About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 125
|
|
Maritz v Municipal Manager: Matjhabeng Local Municipality (2050/2016) [2017] ZAFSHC 125; 2018 (5) SA 614 (FB) (20 July 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No.: 2050/2016
In
the matter between:-
IZETTE
HUIJINK-MARITZ
Applicant
and
THE
MUNICIPAL MANAGER:
MATJHABENG
LOCAL
MUNICIPALITY
1
st
Respondent
MATJHABENG
LOCAL
MUNICIPALITY
2
nd
Respondent
CORAM:
MUSI, AJP
HEARD
ON:
08 JUNE 2017
DELIVERED
ON:
20 JULY 2017
[1]
What is the difference, if any, between an actual refusal and a
deemed refusal in the context of the Promotion of Access to
Information Act (Act)?
[1]
This
judgment is dedicated to this question.
[2]
The applicant is an attorney who owns property and lives in the
jurisdictional area of the second respondent (municipality).
[2]
The
first respondent is the Municipal Manager and information officer of
the municipality.
[3]
The
applicant and the municipality entered into an agreement in terms of
which the municipality would render services to her and
she undertook
to pay for the services. The municipality fulfilled its
obligation in terms of the agreement. A dispute
arose between
them pertaining to the amounts charged by the municipality for
supplying her with electricity. The municipality
alleged that
she owed it; she denied that she was indebted to it. She failed or
refused to pay the amount alleged by the municipality,
as a result of
which the municipality terminated the electricity supply to her
property.
[3]
The applicant alleged that the electricity supply was terminated
without due process being followed and contrary to the municipality’s
debt and credit control policy. She insisted that the municipality
was not entitled to terminate the electricity supply in the
manner
that it did. She requested information and documents relevant
to the dispute that she would require to establish the
incorrectness
of the municipality’
s contention.
[4]
The applicant sent numerous e-mails to the municipality requesting
the relevant information. They all remained unanswered.
[5]
On 17 February 2016 she delivered a request for access to information
held by the municipality, in the prescribed form, to the
municipal
manager’s office. No response was forthcoming. On 4
April 2016, on counsel’s advice, she attempted
to pay the
prescribed application fee. She was advised, by a cashier, that
the municipality could not accept the money because
their system did
not make any provision for receipt of such money. On 5 May 2016
she enquired, via email, from the municipal
manager whether any fee
was payable. Needless to say, she received no response.
[6] On
9 May 2016 she launched this application seeking an order that the
municipality provide her with copies of the relevant documents,
which
she tabulated, within 5 days of the date of the order. The
municipality filed a notice to oppose on 25 May 2016.
It did
not file an opposing affidavit but instead filed a notice in terms of
Rule 6(5)(d)(iii).
[4]
It
contended that she did not exhaust her internal remedies and that
some of the information sought was not foreshadowed in her
founding
affidavit.
[5]
[7]
At the hearing the parties agreed that only one issue needed to be
decided by me: whether the applicant had to exhaust internal
remedies
when there was a deemed refusal as opposed to an actual refusal.
[8] Mr
Louw, on behalf of the applicant, contended that an internal appeal
is not peremptory where the refusal is a deemed refusal.
He
submitted that a deemed refusal cannot be accompanied by the reasons
of the decision-maker and because the Act requires the
reasons of the
decision-maker to form part of the appeal documents a deemed refusal
can therefore not be the subject of an internal
appeal. He
further submitted that the next step after a deemed refusal is an
application.
[6]
He
relied on the following authorities for his submission:
Gabankalafe
[7]
,
Masingi
[8]
and
Dlusha
[9]
.
[9] Mr
Ayayee, on behalf of the respondents, contended that the application
is premature because the applicant failed to comply
with a peremptory
requirement of the Act. He relied on
Sumbana
[10]
,
as authority for his submission.
[10]
The right to access to information is a constitutional right.
Section 32 of the Constitution reads as follows:
“
(
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.
”
The
Act gives effect to section 32 of the Constitution. In the
Preamble to the Act it is stated that it is enacted,
inter
alia
, to foster a culture of
transparency and accountability in public and private bodies by
giving effect to the right to access to
information; and to actively
promote a society in which the people of South Africa have effective
access to information to enable
them to more fully exercise and
protect all of their rights.
