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[2016] ZAECMHC 43
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Zadunge v Minister of Police in the RSA and Others (23/2015) [2016] ZAECMHC 43 (13 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO. 23/2015
MASIBULELE
SOLOMON ZADUNGE
Applicant
and
THE
MINISTER OF POLICE IN THE RSA
1
st
Respondent
THE
INFORMATION OFFICER,
MOUNT
FRERE POLICE STATION
2
nd
Respondent
JUDGMENT
BROOKS
J
[1]
This is an application in which the applicant invoked the provisions
of the Promotion of Access to Information Act 2 of 2000
(PAIA)
seeking an order directing the second respondent to produce the
content of a docket, the police officer’s accident
report,
witness statements and a police plan and key pertaining to a motor
vehicle accident in which the applicant’s mother
lost her
life. The accident occurred on 19 July 1997. Certain
additional ancillary relief is claimed, including an
order exempting
the applicant in the interests of justice from the obligation to
exhaust domestic and/or internal remedies and
an order for costs.
[2]
Service of the application papers occurred on 11 February 2016 at the
office of the state attorney in Mthatha. Pursuant
thereto the
matter became opposed. On 12 April 2016 the state attorney
withdrew as attorney of record for the respondents.
On the
following day a notice of acting was filed by the respondents’
current attorney of record. This notice of acting
is dated 15
March 2016.
[3]
On 5 May 2016 the respondents filed their answering affidavit. A
number of issues are raised therein as a basis for the
submission
that the application should be dismissed with costs:
3.1
the deponent observes that the applicant’s internal appeal was
sent on 19 November 2015, whereas
in terms of the provisions of PAIA
it ought to have been sent to the relevant information officer by 17
November 2015;
3.2
The complaint is also made that the applicant sent the appeal to the
Minister of Police rather than
to the information officer concerned
employed by the South African Police Service at Mount Frere who
presumably would then have
sent it on internally;
3.3
consequently, it is argued, the application was not filed within
thirty days of the appeal as required
by the provisions of PAIA; and
3.4
after the application came to the respondents’ attention a
certain Captain Edward Goniwe stationed
at Mount Frere Police Station
was tasked with the location of the police docket. The fact
that it cannot be located, apparently
due to the fact that the
accident took place more than fifteen years ago, is attested to in an
affidavit deposed to by Captain
Goniwe on 8 March 2016, a copy of
which is filed as an annexure to the answering affidavit.
[4]
In his replying affidavit the applicant confirms that in these
circumstances no substantive relief is pursued. The allegation
is made to the effect that the communication by the respondents of
their inability to produce the documentation constitutes compliance
with the substantive relief. This is an appropriate
observation.
[5]
However, the applicant pursues a costs order. In doing so the
applicant relies upon a response received from the state
attorney to
a proposal made on 20 May 2016 by the applicant’s attorney in a
letter contemplating the withdrawal of the application
with the
respondents to pay the costs thereof. This letter had been sent
by the respondents’ attorneys to the state
attorney,
presumably, because it was from the state attorney that a written
reply dated 24 May 2016 was received by the applicant’s
attorney. That letter confirms that the matter may be withdrawn
and contains a tender by “the respondent” to
pay the
costs on a party and party scale.
[6]
On 30 May 2016 the applicant’s attorney sent a copy of the
letter from the state attorney to the respondents’ attorney
of
record seeking an indication of their attitude towards the content
thereof. On 2 June 2016 the respondents’ attorney
of
record responded in writing, stating that they had consulted with the
South African Police Services, the respondents, who advised
that no
instructions had been given to tender the costs. In these
circumstances, the letter from the state attorney was to
be ignored.
Moreover, the assertion is made that the application was defective.
[7]
Consequently, the only issue for determination is that of an
appropriate costs order.
[8]
It is clear that no mandate was given by the respondents to the state
attorney to tender the costs of the application on 24
May 2016.
Indeed, it is common cause that on that date the state attorney did
not act as the respondents’ attorney
of record.
[9]
It is also clear that the first indication that the applicant
received from the respondents to his quest for documentation came
in
the form of the answering affidavit and its annexure, both filed on 5
May 2016. At that stage, the applicant had been
obliged, in the
face of a lack of response from the respondents, to launch the
application. At that stage, too, the application
had become
opposed. In my view, it matters not that the applicant’s
internal appeal may have been lodged two days late.
The only
response thereto also came in the answering affidavit.
Similarly, it matters not that the internal appeal was sent
to be the
Minister of Police. Mr Mnqandi, who appeared on behalf of the
respondents, argued that this meant that the applicant
hadn’t
complied with the internal remedies available before coming to
court. This, he submitted, rendered the subsequent
application
fatally defective. In my view this is not so. In the
notice of motion the applicant also seeks an order
exempting him in
the interests of justice from the obligation to exhaust internal
remedies. To the extent that it may be
erroneous to direct the
appeal to the minister rather than the information officer in his
employ, or the fact that the appeal may
have been sent out of time,
are deficiencies in the applicant’s compliance with the
obligation to follow an internal appeal
process which would be
covered by this prayer for condonation. The complaints raised
elevate form over substance and in my
view would not have defeated
the application for substantive relief. The fact that an
internal appeal was lodged, albeit
with some deficiencies,
distinguishes this matter from SAMBUNA AND OTHERS v HEAD OF
DEPARTMENT: PUBLIC WORKS LIMPOPO PROVINCE
2009 (3) SA 64(V)
to
which counsel referred the court.
[10]
In the circumstances, no reason emerges why the costs should not be
paid by the respondents. It was their failure to
respond
timeously to the applicant’s various extra-curial overtures
which led to this application being launched. It
is through no
fault of the applicant that he only received a response from the
respondents in the answering affidavit and its annexure.
The
application was not defective. On the contrary, it was
effective in producing a result.
[11]
The following order will issue:
“
The
respondents are directed to pay the costs of this application on the
scale as between party and party, jointly and severally,
the one
paying the other to be absolved.”
RWN
BROOKS
JUDGE
OF THE HIGH COURT
Appearances:
For
the applicant: ADV N
R MTSHABE
Instructed
by
S R Mhlawuli &
Associates,
Suites
318 & 325,
ECD
Building
York
Road,
MTHATHA.
For
the respondent: Mr W T MNQANDI of
WT
Mnqandi & Associates,
Suite
202B,
1
ST
Floor
City
Centre Building
23
York Road,
MTHATHA.
Date
heard:
8 September
2016
Date
delivered:
13 September 2016