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[2015] ZAGPPHC 433
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Jozana v National Treasury Republic and Others (24969/2014) [2015] ZAGPPHC 433 (12 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE
NO: 72331/2013
DATE:
12/5/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
JOHN
RICHARD PARKER DOIDGE
N.O.
1
st
APPLICANT
JAN
JACOBUS DE BRUYN N. O.
2
nd
APPLICANT
PIETER
ANDRIES VAN ZYL N.O .
3
rd
APPLICANT
PHIROSHAW
CAMAY N.O.
4
th
APPLICANT
IPELENG
PATIENCE JOOD MOLAOLWE N.O.
5
th
APPLICANT
ANDREW
CONWAY GAOREKWE MOLUSI N,O,
6
th
APPLICANT
MESHACK THEMBINKOSI
SILINDA
7
th
APPLICANT
and
THE MASTER OF THE
GAUTENG HIGH COURT, PRETORIA
1
st
RESPONDENT
PREMIER
OF THE NORTHERN CAPE
2
nd
RESPONDENT
JUDGMENT
KHUMALO
J
INTRODUCTION
[1]
The Asbestos Relief Trust (“the Trust”), represented by
its duly authorised trustees (“the Applicants”)
seeks an
order for a review and to set aside the decision of the Master of the
High Court, Gauteng division, the 1
st
Respondent, to make public all information in the 1
st
Respondent’s possession relating to the affairs of the Trust
submitted by the Applicants pursuant a request by 1
st
Respondent in terms of s 16 (1) of the Trust Property Control Act 57
of 1988 (“the Act”), in so far as such decision
includes revealing information contained in the minutes of the
trustees and auditor’s report.
[2]
On 10 December 2013, the Applicants were granted an interim order in
terms of which:
[2.1]
the 1
st
Respondent was interdicted and restrained from releasing the minutes
of meetings of trustees and auditors report of the said trust
to the
2
nd
Respondent or any other party.
[2.2]
both Respondents were interdicted from making public or informing
third parties, save their legal
representatives, of the names and
identities of any persons identified in the affidavits of the
beneficiaries attached to this
application and/or make available any
information in the minutes of meetings of trustees of the ART pending
the final determination
of this Application.
[3]
The 1
st
Respondent has elected not to oppose the Application but abide the
decision of the above Honourable Court.
[4]
The 2
nd
Respondent,
the Premier of the Northern Cape Province, opposes the Application on
behalf of the Northern Cape community that allegedly
has an interest
in the Trust matters.
HISTORICAL BACKGROUND
[5]
The Trust was established by the amalgamation of resources by a group
of asbestos mining houses that included Griqualand Exploration
and
Finance Company (“Gefco”), Gencor Limited (“Gencor”)
Msauli Asbes Limited (“Msauli”)
with Hanover Mining
Holdings (“Hanova”) and African Chrysotile Limited
(“ACA”) (together referred to as
“the Founders”),
all of them prior to 2003 involved in litigation with persons
(“Claimants”) who were seeking
compensation, claiming to
have been affected by the Founders asbestos mining operations and to
have contracted lung diseases from
the inhalation of toxic dust and
fumes.
[6]
In 2003, a settlement to resolve the litigation was negotiated and
resulted in an agreement being concluded in terms of which
the
Founders established the Trust as a compensation scheme for the
purpose of providing compensation to the victims of asbestos
mine
poisoning who are ex-asbestos mineworkers (“Occupational
Claimants”) and people living close to the mines
(“Environmental
Claimants”) who might have been affected
because of the Founders’ asbestos mining operations
(“Qualifying Operations”).
[7]
The primary objective of the Trust was for the Applicants, the
Trust’s board of trustees to administer the funds in an
amount
of R381 million donated by the Founders to compensate the claimants
or beneficiaries who could prove that they have one
of the principal
diseases associated with exposure to asbestos, therefore diagnosed
with an asbestos related disease (ARD) namely,
pleural effusion,
thickening or plaques, asbestosis, asbestos related lung cancer or
mesothelioma or that they are an authorised
representative of the
estate of a person who died of an ARD (“Qualifying
beneficiaries”).
