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[2015] ZAGPPHC 181
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Afriforum v Emadladleni Municipality (27085A/2014) [2015] ZAGPPHC 181 (20 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE: 20 FEBRUARY
2015
CASE NO:
27085A/14
In the matter
between:
AFRIFORUM
.........................................................................................................
APPLICANT
and
EMADLADLENI
MUNICIPALITY
................................................................
RESPONDENT
JUDGMENT
HEARD ON: 29
JANUARY 2015
JUDGMENT ON: 20
FEBRUARY 2015
KUBUSHI, J
[1] The purpose of
this application is to apply, in terms of the Promotion of Access to
Information Act, 2 of 2000 (“PAIA”),
that the records
relating to the qualifications of certain senior managers employed by
the respondent be made available to the
applicant, in order to
determine whether the incumbents comply with the requirements of the
Municipal Regulations on Minimum Competency
Levels published under GN
493 in Government Gazette 29967 of 15 June 2007 (the regulations).
[2] In terms of the
aforesaid regulations, the accounting officers, chief financial
officers, senior managers, financial officers
at middle management,
heads of supply chain management units and the supply chain
management managers, employed by a municipality
have to comply with
certain prescribed minimum competency levels in respect of higher
education qualification, work related experience,
core managerial and
occupational competencies, and competencies in the unit standards
prescribed for the said competency areas.
[3] In accordance
with the said regulations, no municipality or municipal entity may,
with effect from 1 January 2013, employ a
person as a financial
official or supply chain management official if that person does not
meet the competency levels prescribed
by the regulations for the
relevant position.
[4] Compliance
monitoring of the stipulations aforesaid is, in terms of regulation
14 of the regulations, provided as follows:
“
(1)
The municipal manager of a municipality and the chief executive
officer of a municipal entity must monitor, and take any necessary
steps to ensure compliance with the prescribed minimum competency
levels for financial officials and supply chain management officials
within the time frames set out in regulation 15.
(2)
A municipality must report the consolidated information in respect of
the municipality and each of its entities set out in sub-regulation
(4)
to
-
(a)
the
National Treasury and to the relevant provincial treasury by 30
January and 30 July of each year, until 30 July Of 2015; and
(b)
in
its annual report, reflecting the information as at the end of the
financial year to which the report relates.
(3) A municipality
must report to its parent municipality by 20 January and 20 July of
each year, and in its annual report, the
information set out in
sub-regulation (4). The annual report of the municipal entity must
reflect the information as at the end
of the financial year to which
the report relates.”
[5] In terms of the
provisions of PAIA a requester must be given access to a record of a
public body. The applicant, in this instance,
being a requester as
defined in PAIA, lodged a request for information in terms of s 11 of
PAIA. The request was accompanied by
a covering letter in which the
applicant refers to the regulations and states that in terms of the
said regulations various municipal
officials are required to comply
with the criteria pertaining to minimum competency levels. The letter
ends with a demand that
all persons who do not comply with the
criteria as set out in the regulations be removed from their
positions and be replaced with
persons who comply.
[6] The request is
formulated in Part D 1 of the application form, form “A”,
as follows:
“
D.
Particulars of record
(a) Provide
full particulars of the record to which access is requested,
including the reference number if that is known
to you, to
enable the record to be located.
(b)
If the provided space is inadequate, please continue on a
separate folio and attach it to this form. The requester
must
sign all the additional
folios.
1.
Description of record or relevant part of the record:
(a) Documents
indicating compliance with the Regulations on Minimum Competency
Levels (Annexure A);
(b) The report on
the compliance with the prescribed minimum competency levels as
envisaged in Chapter 7 section 14 (4) of the Municipal
Regulations on
Minimum Competency Levels.’’
[7] The respondent
declined the request and in a letter to the applicant provided a
response that all officials employed by the
municipality meet the
minimum competency levels as required by the regulations. The
respondent also stated in that letter that
in terms of the
regulations all appointments of officials by the municipality have to
be certified by the MEC Local Government
and that this process has
been followed.
[8] The applicant
thereupon lodged an internal appeal against the refusal. The
respondent did not issue a new decision and after
expiry of the
period within which the respondent was supposed to have responded the
internal appeal was deemed to have been dismissed,
hence the current
application.
[9] The respondent
is opposing the application and has raised the following defences,
namely;
(a) That the first
part of the request by the applicant is so vague that it would entail
producing and allowing the applicant to
trawl through the personnel
files of the individuals falling within the scope of request and
would lead to the invasion of the
privacy of those individuals.
(b) That the second
part of the request is equally vague in that it does not specify
which report pertaining to which financial
year is requested.
Regulation 14 provides for the preparation of two reports in each
financial year.
(c) That the
individuals to whom the applicant’s request pertain fall into
the category of third parties who are natural persons
in terms of s
34 (1) of PAIA which provides for the mandatory protection of
privacy. (The respondent’s counsel abandoned
this defence
during argument).
