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2015
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[2015] ZAGPPHC 637
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Magidiwana and Another v President of the Republic of SA and Others (40805/15) [2015] ZAGPPHC 637 (12 June 2015)
IN THE
HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 40805/15
In the matter between:
MZOXOLO
MAGIDIWANA
First Applicant
ASSOCIATION
OF MINEWORKERS ANDCONSTRUCTION UNION
Second
Applicant
and
(1)
REPORTABLE:
YE
S
/ NO
(2)
OF INTEREST
TO
OTHER
JUDGES:
YE
S
/ NO
…
12/06/1… …………………
DATE SIGNATURE
THE
PRESIDENT OF THE REPUBLIC OF SA
First
Respondent
THE
MARIKANA COMMISSION OF
ENQUIRY
Second
respondent
SOCIO
ECONOMIC RIGHTS INSTITUTE
Third
respondent
LEGAL
RESOURCES
CENTRE
Fourth Respondent
JUDGMENT
Tuchten J
:
1.
The first applicant is a labourer employed by Lonmin Mining Company
plc at its mine in Marikana in the North West Province.
He is a
member of the second applicant (AMCU), a trade union. A number of
those who have an interest in the outcome of this application
are
members of AMCU and have asked AMCU to join in this application. The
standing of the applicants to bring this application is
not in
dispute.
2. The applicants applied
urgently for orders directing the first respondent (the President)
and/or the second respondent (the Commission)
immediately to release
a report submitted to the President by the Commission and for certain
other relief. Counsel for the applicants
no longer press for this
other relief. No relief was sought against the third and fourth
respondents, who were cited merely because
they might have interests
in the outcome of the application. The third respondent (SERI) is an
organisation established not for
gain. SERI represents the families
of certain deceased persons. These families are said to have certain
interests in the outcome
of the present application. The fourth
respondent (the LRC) is similarly an organisation established not for
gain. It too is said
to have an interest in the outcome of this
application and to represent the family members of a deceased person
whose rights are
said to be affected by this application.
3. The application is
opposed by the President. The Commission has given notice that it
abides. SARI has submitted an affidavit
and given notice that it
intends to make submissions at the hearing. The LRC abides. Both SERI
and the LRC appeared at the hearing
before me and made submissions.
4. This application is a
sequel to the events that took place in Marikana during the period 11
to 16 August 2012 (the Marikana events),
during which a number of
people died, a number were injured, and property was damaged or
destroyed. These events led to great expressions
of emotion
throughout South Africa and beyond its borders. I intend to avoid any
expressions of sentiment in this judgment
because this case,
like every other, must be decided on the facts and the law
applicable. Sympathy for the human predicament of
a litigant may not
translate into a finding which is unsupported by the facts and the
law.
5. The President reacted
promptly to the Marikana events. The President and a member of his
cabinet signed Proclamation no. 50 of
2012 on 26 August 2012. The
Proclamation was published in Government Gazette no. 35680 on 12
September 2012.
6. Invoking s 84(2)(f) of
the Constitution,
1
the President appointed the Commission to investigate matters
of public, national and international concern arising out of
the
tragic incidents at the Lonmin Mine in Marikana, in the North West
Province from Saturday 11 August to Thursday 16 August,
2012 which
led to the deaths of approximately 44 people, more than 70 persons
being injured, approximately 250 people being arrested
and damage and
destruction to property, with the terms of reference attached hereto
... .
7. A retired judge of
appeal was appointed to chair the Commission. Two senior lawyers were
appointed as its additional members.
The terms of reference of the
Commission were broad. The Commission was directed to “inquire
into, make findings, report
on and make recommendations concerning”
a number of topics. These topics included, in relation to the
Marikana events, the
conduct of Lonmin, which operated the Marikana
mine, the conduct of the South African Police Services, the conduct
of AMCU, the
roles played by the SA Department of Mineral Affairs and
other government departments and agencies and the conduct of
individuals
and loose groupings.
