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[2015] ZAECBHC 36
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Twala v Member of the Executive Council, Department of Education, Eastern Cape and Others (217/2015) [2015] ZAECBHC 36; 2016 (2) SA 425 (ECB) (13 November 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BHISHO)
CASE NO. 217/2015
REPORTABLE:YES/NO
In the matter between:
NOMBULELO
BEAUTY TWALA
Applicant
And
THE
MEMBER OF THE EXECUTIVE COUNCIL,
1
st
Respondent
DEPARTMENT
OF EDUCATION,
EASTERN
CAPE PROVINCE
THE
HEAD OF THE DEPARTMENT,
2
nd
Respondent
DEPARTMENT
OF EDUCATION,
EASTERN
CAPE PROVINCE
THE
MINISTER OF BASIC EDUCATION
3
rd
Respondent
THE
DIRECTOR – GENERAL
4
th
Respondent
DEPARTMENT
OF BASIC EDUCATION
JUDGMENT
D VAN ZYL ADJP:
[1]
This case is concerned with the consequences of a failure to observe
the procedural requirement
in section 75(1) of the Promotion of
Access to Information Act
[1]
(the
Act)
that
an internal appeal against a decision of the information officer of a
public body to refuse a request for access to the records
of that
body must be lodged within 60 days.
[2]
The legislative framework relevant to the issue raised is as
follows: The Act gives effect
to the constitutional right of
access to information.
[2]
A person
(
referred
to as a
requester
)
has
the right to be given access to the record of a public body provided
he or she complies with the procedural requirements in
the Act
[3]
and the request is not refused. The relevant official
(the
information officer)
is
required to make a decision in accordance with the Act whether or not
to grant the request. The decision
“
must”
be
made
“
as
soon as reasonably possible, but in any event within 30 days”
after
the request was received.
[4]
If the request is refused the requester must be notified of that
decision.
[5]
The
notification must not only state adequate reasons for the refusal,
the requester must also be informed of his or her
right to lodge an
internal appeal
“
and
the procedure (including the period) for lodging the internal
appeal.”
[6]
A
request for information is deemed for purposes of the Act to have
been refused if the information officer fails to make a decision
within the 30 day time period.
[7]
[3]
Section 74 of the Act
[8]
gives a
requester the right to lodge an internal appeal against a decision of
the information officer of a public body
“
referred
to in paragraph (a) of the definition of ‘public body’ in
section 1”
.
Paragraph (a) refers to
“
any
department of state or administration in the national or provincial
sphere of government or any municipality in the local sphere
of
government.”
The
“
public body”
in
the present matter is the Department of Education of the Eastern Cape
Government
(the Department)
.
[4]
Section 75 prescribes the manner in which the appeal must be lodged.
Subsection (1)(a)(i)
requires it to be lodged in the prescribed form,
and within 60 days after the decision was taken.
[9]
It reads:
“
An
internal appeal - (a) must be lodged in the prescribed form - (i)
within 60 days.”
If
the internal appeal is lodged after the expiry of this period, the
appeal authority
[10]
(refer to
as
“
the
relevant authority”
in
the Act) has the authority to condone the late lodging thereof.
[11]
That authority is found in section 75(2)(a) and (b). It
reads as follows:
“
If
an internal appeal is lodged after the expiry of the period referred
to in subsection (1)(a), the relevant authority must, upon
good cause
shown, allow the late lodging of the internal appeal. (b) If
that relevant authority disallows the late lodging
of the internal,
he or she must give notice of that decision to the person that lodge
the internal appeal.”
[5]
The relevant authority must decide the internal appeal within 30 days
after it was received, and
notify the requester of its outcome.
[12]
Section 77(7) provides that if the relevant authority fails to give
notice of its decision within 30 days, it is for purposes
of the Act
deemed to have dismissed the appeal.
[13]
[6]
Section 78 provides
inter
alia
that a requester, whose internal appeal was unsuccessful, or who is
aggrieved by a decision not to allow the late lodging of the
appeal,
may apply to a court for appropriate relief.
[14]
A requester referred in section 74 may however only do so after he or
she
“
has
exhausted the internal appeal procedure against a decision of the
information officer of a public body as provided for in section
74.”
[15]
The
effect of this provision is that a person who, as in the present
matter, requested information from a public body as envisaged
in
paragraph (a) of the definition of a public body in section 1, cannot
approach a court in terms of section 78 without first
having
exhausted the internal appeal remedy provided.