[8]
The Trust Deed sets out the objective and the criteria for assessing,
processing and lodging of the claims, providing the framework
for the
administration of the Trust. The Deed also provides for the
procedure to be followed in the instance there are persons
who are
not satisfied with the outcome of their claims to have their medical
outcome reviewed.
[9]
The Applicants, using the Trust’s resources, arranged for a
medical infrastructure dedicated to the diagnosis of cases
of
asbestos related diseases and offered free medical screening to
occupational claimants, who were employed at qualifying operations.
They also, out of the Trust’s funds set up scouts to trace all
former employees to have them undergo examination to see if
they
qualify and a panel of claim handlers to ensure that full
compensation is paid to the qualifying beneficiaries. The amount
paid
as compensation varied, depending on the nature of the disease,
extent (whether the symptoms are mild or severe) and the actual
financial loss and harm suffered by the victim.
[10]
A great number of the claimants came mainly from the Northern Cape,
Limpopo, Mpumalanga, Lesotho, Botswana and Swaziland and
mostly
represented by a human rights attorney Richard Spoor from Ntuli,
Noble and Spoor Incorporated (“Spoor”). The
Claimants
that were to be compensated or the beneficiaries identified in the
Trust Deed extended only to persons residing in the
Northern Cape who
exhibited asbestos related illnesses as provided for in the Trust
Deed. These beneficiaries or victims were required
if not identified
by the scout to lodge their claims with the Trust.
[11]
The Northern Cape Provincial Authorities, specifically the 2
nd
Respondent together with a local non-governmental organization
referred to as the Kgatelopele Asbestos Community Operative
(“Kgatelopele”)
said to represent the interest of persons
residing in or near Kuruman who may have been exposed to
environmental pollution (“Environmental
Claimants”)
caused by asbestos mining or the fall- out from asbestos mining
carried out in the area, interrogated the subsequent
formation and
administration of the Trust.
[12]
Kgatelopele with the assistance of 2
nd
Respondent and
various other entities not involved in this matter approached the
Applicants and raised certain concerns, inter
alia, alleging that
promises made by Spoor during his representation of some of the
claimants in the litigation and settlement
negotiations have not
materialized post the settlement of the case. They wanted money they
referred to as “Phomoladikeledi”,
for persons who
regardless of whether or not they qualify for compensation in terms
of the Trust Deed and are not affected by asbestos
mining, to be
paid, for having lent their names and records of service to Spoor for
the litigation that was settled however do
not qualify for
compensation in terms of the rules of the Trust Deed.
[13]
Kgatelopele and the 2
nd
Respondent also raised a complaint of dissatisfaction with the
manner in which claims were handled, how quantum was decided
and some
persons paid and others not. They set to obtain from the Applicants
an ex gratia payment of R30 Million for payment to
those whose names
appeared in the litigation proceedings but were not paid any
compensation, regardless whether they or did not
meet the criteria
for compensation whether the person has an ARD or not.
[14]
The 2
nd
Respondent subsequently lodged a formal complaint with the 1
st
Respondent on 31 May 2013 alleging that the Trust has made payments
to persons who should not have been paid and failed to make
payment
to persons who should be paid, alleging also the maladministration of
the Fund by the trustees. They also required a community
representative in the board of trustees.
[15]
Following the complaint the 2
nd
Respondent sought from the 1
st
Respondent that the Trust make a full disclosure of the information
on the compensation payments made by the Trust. The 1
st
Respondent as a result invoked the provisions of s 16 of the Act and
called for the Applicants to deliver all documents and
records
of the Trust to its office.
[16]
Applicants delivered the trust documents and information sought by
the 1
st
Respondent. In response to 2
nd
Respondent’s complaint, the Applicants requested 1
st
Respondent to obtain from the 2
nd
Respondent a list of all the claimants allegedly paid incorrectly and
of those whose claims have been wrongly declined, to be able
to
further fully comply with the 1
st
Respondent’s request and give a full disclosure on the payments
by the Trust in respect of those people. The response that
1
st
Respondent received from the 2
nd
Respondent was that they are unable to furnish the names of such
claimants.