[11]
In
Br
ü
mmer
[11]
the
right to access to information was explained thus:
“
[62]
…
The importance of this right too,
in a country which is founded on values of accountability,
responsiveness and openness, cannot
be gainsaid. To give effect
to these founding values, the public must have access to information
held by the State. Indeed
one of the basic values and principles
governing public administration is transparency. And the Constitution
demands that transparency
'must be fostered by providing the
public with timely, accessible and accurate information'
.
[63]
Apart from this, access to information is fundamental to the
realisation of the rights guaranteed in the Bill of Rights. For
example, access to information is crucial to the right to freedom of
expression which includes freedom of the press and other
media and freedom to receive or impart information or ideas.
…
”
[12]
[12]
In
Van
Niekerk
[13]
it
was said:
“…
In
my view, s 23 entails that public authorities are no longer 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 s
23, is to subordinate
the organs of State, including municipal authorities, to a new
regimen of openness and fair dealing with
the public.
”
[14]
[13]
Two of the objects of the Act must be emphasized, firstly, the Act
seeks to establish voluntary and mandatory mechanisms or
procedures
to give effect to the right to access to information in a manner
which enables persons to obtain access to records of
public and
private bodies swiftly, inexpensively and effortlessly as soon as
reasonably possible; and secondly, it seeks to promote
transparency,
accountability and effective governance of all public and private
bodies.
[15]
[14] A
public body is defined, in section 1 of the Act as any department of
state or administration in the national or provincial
sphere of
government or any municipality in the local sphere of government.
[16]
The
municipality is therefore a public body as defined in paragraph (a)
of the definition of public body.
[14]
It is common cause that a proper request was directed at the
information officer of the municipality. In terms of section
25(1) the information officer was supposed to decide whether to grant
or refuse the request within a reasonable time but in any
event
within 30 days after receiving the request.
[17]
The
requester must be notified of the outcome and the next step that he
or she may take.
[15]
The information officer may, seemingly without the consent of the
requester, extend the original period of 30 days once, for
a period
not exceeding 30 days. The information officer must, if he/she
elected to extend the period, as soon as reasonably
possible but
within the original 30 day period notify the requester of that
extension. The notice must state the period and
reasons for the
extension and, explain what the requester may do if he/she is
aggrieved by the extension.
[18]
[16]
However, if the information officer fails to give a decision on a
proper request within 30 days, and no extension has been
sought, the
information officer is, for the purposes of the Act, regarded as
having refused the request.
[19]
Section
27 of the Act reads as follows:
“
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.
”
[17]
The words “
deemed
”
or “
regarded
as” are sometimes used in a statute in order to create a legal
fiction. If used in that sense it becomes important
to consider
the purpose for which the statutory fiction was introduced.
[20]
Often
it is used in order to extend the denotation of a word or term to a
thing or situation it would not in ordinary parlance denote.
[18]
In
Rosenthal
[21]
,
Trollip JA explained it thus
:
“
The
words "shall be deemed" ("word geag" in
Afrikaans) are a familiar and useful expression often used in
legislation
in order to predicate that a certain subject-matter, eg a
person, thing, situation, or matter, shall be regarded or accepted
for
the purposes of the statute in question as being of a particular,
specified kind whether or not the subject-matter is ordinarily
of
that kind. The expression has no technical or uniform connotation.
Its precise meaning, and also its effect, must be ascertained
from
its context and the ordinary canons of construction… In the
absence of any indication in the statute to the contrary,
a deeming
that is exhaustive is also usually conclusive, and one which is
merely
prima facie
or
rebuttable is likely to be supplementary and not exhaustive.
”
[19]
Access to information is in most, if not all cases, sought in order
to exercise, advance or protect a right. It is in
the interest
of the requester to receive the information as soon as possible and
if such information is not forthcoming, to move
to the next step as
soon as possible. Section 27 is aimed at overcoming inaction and
indecision by imputing a decision whenever
there is a failure to act
within a particular time period. The imputed decision facilitates the
progression of the dispute to a
higher administrative level.