8. The first applicant
was shot and seriously injured during the Marikana events. He spent
some months in hospital but fortunately
by 26 February 2013 he was
well enough to testify before the Commission. In addition to his
injuries, the first applicant was arrested
with about 270 others and
charged with the murders of some 34 of their comrades who, the
undisputed evidence before me establishes,
were killed by members of
the SAPS. These charges were however withdrawn in 2014.
9. The Commission was
directed by the terms of reference to submit to the President
interim reports and recommendations and,
ultimately, a final report.
The Commission received a great deal of evidence and heard
submissions from its own evidence leaders
and the representatives of
other interested persons. The Commission submitted its final report
(the report) to the President on
31 March 2015.
10. After the report was
submitted, constant public calls were made upon the President to make
the report public. There is evidence
that an NGO, one not before this
court, stated that it regarded a reasonable time for the President to
deal with the report was
one month. The President is said to have
broken his silence on the issue in a media statement released on
Sunday 10 May 2015. The
President said in effect that he was still
processing the report but would release it publicly in due course.
2
11.
The first applicant enjoys the support of many of those who were
similarly affected by the Marikana events. In certain unspecified
earlier litigation, the first applicant was certified as the class
representative in a class action.
3
The
first applicant asks that he be again so certified and there is no
opposition to this request. He represents some 300
persons affected
by the Marikana events. I take account of the circumstances of and
submissions made on behalf of all such persons
as if they were
parties to this application in their own names. Throughout the first
applicant has acted in both his personal and
his representative
capacities.
12. In May 2015, the
first applicant approached a member of Parliament from the
Marikana area to take up in Parliament the
question of when the
President was to release the report. A question was put to the
President in the National Council of Provinces
on 14 May 2015. The
first applicant says, and his evidence is unchallenged, that the
response of the President was noncommittal
and along the same lines
as that given in the press release of 10 May 2015.
4
On
the same day, at an informal public meeting in the Constitutional
Court precinct, the first applicant was given a mandate
by the public
there gathered, who included many people who had been injured or
arrested arising from the Marikana events, to accelerate
the release
of the report, including by litigation.
13. I think one must take
a step back here and consider what was in issue at this stage. The
President had publicly stated that
he intended to release the report.
The first applicant has said that he does not trust the President to
honour his undertaking
but there is nothing before me which justifies
any skepticism in regard to the unequivocal word of the head of the
South African
state on the present question. All that was in issue,
therefore, was the timing of the release.
14. A number of
considerations led the first applicant and those he represents to
believe that the President was carrying out
...
a deliberate ploy to reduce the known impact of the report by the
[President] for political and other unknown reasons.
15.
Certain of the considerations mentioned by the applicants do seem
eccentric but there is no need to analyse them. As I shall
show, it
is not in dispute that there has been a delay in the release of the
report because the President was and is considering,
amongst
other things, the political impact of the report. On 22 May 2015, the
applicants’ attorneys delivered a letter
of demand to the
President, asking whether the President was prepared to release the
report before 31 May 2015. On 25 May 2015,
the Presidency responded
to the letter of demand,
promising to give a more detailed report in due course.
5
16. However, on 26 May
2015 and in the National Assembly, the President announced during
question time, upon questioning by opposition
parties, that the
President would release the report
...
before the end of June 2015.
6
17. The President’s
response in Parliament on 26 May 20115 did not satisfy the
applicants. By notice of motion bearing the
date stamp of the
Registrar of this court of 1 June 2015, they gave notice of an urgent
application for the following relief:
2.
Declaring that the decision of the [President] not
to release the
report ... (and/or not to give a specific date therefor) to the
affected victims and/or to the public is irrational,
unlawful and
unconstitutional;
3.
Reviewing and setting aside the aforesaid decision
for non-compliance
with the rule of law and legality;
4.
Ordering the [President] and/or the [Commission]
to ensure the public
release if the report ... immediately and/or within 24 hours of the
granting of the order;
5.
Declaring the [President’s] conduct in insulting
and casting
aspersions on the applicants motives for requesting the ... report to
be inconsistent with his constitutional obligations
as President.
