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[2016] ZANCHC 40
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Gabankalafe v Member of the Executive Council for Health: Northern Cape Province (649/2016) [2016] ZANCHC 40 (9 December 2016)
IN
THE HIG H COURT OF SOUTH AFRICA
(Northern
Cape High Court,Kimberley)
CASE
NO: 649/2016
DATE
HEARD: 02/12/2016
DATE
DELIVERED:09/12/2016
In
the matter between:
GABANKALAFE,
PULANE
Applicant
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH: NORTHERN CAPE
PROVINCE
Respondent
C
oram:
Olivier J
JUDGMENT
Olivier
J:
[1
.]
The
applicant,
Ms
Pulane
Gabankalafe,
brought
an
appl
i
cation
for
an
order
to
compel
the
respondent,
the
Member
of
the
Executive
Counsel
for
Health,
Northern
Cape
Province,
to
comply
with
a
request
for
access
to
information
which had been made in
terms
of the
Promotion
of
Access to Information Act
[1]
("the
Act").
[2.]
It is not in dispute that the information concerned pertains to the
death of Mr Jack Gabankalafe ("the
deceased")
and
that access thereto is required for purposes of an action which has
been instituted against the Road Accident Fund for loss
of support
allegedly suffered by the applicant because of the death of the
deceased.
[3.]
The applicant's case is that the respondent failed to respond to the
request. It is at this stage agreed between the parties
that such an
order must not be granted, for reasons to which I will revert. The
parties have however not succeeded in settling
the costs of the
application, and that is therefore the only issue at this stage.
[4.]
The applicant contended that the respondent should be ordered to pay
the costs of the application on the scale of attorney
and client. Mr
Olivier, counsel for the applicant, pursued this contention, but not
as far as the issue of punitive costs is concerned.
The respondent
was, and remains, not willing to pay any costs.
[5.]
The applicant has now in reply, dearly as a reaction to the fact that
the respondent was not prepared to tender costs, raised
the issue
that the answering affidavit was filed late and that the respondent
never applied for condonation. This while the filing
of the replying
affidavit was delayed until a few days before the hearing of this
application.
[6.]
The answering affidavit was filed as long ago as on 20 July 2016.
There is absolutely no merit in this objection and Mr Olivier
wisely
did not pursue it. It has not been shown that the late filing thereof
caused the applicant any prejudice at all. In as far
as It may in the
circumstances still be relevant and necessary I condone the late
filing of the answering affidavit.
[7.]
In the answering affidavit Mr S Z Mashilo, the deponent for the
respondent and also the appointed Deputy Information Officer
for the
purposes of the Act, raised several points
in limine.
They
were pursued in the heads of argument on behalf of the respondent,
but at the hearing Mr Phaswana, the attorney who represented
the
respondent, abandoned the objections pertaining to the
locus
standi
of the applicant and jurisdiction. The
remaining objection Is that the application is premature.
[8.]
This objection is based, in the first place, on the submission that
the respondent's alleged failure to respond to the request
was a
decision in respect of which the applicant would only have been able
to approach a court once the remedy of an internal appeal
in terms of
the Act has been exhausted, which has not happened here.
[9.]
In terms of section 27 of the Act
"an
information
o
fficer
(who)
fails
to
give the
decision on a request for ac
c
e
s
s to
the requester
c
oncerned within the period
c
ontemplated
in
section 25
(1)
...
is
.....
r
e
garded
as
having refused the request''.
[10.]
Section 25 (1) provides that the decision whether or not to grant
access to information has to be made and communicated to
the
requester within 30 days after receipt of the request. Section 26 of
the Act does provide for one extension of this period,
for no more
than a further 30 days, but that would have had to be done in a
prescribed manner and did not happen in the present
case.
[11.]
Section 78(1) of the Act indeed provides that a
"requester'
can only approach a court for appropriate relief once the remedy
of an internal appeal against a particular
"decision"
has been exhausted.
[12.]
In the circumstances of the present matter the
"requester'
would be the
"
person
.......
making a
request for
access to a record
.
.
.
",
as
envisaged in section 1of the Act. In this case the request was
submitted by the applicant's mother, and not by herself, which
means
that the applicant would not be a “
requ
e
ster'”
f
or purposes of section 78 (1) of the Act.
[13.]
The right of an internal appeal Is provided for in section 74 (1), in
terms of which "(a)
requester
may lodge an internal
appeal"
against a
"decision"
of the
information officer. The applicant is not the requester and would
therefore in any event not have been able to lodge an
internal
appeal.
[14.]
This makes it unnecessary to decide whether a deemed refusal, as
envisaged in
inter
alia
section
27
of the Act
[2]
would
be
a
"decision"
as
envisaged
i
n
section
74
(1).