This also helps to focus the information officer to the urgency of
requests and the need for
them to be attended to as soon as
reasonably possible. The words ‘regarded as” in the
context of the Act means
that failure to respond in 30 days (where
there was no extension sought) is as a matter of fact regarded to be
a decision to refuse.
The Act makes it clear that playing dead
has consequences.
[20]
Section 74(1)(a) provides:
“
(1)
A requester may lodge an internal appeal against a decision of the
information officer of a public body referred to in paragraph
(a)
of the definition of 'public body' in section 1-
(a)
to
refuse a request for access; or...”
[21]
Section 74 grants a requester a right to appeal against a refusal of
a request by a public body referred to in paragraph (a)
of the
definition of a public body. I have already said that a
municipality is a public body as defined in paragraph (a)
of the
definition. The imputed decision is a refusal of the request. Section
74(1)(a) does not exclude a deemed refusal
.
[22]
Internal appeals are regulated by section 75 which provides that:
“
(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 appeal 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.
”
[23]
The relevant authority with respect to municipalities is the mayor;
the speaker; or any other person designated in writing
by the
Municipal Council of the municipality concerned.
[22]
Section
74 and 75 do not differentiate between a deemed refusal and an actual
refusal. The internal appeal is an administrative
appeal which
is, in my view, available to a requester in the case of a deemed
refusal and an actual refusal
.
[24]
In terms of section 75(1) (c) the appellant may, in the appeal
papers, include any other relevant information known to the
appellant. The only limitation is that the information must be
relevant. The requester is not confined, at the appeal
stage,
to information that was in the original request. Information
that came to light after the request was refused as well
as
information that the requester omitted to include in the original
request may be placed before the relevant authority considering
the
appeal, provided that it is relevant.
[25]
The information officer must, as soon as reasonably possible but
within 10 working days after receiving the internal appeal,
submit
the appeal to the relevant authority together with his or her reasons
for the decision concerned. A deemed refusal
being a decision,
the information officer would, in my view, have to explain the
reasons for the indecision or inaction. If there
are reasons to
refuse the request, after considering it, those will also have to be
stated. If there are no reasons for the “
refusal”
the information officer would have to say so.
[26]
It seems to me that the internal appeal is a total reconsideration of
the decision, with or without additional information,
after both
sides have been given the opportunity to state why the decision
should be confirmed or set aside. Internal administrative
appeal procedures are not uniform. Different Acts prescribe
different review and appeal procedures.
[23]
The
provisions of the particular Act should be considered in order to
discern the nature of the administrative appeal. The appeal
provisions of the Act, in my view, includes an administrative appeal
based on a deemed refusal.
[27]
Section 78(1) provides that:
“
(
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.
[24]
[28]
At common law, the existence of internal remedies was not a bar to
approach a court for appropriate relief after an administrative
decision has been taken. C Hoexter
[25]
states
:
“
The
mere existence of an internal remedy is not enough by itself to
indicate an intention that the remedy must first be exhausted.
There must be a clear legislative or contractual intention to that
effect. Even then, there is no general principle at common
law
that an aggrieved person may not go to court ‘while there is
hope of extra-judicial redress.’ In fact, there
are
indications that the existence of a fundamental illegality, such as
fraud or failure to make any decisions at all, does away
with the
common-law duty to exhaust domestic remedies altogether.
”
[26]
[29]
When a Statute expressly states that the exhaustion of internal
remedies is an indispensable condition precedent before launching
an
application to a court then that condition must first be fulfilled.
Section 78 makes it compulsory for an aggrieved requester
to first
exhaust the internal remedies against a decision of the information
officer before approaching a court. It is one of the
compulsory
mechanisms in the Act which enables persons to obtain information
swiftly, inexpensively and effortlessly.
[30]
In
Koyabe
[27]
Mogoro
J commented on the need to exhaust internal remedies. She said:
“
[35]
Internal remedies are designed to provide immediate and
cost-effective relief, giving the executive the opportunity to
utilise
its own mechanisms, rectifying irregularities first, before
aggrieved parties resort to litigation. Although courts play a vital
role in providing litigants with access to justice, the importance of
more readily available and cost-effective internal remedies
cannot be
gainsaid.