[7]
The factual background to this matter is that the applicant was
employed by the Department at
a school in Queenstown as a senior
housekeeping supervisor. In 2011 she was transferred to the
Special Youth Care Centre
in Bhisho. The applicant asked the
Department to convert, or to
“
translate”,
as it is referred to in the
correspondence, her post to that of an educator. In
January 2012 the manager of the Youth
Care Centre supported and
motivated that request on the basis that the applicant is a qualified
teacher and was performing teaching
duties at the Centre. In
September 2013 the learners at the Centre were transferred to another
facility in Kirkwood.
The applicant and other staff members of
the Centre were advised to continue to render their services at the
facility there.
In September of the following year the
Department informed the applicant that her request to have her rank
translated to that of
an educator was not approved, and that
“
the
staff at the Centre now belongs to the Department of Social
Development.”
In response
to this decision the applicant proceeded to lodge a request in terms
of the Act for access to the documentation upon
which the Department
relied for its decision not to translate her rank to that of an
educator, and for placing her under the authority
of the Department
of Social Development.
[8]
The applicant lodged the request in the prescribed form on 23 October
2013. The Department
acknowledged receipt of the request by way
of a letter signed on 5 November 2014, advising her that the matter
was receiving attention,
and that it was referred to office of the
district director in King William’s Town who will respond to it
in writing.
No decision was made whether or not to grant the
request and the applicant heard nothing further from the Department
for more than
30 days. On 16 February 2015 she lodged an
internal appeal in the prescribed form against the deemed refusal of
the request.
On 19 February the Department responded by
acknowledging receipt of the appeal, and requesting a copy of the
applicant’s
original request for access to the relevant
documentation. On 26 February the applicant’s attorney
furnished the Department
with a copy of the request.
[9]
Once again nothing further was heard from the Department. That
prompted the applicant to
institute these proceedings in this court
wherein she seeks an order directing the respondents to grant her
access to the documents
in question. The applicant cited as
respondents the National Minister and his provincial counterpart, as
well as the heads
of their respective Departments.
[10]
The respondents’ opposition to the application is on a very
narrow basis. They chose not to advance
any substantive reason
why the applicant’s request was refused or should be refused.
The request and its merits were
not dealt with at all. Instead,
the respondents relied on the failure of the applicant to comply with
the procedural requirement
in section 75 of the Act relating to the
time period of 60 days in which the applicant had to lodge her
internal appeal.
It is common cause that the internal appeal
was lodged 20 days out of time. The superintendent general of
the Department
contended in his answering affidavit that this failure
meant that the internal appeal was
“
a
nullity and does not need to be considered by the relevant
authority.”
In argument it
was submitted in addition that the applicant should first have made
an application for condonation for the late lodging
of the appeal as
envisaged in section 75(2) of the Act, before approaching the court
for relief. That failure, it was submitted,
meant that the
applicant did not first exhaust all her remedies as required by
section 78.
[11]
In terms of section 1(hh) of the Promotion of Administrative Justice
Act
[16]
(PAJA) any decision
taken, or the failure to take a decision in terms of any provision of
the Act, does not constitute
“
administrative
action”.
It
is consequently not subject to judicial review in the administrative
law sense, which is governed by PAJA.
[17]
Instead, the Act in section 78 confers on the court a statutory power
to grant
“
appropriate”
relief
on application to it.
[18]
This provision, according to Hoexter,
[19]
is an example of what is referred to as a special statutory review.
In
Nel
& Another NNO v The Master (ABSA Bank Ltd & Others
Intervening)
[20]
it was said that the precise extent of any statutory review type
power
“
must
always depend on the particular statutory provision concerned and the
nature and extent of the functions entrusted to the person
or body
making the decision under review. A statutory power of review
may be wider than the ‘ordinary’ judicial
review of
administrative action . . . so that it combines aspects of both
review and appeal, but it may also be narrower,
‘
with
the court being confined to particular grounds of review or
particular remedies’.”
[21]
[12]
The Act provides that application proceedings in terms of section 78
are regarded as civil proceedings to
which the rules of evidence
apply.
[22]
Further, the
burden of establishing that the refusal of a request for access
complies with the provisions of the Act rests
on the party claiming
that it so complies.
