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[2018] ZAECMHC 26
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Mkhango v Magistrates Commission and Another (5126/2017) [2018] ZAECMHC 26 (23 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
HEARD:
20 MARCH 2018
GIVEN:
23 APRIL 2018
CASE
NO. 5126 / 2017
In
the matter between:
KHOLOSANI
MKHANGO
Applicant
and
MAGISTRATES’
COMMISSION
First Respondent
MINISTER
OF
JUSTICE
Second Respondent
REASONS
FOR THE ORDER DATED 20 MARCH 2018
BODLANI
AJ
The
legislative background
1.
This
matter served before me in the court for unopposed applications on
Tuesday, 20 March 2018. I made an order dismissing the application
with no order as to costs. What follows hereunder are the reasons for
the order. These reasons are based on the only version that
served
before me, the applicant’s version.
2.
This
application was concerned with the consequences of a failure to
observe the procedural requirement in s 75(1) read with s 78(1)
of
the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000)
(the Act) that an internal appeal against a decision of
the
information officer of a public body to refuse a request for access
to the records of that body is a condition precedent to
the making of
an application to compel access to information in terms of s 82 of
the Act.
3.
The
legislative framework relevant to the issue raised is as follows:
The Act gives effect to the constitutional right of
access to
information. A person (referred to as a requester) has the
right to be given access to the record of a public body
provided he
or she complies with the procedural requirements in the Act
[1]
and the request is not refused. The relevant official (the
information officer) is required to make a decision in accordance
with the Act whether or not to grant the request. The decision
“must” be made “as soon as reasonably possible,
but
in any event within 30 days” after the request was
received.
[2]
If the request is refused the requester must be notified of that
decision.
[3]
The notification must not only state adequate reasons for the
refusal, the requester must also be informed of his or her
right to
lodge an internal appeal “and the procedure (including the
period) for lodging the internal appeal.”
[4]
A request for information is deemed for purposes of the Act to have
been refused if the information officer fails to make
a decision
within the 30 day time period.
[5]
4.
A
requester enjoys a right to lodge an internal appeal against a
decision of the information officer of a public body in terms of
s 74
of the Act. A public body is defined in s 1 of the Act. Paragraph (a)
of the definition of ‘public body’ in s
1 refers to –
“
any
department of state or administration in the national or provincial
sphere of government or any municipality in the local sphere
of
government.”
5.
The
“public body” in the present matter is the Department of
Justice and Constitutional Development (the Department)
and the
Magistrates Commission, at least in so far as they have both been
cited as the respondents against whom relief is sought.
The
manner of lodging an appeal is regulated in s 75 of the Act.
Subsection (1)(a)(i) requires it to be lodged in the prescribed
form,
and within 60 days after the decision was taken. It reads: “An
internal appeal - (a) must be lodged in the prescribed
form - (i)
within 60 days.” If the internal appeal is lodged after the
expiry of this period, the appeal authority (refer
to as “the
relevant authority” in the Act) has the authority to condone
the late lodging thereof. That authority
is found in s 75(2)(a)
and (b). It reads as follows:
“
(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,
he or she must give notice of that decision to the person
that lodge
the internal appeal.”
6.
The
internal appeal authority must decide the internal appeal within 30
days after it was received, and notify the requester of
its
outcome. If the relevant authority fails to give notice of its
decision within 30 days, it is, for purposes of the Act
deemed to
have dismissed the appeal.
[6]
7.
A
requester, whose internal appeal was unsuccessful, or who is
aggrieved by a decision not to allow the late lodging of the appeal,
may apply to a court for appropriate relief.
[7]
A requester referred in s 74 may however only do so after he or she
“has exhausted the internal appeal procedure against
a decision
of the information officer of a public body as provided for in s
74.” The effect of this provision is that
a person who,
as in the present matter, requested information from a public body as
envisaged in paragraph (a) of the definition
of a public body in s 1,
cannot approach a court in terms of s 78 without first having
exhausted the internal appeal remedy provided.
T
he
factual background
8.
From
October 2000 until his resignation which became effective on 31 July
2015, the applicant was employed by the Department of
Justice as a
Magistrate. From 03 October 2016 to 31 December 2016 he was appointed
as an acting magistrate for the Phuthaditjhaba
Magistrates’
Court under the Bloemfontein Cluster. Upon the expiry of his acting
appointment, he unsuccessfully applied for
his acting appointment in
that Court, to be extended (“the application for extension”).
A favourable recommendation
by his then senior colleague, Mr. H. B.
Breyl (Breyl) who was an acting senior Magistrate in Phuthaditjhaba
did not assist yield
a positive outcome for him.
9.
Thereafter,
the applicant initiated a request for access to the information
relating the cause for the refusal of his application
for the
extension. In this regard, he completed the request of access to
information form and delivered same to the respondents.
When his
request for access to information was refused, the instant
application was resorted to.
Analysis
of the evidence
10.
In
order to provide an appropriate remedy, the Court had to ascertain
the real and true nature of the dispute.