[10]
Section 18 (2)
(a)
(i)
of PAIA provides that:
“
The
form for a request of access prescribed for the purposes of
subsection (1) must at least require the requester concerned -
(a)
to
provide sufficient particulars to enable an official of the public
body concerned to identify -
(i) the record or
records requested;...”
[11] It is my view
that part (a) of the request is not vague as alleged by the
respondent. The regulations provide for the monitoring
of certain
specified officials of the respondent. Annexure “A”,
attached to the application sets out those employees
very clearly. As
such it will be the documents pertaining to only the employees stated
in annexure “A” whose documents
must be furnished to the
applicant. By just reading the annexure, it would have been easy for
the respondent to ascertain which
employees the applicant is
referring to in the request. It is not required of the applicant to
have specified the employees by
name. The specific officials, as
already stated, are easily ascertainable by referring to annexure
“A”, namely, accounting
officers, chief financial
officers, senior managers, financial officers and supply chain
management officers. It is not a wholesale
enquiry as the respondent
seeks to suggest.
[12] Ordinarily I
would order that the applicant be given access to the documents
requested, but, I am of the opinion that the request
is cumbersome
and cannot be easily furnished. Section 45 of PAIA stipulates that an
information officer may refuse a request for
access to a record if
the work involved in processing the request would substantially and
unreasonably divert the resources of
the public body.
[13] In
supplementation of the applicant’s request, the applicant’s
counsel contended that the applicant requires access
to ‘all
the documents of all the officials mentioned in annexure “A”.
This request, in my opinion, is too wide
and cumbersome. The
respondent must go into all its records and search for all the
documents pertaining to the specific officials
referred to in
annexure “A” and determine which of those documents
pertain to the request. It is on that basis that
I would not grant
this part of the request.
[14] It would be
easier, however, for the respondent to provide the applicant with the
documents requested in part (b) of the request.
In terms of this
part, the applicant requires access to ‘the report on the
compliance with the prescribed minimum competency
levels as envisaged
in Chapter 7 section 14 (4) of the Municipal Regulations on Minimum
Competency Levels’. The report is
a consolidated information
report on the compliance with the prescribed minimum competency
levels of the officials stated in annexure
“A”.
[15] Regulation 14
(4) provides that:
“
A
report on the compliance with prescribed competency levels must be in
the format set out in the Annexure hereto and include the
following
minimum information as at 30 June and 31 December of each year, as
may be appropriate -...”
[16] The difficulty
however is that part (b) of the request lacks sufficient
particularity to enable the respondent to determine
which report
should be made available to the applicant. As already stated, the
applicant requires access to the report on the compliance
with the
prescribed minimum competency levels as envisaged in Chapter 7
section 14 (4) of the Municipal Regulations on Minimum
Competency
Levels. Regulation 14 provides for two reports to be prepared each
financial year. The applicant does not state in its
application which
of the two reports it requires. It does not specify which report for
which financial year does it requires to
have access into. The
application only refers to the report. It cannot be left to the
respondent to speculate as to the report
required by the applicant.
Sight should not be lost that the regulations were promulgated in
2007 and, on the assumption that the
respondent has been compliant
since then, the request becomes more vague.
[17]
A submission by the applicant’s counsel is that the respondent
is not entitled to raise a technical defence of this nature
at this
late stage. According to counsel, the applicant should have raised
the defence at the time when it responded to the initial
letter
requesting access to the documents. In support of his argument he
referred me to the judgments in
Ndokweni
v Came Stores & Others (2001) 22 ILJ 1398 (LC) par 15
with
reference to
Fidelity
Guards Holdings (Pty) Ltd v Epstein NO & Others (2000)
21IU2382 (LAC).
[18] These judgments
are not on point. The principle raised in those judgments does not
pertain to the argument by the applicant’s
counsel. The
principle in those judgment is that a party who believes that an
irregularity is being perpetrated, and allows it
to occur without
protest, cannot be heard to complain later. This principle does not
find application to the defences raised by
the respondent.
[19] Based on the
order I intend to grant, as will more specifically appear hereunder,
I do not think it is necessary to deal with
the issue of exemption as
raised by both parties.
[20] The applicant
applied for costs on a punitive scale on the basis that the
application is frivolous and vexatious. I am of the
opinion that the
respondent has not made out a case in that respect and is entitled to
ordinary costs of suit.
[21] In the
circumstances, the application is dismissed with costs.
E. M. KUBUSHI
JUDGE OF THE HICH
COURT
Appearances
On behalf of the
applicant: Adv. J L BASSON
Instructed by:
HURTER
SPIES INC
1
st
Floor,
Afriforum Building
Cnr
Union&DF Malan Drive
CENTURION,PRETORIA
On behalf of the
respondent: Adv. P RAMANO
Instructed by:
XABA ATTORNEYS INC
C/0 ADAMS&ADAMS
Lynwood Bridge
Office Park
4 Daventry Road
LYNWOOD
MANOR,PRETORIA