[23]
Section 80 of the Act in turn gives the court hearing the application
the power to examine the records of a public or private
body, to
receive representations
ex
parte
,
and to conduct hearings in camera. In terms of section 82 the
court has the power to grant any order that is just and
equitable.
[24]
These
provisions, coupled with the scope of the remedies which the court
may grant, strongly suggests that application proceedings
as
envisaged in section 78 fall within the first category of proceedings
referred in the above extract from the
Nel
case.
[25]
[13]
The question is what the legal consequences are of non-compliance
with the 60 day period in section 75(1)(s)(i)
of the Act. The
respondents’ contention is essentially that this provision is
peremptory, and that a failure to comply
therewith renders the
internal appeal a nullity. The section says that the appeal
“
must”
be
lodged within 60 days. The language suggests that it is
peremptory, as opposed to being merely directory. This
traditional
way of categorising statutory provisions tends to
distract from the real question of what the legislature must be
adjudged to have
intended should be the consequences of
non-compliance with a statutory requirement. As was cautioned
in
Nkisimane
and Others v Santam Insurance Co Ltd,
[26]
care must be exercised
“
not
to infer merely from the use of such labels [peremptory or directory]
what degree of compliance is necessary and what the consequences
are
of non or defective compliance. These must ultimately depend
upon the proper construction of the statutory provision
in question,
or, in other words, upon the intention of the lawgiver as ascertained
from the language, scope, and purpose of the
enactment as a whole and
the statutory requirement in particular.”
[27]
[13]
What must therefore be decided is whether it was the intention of the
legislature that a failure to observe
the obligatory time period in
section 75(11)(a)(i) must render the appeal a nullity. The
intention of the legislature must
be ascertained by considering
context and the language in the Act together.
[28]
The context is firstly provided by section 32 of the Constitution
which confers on everyone the right of access to information.
The interpretation which the respondents seek to place on section
75(1)(a)(i) places a restriction on the exercise of this fundamental
right. The Act was enacted to give effect to this right, which
means that it can only be exercised via the Act.
[29]
Section 39(2) of the Constitution in turn introduces a mandatory
requirement to construe every piece of legislation in a
manner that
promotes the
“
spirit
purport and objects of the Bill of Rights.”
It
means that
“
all
statutes must be interpreted through the prism of the Bill of
Rights.”
[30]
[14]
Further, the section does not pertinently make provision for the
consequences of non-compliance with the
60 day procedural
requirement. It does not provide for a sanction if the appeal
is not lodged timeously. On the contrary,
it empowers the
relevant authority to condone a failure to comply with the time
period. The power to remedy such a failure
is in itself
inconsistent with an intention that the appeal is rendered a nullity
or void if not lodge timeously. The intention
of the
legislature must further be ascertained in the context of the purpose
which the procedural requirement serves. It
is clearly intended
to expedite the finalisation of a request for information and to
facilitate the functions of the authority
tasked with considering the
appeal. Administrative convenience must not lightly be allowed
to override the exercise of a
Constitutional right. The
cumulative effect of these considerations compels me to conclude that
the applicant’s failure
to timeously lodge her appeal did not
without more render it a nullity.
[15]
The question is then whether the applicant was barred from
approaching the court for relief in terms of section
78 of the Act
without first having made application to the relevant authority to
condone the late lodging of her internal appeal.
Section 75(2)
on which the respondents places reliance for this argument provides
as follows:
“
(a)
If an internal appeal is lodged after the expiry of the period
referred to in subsection (1)(a), the relevant authority must,
upon
good cause shown, allow the late lodging of the internal appeal.
(b) If that relevant authority disallows the late lodging
of the
internal appeal, he or she must give notice of that decision to the
person that lodged the internal appeal.”
The
use of the word
“
shown”
in paragraph suggests that a requester who is
dissatisfied with the decision of public body to refuse a request for
access has a
duty to convince the relevant authority that good cause
exists to allow the late lodging of his or her appeal.
[16]
The problem is that the Act itself does not say how that must be
done. It does not lay down any procedural
requirements, and the
“
prescribed”
form
as envisaged in section 75(1)(a) is similarly silent in this
regard.
[31]
In the
absence of the enabling legislation determining a procedure for the
exercise of a power or a right, it may be open
to the relevant
authority tasked with taking a decision to determine the manner in
which its will exercise its authority.
The department’s
submission that the appeal must be accompanied by an application for
condonation suggests that such a procedure
exists, that it is a
procedure separate to the appeal, that it must be in writing, and
that reasons must be advanced in addition
to what is required in
terms of the prescribed form.