18. During the debate
before me, the issue crystallised. Counsel for the applicants did not
press for the relief in prayers 2,
3 and 5 of the notice of motion.
The sole issue for me to determine is whether, as a matter of
law, the President and/or
the Commission should be required
immediately to release the report.
19. Counsel for the
applicants correctly characterised our democracy
as one in which all those who exercise
public power are required,
when called upon to do so in a court of law, to justify their
actions. Conduct by a public actor which
in this sense is unjustified
will not be rational. The rationality of the position adopted by the
President is in dispute. As it
was put in
Pharmaceutical
Manufacturers Association of SA and Another: in re ex parte
President of
the Republic of South Africa and Others
:
7
Rationality in this sense
is a minimum threshold requirement applicable to the exercise of all
public power by members of the Executive
and other functionaries.
Action that fails to pass this threshold is inconsistent with the
requirements of our Constitution and
therefore unlawful. The setting
of this standard does not mean that the Courts can or should
substitute their opinions as to what
is appropriate for the opinions
of those in whom the power has been vested. As long as the purpose
sought to be achieved by the
exercise of public power is within the
authority of the functionary, and as long as the functionary's
decision, viewed objectively,
is rational, a Court cannot interfere
with the decision simply because it disagrees with it or considers
that the power was exercised
inappropriately. A decision that is
objectively irrational is likely to be made only rarely but, if this
does occur, a Court has
the power to intervene and set aside the
irrational decision. [footnotes omitted]
20. This matter was
argued before me on 8 June 2015. So the time in issue is some three
weeks. What is said to render this matter
so urgent that justice will
not be done if the release of the report is delayed for three weeks?
The first set of factors relate
to the dignity of those affected by
the Marikana events. They say that they live with anxieties arising
from the Marikana events.
The applicants and those whom they
represent believe that the President has had enough time to study the
report. They feel that
any further delay in releasing it is an insult
to them and to the memories of their departed loved ones. In short,
they say in
effect, their grief will be lessened by the release of
the report.
21. The papers
demonstrate that the President had regard to the grief caused to
those affected by the Marikana events. In the Proclamation
constituting the Commission, the President described the events as
“tragic incidents”. I was told from the bar that
the
President cut short a state visit and went to Marikana soon after the
events. The President acted promptly in appointing the
Commission. It
is not really in dispute that President took into account, as one of
the factors grounding his decision, the grief
of those affected when
he made his decision to delay the release of the report. But, the
applicants say, the President did not
accord this factor the weight
it deserved. Moreover, they say, the President has not approached the
matter with the appropriate
urgency.
22.
But this is what the President says in paragraph 19 of his affidavit:
It
is also important to note, contrary to what [the first applicant]
states in the founding affidavit that I did not require three
months
merely to “read” the Report. I can only release it after
I have studied it, come to grips with the issues raised
in it, and
had an opportunity to consider and consult on its implications. It is
the applicants’ case that the contents of
the Report will have
far-reaching effects not only on the lives
of hundreds or
potentially thousands of
people in South Africa but indeed, for the country as a whole. These
anticipated political ramifications
require that I fully understand
the consequences of the Report, least of all because I will have to
address the public, if not
the nation, on its contents and answer
important (and difficult) questions on its meaning and impact. This
is not a job done by
me in isolation. I have a team of trusted and
responsible officials to assist me in this task.
23.
The President also states that studying and dealing with the
report is but one of the many duties of the head of
state.
Addressing the report is not the only task which the President has to
undertake. He needs the extra time, says the President,
properly to
consider the report and its implications. Not only is this evidence
convincing but these being proceedings on motion
for final relief,
the rule in
Plascon-Evans
applies. This means that where there
is a dispute of fact, the respondent’s version must prevail.
24. Counsel for the
applicants has submitted that in the absence of any disclosure of the
facts relating to the issues that have
caused the President to delay
making the report public, there is no room for a finding that such
issues in fact exist. I disagree.
The terms of reference of the
Commission demonstrate that, depending on the findings of the
Commission, a number of complex and
interrelated questions of a
political nature might well arise requiring action on the part of the
President and his government.