[17]
On 27 July 2013 the 1
st
Respondent informed the Applicants that it has nevertheless decided
to publicly disclose the information, in the interest of transparency
and confirmed its position again on 29 October 2013.
APPLICATION
[18]
The Applicants are opposed to 1
st
Respondent’s public disclosure of the information as intended
and is seeking a review and the setting aside of the decision
based
on the following grounds: that,
[18.1]
the beneficiaries will be victimised by their respective communities,
if the nature of their illnesses as well
as the information on the
amount of payments made is disclosed;
[18.2]
the claims process will be undermined;
[18.3]
information discussed at meetings of trustees in confidence and views
expressed in such confidence would be made
public in contravention of
s 14 of the 1996 Constitution;
[18.4]
the information concerning the wellbeing of the claimants is private
and confidential and making it public is
contrary to s 14 of the
National Health Act, 2003, (61 of 2003) (“the Health Act”)
that prohibits the release of medical
information concerning an
individual unless the person consents, or the court has made an order
releasing it or the non- disclosure
would represent a serious threat
to public health; and
[18.5]
the mandatory and material procedure prescribed for the release of
the information as in terms of s 18 of the
Act was not complied with,
namely a written request for the information to be made public.
[18.6]
that the 2
nd
Respondent’s call in their letter dated 31 May 2013 is not for
the information to be made public but for a full disclosure
to the
2
nd
Respondent, as the 1
st
Respondent according to the Trust Act, may release information to an
interested party pursuant to a written request, but not
mero
motu
make it public. Also dispute that
the 2
nd
Respondent is a party with sufficient interest .
[18.7]
they object to the disclosure of minutes of the meetings of the
trustees and the audit reports which discloses
the names of
claimants, details of the awards made to the claimants and their
health conditions, details and identities of staff
employed by the
Trust and the discussion between the trustees relating to the affairs
of the Trust relying on the provisions of
s 6 of Promotion of
Administrative Justice Act (“PAJA”).
[19]
Although the 1
st
Respondent is not challenging the Application and is to abide the
decision of the court, it indicated that it stands by its reason
as
articulated in its letter dated 27 June 2013 to make the information
public in the interest of transparency.
2
ND
RESPONDENT’S OPPOSITION
[20]
The 2
nd
Respondent’s opposition of the Application as per its Answering
Affidavit deposed to by its Chief Law Adviser, P N Mafungo,
(“Mafungo”) outlines the background history of 2
nd
Respondent’s involvement in the matter, supposedly to give
perspective to its interest and the dispute. Its alleged it came
about as a result of a complaint that was laid with the office of the
2
nd
Respondent by Kgatelopele, on behalf of the community in Kuruman and
nearby surrounding areas against the Trust and Spoor and,
specifically that:
[20.1]
Spoor following the settlement agreement, formed the 2 Trusts without
consulting Kgatelopele and the affected community and
none of the
community members were represented on the board of trustees of these
trusts.
[20.2]
There are community members who are seriously ill or deceased due to
exposure to asbestos who still to date have not received
any
compensation from these Trusts, therefore Kgatelopele claimed that
there is maladministration in so far as the Trusts are concerned.
They, together with Kgatelopele were not happy about the manner in
which the compensation for asbestos related diseases is handled
by
the Trust and alleged that because of that the Trusts are not
recognised by the community.
[21]
Its alleged by Mafungo that after the complaints, meetings were held
during period 2009 -2010 between what the she refers to
as Richard
Spoor’s Trusts, Kgatelopele, representatives of the community
and the 2
nd
Respondent, after which a task team that was set up by the 2
nd
Respondent made general findings and recommendations that alluded to
the existence of sufficient evidence of wrongful activities
against
poor communities in a report dated 25 May 2010.
[22]
On the other hand Mafungo alleges that it was also reported on the
same meeting of 29 April 2010, that
the
attendees resolved that there is no tangible information that creates
a prima facie suspicion of any wrong doing by Mr Spoor
or the Trusts.
