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[2016] ZAECELLC 3
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Sogaxa v Minister of Police and Others (EL282/14, ECD582/14) [2016] ZAECELLC 3 (24 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, EAST LONDON CIRCUIT DIVISION)
Case
no. EL 282/14
ECD
582/14
In
the matter between:
SIYABONGA
SOGAXA
Applicant
and
MINISTER
OF
POLICE
First
Respondent
INFORMATION
OFFICER, DUNCAN
VILLAGE
POLICE
STATION
Second
Respondent
JUDGMENT
MBENENGE
J:
[1]
The applicant was arrested on 13 January 2013 for allegedly
committing rape, robbery and murder.
[1]
He appeared before the magistrate’s court and was formally
charged on 4 February 2013, on which date the criminal case
was
postponed to 5 February 2013 for a bail application to be launched.
Bail was refused and the matter was postponed on
several occasions
for further investigations.
[2]
On 27 July 2013 charges against the applicant were “
provisionally
withdrawn
” by the State, pending further investigations.
This resulted in the applicant being released from custody, on the
same
day.
[3]
On 22 November 2013 the applicant mandated his attorneys of record
to,
inter alia
, investigate the circumstances relating to his
arrest and to consider instituting an action for damages against any
person, entity,
establishment and organ of State suffered consequent
upon his arrest.
[4]
On the same day (22 November 2016) the applicant’s attorneys
lodged a request with the Information Officer of the Duncan
Police
Station (the SAPS) requesting to be furnished with a copy of the
relevant police docket. The request was accompanied
by the
relevant J750 form.
[2]
[5]
The request attracted a response letter from the SAPS dated 19 August
2013 in terms whereof the applicant was advised that the
“
docket
is still under investigation therefore it is not available as yet
”.
Receipt of the SAPS’s letter was acknowledged by letter dated
19 December 2013. In the letter (of 19
December 2013) the SAPS
was also called upon to inform the applicant’s attorneys as to
what was outstanding regarding the
investigation and an enquiry was
made as to when finality on such investigation could be expected.
[6]
As the applicant seemed to be receiving no joy, the applicant’s
attorneys duly lodged an appeal against the failure to
provide the
information sought by the applicant, on 27 January 2014. The
letter was accompanied by the relevant J751 form.
[3]
It is timely to interpose here and mention that in terms of section
77(3) of the PAIA the functionary vested with the power
to consider
and decide on the appeal should have made the decision within 30 days
from the date of receipt of the appeal.
There having been no
decision taken within the said period, in terms of section 77(7) of
the PAIA, the appeal authority was regarded
as having dismissed the
internal appeal.
[7]
Meanwhile, the instant proceedings were resorted to on 12 March 2014,
with the applicant seeking, in the main, an order reviewing
and
setting aside the decision taken by the second respondent not to
provide the applicant with the relevant police docket. Relief
consequential to the review is a
mandamus
directing the second
respondent to furnish the applicant with the relevant docket within a
stated period from the date the order
sought being granted. The
respondents’ notice to oppose the application was delivered on
9 April 2014.
[8]
The response to the applicant’s notice of appeal was furnished
by letter penned by the National Deputy Information Officer
(Col.
Brooks), dated 27 May 2014. The letter, in so far as relevant
hereto, reads:
“
Please
note that the relevant case still ‘open case’ (ie not
closed docket or investigation) and in terms of section
7 of the
Promotion of Access to Information Act, 2000 (Act No 2 of 2000)
(hereinafter referred to as the “Access Act”),
this
Access Act is not applicable to your request. This means that
the Internal Appeal procedure in terms of the Access Act
is also not
applicable to your request
.
Section
7 of the Act provides that the Act does not apply to a record if it
is requested for the purpose of criminal or civil proceedings
after
the commencement of such proceedings and access is provided for in
any other law…
You
may directly request access to the content of this docket from the
National Prosecuting Authority (ie the prosecutor for the
case) as
that is the relevant person who may make the decision with regards to
access to records contained in the docket.
You may also in
writing request the investigating officer to refer the docket to the
prosecutor for such decision and to inform
you of the prosecutor’s
decision.”
[9]
Two objections
in limine
have been raised in opposition to the
application, these being-
(a)
that there has been a non- joinder of the relevant functionary in the
National Prosecuting
Authority (the NPA) alternatively, the
prosecutor who handled the related criminal case; and
(b)
that, in view thereof that the relevant appellate authority has
decided that the PAIA
is not applicable to the applicant’s
request, the relief sought has become legally incompetent.
[10]
The application is being opposed on the merits on the grounds that
the request and resulting appeal are hit by the provisions
of section
7 of the PAIA alternatively, section 39(1)(b)(ii) and (iii) of the
PAIA. The investigation of the case, goes the
respondents’
case, “
is
ongoing and the outcome thereby will be
determined by the relevant court.”