It is conceivable, even probable, that
the publication of the findings of the Commission will give rise to
heated public debate.
The Marikana events are of course a source of
personal grief to those affected. But they are also of a highly
sensitive political
nature. I wish to say no more than that it would
not be irrational for a head of state to decide, in the interests of
the country,
to make certain preparations in the period before that
potentially stormy debate begins.
25. I think that this is
also the answer to the submission of counsel for the applicants that
the President can take such action
as he deems necessary after the
publication of the report and that publication would not prejudice
any such action. In my view,
it is not irrational for a President to
utilise the calm before an anticipated change in the political
weather to make his dispositions.
26. Counsel for the
applicants further criticise the President’s conduct on the
ground that the President should have afforded
his consideration of
the report a higher priority than he in fact did. If he had done his
work properly, so runs the argument,
those affected by the Marikana
events would not have been put through the suffering they have had to
endure in the period between
the submission of the report to the
President and the date of its ultimate release. Perhaps there is
merit in that criticism. Perhaps
there is none. It is impossible to
make a finding in this regard on the papers. And in any event, if the
argument is correct (on
which I express no opinion), all it would
show would be that the President could better have managed his time.
It would not show
irrationality.
27. I proceed to consider
the position of the Commission, which, as I have said, abides the
outcome. Counsel for the applicants
pointed out that the Commission
had not advanced any reason why it should not be ordered to release
the report. While that is so,
an important purpose of the
establishment of the Commission and of the report is to enable the
President to take executive action
to address matters arising from
the Marikana events and the report itself. The applicants seek
constitutional relief. Under s 172(1)(b)
of the Constitution, a court
may when deciding a constitutional matter, make any order which is
just and equitable. I have found
that the President is within his
rights to defer the release of the report until the latest date fixed
by the President himself,
30 June 2015. An order directing the
Commission immediately to provide a copy of the report to the
applicants would frustrate the
effect of this finding and would
therefore not be just and equitable.
28. The second leg of the
applicants’ claim for immediate release of the report is that
their claims for damages arising from
what was done to them during
the Marikana events will prescribe during August 2015. They say that
they and their lawyers need more
time than from July to, say, early
August 2015 to prepare themselves to issue and prepare summonses
commencing their actions for
redress. This, they say, adversely
affects their access to the courts which is guaranteed by s 34 of the
Constitution.
29. I view this
submission with some skepticism, for a number of reasons. Firstly,
s
12(1)
to (3) of the
Prescription Act, 68 of 1969
provide as follows:
When
prescription begins to run
(1) Subject to the
provisions of subsections (2), (3), and (4), prescription shall
commence to run as soon as the debt is
due.
(2)
If the debtor wilfully prevents the creditor from coming to know of
the existence of the debt, prescription shall
not commence to run
until the creditor becomes aware of the existence of the debt.
(3)
A debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and of the facts from
which the debt
arises: Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising
reasonable care.
30. It is therefore not
certain that, on the applicants’ analysis, prescription has
indeed begun to run at all. If any one
of the affected persons
can show that the report is of such significance that he or she could
not, without sight of the contents
of the report, have acquired the
necessary knowledge of the identity of his or her debtor or of the
facts from which the debt arises,
any recourse to prescription will
be defeated.
31. I think, moreover,
that the significance of the report in this context has been somewhat
overstated. The report is simply an
expression of opinion. Its
reasoning may be persuasive in certain instances but can never bind a
court to come to the same conclusions.
The report was compiled on the
strength of evidence taken at a commission of enquiry. The Commission
was not bound to the relatively
strict laws of evidence by which
courts of law must conduct proceedings before them. The
evidence in a particular court case
may be less, or more weighty than
or quite different from that which served before the
Commission. But what will no doubt
be useful to those who represent
persons affected by the Marikana events in bringing damages claims
will pre-eminently be the evidence
which served before the
Commission. That evidence was given in open hearing and has been
routinely made available to all interested
persons.