Also, that the trusts note the request by Kgatelopele for a review on
their composition and seek to accommodate the request on
the
geographical locality.
[23]
Its further alleged that Kgatelopele was however dissatisfied with
the report on the resolution and of the view that the 2
nd
Respondent should follow the task team report that was favourable to
their cause and laid a complaint with the Public Protector
who then
took a view that the 2
nd
Respondent should apply his mind to the 1
st
report, notwithstanding the resolution.
[24]
The Affidavit also referred to a further meeting held on 09 November
2011 at the District Municipality of John Taolo Gaotsewe
between yet
again Kgatelopele, 2
nd
Respondent, the mayor and acting municipal manager which
meeting
resolved that Kgatelopele should submit the necessary evidence t
hat
is relevant to the allegations it has levelled against Spoor, as well
as the maladministration of the Trust. 2
nd
Respondent would then assist Kgatelopele to bring the alleged issue
it has against Spoor to court and that of the Trusts to the
1
st
Respondent’s attention so that the alleged maladministration of
the trust can be investigated by the 1
st
Respondent.
[25]
The 2
nd
Respondent alleges to have complied with s 18 of the Act and argue
that it does not have to furnish any reasons for its request
as long
in the opinion of the 1
st
Respondent, it has sufficient reasons.
[26]
Furthermore 2
nd
Respondent alleges to have furnished the names of the claimants or
complainants whose claims were supposedly incorrectly declined
and of
those wrongfully compensated plus annexures of confirmatory
affidavits of leaders or representatives of Kgatelopele and
the
community it represents, which is not correct as neither the names
or the confirmatory affidavits are furnished.
REPLYING AFFIDAVIT
[27]
Applicants in their Reply briefly highlighted the following:
[27.1]
that the trust or trusts, as indicated in its Founding Affidavit,
were not formed by Spoor but by the Funders and that Spoor
is not
involved in any way in their administration.
[27.2]
the 2
nd
Respondent had failed to furnish the list of names of the parties
whom they purportedly represent who have complained about
compensations
made or not made. The 2
nd
Respondent has therefore failed to address the nature of its
complaints. In the circumstances there cannot be a valid complaint.
[27.3]
The 1
st
Respondent at the instance of the community appointed two trustees
who are presently with the Trust. At the time the Trust already
had
two other trustees who were, in accordance with the provisions of the
trust deed, appointed to the board by attorneys representing
the
claimants in litigation pursuant to which the trust was established.
[28]
The Applicant again denied any maladministration.
MAIN
ISSUES TO BE DETERMINED
[29]
The main issue is whether or not in making the decision to publicly
disclose the documents in its possession that were submitted
to it
pursuant to its request in terms of s 16, the 1
st
Respondent exercised his discretion properly and judiciously
equalling a fair and just administrative action, alternatively, if
under the prevailing circumstances the 1
st
Respondent’s decision to publicly disclose information, for the
sake of transparency, rationally related to the facts that
served
before it and the purpose for which the power was given.
[30]
The secondary issue is if the decision to release the trust
information not only to the 2
nd
Respondent but to the public followed a written request by a party
with sufficient interest in terms of s 18 of the Act.
LEGAL
FRAMEWORK
[31]
Trusts like the Asbestos Relief Trust that are
set
up with a special purpose of benefiting a certain category of
beneficiaries with a special need (same as those who are
incapacitated
or disabled persons) are best described as special
needs or non-profit trusts and fall under the special class of
inter
vivos
trusts
.
The
donors or funders transfer assets or funds by written agreement into
the trust to be managed by a board of trustees on behalf
of a
specific category of beneficiaries.
[32]
In
governing
trusts,
the
trust deed is
supreme.
The
trustees derive the authority or power they exercise from the trust
deed, therefore trustees’ actions are
only
valid if within the terms and the governing constraints of the trust
deed. Their
mandate
is clearly specified as to exactly what is it that is within the
bounds of their duties and responsibilities.