[36]
First, approaching a court before the higher administrative body is
given the opportunity to exhaust its own existing mechanisms
undermines the autonomy of the administrative process. It renders the
judicial process premature, effectively usurping the executive
role
and function. The scope of administrative action extends over a
wide range of circumstances, and the crafting of specialist
administrative procedures suited to the particular administrative
action in question enhances procedural fairness as enshrined
in our
Constitution. Courts have often emphasised that what constitutes a
'fair' procedure will depend on the nature of the administrative
action and circumstances of the particular case.
Thus,
the need to allow executive agencies to utilise their own fair
procedures is crucial in administrative action…
O
nce
an administrative task is completed, it is then for the court to
perform its review responsibility, to ensure that the administrative
action or decision has been performed or taken in compliance with the
relevant constitutional and other legal standards.
”
[28]
In
Sumbana
it was correctly
stated that:
“
[11]
The wording of s 78(1) of the Act is, in my view, very clear and
unambiguous, and can have only one meaning: where a public
body
referred to in para
(a)
of
the definition of 'public body' is involved, a requester may only
apply to a court for appropriate relief after that requester
has
exhausted the internal appeal procedure provided for in s 74 of the
Act. This provision is clearly mandatory and there is no
room for a
finding that it is either only permissive or discretionary. Apart
from a finding that the words used are per se mandatory,
the
provisions of s 78(2)
(a)
of
the Act provide further substantiation for the fact that the said
provisions are indeed mandatory: the said s 78(2)
(a)
provides
that, if a requester has been unsuccessful in an internal appeal,
such requester may apply to a court for relief. A further
indication
that these provisions are mandatory, where a public body referred to
in para
(a)
of
the definition is involved, is the fact that, where a public body
referred to in para
(b)
of
the definition is involved, there is no provision for an internal
appeal and an aggrieved requester may approach a court directly
in
terms of the provisions of s 78(2)
(c)
of
the Act.
”
[29]
[31]
In now turn to consider the authorities relied upon by Mr Louw.
Although
Masingi
and
Dlusha
dealt with a failure to respond and therefore
deemed refusals; both judgments do not consider the effect of a
deemed refusal and
the need to exhaust internal remedies before
approaching the court. The relief, in both cases, was
inexplicably granted without
considering those relevant factors.
They are both of no assistance to the applicant. They were, in my
view, wrongly decided.
[32]
In
Gabankalafe
Olivier J said
the following:
“
[15.]
Section 27 is not specifically mentioned in the list of decisions in
paragraph (b) and the question would be whether a deemed
refusal
would be a
"decision
...
refuse",
as
envisaged in paragraph (a).
[16.]
Mr Phaswana argued that it would, but could not refer me to any
authority in this regard. Such an interpretation would result
in the
anomaly of an appeal against a
"decision"
which
has never in fact been taken and in respect of which there could not
be
"reasons",
as
envisaged in section 75 of the Act. It is also difficult to conceive
how a deemed "decision" could be argued to have
been wrong
if it had in fact not been taken. As already mentioned it is not,
however, necessary to decide this point.
”
[30]
It
is clear that Olivier J had to decide costs and not the merits of the
application. His views are
obiter dicta
.
Olivier opines that an interpretation that a deemed refusal is a
decision to refuse would result in the anomaly of an appeal
against a
“
decision
”
which
has never in fact been taken and in respect of which there could be
no reasons.
[33]
The failure to take a decision, in the context of the Act, migrates
into a refusal of the request. It is an
ex
lege
refusal.
[31]
It
is therefore
ex
lege
and
conclusively adjudged to be a decision to refuse. The fact that
it has never in fact been taken is irrelevant. It
is deemed
because it was not actually taken. In
The
Queen (R) v Norfolk County
Cave J defined a deeming provision, in impressive legalese, as
follows:
“
When
you talk of a thing being deemed to be something, you do not mean to
say that it is that which it is to be deemed to be.
It is
rather an admission that it is not what it is to be deemed to be, and
that, notwithstanding it is not that particular thing,
nevertheless
it is to be deemed to be that thing.
”
[32]
[34]
The culture of justification permeates the Act. The mere request for
a record of information held by a public body obliges
the information
officer to produce it or justify withholding it.