Subsection 1of section 74 provides that an internal appeal may
be lodged against a
"decision
.
...
(a)
to refuse a request for access;
or
(b)
taken
in
terms of
section
22,
26 (1)
or
29
(3
)
,
.
.
.
".
[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
...
r
e
fuse",
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.
[17.]
I must confess that I find it difficult to understand the second
ground upon which Mr Phaswana argued that the application
is
premature, but he seemed to base it on the fact that the request that
was lodged does not comply with the provisions of section
18 of the
Act, and on the submission that it therefore in fact cannot be
regarded as a request in respect of which the court can
grant any
relief.
[18.]
Section 18 provides that a request for access must be made
"in
the prescribed
form
",
and it is
common cause that the request in this matter is not in the prescribed
form.
[19.]
The fact of the matter is, however, that the respondent accepted the
request in this form. Mr Mashilo explained that he regarded
the
deficiencies in the form as the result of an innocent error and that
he therefore proceeded to attend to the request, in other
words as if
it had been in the proper form. This is not surprising, as it is
common cause that he had by then over a period of
approximately a
year been in communication with the applicant's attorney about the
issue and would in all probability therefore
have had
more particulars of the information concerned than what
appeared in the request that had been lodged.
[2
0
.
]
M
r
M
ashilo
relied
on
the
judgment
i
n
Natio
n
al
T
eachers
Un
i
on
v
S
uperint
e
n
d
e
n
t
Gen
e
ral
:
D
epartment
of Ed
u
cation
and Cultur
e
,
Kwaz
u
l
u
-Natal
and
Another
[3]
,
and
more
specifically
on
the
remark
i
n
paragraph
[47]
thereof
that
i
n
an application
i
n
terms
of the
Act
the
appl
i
cant
must prove
that
the request had been made
on
the
prescribed
form.
The
remark
was clearly
made
obiter,
and
against
the
background
of
what
had
apparently
been
merely
an
“
informal”
request.
[21.]
The failure to file a formal request had not been explained by the
applicant in the National Teachers Union case, while the
applicant's
attorney in the present matter has explained that he had to search
for the prescribed form himself and that he could
not even locate it
on the respondent's website.
[22.]
Sight
must
also
not be
l
ost
of
the
fact
that
Mr
Mashi
l
o
actually
had
a
statutory
duty to
assist
the
requester
to
comply with section
1
8
of
the
Act
and
he
would only
have
been
entitled
to
refuse
access
on
the
basis
of
non-compliance
with
section
1
8
[4]
once
he had
"as
far
as
reasonably possible,
furnished
the requester with any
information
......
.
...
.
.
that
would
assist
the making of
the
request
in
that form "
and
had
"given
the
requester
a
reasonable
opportunity to
confirm
the
request
or
alter
it to comply with section 18
(1)".
This
Mr Mashilo never did
and
it
would
not
i
n
the
circumstance be equitable to deny the applicant access to court on
the
basis
argued
by
Mr
Phaswana.
[23.]
This brings me to the merits of the application. As already mentioned
the applicant's case is based on the respondent's alleged
failure to
respond. The case made out in the founding affidavit in this regard
is as follows:
23.1
Reference was made to a letter which the attorney of the
applicant had sent to the Superintendent of
the Kuruman
Hospital on 23 September 2014. It was alleged that the
letter had been served by the sheriff.
The return of service relied
upon is titled
"NOTICE
OF INTENTION
TO
INSTITUTE LEGAL PROCEEDINGS
"
,
and reflects
service as having taken place only on 29 June 2015. The return
therefore does not appear to have anything at all to
do with the
alleged letter.
23.2
The applicant furthermore relied on a letter which her attorney had
on 3 October 2014 according to her addressed
to the Kuruman Hospital.
She alleged that the respondent had
'
'sta
m
ped"
the letter on 7 October 2014, but this allegation is not borne
out by the copy of the letter annexed to the founding affidavit. Once
again it cannot be found, on the basis of the allegations in the
founding affidavit, that the respondent had at any stage become
aware
of the contents of that letter.
23.3
It does appear, however, that Mr Mashilo must at some stage have
become aware of the issue, because it is
common cause, as already
mentioned, that he had been in communication with the attorney of the
requester and of the applicant about
this for about a year when he,
in a letter dated 7 October 2015, informed the attorney of the need
for a formal request in terms
of the Act. It is also clear from this
letter
that there must have been communication between the particular
attorney and the office of the respondent before that, because
the
letter refers to a copy of a death certificate that had been made
available to the respondent.
23.4
On 12 October 2015 the applicant's attorney lodged the request
already referred to.