As
a result, action to be taken are stipulated, if there is no provision
for an action in the deed, it cannot be done. Only a court
may, on
application by a trustee or beneficiary or an interested party,
delete, vary a provision in the trust or make in respect
thereof any
order which such court deem just (see s 13 of the Act).
Vrystaat
Mielies v Bpk v Nieuwoudt
2003 (2) SA 262
(O).
[33]
The t
rust
instrument/deed of these special trusts are not public documents and
a settlement agreement that gave rise to the formation
of the trust
is kept as a private matter between the Founders/Donors, Trustees and
Trust Beneficiaries, as trust instruments are
in terms of the South
African Law not of a public nature. However the Trust Property
Control Act 57 of 1988 that currently regulates
certain aspects of
the trust administration requires the lodgement of trusts documents
with the master of the high court that holds
jurisdiction (s 4 (1)),
and the registration of all the trust property with such Master’s
office (s 11). The trustees
as
stipulated in the trust deed are to be officially appointed by the
Master before they could assume office (s 7).
Any
changes to the trustees or to the trust deed must be approved by the
Master, who also has the authority to place the administration
of the
trust under scrutiny. T
he
financial statements are to be kept, and, if requested by the Master,
lodged with his/her office (see s 16), especially when
queries
regarding the administration of the trust are received, the Master
may invoke the provisions of s 16 to get any information
from the
trust.
[34]
Section 16 (1) of the Act reads:
‘
A
trustee shall at the written request of the master account to the
master to his satisfaction and in accordance with the master’s
requirements for his administration and disposal of trust property
and shall, at the written request of the master deliver any
book,
record or account or document relating to his administration or
disposal of the trust property and shall to the best of his
ability
answer honestly and truthfully any question put to him by the master
in connection with administration and disposal of
the trust
property.’
Section
16 (2) thereof reads:
‘
the
Master may if he deems it necessary cause an investigation to be
carried out by some fit and proper person appointed by him
into the
administration and disposal of trust property.’
[35]
Therefore, upon the Master’s receipt of queries or allegations
of maladministration against a trust it is its prerogative
to call
upon the trustees to account. The principles of fairness and justice
or simple logic diktat that allegations or queries
raised must be
genuine and have substance. Therefore it would be prudent for the
Master to establish the genuineness and reliability
of the
allegations or queries made before embarking on any further step in
the matter. In that case, although the 1
st
Respondent could invoke s (16) (1) provisions, it is however expected
that he would not do so if from the outset the queries or
allegations
seem trivial and far-fetched or unsubstantiated. In the
circumstances where it seems not to be the case, the
Master can
through invoking s 16 verify if indeed the query or complaint with
substance and requiring any further action. The accounting
and
delivery of the documents or information in terms of s 16 is to the
Master only, who on establishing if complaint or query
is of
substance, will then make the call if further actions under s 16
necessary.
[36]
The public can have
access to the documents in possession of the Master by means of a
request in terms of s 18 of the Act.
The
Master is authorised or has the power to release the documents to any
person making a request n
otwithstanding
a trust instrument not being a public document (see s 5 (2) of the
Administration of the Estates Act, as amended),
if in the opinion of
the master the person has sufficient interest.
Section
18 therefore governs the public’s access to the trust
documents, and reads:
“
subject
to the provisions of s 5 (2) of the Administration of Estates Act,
1965 (Act 66 of 1965), regarding the documents in connection
with the
estate of the deceased persons, the Master shall upon a written
request and payment of the prescribed fee furnish a certified
copy of
any document under his control relating to trust property to a
trustee, his surety or representative or
any
other person who in the opinion of the master has sufficient interest
in such document
.” (my emphasis)
Regulation
3 of the Regulations under the Trust Property Control Act, 1988 (Act
57 of 1988) as amended 5 November 2009 provides
that:
“
The
fee payable to the master in terms of s 18 of the Act for a certified
copy of any document under his or her control relating
to trust
property shall be R4.50, which shall be payable in the manner as
determined administratively by the Director General:
Justice and
Constitutional Development and proof of such payment
shall
be submitted to the Master together with the written request of, or
rendering by, the Master of the service in question.”