32. And finally, I am
simply not prepared to accept that some five weeks to study the
report, on top of all the other preparation
which access to the
evidence will afford, will not be adequate to enable a reasonably
competent lawyer to prepare a summons for
damages for bodily injuries
allegedly unlawfully inflicted or for malicious or unlawful
prosecution and imprisonment.
33.
I am therefore unable to agree that the President’s decision to
delay the release of the report until, at the latest,
the end of June
2015 is irrational or affected by an improper motive.
34. I must now turn to an
analysis of the legal foundation of the applicants’ claim for
early release of the report. The applicants
rely on reg 15 of the
Regulations establishing the Commission. These Regulations derive
from Item 6 of the Terms of Reference which
I mentioned above. Item 6
reads:
Regulations
will be made in terms of the Commissions Act, 1947 and shall apply to
the Commission to enable the Commission to conduct
its work and
investigation in a meaningful and proper way and to facilitate the
gathering of evidence by conferring on the Commission
such powers as
are necessary, including the power to enter and search premises,
secure the attendance of witnesses and compel the
production of
documents.
35.
Reg 15 itself reads:
No
person shall, except in so far as it shall be necessary in the
execution of the terms of reference of the Commission, publish
or
furnish any other person with the report or any interim report of the
Commission or a copy
or a part thereof or
information regarding the consideration of evidence by the
Commission
for publication before the expiration of a period of 14 days after it
has been submitted to the President: Provided
that the President may
authorise publication of any such report before the expiration of
that period.
36. The regulation in
terms imposes restrictions on persons other than the President. It is
silent on any obligation on the part
of the President to release the
report. Reg 15, in my view, does not advance the applicants’
case.
37. Is the President
under a legal obligation to release the report? And if he is, when
must he do so? These important questions
were not really addressed in
the affidavits. It was for this reason that when the case was called
before me, I asked counsel to
address me on the significance, if any,
of the Promotion of Access to Information Act, 2 of 2000 (PAIA).
38. The applicants
correctly sourced the foundation of their case in s 32 of the
Constitution which provides:
(1)
Everyone has the right of access to-
(a)
any information held by the state; and
(b)
any information that is held by another person and that is required
for
the exercise or protection of any rights.
(2)
National legislation must be enacted to give effect to this right,
and
may provide for reasonable measures to alleviate the
administrative and financial burden on the state.
39. PAIA was the statute
contemplated in s 32(2) of the Constitution and is the national
legislation enacted to give effect to the
right to
any information
held by the State
. The office of President is of course an organ
of state and the report is thus held by the state as contemplated by
s 32(1)(a).
40. PAIA regulates how
access to information in the hands of the state may be achieved. For
the purposes of PAIA, the office of
President is a “public
body” and the report is a “record”.
8
The
objects of PAIA include giving effect to the constitutional right of
access to information held by the state, to promote effective,
efficient and good governance and to promote transparency. Section
11(1) of PAIA reads:
(1)
A requester must be given access to a record of a public body if-
(a)
that requester complies with all the procedural requirements in this
Act
relating to a request for access to that record; and
(b)
access to that record is not refused in terms of any ground for
refusal
contemplated in Chapter 4 of this Part.
41.
No request under PAIA for access to the report was ever made by the
applicants. PAIA itself contains provisions empowering the
deferral
of access under certain circumstances
9
and
even the complete refusal of access.
10
Bato
Star Fishing (Pty) Ltd v
Minister of
Environmental Affairs and Others
11
is authority for the proposition that where national
legislation is passed to codify the manner in which a constitutional
right
is to be invoked, a litigant seeking to enforce that
constitutional right must do so under the national legislation, not
by direct
access to the Constitution.
42.
Bato Star
dealt
with the position in relation to s 33 of the Constitution
(right to just administrative action) and the national legislation
enacted to codify the law in relation to judicial review. In my view,
the same, by parity of reasoning, applies to s 32 and PAIA.
43.