[33]
If
during the appeal the information officer cannot justify the refusal,
the decision ought to be reversed. The internal appeal
is not
against the failure to give information but against the “
refusal”
to
give information. A deemed refusal is wrong because it has not been
justified.
[35]
It is axiomatic that where there is a deemed refusal because of
inaction, it would be impossible to give notice in terms of
section
25(3)(c) of the Act. Section 25(3)(c) of the Act can only be
applied when there is an actual decision to refuse and
not in cases
of a deemed decision. The provisions of section 25 clearly deal
with an actual decision to grant or refuse the
application.
[36]
In
Sumbana
it was said that:
“
[17]
…
The
provisions of ss
(c)
are very clear:
if one has regard to the totality of this subsection, and in
particular to the words 'as the case may be', it is
clear that the
purpose of this subsection is to inform a particular requester
whether he may lodge an internal appeal, 'as the
case may be', that
is, where a public body referred to in para
(a)
of
the definition is involved, or apply to a court where the said public
body is not a public body referred to in the said para
(a)
of the definition, and the procedure (including
the period for the lodgement of the internal appeal or the
application) to be followed.
This means that the said notice must,
inter alia, refer to the provisions of ss 74, 78(1) and 78(2) of the
Act. There is, in my
view, no room whatsoever for a finding that the
provisions of s 25(3)
(c)
are
contradictory to the provisions of ss 74 and 78.
[18]
The applicants
in
casu
cannot
in any event rely on the provisions of s 25(3)
(c)
of
the Act. This section is only applicable where there is a de facto
refusal of a request and not where there is a deemed refusal
in terms
of the provisions of s 27 of the Act. This is apparent from the
provisions of s 25(3)
(c)
read
with the provisions of s 25(1)
(b)
-
an information officer must give notice in terms of this section
(where there is a de facto refusal), and such notice means notice
in
writing (see the definition of 'notice' in s 1 of the Act). There was
in
casu
a
deemed refusal in terms of the provisions of s 27 of the Act and it
follows that there was no notice as is envisaged in s 25.
”
[34]
I
agree.
[37]
The failure to make a decision within a reasonable time is in itself
a review ground. The failure to take a decision is administrative
action. Administrative action is, inter alia, defined as any decision
taken, or any failure to take a decision, by an organ of
state when
exercising a public power or performing a public function in terms of
any legislation.
[35]
It is common cause that the information officer of a municipality
performs a public function. Section 6(2)(g) read with sections
6(3)
and 8(2) of the Promotion of Administrative Justice Act (PAJA)
[36]
regulates
reviews based on a failure to take a decision. These sections read as
follows:
“
6(
2)
A court or tribunal has the power to judicially review an
administrative action if-
…
(g)
the
action concerned consists of a failure to take a decision;
…
6
(3)
If any person relies on the ground of review referred to in
subsection (2)
(g)
, he or she may in
respect of a failure to take a decision, where-
(a)
(i)
an
administrator has a duty to take a decision;
(ii)
there
is no law that prescribes a period within which the administrator is
required to take that decision; and
(iii)
the
administrator has failed to take that decision,
institute proceedings in
a court or tribunal for judicial review of the failure to take the
decision on the ground that there has
been unreasonable delay in
taking the decision; or
(b)
(i) an administrator has a duty to take a
decision;
(ii) a law prescribes a
period within which the administrator is required to take that
decision; and
(iii)
the
administrator has failed to take that decision before the expiration
of that period,
institute
proceedings in a court or tribunal for judicial review of the failure
to take the decision within that period on the ground
that the
administrator has a duty to take the decision notwithstanding the
expiration of that period…
8(
2)
The court or tribunal, in proceedings for judicial review in terms of
section 6 (3), may grant any order that is just and equitable,
including orders-
s(a)
directing
the taking of the decision;
(b)
declaring
the rights of the parties in relation to the taking of the decision;
(c)
directing
any of the parties to do, or to refrain from doing, any act or thing
the doing, or the refraining from the doing, of which
the court or
tribunal considers necessary to do justice between the parties; or
(d)
as
to costs.
”
[39]
If the Act did not have a deeming provision section 6(3) of PAJA
would be applicable whenever there was a failure to take a
decision.
