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[2016] ZAGPPHC 1052
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Masingi v Greater Giyani Municipality (2679/2016) [2016] ZAGPPHC 1052 (22 December 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION,PRETORIA
CASE
NO: 2879/2018
22/12/2016
In
the matter between:
GEZANI
ISAAC
MASINGI Applicant
and
GREATER
GIYANI
MUNICIPALITY Respondent
JUDGMENT
SIWENDU,
AJ:
INTRODUCTION
[1]
This application was launched in terms of Section 11 of the Promotion
of Access to Information Act 2 of 2000 ("PAIA").The
applicant seeks an order compelling the respondent to provide it with
the results of the interviews held in February 2015 in
respect
of
the position of Municipal Manager. He further seeks a disclosure of
the results of scores or aggregate scores of all candidates
interviewed, including the recommendations made to the
respondent following these interviews. In addition to the Information
above, the applicant requires that reasons, why he was "not
appointable" following the interviews, are furnished to him.
[2]
The facts leading to the application are in brief that, in September
2014, the applicant had applied for and was invited to
attend an
interview with the respondent for the position of Municipal Manager
with the respondent. The position was not filled
but instead, it had
been re-advertised. The applicant was once more invited to attend a
second interview which took place on 19
February 2015. He was
referred for assessment. For the purpose of this judgment, I have
taken the view that the assessment was
of psychometric and competency
base in nature, prescribed by The Municipal Regulations on Minimum
Competency Levels, 2007, issued
in terms of
Local Government:
Municipal Finance Management Act 2003
. The regulations provide that
every accounting officer of a municipality and municipal entity must
meet the minimum competency
requirements in four prescribed
categories. A selection panel must also recommend the second (2nd)
and third (3nl), suitable candidates.
The selection panel must submit
a report and recommendation to the municipal council Recommended
candidates must undergo competency
assessment in prescribed areas.
[3]
In September 2015, the applicant requested the respondent to provide
him with the outcome of the interview together with the
results of
the interview and competency assessment. A reply by and under the
hand of the Mayor of the respondent to the applicant
dated 25
September 2015 states:
"this
communique serves to inform you that your application for the post
mentioned above was unsuccessful."
[4]
The applicant contends that the letter was not satisfactory, deprives
him of his constitutional right to know how the respondent
made
certain administrative decisions. In particular, he states that he is
entitled to know if the procedure and process followed
was correct,
fair and lawful. A letter by his attorneys requesting this
information dated 9 October 2015 dispatched in terms of
Section 18
the Act did not yield results.
[5]
The applicant submits that the respondent has not designated an
Information Officer. The prescribed period of 30 days within
which to
provide the information prescribed in PAIA has lapsed. Since the
respondent failed to provide the information within the
prescribed
period of 30 days, has not exercised the right to seek clarity on the
information required and has failed to seek an
extension of time as
It is entitled to in terms of the Act, it has launched this
application. He claims that he is prejudiced by
the silence but also
acknowledges that he has no birth-right to appointment
[6]
The respondent opposed the application in an affidavit deposed to by
its Acting Municipal Manager. In the first instance, it
raises a
point
in limine
that the applicant has failed to comply with
Sections 74
,
75
and
78
of the
Promotion of Access to Information Act
in
that he should have directed his letter to the Human Resources
Department. The respondent persisted with this view on the basis
that
to do so would have been compliance with practice. He also in line
with the papers contended that the applicant should have
lodged an
appeal against the decision to refuse access or taken in terms of
Sections 22
,
26
(1) or
29
(3). The essence of this argument is that the
applicant failed to exhaust his internal remedies envisaged in
Section 74.
In this regard the respondent submits that
Section 78(1)
bars the applicant from commencing proceedings against the
respondent, as the application is premature, it must be dismissed
with
costs.
[7]
In argument, the respondent also took issue with the request of the
information because the applicant had already confirmed
that it had
received the information required from another source. It submits it
complied with the applicant's letter dated 16
September 2015. The
respondent provided the applicant with the written results (meaning
the outcome). It submitted that the response
was adequate as the
outcome of the interview was provided.
[8]
The argument by the respondent was, with good reason rebuffed by the
applicant. It is evident from the letter dated 16 September
that the
applicant was provided with the outcome of the interview process but
not with the information requested.
