Hlazo v Minister of Police, RSA and Others (4306A/17) [2018] ZAECMHC 24 (20 March 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO:
4306A/17
Heard
on: 08/03/18
Delivered
on: 20/03/18
In
the matter between:
OCCONNORR
SECUNDA HLAZO
Applicant
and
MINISTER
OF POLICE, RSA
1
ST
Respondent
THE
STATION HEAD, CENTRAL
POLICE
STATION, MTHATHA
2
ND
Respondent
JUDGMENT
NHLANGULELA
DJP
[1]
For the reasons that are quite understandable, the unnecessarily
complicated relief sought by the applicant was bound and confused
the
respondent. This is more often occasioned in matters that have
grown up exponentially in our Division concerning a demand
for access
to information in terms of s 32 (1) of the Constitution Act No. 108
of 1996 (the Constitution) read with the provisions
of the Promotion
of Access to Information Act No.2 of 2000 (the PAIA). Section
32 (1) of the Constitution 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.”
[2]
In this case the legal instruments implicated are
inter
alia
s 32 (1) (
a
)
of the Constitution in that the Applicant asked for the respondents
to furnish him with the accident report, key to plan, sketch
plan,
witness statements and written outcome of criminal proceedings.
When these documents were not supplied to him he lodged
an internal
appeal against the decision not to furnish the information as
required. The continued silence on the part
of the
Respondents led to the launching of this application in terms of ss
78 and 82 of the PAIA to compel the furnishment of the
documents as
aforementioned.
[3]
In so far as the respondents had not given a reply to the letter of
demand for access to information and the reason(s) for failure
to
give information not having been known to the Applicant the issue for
decision must be limited to the common cause fact that
the
Respondents indicated for the first time on 01 November 2017 that the
information/documents sought had never been in their
possession.
On the consideration of the common cause fact of non-possession the
Respondents were justified in being confused
by the insistence on the
further relief, which ought to have been abandoned, that the court
should declare the failure to supply
the information as
unconstitutional, the Respondent must be ordered to furnish the
information required and that they must give
reasons for their
failure to furnish such information.
[4]
The evidence gleaned from the papers, which is undisputed, is that on
03 May 2017 the Applicant was involved in a motor vehicle
accident
whilst being driven as a passenger in a taxi on the N2 National
Road. The registration letters and number of the
taxi was
[...], and it was driven at the time by one Mr Mntuwelizwe
Nkosikhona, Id No. [...] of Mpindweni Location, Mthatha. In
and
as a result of the accident on 03 May 2017 he was admitted in Mthatha
General Hospital for the purpose of treatment for certain
bodily
injuries that he had sustained in the accident. On 12 May 2017
he reported the accident to the police. On 25
May 2017 he
addressed a letter to the Respondents requesting that he be furnished
with the documents/information as aforementioned,
but to no avail.
Having taken the view that the Respondents had chosen to remain
supine despite the demand for the information
having been rightfully
made in terms of the Constitution and PAIA, he launched the present
application on 14 September 2017.
[5]
The Respondents became aware for the first time upon receipt of the
application that the Applicant had been involved in a motor
vehicle
accident, and that he took the steps as he did to obtain the
information as requested for in the letter of demand dated
25 May
2017.
[6]
The provisions of s 82 of the PAIA enjoin the Court to decide an
application of this nature in a particular manner. The
section
provides as follows:
“
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 a 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.
”
[7]
On the consideration of the facts of the case the Court cannot issue
an order compelling production of the documents/information
sought by
the Applicant because they do not exist owing to the fact that the
accident was never recorded in the books of the Respondents.
The evidence advanced on affidavits does not place the blame for
non-recordal of the accident at the door-step of the Respondents.
That is, whereas s 32 of the Constitution does confer a right of
access to information, it is not proved that the Respondents held
the
required information at any stage. Consequently, paragraphs
(a),
(b), (c)
and
(e)
of s 82 of the PAIA cannot be granted.
[8]
In so far as the decision of the application turns only on the issue
of costs, it is my finding that the Applicant has made
a case for an
order in that regard. The Respondents made no effort to tender
payment of any costs. They contented themselves
with pursuing a
defence that the Applicants’ application failed to disclose a
cause of action. Such a defence is, with
respect,
ill-conceived. Further, the Respondents took no visible steps
to meet the Applicants’ request even after 01
November 2017
when they should and could have complied therewith.
[9]
In the result the following order shall issue:
The
Respondents shall pay the costs of the application calculated from 02
November 2017, including the costs incurred on 08 March
2018.
______________________
________________________
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
MTHATHA
For
the Plaintiff
:
Adv Mfino
Instructed
by
:
Ndzendze & Associates
No.52
Sprigg Street
ECRDA
Building, Office 221
MTHATHA.
For
the Defendant
: Mr
Mkhongozeli of
:
HN Mkhongozeli Attorneys
No.55
Nelson Mandela Drive
Barbara’s
Guest House
Block
E – Unit 6
MTHATHA.