(my
emphasis)
[37]
In the instance where the decision is supposedly taken in a response
to a request or an application in terms of s 18 of the
Act as in
casu
, the
1
st
Respondent’s discretion whether or not to acquiesce to such a
request should be exercised judiciously and objectively for
the
decision to be fair and just, taking into consideration that the
information and the documents of the trust, to which access
is
required, are of a private and confidential nature even though its
administration is regulated by the 1
st
Respondent in fulfilment of a public function. The discretion is
exercised more stringently. For the decision of the 1
st
Respondent to equate to a just administrative action it must be
reasonable, procedurally fair and lawful (s 33 of the Constitution,
1996). Therefore how the decision is taken in relation to the
process, the reasons and purpose balanced against the rights of the
parties involved, establishes the validity of the decision.
[38]
Consequently for the 1
st
Respondent to be able to exercise its discretion properly and
objectively, the request cannot be inferred from a bare complaint,
query or allegation that is unsubstantiated and not supported by
facts before it. The requestor must provide sufficient reasons
why
the information is needed
which is
weighed against an
input
from the Trustees and beneficiaries, after which the Master will
exercise his discretion whether or not to provide the information.
The question would be whether
a
rational objective basis justifying the connection
the 1
st
Respondent made between the facts (material) available and the
decision indicative of a just administration action (see
Rustenburg
Platinum Mines Ltd v CCMA
2007 (1) SA
576
(SCA) 578A-B. Section 6 (2) (f) (ii) of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) referred to by Applicant
and
applicable in such administrative actions, empowers a court to
review an administrative action if the action itself is ‘not
rationally connected to’ ‘
(cc)
the information before the administrator; or
(dd)
reasons given for it by the administrator’. In
Pharmaceutical
Manufacturers Association of SA and Another: In re Exparte President
of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC)
(2000 (3) BCLR 241)
it was held that decisions
in the exercise of public power by the executive and other
functionaries must be capable of being shown,
objectively, to be
rationally related to the purpose for which the power is given.
[39]
In
casu
it
must be established if the 1
st
Respondent’s decision to make public the information relating
to the affairs of the Trust, personal details of the beneficiaries,
the nature and extent of their diagnosis, the deliberations by the
trustees, the quantum paid if any, is rationally connected to
the
facts before the 1
st
Respondent, the reason given for the decision and to the purpose for
which the power is given to determine if decision reviewable.
The
starting point would therefore be to establish the procedurally
fairness of the action followed by the interrogation of the
facts
that where before the 1
st
Respondent when it considered the matter to establish if on the
merits the decision can be considered rational.
[40]
Applicant has raised a query with regard to the process, arguing that
2
nd
Respondent has not filed a written request as stipulated in s 18 to
have access to the documents or information that the 1
st
Respondent has decided to make public and has also not paid the
stipulated fees that are to be submitted with the written request.
Therefore submits that the decision by the 1
st
Respondent was made
mero motu
.
[41]
The section is mandatory, it is therefore important for a party
requesting the information to have complied with the provisions
of s
18 prior to the 1
st
Respondent considering the request. Indeed there is no officially
written request by the 2
nd
Respondent or any of the entity or organisation it purports to
represent to the 1
st
Respondent for the trust information the Applicant is seeking to
interdict, even though the 1
st
Respondent relies upon the section for coming to its decision to
publicly disclose the documents. There is also no proof of payment
of
the fee fixed by regulation 3 and as prescribed by s 18. The decision
by the 1
st
Respondent followed a complaint by the 2
nd
Respondent lodged on behalf of Kgatelopele and allegedly the affected
community. After invoking the provisions of s 16, the 1
st
Respondent not only decided to give access to the information to the
2
nd
Respondent without the latter complying with s 18 (the section
empowering it to make a decision), but
mero
motu
decided to release the information
to the public. The 1
st
Respondent’s action were therefore
ultra
vires
the enabling section, as the
procedural requirements set out by s 18 that would have enabled the
1
st
Respondent to exercise the discretion were not complied with.