Section 25(1)
of PAIA offers the
respondent an opportunity to decide whether to grant the request for
information and notify the applicant of
its decision within 30 days
of the request. Furthermore,
section 27
provides for a deemed refusal
where the information sought is not provided within the prescribed
period. The provisions of PAIA
are to be read to provide an applicant
confronted with such a failure the right to take the next procedural
step in a matter. I
am satisfied that there was a deemed failure to
provide the information as provided in PAIA
[9]
The issue to be determined is whether the applicant has the right to
and ought to be granted access to the information claimed.
[10]
Before dealing with the matter, it is necessary to mention that the
court requested the parties to file supplementary heads
within five
(5) days of the hearing of the application. The aim was to afford
parties the opportunity to address the question whether
the applicant
was entitled to information relating to third parties and whether the
provision of such information may breach the
Protection of Personal
Information Ad. 4 of 2013 ("POPl”). The applicant availed
himself of the request and filed its
supplementary heads on 21
September 2016, but the respondent has failed to do so.
[11]
Given the constitutional questions underlying the right of access to
information, the differing approaches by the courts, the
evolving
nature of the rights at issue due to legislative reform, as well as
the potential for competing rights involved in this
case, I would
have
b
enefitted from greater assistance from both counsel
[12]
PAIA is the national legislation contemplated in section 32(2) of the
Constitution. By the obligation imposed by this provision,
PAIA was
enacted to give effect to the right of access to information,
regardless of whether that information is in the hands of
a public
body or a private person. The purpose of PAIA is to engender the
principle of transparency and accountable governance
PAIA arms a
party who seeks information necessary for the exercise or protection
of a right to call for the provision of such information.
Section
11(1) obliges a public body which must be interpreted to include the
respondent. [a sphere of government] to grant access
to the record
sought. Given that the underlying premise is the exercise of or
protection of a right, drawing from cases adjudicated
in terms of
Rule 53 of the Uniform Rules of Court is of assistance.
[13]
In the current case, the applicant has framed his case as that of a
disclosure of information relating to the full results
of interviews
including scores or aggregate scoring obtained by the various
candidates, the recommendations made by the selection
panel to the
municipal council, including reasons for his not being appointed.
[14]
In the
Judicial
Service
Commission and Another v
Cape Bar Council and Another
2013 (1) SA 170
(SCA) at
para
45,
the court draws a distinction between the disclosure of reasons
for a decision to select some candidates over others on the one hand
and the disclosure of deliberations and votes of individual parties.
In
The Helen Suzman Foundation v Judicial
Service
Commission
and
others (
2014) ZAWCHC 136
, referring to the judgment in
Transnet
Limited v Goodman
Brothers
(Pty) Ltd
[2000] ZASCA 151
;
2001
(1)
SA 853
(SCA);
quoting Baxter, "Administrative Law
(1989) at 228 ,Le Grange J confirms that provision of information may
not only help distil
reasons for a decision where this has been made
but:
“
helps structure
the exercise of the discretion -Thirdly - and probably a major reason
for the reluctance to give reasons - rational
criticism of a decision
may only be made when the reasons for it are known. This subjects the
administration to public scrutiny
and it also provides an important
basis for appeal or review
[15]
There can be no doubt in my view that for decades, the right to be
provided with reasons for decisions made in the exercise
of a public
function or power has been an integral part of our administrative law
system subsequently entrenched by the Constitution.
The applicant is
entitled to the reasons sought, namely why he was not appointed or
appointable as he has framed it. There is no
justification for
withholding these from him. This, however, does not dispose of the
matter as in the current case. I am also required
to determine the
ambit or extent of transparency in respect of the information sought.
This aspect relates to the recommendations
made by the selection
panel to the council and the aggregate scores or scores of the
various candidates.
[16]
The principle of justification requires that a court must consider
the rationale for the information and the connection to
the
constitutional function and right to be protected. There is a
rational connection between the recommendations made, the reasons
offered and whether a fair process and rational decisions reached.
Providing the recommendations made to the council serves a variety
of
reasons. The first is to determine whether the applicant's name was
amongst those recommended, the second is to enable him to
gauge his
relative position compared to those recommended, the third is to
evaluate whether the reasons for his non-appointment
may be congruent
with the reasons provided about the recommended candidates. It is
essential to observe that the applicant's papers
state that he is
aware that an appointment is not a birthright. I understood this to
mean an acknowledgment that the respondent
has discretion on whom to
appoint to the position provided it made it rationally. There can be
no justifiable reason for withholding
the recommendations made to the
council from the applicant.