[8]
In circumstances where the allegations made in the founding affidavit
did not advance clearly defined legal propositions and were,
sometimes, only tenuously connected with the relief sought, this
become a daunting task. It is trite that in conducting the inquiry
the court must look at the substance of the dispute,
[9]
have regard to various factors including the pleadings, the facts and
the relief sought. The characterisation of a dispute by a
party is
usually not necessarily conclusive.
[10]
Ascertaining the true nature of the dispute is a necessary exercise
for it assists the Court determine in terms of what legal
dispensation should the dispute and ancillary issues be determined.
11.
As
proof th
at
the applicant sought information relating to the reasons for the
application for extension being declined, he relied on copies
of
electronic mail communication (emails) that was attached to the
founding affidavit and marked MK2. The attachment comprises
(emails)
written on 22 March 2016 and another dated 26 April 2016 by Ms. or
Mr. Bosman De Villiers (De Villiers) and addressed
to Mr. Sakhumzi
Nombambela (Nombambela). Nombambela is the applicant’s
attorney, De Villiers is not.
12.
In
the
email
dated 22 March 2016
,
De Villiers wrote to Nombambela and alleged that:
“
Good
morning
The
contents of your email are noted.
I
was out of office last week due to unforeseen circumstances.
Please
note that the stipulated timeframe in the Act to respond to requests
for access to information is within
30 days
after the
request is received.
The
request submitted by Mr. Mkhango is refused in terms of
section
44(a)(1)
of the
Promotion of Access to Information Act, 2000
[Act No.
2 of 2000] in that the record requested contains a report and a
recommendation.”
13.
In
the
email
dated 26 April 2016
,
De Villiers wrote to Nombambela and alleged that:
“
Good
afternoon
Our
Telephonic conversation earlier today refers.
Please
see trailing email as requested.
I
have forwarded an email to Mr Mkhango dated
12 April 2016
with
the following contents”
“
Good
afternoon Mr Mkhango
I
was informed that you have enquired about the matter that was
supposed to serve before the Ethics Committee at its last meeting.
Unfortunately,
due to time constraints and Mrs Pretorius leaving the Ethics Division
with effect from 1 April 2016, the matter did
not serve before the EC
at its meeting held on 7 April 2016.
The
Ethics Divisions will attempt in finalizing the report to serve
before the Ethics Committee at its next meeting in
May 2016.
The date of said meeting still needs to be determined.
You
will be informed of the outcome of this matter in due course.”
14.
From
the above quotations, it is clear that it is only in the email dated
22 March 2016 that De Villiers addresses himself to the
applicant’s
request for access to information. Even there, it is stated in no
uncertain terms that the request of access
to information was
declined. Nowhere in the email dated 12 April 2016 does De Villiers
address himself to the applicant’s
request for access to
information. Accordingly, it is not clear how the applicant came to
conclude that annexure MK2 to the founding
affidavit was, in fact, a
request by him for access to information relating to reasons for his
application for extension being
declined.
15.
Curiously,
on the applicant’s version it seems that he completed the
prescribed form of request for access to information
on 04 March 2016
some six months before he was appointed as an acting magistrate and
some nine months before the expiry of his
acting appointment, on 31
December 2016. This is borne out of annexure MK3 to the founding
affidavit in terms of which he sought
access to a report emanating
from investigations against him.
16.
Both
documents that comprise annexure MK2 constitute correspondence that
was exchanged between De Villiers and Nombambela before
the end of
April 2016 some five months before the applicant was appointed as an
acting magistrate and some eight months before
the expiry of the
applicant’s term of appointment, on 31 December 2016, as an
acting magistrate.
17.
The
founding affidavit, properly construed, makes it clear that the
applicant seeks information that he believes is in the respondents’
possession. In order to get access thereto, there is only one vehicle
to take him there, the Act. In recognition of this fact and
in the
prosecution of his rights in terms thereof, the applicant initiated a
process that, if properly followed, would have entitled
him to seek
the relief he sought. For reasons that he did not explain in the
papers, he did not go the full length.
The reasons
18.
When
the matter was called, I enquired from Mr. Nombambela why did this
court have jurisdiction to entertain the matter. As I understood
him,
in response he submitted that it is because the applicant resides
within the area of jurisdiction of this court and that the
State
Attorney has an office in Mthatha as such service had been effected
there. In pleading the issue of jurisdiction, the applicant
alleged
that:
“
4.
The
abovementioned Honourable Court has jurisdiction to entertain this
matter in that I first had challenges with the Department
of Justice
when I approached the Mthatha Cluster Head Mr Botha about application
to act as a Magistrate in any magisterial districts
under his
supervision.
19.
The
founding affidavit is unsurprisingly not a model of clarity as to why
was the applicant’s challenges with the Department
of Justice,
when he approached Mr Botha in order for him to act as a magistrate
in Mthatha and anyone of the magisterial districts
that fall under
Mthatha, ever relevant to the issue with which the application that
served before me was concerned. It is unsurprising
because there is
no nexus between these. The applicant’s challenges with the
Department of Justice, when he approached Mr.
Botha in Mthatha so he
could be appointed as an acting magistrate there is an irrelevant
consideration to the issue whether he
is entitled to information
relating to reasons for the refusal of his application for extension
of appointment as a magistrate
in Phuthaditjhaba.