[42]
The question which then follows is whether substantively there is a
rational connection to the facts as per the complaints
that are
before the 1
st
Respondent and the decision to disclose to the 2
nd
Respondent and to the general public (albeit
mero
motu
) the private and confidential
information. That enquiry is entwined with an examination of the
process and of the relevant facts
the 1
st
Respondent took into consideration to determine or formulate its
opinion not only on the sufficiency of the 2
nd
Respondent’s interest but also that of the public with special
due regard of the privacy and confidentiality of the information
together with the laws applicable in the protection of such private
information.
[43]
The Applicants disagree that from the facts it can be concluded that
the 2
nd
Respondent has sufficient interest to be entitled to the information
it seeks from the trust, arguing that it does not have a valid
complaint. Whether or not 2
nd
Respondent has sufficient interest is to be determined or ascertained
from the evidence of the complaints as they form the facts
upon which
the request was made and 1
st
respondent decision premised. The main complaint raised was that
there is maladministration of the trust funds by the trustees
in
their dealings with the claims in that they have wrongly declined to
compensate certain claimants with legitimate claims and
compensated
others whose claims were not legitimate. The allegation or complaint
is supposedly raised with the 1
st
Respondent on behalf of the wrongly declined claimants represented by
Kgatelopele, yet the 2
nd
Respondent failed prior to and when lodging the complaint to furnish
the 1
st
Respondent or the Trust with the names of these claimants it and
Kgatelopele allegedly represent. Hence at the time when the 1
st
Respondent made its decision there was no authenticated information
on the identity of these complainants or claimants whose claims
were
wrongly declined by the trust who are 2
nd
Respondent’s and Kgatelopele source of interest. There were, as
well, no names furnished of claimants who have been wrongly
or
incorrectly paid. The 2
nd
Respondent could not show how it derives any interest in the
information it sought based on the complaint. The 1
st
Respondent could therefore not have validly ascertained or formulated
a valid opinion from the bare and unsubstantiated complaint
allegedly
made on behalf of unidentified complainants.
[44]
The conduct is perpetuated even in this Application. In its Answering
Affidavit, the 2
nd
Respondent alleges to have purportedly furnished the names of these
claimants when it has not done so, making its
locus
standi
questionable. Furthermore, the
2
nd
Respondent alleged when it filed the complaints and now in its
opposition to this Application, that it is acting on behalf of or
in
the interest of Kgatelopele and the affected community. Once more it
purports to have submitted or annexed to its answering
affidavit
confirmatory affidavits from the leaders of Kgatelopele and the
community when it has not done so. The allegation is
clearly made
deliberately for the court to infer not only that there is sufficient
interest but also that 2
nd
Respondent is acting with a mandate and therefore has a legal
standing in the matter, when truthfully, there are no facts before
the 1
st
Respondent from which a mandate from the community that is supposedly
affected could be inferred or a legitimate opinion on the
community
or 2
nd
Respondent sufficient interest could be made that supports the 1
st
Respondent’s decision to disclose the provisionally interdicted
information. Therefore the 1
st
Respondent has exercised its discretion not only improperly but also
ill-advisedly in deciding to publicly disclose the information
when
there is no sufficient interest shown (there being no facts before
it) by the 2
nd
Respondent or the community it alleges to represent that warrants the
decision. Therefore upon these two issues the action of the
1
st
Respondent was procedurally unfair and not rationally connected to
the facts before it or for the purpose envisaged by the section.
[45]
The failure of the decision to measure up on the above issues is
dispositive of the matter. However, for the sake of finality
I have
also dealt with the other complaints raised by the parties upon
which the decision of the 1
st
Respondent had to be made. One such complaint indicated to be
one of Kgatelopele and the community’s main complaint,
as
alleged by 2
nd
Respondent is that there is mistrust by the community of the 2 trusts
they claim to have been formed by Spoor, allegedly because
besides
the maladministration neither the community or the litigants on whose
behalf a settlement agreement was concluded are represented
in the
trusts’ board of trustees. However there is evidence that has
not been refuted that on the formation of the ART Trust,
two trustees
were in accordance with the provision of the trust deed appointed by
the litigants’ attorneys and have, since
then, been involved.