Counsel for the applicants submitted that PAIA is of no application
in the present instance. I am unable to agree. The applicants’
claim is for documentary information. The
reasons why
the
applicants seek the information, that its non-production infringes
their right to dignity or their right to have access to the
courts,
do not change the case. There was nothing which prevented any of
those affected by the Marikana events from making a request
for
access to the report15 days after it had been submitted to the
President. I was
referred
by counsel for the applicant to para 62.2 in Chapter 62 of
Constitutional Law of South Africa
by Woolman
et al
.
The authors make the argument that there might be scope for a direct
application of s 32(1) in the case of information excluded
by the
provisions of PAIA from disclosure. I need not consider the
correctness of this argument because, in my view, the report
is
manifestly a record for the purposes of PAIA and its production is
not in issue; only the timing of its production is in issue.
It is, I
think, fair to say that if the applicants had availed themselves of
their rights under PAIA, the present urgent application
would either
not have been necessary at all or would have taken a radically
different form. No basis has therefore been established
for
permitting (if that is legally competent) the applicants to rely
directly on the Constitution.
44. Counsel for the
applicants submit that in addition to the applicants’ right to
information under s 32 of the Constitution,
they enjoy a right to
information under s 16(1)(b), which reads:
Everyone
has the right to freedom of expression, which includes freedom to
receive or impart information or ideas.
45. It seems to me that s
16(2)(b) deals with a person’s right to receive, as part of the
right to freedom of expression,
information which another person
wishes to impart to him. Section 32, however, relates to the right of
a person to receive information
which another person might wish to
withhold. It is that latter category of information which is in
issue in the present proceedings.
I think that the applicants’
case must therefore be sourced under s 32 rather than s 16(2)(b).
46. It is accordingly
impermissible to seek, as the applicants do, to ground an application
for information directly on the Constitution
and ignore PAIA. On that
ground alone, the applicants cannot obtain the relief they
seek.
47. There remains for
consideration the submission of the President that this court lacks
jurisdiction to entertain the present
claims by reason of s 167(4)(e)
of the Constitution, which reads:
Only
the Constitutional Court may decide that Parliament or the President
has failed to fulfil a constitutional obligation.
The
President submits that the conduct of which the applicants complain
constitute constitutional obligations within the meaning
of s
167(4)(e).
48.
This subsection was examined in
Women's
Legal
Centre
Trust
v
President of
the Republic of South Africa and Others
.
12
Paragraphs
20 and 23 of the judgment make clear that the decisions of the
President which are not susceptible to the jurisdiction
of the High
Courts are those taken by these two actors alone, ie not in
conjunction with other state actors. But s 167(4)(e) must
be read
together with s 172(2)(a) of the Constitution which provides:
The
Supreme Court of Appeal, the High Court of South Africa or a court of
similar status may make an order concerning the constitutional
validity of an Act of Parliament, a provincial Act or any conduct of
the President, but an order of constitutional invalidity has
no force
unless it is confirmed by the Constitutional Court.
49. It has been held that
s 167(4)(e) must be given a narrow interpretation. What does this
mean? In
Women's Legal
Centre Trust
, the
Constitutional Court held that the High Court had jurisdiction to
scrutinise and review the conduct of the President in
appointing
a
commission under s 84(2)(f) of the Constitution.
13
This
view was confirmed in
Daniel v President of the Republic of
South Africa
and
Another
.
14
It
would seem artificial to find that while the High Court may consider
the President’s conduct in relation to the appointment
of a
commission, only the Constitutional Court has the power to consider
the President’s conduct flowing from that appointment;
ie when
the commission so appointed has done its work and submitted its
report, as commissions will do more often than not, to
the President
who appointed it. However, in
Doctors
for Life
International v Speaker of the National Assembly and
Others
,
15
the
court found that the nature of the issue (a
crucial
political question
) justified the reservation of the issue
for the attention of the Constitutional Court alone. But then the
same court found, at
paras 23 and 24, that the ambit of s
167(4)(e) should require an investigation of whether the decision was
likely to disturb
the comity between the judicial branch of
government and the other branches of government and its likely impact
on the sensitive
areas of separation of powers.
50.