23.5
On 4 January 2016 the founding affidavit was deposed to, stating that
the respondent had not responded to
the request at all. The
respondent was also blamed for the fact that the trial of the action,
which had been set down for 27 November
2015, had to be postponed.
23.6
On 30 March 2016 the application was lodged.
[24.]
It is important at this stage to highlight the fact that in all the
letters relied upon by the applicant in the founding affidavit,
reference was pertinently made of an accident which had occurred on
25 July 2010. As already mentioned they were also all addressed
to
the Kuruman hospital. They did not mention the date of the death of
the deceased.
[25.]
In a letter dated 1June 2015 and titled "NOTICE OF INTENTION TO
INSTITUTE
LEGAL
PROCEEDINGS lN TERMS OF ACT 40 OF 2002"
[5]
attached
to
the
answering
affidavit, the
attorneys
representing
the
requester
{and
now
also
the applicant)
once
aga
i
n
specifically
referred
to the date of the accident
and
to the
Kuruman
hospital.
The
respondent was informed that the deceased had been involved
i
n
a
motor
vehicle
accident
on
25
July
20
1
0
and that
he
had
been
i
n
the
Kuruman
hospital when he died. Once agai
n
the
date of death was not mentioned.
[26.]
The information in all these letters would obviously have created the
impression that the deceased had been admitted to the
Kuruman
hospital immediately after the accident, and that he had then died
there on the date of the accident or possibly relatively
shortly
thereafter.
[27.]
Subject to what follows it is therefore understandable that, upon
receipt of the request, Mr Mashilo forwarded it to Mrs Gloria
Mataka
at the Kuruman Hospital, and that he made specific reference to the
date of the accident.
[28.]
Thereafter Mr Mashllo made numerous telephonic enquiries with Mrs
Mataka, until 14 December 2015, when she informed him that
no such
records could be traced. All of this have been confirmed by Mrs
Mataka.
[29.]
According to Mr Mashilo he had still been within the period allowed
by the Act for a response to a request for access to information,
when the trial was removed from the roll.
[30.]
Mr Mashilo went on to explain that he had on 7 January 2016 deposed
to an affidavit as envisaged in section 23(1) of the Act,
in which he
basically declared that the records to which access had been
requested, could not be traced. Mr Mashilo declared that
he had
dispatched this affidavit to the applicant's attorney during January
2016, but that he had misplaced proof of such dispatch.
[31.]
Mr Mashilo attached a copy of an affidavit, which purports to have
been deposed to on 7 January 2016, to his affidavit in
substantiation
of this. The affidavit was resent to the attorney's concerned on 20
April 2016. By then this application had obviously
already been
lodged, but the answering affidavit not yet, and of course not the
replying affidavit.
[32.]
The
applicant
sought
final
rel
i
ef,
which would have
mea
n
t
that the
so-called
P
l
ascon-E
v
a
n
s
rule would have applied,
i
n
other words final rel
i
ef
could on
l
y
on be ordered the papers
"if
the
facts
averred
in the applicant's affidavits, which
have
been admitted
by
the respondent, together with the
facts
alleged
by
the
•
latter, justify such order.
This
is
so
unless the
respondent's
version consists of bald
or
uncreditworthy
denials,
raises
fictitious
disputes
of
fac
t
,
Is
palpably
implausible,
far-fetched
or
so
clearly
untenable
that
the
court
is
justified
in
rejecting them merely on
the
papers”
[6]
[33.]
There is nothing improbable in the respondent's version and
explanation of what transpired after the formal request was lodged.
It therefore has to be accepted that Mr Mashilo
had, immediately upon receipt of the
deficient request, nevertheless taken steps to trace the
information, by taking it up with Mrs Mataka, by frequently
following
It up with her and by eventually Informing the attorney, by
affidavit, of the position.
[34.]
The denial of the allegation that such an affidavit had been deposed
to and had been sent to the attorney concerned, is really
no more
than a bare denial. The reference to the absence of proof of
transmission of the affidavit, and the apparent suggestion
that it
militates against Mr Mashilo's averment, is no more than speculation.
It is in fact completely far-fetched that the copy
of the affidavit
produced by Mr Mashilo had in some way been falsified specifically
for purposes of this application.
[35.]
It is therefore accepted, not only on the basis of the Plascon-Evans
rule but also on the probabilities, that the affidavit
had been sent
to the attorney.
[36.]
It is not the applicant's case that she or her attorney had, after
lodging the request, ever as much as attempted to follow
it up with
Mr Mashilo, or any other representative of the respondent, which Is
strange, given the seemingly frequent contact that
there had been
before then with Mr Mashilo. The applicant simply proceeded to lodge
this application.