In terms of section 8(2) the review court or tribunal has wide powers
to order a public body that failed to take a decision
to give the
requester access to the required information.
[40]
Since a failure to take a decision is already a ground of review, why
would the legislature invoke a deeming provision to achieve
that
which PAJA already regulates? The deeming provision is meant to
achieve something more than what PAJA regulates. It imputes
a
decision (the refusal) and thereby obviates the need for the
requester to apply to a court to compel the information officer
to
make a decision.
[41]
As stated above, one purpose of the deeming provision in the Act is
to give the requester the right to the take the next procedural
step. The next procedural step is in my view, an internal
appeal. The interpretation advanced by Mr Louw does not promote
swift and inexpensive access to information but encourages a process
that is notoriously slow and expensive: court applications.
An allied
disadvantage for impecunious requesters is that the information
officer can ignore the request in the hope that the requester
does
not have the resources to launch a court application. The
interpretation that the deemed refusal is internally appealable
gives
the requester a cheaper and faster remedy and, it gives the public
body an opportunity to self-correct. Section 2 of the
Act enjoins a
court to prefer an interpretation that is consistent with the objects
of the Act over any alternative interpretation
which is inconsistent
with those objects. Mr Louw‘s interpretation is inconsistent
with the objects of the Act.
[42]
There is in my judgment, in the context of the Act, no substantive
difference between a deemed refusal and an actual refusal.
In
both cases the requester does not receive the information. In
each case the requester may utilize the internal appeal
procedure set
out in the Act. The only difference between an actual refusal and a
deemed refusal is procedural, in that, in the
case of an actual
refusal the requester is entitled to a notice setting out the reasons
for the refusal and the right and procedure
to prosecute an internal
appeal.
[43]
I do not agree with the approach in
Masingi
and
Dlusha
. The reasoning in
Gabankalafe
is not
persuasive. The latter renders the deeming provision superfluous.
The Act is clear a requester may not approach a court
before
exhausting her/his internal remedies. In my view the applicant
did not exhaust her internal remedy of appeal as provided
for in the
Act. The application is therefore premature and must fail.
[44]
Mr Ayayee submitted that the applicant should pay the costs, because
as an attorney she ought to have known that she must exhaust
her
internal remedies. I disagree. Firstly she acted on legal
advice. Secondly, and more importantly, if the
public body did
what it was supposed to do, she would not have launched this
application. The conduct of the municipality
is disconcerting.
[45]
Public bodies have a constitutional duty to give people access to
information so that they can exercise their rights.
When they
try to subvert a person’s constitutional right by being
unresponsive and playing possum their conduct should be
deprecated.
[46]
This is a case in which the
Biowatch
[37]
principle
should be applied: In
Biowatch
it
was said:
“
[56]
I conclude, then, that the general point of departure in a matter
where the State is shown to have failed to fulfil its constitutional
and statutory obligations, and where different private parties are
affected, should be as follows: the State should bear the costs
of
litigants who have been successful against it, and ordinarily
there should be no costs orders against any private litigants
who
have become involved. This approach locates the risk for costs at the
correct door - at the end of the day, it was the State
that had
control over its conduct.
”
[38]
[47]
I make the following order:
The application is
dismissed.
______________
C.J.
MUSI, AJP
On
behalf of Applicant: Adv M.C. Louw
Instructed
by
Hill
Mchardy and Herbst
BLOEMFONTEIN
On
behalf of 1
st
& 2
nd
Respondents:
Mr. A.E. Ayayee
Instructed
by
Rampai
Attorneys
BLOEMFONTEIN
[1]
Act
2 of 2000.
[2]
Matjhabeng
Local Municipality, a local municipality established in terms of
section 155 of the Constitution of the Republic of
South Africa
1996, read with
section 2
of the
Local Government: Municipal Systems
Act 32 of 2000
.
[3]
Section
1 of the Act reads:
“’
information
officer’
of, or in relation to a
public body–
(b)
in the case of a municipality, means the municipal manager appointed
in terms of section 82 of the Local Government: Municipal
Structures
Act, 1998 (Act 117 of 1998) or the person who is acting as such….