I think that a pointer towards answering the present question is that
s 78 of PAIA, which regulates the right to ask a court
(including a
high court) to order access to a record, has no specific reservation
in relation to records in the possession of the
President. It seems
to me that unless and until s 78 is declared to be in conflict with
the Constitution, I should treat its provisions
as reflecting the
true jurisdictional position in relation to claims for access to
information in the possession of the President.
51. However, in my view,
Daniel
has settled the position. In paragraph 12 of the
judgment, the Constitutional Court held:
...
“obligation” in section 167(4)(e)
means a duty
specifically
imposed on the President to perform specified conduct. Examined in
this context, section 84(2)(f) does not impose a
duty on the
President but a power which may be exercised at his discretion.
Accordingly, the President’s failure to appoint
a Commission of
Inquiry does not amount to a failure to fulfil a constitutional
obligation.
52. There is no provision
in the Constitution which imposes an obligation specifically on
the President to provide information.
That obligation is imposed on
all state actors equally by s 32(1)(a) of the Constitution. I
therefore find that this court does
have jurisdiction to entertain
the applicants’ contentions.
16
53. Costs do not arise
for consideration. Counsel for the President did not ask for costs.
54. There is one final
matter which I wish to mention. Counsel for SERI described how the
uncertainty surrounding the date upon
which the report is to be
released is prejudicially affecting the families of certain persons
killed during the Marikana events.
They, the applicants and those
whose interests the applicants represent have asked that the
President give them at least two days
notice of the date upon which
the President decides to release the report so that they may prepare
themselves emotionally to receive
its contents. While I do not say
that the President is under any legal obligation to do so, I would
hope that the President finds
himself in a position to accede to this
request.
55.
I make the following order: The application is dismissed.
For
the applicants:
Adv
D Mpofu SC and Adv R Tulke Instructed by Nkome Inc
Pretoria
NB
Tuchten Judge of the High Court
12
June 2015
For the first respondent:
Adv
H Epstein SC, Adv K Hopkins and Adv T Mabuda Instructed the State
Attorney
Pretoria
For
the third respondent:
Adv
DB Ntsebeza SC and Adv SD Stuart Wilson Instructed by Kathleen Hardy
Johannesburg
For
the fourth respondent: Adv LK Siyo
Instructed
by the Legal Resources Centre Pretoria
MagidiwanaAMCUPres40805.15
1
Section 84(2)(f) reads: The President is responsible for appointing
commissions
of inquiry.
2
The applicants have put up the
text of a statement made on
behalf of the President but it is one made on 15 May 2015 and
does not bear upon the subject in question.
3
In
Children's
Resource Centre Trust and Others v Pioneer Food (Pty)
Ltd
and
Others
2013
2 SA 213
SCA, the SCA developed the common law to identify the
factors
which
a
court
must
consider
when
asked
to
certify
a
class
action.
The
suitability of the proposed class representative is one of those
factors.
4
Unfortunately the newspaper article said to be based on “that
interaction” does not bear upon the subject.
5
The letter of 25 May 2015 is not before
me.
6
In the President’s answering affidavit, there is some
inconsistency as to whether the commitment was to release the
report
by
or
on
the
last day of June 2015. I am satisfied that the commitment was to
release the report
by
the
date mentioned and that the inconsistent references were
purely typographical
errors,
arising from the haste in which the affidavit was prepared.
7
[2000] ZACC 1
;
2000
2 SA 674
CC para
90
8
For the definitions of
public
body
and
record
,
see s 1 of
PAIA.
9
Section 24 of PAIA
10
Chapter 4 of PAIA
11
[2004] ZACC 15
;
2004 4 SA 490
CC para 25
n42
12
2009 6 SA 94
CC
13
Para 13 of the judgment
14
(CCT
34/13)
[2013] ZACC 24
;
2013 (11) BCLR 1241
(CC) (27 June
2013)
15
[2006] ZACC 11
;
2006
6 SA 416
CC para
21
16
See also generally in relation to s 167(4)(e),
King
v Attorneys Fidelity Fund
2006
1 SA 474
SCA and
Von
Abo v President of RSA
2009
5 SA 345
CC.