[37.]
If the transmission of the affidavit had been successful, it would
have come to the attention of the applicant's attorney
long before
this application was lodged. Even after it was been annexed to the
answering, the applicant chose to persist with the
application on
costs.
[38.]
This while it now appears that the particulars that had Initially
been supplied to the respondent regarding the information
concerned
were completely misleading. It now appears, from the applicant's own
replying affidavit, that the deceased had after
the accident not been
admitted to the Kuruman hospital. He was in fact examined or treated
at the Vryburg hospital. He only died
much later, on 10 December
2012. According to the death certificate he died in Kuruman, and
therefore possibly at the Kuruman hospital.
[39.]
The death certificate must have come to Mr Mashilo's attention
sometime after he had on 14 July 2015 requested a copy thereof,
but
before he forwarded both the request and the death certificate to the
Kuruman hospital. The date of death was also for the
first time
mentioned in that letter to Mrs Mataka.
[40.]
The death certificate reflects the cause of death as
"NATURAL
CAUSES".
This in itself could have led to further confusion.
How was Mrs Mataka expected to know what the fact that the deceased
had been
involved in a motor vehicle accident on 25 July 2010 on the
face of it had to do with the fact that he died almost a year and a
half later, of natural causes? How was she supposed to know that the
deceased had in fact not been admitted to the Kuruman hospital
after
the accident, but rather at some stage before his death?
[41.]
The respondent's attempt, in terms of Rule 35, to obtain from the
applicant
inter
alia
proof of the admission of
the deceased to hospital elicited no response. Such proof would most
probably have revealed not only particulars
of the hospital
concerned, but also of the date of admission. This was in May 2016,
once again before even the answering affidavit
was filed. One does
not know if further particulars like that may have led to the
discovery of information relevant to the death
of the deceased.
[42.]
Against this background one can understand that the parties
eventually, and after by way of the answering and replying affidavits
obtaining a lot more particulars about the information to which
access is needed, agreed that an order compelling the respondent
to
comply with the request that had been submitted, would not be
appropriate.
[43
.
]
The
conduct
of
the
respondent,
h
owever,
i
s
also
n
ot
free
of
blame.
The
respondent had
30
days
within
which
to
respond
to
the
request
[7]
i
n
other
words until approximately
middle
November 20
1
5.
On the other
hand,
respondent surely cannot
in
the
circumstances
be blamed for
waiting
for
M
rs
Mataka to final
i
se
her
search
of
the
records,
particularly
not
while
constantly
contacting
Mrs
Mataka in
this
regard.
[44.]
There is, however, no indication that Mr Mashilo had, before the
prescribed time for a response to such a request had expired,
or even
at any stage thereafter, taken any steps to keep the applicant's and
requester's attorney informed of the progress and
of the steps that
had been taken, and were being taken, to trace the records.
[45
.
]
There
i
s
also no indication that steps
had
ever been taken to extend the 30 day period,
but
even
if
there
had,
the
response
in
the
form
of
the
affidavit
of
7
January
20
1
6
would have been outside the
maximum
extended
period
allowed by
the
Act
[8]
[46.]
There is,in my view, on the available information no reason
whatsoever why a costs order should be made against the respondent,
let alone a punitive costs order.
[47.]
By persisting with the attitude that the respondent should pay costs,
and on a punitive scale, even after becoming aware of
the affidavit
of 7 January 2016, the applicant caused the respondent to Incur
costs.
[48.]
On the other hand, however, the respondent has In my view in its own
way caused unnecessary costs by raising technical objections
which
really had no merit at all. In my view the just result would be for
each of the parties to pay their own costs.
[49.]
In the premises the following orders are made:
1.
NO ORDERIS MADE IS IN RESPECT OF THE RELIEF SOUGHT IN PARAGRAPHS 1AND
1.1OF THE NOTICE OF MOTION.
2.
IT IS ORDERED THAT THE PARTIES WILL EACH PAY THEIR OWN COSTS IN THE
APPLICATION.
___________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For
the Appellant:
ADV. DOLIVIER
(Duncan & Rothman
Inc.)
For
the Respondent:
ADV. K
PHASWANA
(Office of the State
Attorney)
[1]
2 of 2000
[2]
See section 58 in respect
of
requests
for
access to information
of
private bodies.
[3]
[2008]
ZALC
18
[4]
See section 19 of the
Act.
[5]
This is
probably
the letter referred to in the
return
of
29
June 2015 .. See paragraph
[6]
ABSA Bank Ltd v Collier
2015
(4)
SA 364
(WCC) para
[
39]
[7]
See
section
25
(1)
of
the
Act.
[8]
See section 26 of the Act.