[4]
Rule
6(5)(d)(iii) of the Uniform Rules reads as follows:
“
(d)
Any person opposing the grant of an order sought in the notice of
motion must—
…
(iii)
if
he or she intends to raise any question of law only he or she must
deliver notice of his or her intention to do so, within
the time
stated in the preceding sub-paragraph, setting forth such question.
[5]
The
matter was set down on 9 May 2017 for 8 June 2017. The reason for
the delay is unknown.
[6]
The
Act defines ‘
application
’
as an application to a court in terms of section 78.
[7]
Gabankalafe
v Member of the Executive Council for Health; Northern Cape Province
(649/2016)
[2016] ZANCHC 40
(9 December 2016).
[8]
Masingi
v Greater Giyani Municipality
(2679/2016) [2016] ZAGPPHC 1052 (22 December 2016).
[9]
Dlusha
v King Sabata Dalinyebo Municipality
2012 (4) SA 407 (ECM).
[10]
Sumbana
and others v Head of the Department of Public Works, Limpopo
Province and others
2009 (3) SA 64
(V).
[11]
Brümmer
v Minister for Social Development and others
2009 (6) SA 323 (CC).
[12]
At
paras 62 to 63.
[13]
Van
Niekerk v Pretoria City Council
1997
(3) SA 839
(T). Section 23 of the Interim Constitution dealt with
access to information.
[14]
At
850A-B.
[15]
See
sections 9(d) and (e) of the Act.
[16]
Section
1 of the Act reads:
“
public
body'
means-
(a)
any
department of state or administration in the national or provincial
sphere of government or any municipality in the local
sphere of
government; or
(b)
any
other functionary or institution when-
(i)
exercising
a power or performing a duty in terms of the Constitution or a
provincial constitution; or
(ii)
exercising
a public power or performing a public function in terms of any
legislation;
”
[17]
Section
25 reads as follows:
“
(1)
Except if the provisions regarding third party notification and
intervention contemplated in Chapter 5 of this Part apply,
the
information officer to whom the request is made or transferred,
must, as soon as reasonably possible, but in any event within
30
days, after the request is received-
(a)
decide
in accordance with this Act whether to grant the request; and
(b)
notify
the requester of the decision and, if the requester stated, as
contemplated in section 18 (2)
(e)
,
that he or she wishes to be informed of the decision in any other
manner, inform him or her in that manner if it is reasonably
possible.
[Sub-s. (1) amended by
s. 28 of Act 42 of 2001 (wef 7 December 2001).]
[18]
Section
26 reads as follows:
“
(1)
The information officer to whom a request for access has been made
or transferred, may extend the period of 30 days referred
to in
section 25 (1) (in this section referred to as the 'original
period') once for a further period of not more than 30 days,
if-
(a)
the request is for a large number of
records or requires a search through a large number of records and
compliance with the original
period would unreasonably interfere
with the activities of the public body concerned;
(b)
the
request requires a search for records in, or collection thereof
from, an office of the public body not situated in the same
town or
city as the office of the information officer that cannot reasonably
be completed within the original period;
(c)
consultation
among divisions of the public body or with another public body is
necessary or desirable to decide upon the request
that cannot
reasonably be completed within the original period;
(d)
more
than one of the circumstances contemplated in paragraphs
(a)
,
(b)
and
(c)
exist
in respect of the request making compliance with the original period
not reasonably possible; or
(e)
the
requester consents in writing to such extension.
(2) If a period is
extended in terms of subsection (1), the information officer must,
as soon as reasonably possible, but in any
event within 30 days,
after the request is received or transferred, notify the requester
of that extension.
(3) The notice in terms
of subsection (2) must state-
(a)
the
period of the extension;
(b)
adequate
reasons for the extension, including the provisions of this Act
relied upon; and
(c)
that
the requester may lodge an internal appeal or an application with a
court, as the case may be, against the extension, and
the procedure
(including the period) for lodging the internal appeal or
application, as the case may be.
[NB:
Para.
(c)
has been substituted by
s. 110
of the
Protection of Personal Information Act 4 of 2013
, a provision
which will be put into operation by proclamation. See PENDLEX.
]
”
[20]
See
Muller
v Dalgety & Co. Ltd
[1909] HCA 67
;
(1909) CLR 693
at 696.