[11]
The
in limine
points shall be dealt with first, seriatim.
[12]
The respondents contend, in the first place, that, much as the
relevant police docket is in the possession of the investigating
officer in the related criminal case, the NPA is the relevant Office
vested with the authority to conduct and manage the institution
of
the criminal proceedings, and thus the decision whether or not to
grant or refuse access to the docket. It is the view
of the
respondents that there has been a non-joinder of the NPA
alternatively, the prosecutor allocated the handing of the related
criminal case. I disagree.
[13]
The prosecution took a decision to withdraw the charges that the
applicant had been facing, pending further investigations.
The
case thereupon reverted to the police for them to conduct the further
investigations. The power to conduct investigations
in criminal
matters is vested in the SAPS,
[4]
and not in the NPA. The NPA is empowered to
inter
alia
institute criminal proceedings.
[5]
That power does not include conducting investigations. In any
event, on the respondents’ own showing, the relevant
police
docket is still in the possession of the police because
“
investigation
is on-going
”.
Therefore, I do not see how the NPA or any of functionaries within
that Office features in these proceedings.
They do not have a
direct and substantial interest in any order the court might make.
[6]
[14]
It is so that the initial decision of the second respondent has been
subsumed by that of the National Deputy Information Officer
(the
NDIO), either because he did not decide on the appeal within the
requisite period and is thus regarded as having dismissed
the
internal appeal in terms of section 77(7) of the PAIA, or because he
eventually made the decision that the provisions of the
PAIA are not
applicable to the applicant’s request. In either event,
the decision of the appellate authority stands
unless and until set
aside on review.
[7]
In my
view, this simply renders the application bad for non-joinder, than
otherwise.
[15]
In light of the above, it is not available to this court to entertain
the merits of the application without the NDIO being
joined as a
further respondent in these proceedings. The NDIO has a direct
and substantial interest in the order that this
court might grant in
the final analysis.
[16]
It is appropriate in this matter for costs to be reserved for
determination by the court that will eventually entertain the
application. I do not see any prejudice being suffered by the
respondents by granting of such cost order.
[17]
In the results, I order as follows:
(a)
There has been a non-joinder of the National Deputy Information
Officer, South African Police
Service as a further respondent in
these proceedings.
(b)
The proceedings are stayed pending such joinder, and the application
is hereby postponed
sine die
.
(c)
In the event of the applicant failing to apply for such joinder
within 14 days from today,
the respondents are hereby granted leave,
on the application papers duly amplified as may be necessary, to seek
an order for dismissal
of the application.
(d)
Costs of the hearing on 12 May 2016 shall stand over for
determination by the court that
will hear the application on the
merits.
________________
S
M MBENENGE
JUDGE
OF THE HIGH COURT
Counsel
for the applicant
: Mr S
Khalimashe
Instructed
by
Sipunzi Attorneys
EAST LONDON
Counsel
for the respondents
:
Mr D T
Young
Instructed
by
State Attorney
EAST LONDON
Date
heard
: 12 May
2016
Date
delivered
: 24 May
2016
[1]
The details
of the charges are not relevant for present purposes.
[2]
Form A (request
for access to record of public body in terms of section 18 of the
Promotion of Access to Information Act 2 of
2000 (the PAIA)).
[3]
Form B
(notice of internal appeal in terms of section 75 of the PAIA).
[4]
Section
205(3) of the Constitution; it provides:
“
The
objects of the police service are to prevent, combat and investigate
crime, to maintain public order, to protect and secure
the
inhabitants of the Republic and their property, and to uphold and
enforce the law.”
[5]
Section
179(2) of the Constitution, read with section 20(1) of the National
Prosecuting Authority Act 32 of 1998 (NPA Act).
Section 20(1)
of the NPA Act provides:
“
(1)
The power, as contemplated in section 179 (2) and all other relevant
sections of the Constitution , to-
(a)
institute and conduct criminal proceedings on behalf of the
State;
(b)
carry out any necessary functions incidental to instituting and
conducting such criminal proceedings; and
(c)
discontinue criminal proceedings, vests in the prosecuting
authority
and shall, for all purposes, be exercised on behalf of the
Republic
.
”
[6]
Amalgamated
Engineering Union v Minister of Labour
1949
(3) SA 637
(A).
[7]
MEC for
Health, Eastern Cape and Another v Kirland Investments (Pty)
2014
(3) SA 481
(CC);
Camps
Bay Ratepayers’ Association and Another v Harrison and Another
2011 (4) SA 42
(CC); at para [46];
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
;
2004 (6) SA 222
(SCA);
Norgold
Investments (Pty) Ltd v Minister of Minerals and Energy of the
Republic of South Africa and Others
[2011] 3 All SA 610
(SCA) at para [46]
.