[17]
The difficulty with this argument is two-fold: the first is that one
must be careful not to measure administrative
type decision-making by
reference to judicial decision-making and its procedures. To
suggest that the appeal must to be accompanied
by an application for
condonation, which is a procedure associated with judicial
proceedings, may only obfuscate matters.
It can only lead to
distract attention from the particular features of the tribunal at
hand. Procedures in judicial proceedings
must in other words
not be used as a prism through which questions about procedure in
administrative type decision-making is viewed.
The starting
point is the statutory provisions itself and the nature of the
proceedings. Secondly, the constitutional principle
of
legality
[32]
must in the
context of, and in the circumstance of the exercise of the power in
section 75(2) require that the requester must be
informed and made
aware of any procedural requirements which may exist for the exercise
of his or her fundamental right.
In the wider context of the
fact that the relevant authority is exercising a statutory authority,
that its exercise affects the
exercise of a fundamental right, and
that the curtailment of that right lies within the actual
decision-making process, the principle
of legality must include the
common law right of natural justice and its component of procedural
fairness.
[18]
The respondents do no say whether procedural requirements have been
laid down for the exercise of the power
of the relevant authority and
the correlative right of the requester as envisaged in section 75(2),
and that the applicant was
aware, or should have been aware of such
requirements. If procedural requirements do exist, the
practical difficulty that
presents itself on the facts of the present
matter, is that the information officer failed to make a decision on
the request, and
he or she was deemed to have refused it, with the
result that the applicant was not advised, as required by section
25(3)(c), of
the procedure for the lodging of the internal appeal.
Procedural fairness demands that any procedures outside those
prescribed
by the Act and the regulations issued pursuant thereto,
should form part of such a notice, failing which the requester must
be
notified of it after he or she had lodged the internal appeal.
[19]
In the absence of the relevant authority having determined procedural
requirements for the exercise of its
power in section 75(2), and the
prescribed form being silent about the provisions of section 75(2),
fairness requires that the
requester must be afforded a reasonable
opportunity to place information before the relevant authority to
enable it to exercise
its jurisdiction, if it is unable to do so on
the material before it. Either way it must decide the matter.
It cannot
simply do nothing and ignore the appeal as it effectively
has done in this matter. The scheme of the Act, in laying down
time limits within which action is required to be taken by the
requester, the information officer and the relevant authority at
each
stage, and the legal consequences of a failure to do so, such as the
deeming provisions in sections 27 and 77(7),
[33]
do not support such a conclusion. Failing a decision in terms
of section 75(2), and advising the requester of its decision
in the
appeal, the relevant authority must be taken to have impliedly
condone the late lodging of the internal appeal thereby allowing
the
process to continue to move forward to the next stage.
[20]
What relief must be granted? As stated, section 78(2) provides
that a requester who is aggrieved by
any of the decisions referred to
may apply to court for appropriate relief, and the court may grant an
order that is just and equitable,
including but not limited to any of
the orders contained in paragraphs (a) to (e) of that section.
What is just and equitable
must be determined on the facts and in the
circumstances of each particular case.
[34]
As stated, the Department has not advanced any substantive reasons
for the refusal of the applicant’s request to have
access to
the relevant documentation, and
prima
facie
none exists. Considering the relatively short period by which
the applicant’s internal appeal was lodged late, that
there
does not exist any demonstrable prejudice to the Department as a
result, and that no justifiable reason has been advanced
for denying
the applicant access to the required documentation, I am satisfied
that the applicant’s failure to comply with
section 75(1)(a)(i)
of the Act should be condoned, and that she be granted access to the
documentation requested.
[21]
That brings me to the question of costs. I agree with the
applicant that the indifferent manner in
which the relevant
decision-maker of the department dealt with her request, and the
failure to make a decision in terms of section
75(2) when it could
and should have done so on the information before it, calls for
censure. The attitude adopted by the
Department in its handling
of the matter is inconsistent with its constitutional and statutory
obligations and is regrettable.
[22]
For these reasons the application is granted and an order is issued
in terms of paragraphs 1 and 2 of the
notice of motion. The
respondents are ordered, jointly and severally, the one paying the
other to be absolved, to pay the
costs of this application on an
attorney and client scale.