20.
Assuming
the applicant had a cause of action, of which I found he did not,
same would not have changed the fact that the
respondents
are
neither residing, domiciled, nor carrying on business within the area
of jurisdiction of this Court. The relief sought by the applicant
concerned no cause arising within the area of jurisdiction of this
Court. At the same time, the respondents were not joined as
a
third-parties to any cause in relation to which this Court has
jurisdiction, and have not by virtue thereof become party to such
cause.
Also, there was nothing in the papers to suggest that the respondents
had consented to the jurisdiction of this Court.
[11]
By
reason of these facts, some of which I debated with Mr Nombambela, it
should have been clear that this Court did not have territorial
jurisdiction to entertain the applicant’s application. In fact,
when I engaged with Mr. Nombambela on some of these issues,
he
conceded that this Court does not have territorial jurisdiction. To
this end, he proposed to have the matter removed from the
roll so a
fresh application on similar terms and for the same relief could be
instituted before a Court with jurisdiction to entertain
it. However,
the matter could not just be removed from the roll as same would have
meant that if the same relief is sought in another
Court, as it was
submitted would be done, the fresh application would have had a
problem of
lis
pendense.
21.
I
considered that even if I was wrong on the issue of jurisdiction,
there was yet another reason why the applicant’s application
had to fail. It was clearly prematurely instituted with the result
that the applicant did not have a cause of cause of action for
adjudication by a Court.
22.
The term
“cause of action” was defined in
McKenzie
v Farmers’ Co- operative Meat Industries Ltd
[12]
as
“
every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment of
the
Court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary
to be
proved
."
23.
In
Evins
v Shield Insurance Co Ltd,
[13]
it was said that:
“
cause
of action “...
is
ordinarily used to describe the factual basis, the set of material
facts, that begets the plaintiff's legal right of action
.”
24.
Section
78 of the Act determines who has legal standing to bring an
application such as the present one. The section recognises
only a
“
requester
”
and “
third
party
”
as
persons who may bring a s 78 application.
For
purposes of the Act, the applicant would be a requester.
A
requester is defined under the definitions in s 1 of the Act as
follows:
“
'requester',
in relation to-
(a)
a public body, means-
(i)
any person ... making a request for access to a record of that
public body; or
(ii)
a person acting on behalf of the person referred to in
subparagraph (i);
25.
The
wording of s 78(1) of the Act is clear and unambiguous in its terms.
It is mandatory and confers no discretion on judicial officers.
A
requester may only bring an application predicated upon the
provisions of the Act, for appropriate relief, in terms of s 82 after
the requester has exhausted the internal appeal procedure against a
decision of the information officer of a public body provided
for in
s 74.
[14]
Before then, the right of access to Court on a cause of action
founded on s 82 of the Act is unavailable.
26.
Put
differently, absent (i) an appeal against the decision that was
communicated to the applicant per email dated 22 March 2016
by De
Villiers to his attorney refusing a request for access to information
and (ii) an unfavourable decision on the appeal,
as
is the case in this matter, the applicant did not have a cause of
action to approach Court for relief in an application for access
to
information because he did not have
every
fact which it would be necessary for him to prove, if traversed, in
order to support his right to a judgment of this Court.
Accordingly,
the application was prematurely instituted, much against the
provisions of s 78 of the Act.
Costs
27.
The
costs that required a decision were the costs of the application. In
the exercise of my discretion and regard being had to the
fact that
the respondents did no more than file a notice to oppose, I deemed
that an order that there be no order as to costs would
be
appropriate.
28.
On
these reasons, I dismissed the application with no order as to costs.
________________________
AM
BODLANI
ACTING
JUDGE OF THE HIGH COURT
Attorney
for the Applicant
:
Mr. N.
S. Nombambela
Instructed
by
: Messrs
N. S. Nombambela Inc. Attorneys
Counsel
for the Respondents
:
No
appearance
[1]
Section 11.
[2]
Section 25(1).
[3]
Section 25(1)(b).
[4]
Section 25(3)(a) and (c).
[5]
Section 27.
[6]
Section 77(7).
[7]
Section 78.
[8]
National Union of Metal
Workers of South Africa v Bader Bop (Pty) Ltd
[2002] ZACC 30
;
2003 (3) SA 513
(CC);
2003 (2) BCLR 182
(CC) at para
52;
Fidelity Guards Holdings (Pty) Ltd
v Professional Transport Workers Union (1)
(1998) 19
ILJ
260 (LAC) (
Fidelity) Ceramic Industries
Ltd t/a Betta Sanitary Ware v National Construction Building Workers
Union (2)
(1997) 18
ILJ
671 (LAC) (
Ceramic
).
[9]
Fidelity
above at 269G-H.
[10]
Ceramic
above
n 10 at 677H-I and 678A-C.
[11]
Section 21 of the Supreme Court Act,
2013 (Act No. 10 of 2013).
[12]
1922 AD 16
at 23.
[13]
1980 (2) SA 814A
at 825G.
[14]
Sumbana v Head of Department of
Public Works, Limpopo Province
2009
(3) SA 64.