[17]
The last aspect relates to the provision of interview results and the
scores or aggregates of all candidates. An assessment
of the
information sought must be made. The
Helen Suzman Foundation
decision above highlights various cases reflecting differing
approaches by the courts in the past as to the documents subject to
disclosure, for example, in the
Johannesburg City Council v The
Administrator, Transvaal and Another (1)
1970 (2)
SA
89
(7J at
91H-92A; Afrisun Mpumalanga (Pty) Ltd v Kunene NO and
Others
1999
(2)
SA 599
(7J
and
Comair Limited v The Minister of
Public Entetprlses and
Others NGHC Case No: 13034113 and In
MEC for Roads and Public Works
and
in so far as PAIA, the
Eastern Cape and Another v lntertrade Two (Pty) Ltd
2006 (5)
SA 1
(SCA) .The Supreme Court of Appeal
Eastern Cape and Another v
lntertrade
endorsed the principle that some documents on the
grounds of privilege or relevance may not be subject to disclosure.
[18]
I discerned from the
Eastern Cape and Another v lntertrade
decision that the right to information is not an unlimited one
and must be balanced with ' other rights, for example, the right to
dignity and privacy. In this regard, there may be instances where a
limitation of the right to access information may be reasonable
and
justifiable. The principles that have evolved are that disclosure and
access must be weighed against; the nature of the proceedings,
the
level of candour required in the deliberations; the effect of the
level of transparency in discouraging applicants; as well
as
potential impingement on the dignity and privacy of the applicants
who applied with the expectation of confidentiality.
[19]
In so far as the applicant Telies on PAIA, the rights are fettered by
Chapter 4, Section 34 which provides for mandatory protection
of
privacy of the third party who is natural person states that
(1) Subject to subsection (2), the
information offlcer of
a
public body must refuse
a
request
for
access
to
a
record of the body if its disclosure
would involve the unreasonable disclosure of personal information
about
a
third party, including
a
deceased individual.
[20]
lnformation can be denied if the disclosure would involve
unreasonable disclosure of personal information about a third party.
The refusal to provide information may also be justified in terms of
Section 81(3) of PAIA. Reference can also be sought at the
decision
in the
Centre for Social Accountability v Secretary of Parliament
and Others [201 1]
4 ALL SA 18
(ECG).
[21]
lnformation which may be refused with regards to personal information
means information relating to medical history or personal
opinions.
In my view, the ambit of medical information is wide enough to
Include psychometric assessment scores if this was a component
of the
competency assessment. The information relates to the protected inner
aspects of personality affecting one's privacy In
my view, protection
is not lost by virtue of having applied for a post in a public sector
setting. The disclosure of such information
would not be unhelpful as
it may not only lead to disputes about the validity or reliability of
the testing but may be intrusive
on the rights of the other
candidates. The reach of the application is wide enough to include
private medical information. The
applicant is not entitled to
competency based assessment scores and results. Of other candidates
other than his own.
[22]
The respondent has simply provided the outcome of the interview
process but not the information sought. It had an election
to either
refuse the request or defer the same as provided by Section 24 rather
than what in essence, is partial compliance with
the request on its
part. Equally, Section 28 of PAIA provides the respondent the right
to severe of information in certain instances.
The respondent does
not contend that the refusal of the information is justified. In this
regard, the provision of the first, second
and third candidate
recommended forms part of the regulated procedure. There is no
justification for withholding this information
from the applicant as
part of the recommendations made to the council.
[23]
What remains is the question of costs. The applicant has been
successful in the application. It follows that the costs must
follow
the results. In the circumstances:
[24]
I make the following order:
[24.1] The respondent must provide the
applicant with reasons for not appointing him to the post;
[24.2] The respondent must provide the
applicant the recommendations made to the Council as well as the
recommended first, second
and third candidates; and
[24.3] The respondent must provide the
applicant with his personal competency assessment scores
[24.4] The respondent is ordered
to pay the costs of the application
__________________________
SIWENDU
NT
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION,PRETORIA
CASE
NO
. :2679116
HEARD
ON
:12 September 2016
COUNSEL
FOR THE APPLICANT
:MR NATHIMKHIZE
ATTORNEYS
FOR APPLICANT
:MKHIZE ATTORNEYS
COUNSEL
FOR THE RESPONDENT
:SK MOJAMOBU
ATTORNEYS
FOR THE RESPONDENT
: MC BALOYI ATTORNEYS
DATE
OF JUDGMENT
:22 December 2016