Also that 1
st
Respondent appointed two trustees who are presently with the ART
Trust supposedly at the instance of the community. Therefore all
parties were obviously aware that the four out of the seven trustees
that make out the board represent the community and the litigants.
The community’s mistrust of the board of trustees is
unsustainable. The complaint is as a result not genuine and 2
nd
Respondent’s repeat of it in the Application is disingenuous.
It is also not a fairly objective ground upon which the 1
st
Respondent decision of public disclosure could be justified.
[46]
Additionally, according to 2
nd
Respondent’s own documents in respect of the interaction that
took place between the parties, there was already a resolution
/conclusion reached between the parties and various other entities
from the community at the end of meetings and deliberations
that took
place as long ago as 2009- 2010 that there is no evidence of any
maladministration by the Trust. Notwithstanding, the
2
nd
Respondent relentlessly and without any valid reason, under a
disguise that an instruction to do so came from the public protector,
continued to pursue the matter. It did, even after Kgatelopele could
not comply with the request to first submit evidence to 2
nd
Respondent before any further steps can be taken. The filing of the
complaint with the 1
st
Respondent supposedly on behalf of Kgatelopele after such failure to
produce evidence was unreasonable. Also its action of engaging
the
trustees on the “Phumuladikeledi” amount allegedly for
people who had no ARD’s and also trying to influence
decisions
that are outside the boundaries of the trust instrument and the
agreement upon which it was created was irrational.
[47]
There is therefore neither a legitimate or truthful query or
complaint established from the facts that could be an objective
and
rational basis upon which the decision to publicly disclose the
information the Applicants seek to interdict could be made
and or a
procedurally compliant request that empowered the 1
st
Respondent to make the decision.
[48]
The decision is also not rationally connected to the reason that has
been given by the 1
st
Respondent, which is for the sake of transparency. The word
transparency must be understood in the context that the trust
documents
are in general of a private nature. Furthermore the
documents sought constitutes information on the beneficiaries’
personal
details, the nature and extent of their health conditions,
the amount of compensation paid to them by the trustees including
deliberations
in relation thereto and auditor’s report. The
regulatory statute has set out the conditions upon which and the
purpose
for which the information notwithstanding its private nature
may be released to the public. Therefore without any sufficient
interest
shown by the 2
nd
Respondent or by the organisation it purports to represent, the 1
st
Respondent’s reason is not rationality related to the purpose
for which the power in s 18 was given and is not connected
to the
material facts before the 1
st
Respondent. There are no claimants that will suffer prejudice
if the information sought to be interdicted is not disclosed
publicly
or to the 2
nd
Respondent. 1
st
Respondent’s reason therefore failed to measure up to the
precincts of a fair and just administrative action. Under such
circumstances the decision is reviewable.
[49]
As a result I therefore make the following order
[49.1]
the Applicant’s Application for a review succeeds with costs;
[49.2]
The decision of 1
st
Respondent made on the 27 June 2013 and reaffirmed on 29 October 2013
is set aside in so far as such decision included the making
public of
the minutes of the meetings of Asbestos Trust and the Auditors
Reports;
[49.2]
That the Respondents are interdicted and restrained from making
public or informing any parties who are not party to this
litigation
of the names and the identities of any person identified in the
affidavits of the beneficiaries attached to the application
as and/or
any information as to such persons identifies in the minutes of the
meetings of the trustees or the auditors reports
of the Asbestos
Relief Trust.
__________________________________
N V KHUMALO
JUDGE OF THE GAUTENG HIGH
COURT -PRETORIA
On behalf of
Applicants:
M Smit
Instructed
by:
Cliffe Dekker & Hofmeyer Attorneys
C/O
Asger Gani Attorneys
Ref:
Gani (012) 323-6460
On behalf of
Respondents:
M Mphaga SC
& M
Thabede,
Instructed
by:
The State Attorney, Pretoria.
Ref:
Msiza (012) 309 1561