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[2015] ZAECMHC 72
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Seku v MEC for the Separtment of Health, Eastern Cape and Another (3388/2014) [2015] ZAECMHC 72 (13 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
Case
no. 3388/2014
In the matter
between:
NTOMBIZANELE
SEKU
...............................................................................
Applicant
and
THE
MEC FOR THE DEPARTMENT OF
HEALTH,
EASTERN CAPE PROVINCE
........................................
First Respondent
THE
INFORMATION OFFICER,
ST
BARNABAS
HOSPITAL
...........................................................
Second
Respondent
JUDGMENT
STRETCH
J:
[1] The applicant
launched an application against the respondents for access to
information, which information has now been furnished.
The issue is
whether a costs order should follow, and if so, in favour of which
party.
[2] In order to
determine this question, a time line of factual events during 2014
and 2015 is a good start:
22 AUGUST: The
applicant despatches its request for information from the second
respondent by way of registered mail, allowing
the recipient the
prescribed 30 days to respond.
13 OCTOBER: The
applicant despatches an internal appeal to the first respondent by
way of registered mail, by virtue of the fact
that the first
respondent, not having replied within the requisite 30 days, was
deemed to have denied the request. Therein, the
first respondent is
granted another 30 days to respond, calculated from the date of
receipt of the appeal, failing which the
applicant would approach
court for appropriate relief including a costs order, without
further notice to the first respondent.
This letter was available
for collection at the Bhisho Post Office as from 20 October. The
letter was collected by the respondents’
representative on 28
October.
25 NOVEMBER: Having
had no response from either of the respondents, the applicant serves
the threatened court application on the
respondents, together with
her founding affidavit.
8 DECEMBER: The
information sought is released to the applicant.
13 DECEMBER: A
letter from the first respondent addressed to the applicant by way
of registered mail is recorded as having been
in transit at the
Mthatha (hub) Post Office branch, having left the Bhisho Post Office
on 12 December. The letter is the first
respondent’s
acknowledgment of receipt (dated 11 November 2014) of the
applicant’s first letter dated 13 October.
In this
acknowledgment, the first respondent states that she only received
the applicant’s first letter on 30 October.
14 JANUARY: The
aforesaid (uncollected) letter is returned by the Mthatha Post
Office to the first respondent.
21 JANUARY: The
applicant confirms in writing that the substantive relief which she
had sought, had been complied with, and tenders
a withdrawal of her
application provided the respondents paid her wasted costs.
10 FEBRUARY: The
applicant receives a letter from the respondents’ attorneys
referring to the aforesaid uncollected letter.
The letter states
that the applicant was telephonically advised about the contents of
the aforesaid uncollected letter, and
that there had been no need
for the applicant to launch the application (the applicant denies
having received this call). The
letter furthermore states that the
applicant’s appeal letter was received on 30 October and that
the respondent replied
thereto on 11 November. The letter fails to
mention that although the response may have been dated 11 November,
it was only
posted on 11 December. The letter requests that the
application be withdrawn, with each party to pay its own costs,
failing
which, the respondents’ answering affidavit would be
filed and that punitive costs would be sought.
17 FEBRUARY: The
respondents receive a letter from the applicant. Therein the
applicant denies having received the aforesaid call,
and proposes
withdrawing the application on the basis that the respondents pay
her cost to date (being up until 17 February).
The applicant points
out that this will be far more cost effective as only the founding
application papers had been filed at
that stage. The respondents
are invited to consider the proposal and to revert by 24 February,
failing which the applicant would
set the matter down for the issue
of costs to be determined.
17 APRIL: The
respondents deliver their answering affidavit.
11 MAY: The
applicant delivers her replying affidavit. Therein she points out
that the information sought was made available
to her on 8 December
2014, and that the only remaining issue is that of wasted costs.
She also points out, significantly to
my mind, that even if the
respondents did telephone the applicant (which she does not admit),
it is the respondents’ version
that the call (ostensibly made
to dissuade the applicant from taking legal action) was made after
the undelivered letter had
been returned to the respondents (that is
after 14 January 2015), and accordingly almost seven weeks after the
application papers
had already been served on the respondents.
[3] It
is not in dispute that the applicant despatched her request for
information on 22 August. It is common cause that the respondents
furnished this information on 8 December (i.e. three and a half
months after the initial request). This amounts to a delay of
six
weeks over and above what is envisaged in the Promotion of Access to
Information Act 2 of 2000 (“the Act”). The
Act
specifically provides for eventualities where an information officer
or relevant body is unable to abide by the time constraints
imposed
by virtue of the provisions of the Act (being 30 days to furnish the
information, failing which a further 30 days to deal
with the
internal appeal, failing which the applicant is deemed to have
exhausted her internal remedies and may approach the court
for
relief).
Section 57 of the Act makes provision for a request for an extension
of a further 30 days in certain circumstances. However the
applicant
must be notified of the request for an extension within 30 days of
having received the original request. This too, did
not happen.
[4] Even if the
respondents only received the applicant’s first letter of
request on 30 October (as contended for by the respondents),
it was
incumbent on the respondents if they intended assisting the
applicant, to either comply with the request before 30 November,
or
to bring to the applicant’s attention (also before 30 November)
that an extension of time was required. It does not assist
the
respondents to pen a response on 11 November which is only posted a
month later, and more than two weeks after the court application
had
already been delivered. Differently put, if the applicant had waited
until 30 November had come and gone before launching
the application,
the respondents’ case would not have been fortified on the
issue of prematurity, regard being had to the
fact that they only
made an effort to bring their response to the attention of the
applicant on 11 December. It also does not
assist the respondents
when they attempt to rely on alleged telephonic communication on
their part which is either a fabrication,
or which was made long
after the horse had bolted.
[5] For all these
reasons I am of the view that the applicant did not deliver her court
application prematurely. This is, however,
not the end of the
matter.
[6] The
applicant’s founding affidavit (
sans
annexures) comprises 19 pages. During the course of this affidavit
the applicant, as a layperson, embarks on a detailed discourse
of the
applicable law, a treatise on constitutional rights and repeats
herself on the facts (which are simple) at least three times.
In my
view, and in the exercise of my discretion, the costs of at least
half of this affidavit serve to be disallowed.
[7] The same applies
to the applicant’s heads of argument. The applicant had, to my
mind, set out her argument clearly and
concisely in the first six
pages of these heads. Notwithstanding this, she continued to repeat
the argument with lengthy and superfluous
extracts from various cases
and bodies of law, extending the heads to 19 pages altogether. Here
too, I intend disallowing half
of the costs.
[8] In the result,
the following order is made:
The respondents are
(jointly and severally, the one paying the other to be absolved)
directed to pay the wasted costs of this application,
such costs to
exclude 50 per cent of all costs associated with the drafting of the
applicant’s founding affidavit, and to
exclude 50 per cent of
all costs associated with the drafting of the applicant’s heads
of argument.
I.T.
STRETCH 13 October 2015
JUDGE OF THE HIGH
COURT
APPEARANCES:
For the applicant:
Mr S.R. Mhlawuli
SR Mhlawuli &
Associates
Mthatha
For the respondents:
Mr T.H. Melane
Instructed by the
State Attorney
Mthatha