D VAN ZYL
ACTING DEPUTY JUDGE
PRESIDENT
Counsel
for the Applicants:
Adv
Benningfield
Instructed
by:
Hutton
& Cook
Sutton
Square, Queens Road
KING
WILLIAM’S TOWN
Counsel
for the Respondents:
Adv.
Mneno
Instructed
by:
The
State Attorney
c/o
Office of the Chief State Law Advisor
32
Alexandra Road
KING
WILLIAM’S TOWN
Date Heard:
5 November 2015
Judgment
Delivered: 13 November 2015
[1]
Act
2 of 2000.
[2]
Section
32 of the Constitution.
[3]
Section
11(1)(a). It 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.”
[4]
Section
25(1).
[5]
Section
25(1)(b).
[6]
Section
25(3)(a) and (c).
[7]
Section
27. It reads
:
“If an information officer fails to give the decision on a
request for access to the requester concerned within
the period
contemplated in section 25(1), the information officer is, for the
purposes of this Act, regarded as having refused
the request.”
[8]
Paragraph
(1)(a).
[9]
Paragraph
(1)(a)(i).
[10]
In
the present instance that authority vests in the Member of the
Executive Council for Education of the Eastern Cape Provincial
Government. (Paragraph (b)(ii) of the definition of “
relevant
authority”
in section 1 of the Act.)
[11]
Section
75(2)(a).
[12]
Section
77(3) and (4).
[13]
It
reads: “
If
the relevant authority fails to give notice of the decision on an
internal appeal to the appellant within the period contemplated
in
subsection (3), that authority is, for the purposes of this Act,
regarded as having dismissed the internal appeal.”
[14]
Paragraph
2(a) and (b).
[15]
Section
78(1). It reads: “
A
requester or third party referred to in section 4 may only apply to
a court for appropriate relief in terms of section 82 after
that
requester or third party has exhausted the internal appeal procedure
against a decision of the information officer of public
body
provided for in section 74.”
[16]
Act
3 of 2000.
[17]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para
[22]
.
[18]
Section
78(1). The rules relating to the form and procedure in
proceedings in terms of section 78 of the Act are those promulgated
in Government Notice R965 of 9 October 2009. (See
Erasmus
Superior Court Practice
at E13-1 to 13-5.)
[19]
Hoexter
C,
Administrative
Law in South Africa
2 ed Juta Cape Town, at pages 113 - 4.
[20]
2005
(1) SA 276 (SCA).
[21]
Ibid
at para 23.
[22]
Section
81(1) and (2).
[23]
Section
81(3)(a).
[24]
It
reads: “
The
court hearing an application may grant any order that is just and
equitable, including orders – (a) confirming, amending
or
setting aside the decision which is the subject of the application
concerned; (b) requiring from the information officer or
relevant
authority of a public body or the head of a private body to take
such action or to refrain from taking such action as
the court
considers necessary within a period mentioned in the order; (c)
granting an interdict, interim or specific relief,
a declaratory
order or compensation; (d) as to costs; or (e) condoning
non-compliance with the 180 day period within which to
bring an
application, where the interests of justice so require.”
[25]
Supra.
[26]
1978
(2) SA 430 (A).
[27]
Ibid
at
433H – 434A. See also
Weenen
Transitional Local Council v Van Dyk
2002 (4) SA 653
(SCA) at para [13].
[28]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
supra
at para [90] and
Natal
Joint Municipal Pension Fund v Endameni
2012 (4) SA 593
(SCA) at paras [18] and [19].
[29]
Institute
for Democracy in South Africa v African National Congress
2005 (5) SA 39
(C) at paras [16] to [17]. By way of analogy
see
Minister
of Health v New Clicks SA (Pty) Ltd and Others
2006 (2) SA 311
(CC) at para [96].
[30]
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC) at para
[21]
. Also
Bato
Star Fishing (Pty) Ltd supra
at para [91].
[31]
Form
B in the Regulations issued in terms of the Act and published in
Government Notice No. R187 of 15 February 2002 (Government
Gazette
No. 23119) as amended.
[32]
See
generally
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council and Others
1999
(A) SA 374 (CC) at paras [56] and [57].
[33]
See
footnotes 7 and 13 above.
[34]
Steenkamp
NO v Provincial Tender Board, Eastern Cape
2007 (3) SA 121
(CC) at paras [29] to [30] and
Bengwenyama
Minerals v Genorah Resources
2011 (4) SA 113
(CC) at paras [82] and [83].