[21]
S
v Rosenthal
1980 (1) SA 65
(AD) at 75F – 76A
[22]
See
definition of relevant authority in section 1 of the Act.
[23]
I
mention a few to illustrate:
Section
77B of the
Customs and Excise Act 91
of
1964 reads as follows:
“
(1)
Any person who may institute judicial proceedings in respect of any
decision by an officer may, before or as an alternative
to
instituting such proceedings, lodge an appeal-
(a)
to
the Commissioner against a decision of an officer; or
(b)
to
the appeal committee contemplated in this Part in respect of those
matters and decisions of officers that the appeal committee
is
authorised by rule to consider and decide upon or make
recommendations to the Commissioner.
(2)
If dissatisfied with a final decision as contemplated in
(a)
or
(b)
and the
Commissioner is of the opinion that the matter is appropriate, such
a person may make use of the alternative dispute procedure
contemplated in section 77I.
”
Section
62 of the Municipal Systems Act 32 of 2000 reads as follows:
“
(1)
A person whose rights are affected by a decision taken by a
political structure, political office bearer, councillor or staff
member of a municipality in terms of a power or duty delegated or
sub-delegated by a delegating authority to the political structure,
political office bearer, councillor or staff member, may appeal
against that decision by giving written notice of the appeal
and
reasons to the municipal manager within 21 days of the date of the
notification of the decision.
(2) The municipal
manager must promptly submit the appeal to the appropriate appeal
authority mentioned in subsection (4).
(3)
The appeal authority must consider the appeal, and confirm, vary or
revoke the decision, but no such variation or revocation
of a
decision may detract from any rights that may have accrued as a
result of the decision.
”
Section
31 of the Estate Agents Act 112 of 1976 reads as follows:
“
(1)
Any person who feels aggrieved by any decision taken by the board in
the exercise of its powers under section 8C, 16, 27,
28 or 30 may at
any time after he or she became aware of such decision but not later
than one month after the board-
(a)
has
informed him or her in writing of such decision and upon payment of
the prescribed fees, request the board in writing to furnish
him or
her in writing with its reasons for such decision;
(b)
has
in accordance with paragraph
(a)
furnished
him or her with its reasons for such decision and after notice to
the board, appeal to the court against such decision,
and the court
may thereupon-
(i)
dismiss
the said appeal;
(ii)
if
it is of the opinion that the board has not acted in accordance with
the relevant provision of this Act, give an order opposite
to the
decision of the board or amending the decision of the board;
(iii)
refer
the matter back to the board for further consideration; or
(iv)
give
such other order, including any order as to costs, as it may deem
fit.
(2) A
court may, on application by the board, order that a decision of, or
penalty imposed by, the board not be stayed or suspended
pending an
appeal to the court under the provisions of this section, if the
court considers such an order to be in the public
interest.
”
[24]
Section
82 sets out the orders that a court may make. It reads:
“
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.
”
[25]
Hoexter
C:
Administrative
Law in South Africa
,
2
nd
Ed. Juta 2011.
[26]
At
539.
[27]
Koyabe
and others v Minister for Home Affairs and others
2010 (4) SA 327 (CC).
[28]
At
paragraphs 35 to 37. Although that was said with to the
Promotion of Administrative Justice Act 3 of 2000
it is also
applicable to the Act. In fact section 7(2)(c) of PAJA
sanctions dispensing with the requirement of exhausting
internal
remedies under exceptional circumstances whereas the Act contains no
such provision.
[29]
At
para [11].
[30]
At
paras [15] and [16].
[31]
See
Centre
for Social Accountability v The Secretary of Parliament and others
Saflii ZAECGHC 2011/33 at para 28.
[32]
(1891)
60 LJQB 379..
[33]
See
President
of the RSA v M&G Media
[2010] ZASCA 177
at para 11.
[34]
At
para [17] and [18].
[35]
See
section 1(i)(a)(ii)
of the
Promotion of Administrative Justice
Act 3 of 2000
[36]
Act
3 of 2000.
[37]
Biowatch
Trust v Registrar, Genetic Resources, and Others
2009 (6) SA 232 (CC).
[38]
At
para 56