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[2014] ZAFSHC 67
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Kaale Moshe CC v Head of the Department: FS Government: Department of Education v Tikwana Comprehensive School (3862/2013) [2014] ZAFSHC 67 (15 May 2014)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : 3862/2013
In
the matter between:-
KAALE
MOSHE CC
…..........................................................................................................
Applicant
and
HEAD
OF THE DEPARTMENT: FS GOVERNMENT:
DEPARTMENT
OF EDUCATION
…............................................................................
1
st
Respondent
TIKWANA
COMPREHENSIVE SCHOOL
….............................................................
2
nd
Respondent
HEARD
ON:
8 MAY 2014
JUDGMENT
BY:
KRUGER, J
DELIVERED
ON:
15 MAY 2014
[1]
The only outstanding issue in this matter is costs. In the
notice of motion the applicant sought reasons as to why it
was
unsuccessful to secure a tender relating to work at the premises of
the second respondent, the Tikwana Comprehensive School
in Tikwana,
Hoopstad. After receipt of the notice of motion written reasons
were provided by the first respondent, who opposes
the present
application only on the basis of the costs order sought against it.
The first respondent says that the applicant
never approached
the first respondent for reasons before launching the present
application. The first respondent says the
applicant approached
the incorrect person about the matter.
[2]
The history of the relationship between the applicant and the first
respondent relating to the tender can be set out as follows:
2.1
October/November 2011: applicant is appointed to execute the tender
relating to the redesigning and upgrading of technical
workshops at
the second respondent school.
2.2 January 2012:
Applicant commenced work on the R7,5 million tender.
2.3 January 2012:
After working for a week, first respondent stopped all work by means
of a written instruction. Applicant
complied with this
instruction.
2.4 March/April
2012: New Contractor, Twighlight Construction started executing
contract, and has completed the work.
2.5 Applicant’s
attorney, Mr Kruger, approached Mr Barnard of the first respondent
and asked the reasons for the discharge
of the applicant. Barnard
refused to provide reasons. The deponent to the answering
affidavit, Mr Malope, says he is
the information officer of the
Department of Education. Barnard, who was approached by
attorney Kruger, is the Senior Education
Specialist at the Department
of Education. Barnard is not an information officer. Mr
Malope refers to
section 18
of the
Promotion of Access to Information
Act 2 of 2000
and says the procedure which the applicant had to
follow is set out in
section 18
, which the applicant did not do. The
first respondent says that Barnard told Kruger that he did not have
authority or power
to provide written reasons. Mr Molope says
had the applicant followed the proper procedure when it sought the
information,
same would have been given to him. The applicant’s
case is that Barnard refused to give the information, and made it
clear that the applicant would require a court order to get same.
According to applicant, it was never Barnard’s view
that he was
the wrong person, and that he refused for that reason.
2.5.1 8
January 2013: Telefax from applicant’s attorney, addressed to
Tikwana Comprehensive School, attention Mr Mphatshe.
The
penultimate paragraph of the letter reads:
“
We kindly
request copies of any minutes of meetings, as well as documentation
pertaining to this tender, which might still be in
the possession for
the school. We would also like to request that a consultation be
scheduled between your principal and writer
hereof, on a date and
time which will suit you.”
No response was
received to this request.
2.5.2 25 January
2013: Telefax from applicant’s attorney to the Department of
Education, Bloemfontein, attention Mr Barnard.
The telefax
refers to the appointment letter of Kaale Moshe, and in the telefax
the applicant’s attorney requests a
copy of this letter, as
well as any relevant documentation in connection therewith. No
response was received to this request.
2.5.3 3 June 2913:
Telefax from applicant’s attorney to the Department of
Education, Bloemfontein, attention Mr Barnard. The
telefax
confirms that Mr Barnard refused to provide applicant’s
attorneys with documents relating to the contract, stating
that the
applicant would have to obtain a court order if it wanted the
documents. No response was received to this request.
2.5.4 27 September
2013: Notice of motion issued.
2.5.5 18 November
2013: Reasons provided by first respondent.
2.5.6 13 February
2014: Answering affidavit filed.
[3]
First respondent says the applicant should have requested the
information from Mr Malope, not from Barnard, and then the
information
would have been provided.
[4]
The applicant seeks condonation for “any perceived
non-compliance with
section 5
of the
Promotion of Administrative
Justice Act 3 of 2000
”. The first respondent’s case
is that the applicant’s request failed to comply with the
procedural requirements
of
section 18
of the
Promotion of Access to
Information Act 2 of 2000
. The applicant says that the first
respondent’s reliance on Act 2 of 2000 is misplaced because, as
the notice of motion
indicates, applicant relied on Act 3 of 2000.
The first respondent does not allege non-compliance with section 5 of
Act 3
of 2000.
[5]
The statutory framework:
5.1 Act 2 of 2000:
Promotion of Access to Information Act.
This
Act makes
provision for obtaining information held by the state. Section
18 provides that the request must be in the prescribed
form, directed
to the information officer. The first respondent relies on Act
2 of 2000, and contends that applicant did
not comply with section 18
because applicant did not request the information from the
information officer, but from Barnard, and
that first respondent was
therefore not obliged to respond.
5.2 Act 3 of 2000:
Promotion of Administrative Justice Act.
This Act makes
provision for the right to written reasons for administrative
actions. Applicant bases the relief it seeks in these
proceedings on
section 5 of Act 3 of 2000. Section 5(1) reads as follows:
“
Any
person whose rights have been materially and adversely affected by
administrative action and who has not been given reasons
for the
action may, within 90 days after the date on which that person became
aware of the action or might reasonably have been
expected to have
become aware of the action, request that the administrator concerned
furnish written reasons for the action.”
[6]
From the facts of this case it is clear that the applicant wanted to
know why its tender had been terminated. It started
enquiring
from the school principal, subsequently dealt with Mr Barnard of the
first respondent. It is clear from the undisputed
evidence that
Barnard was not willing to give information to the applicant’s
attorney. There is no suggestion that
he told applicant’s
attorney that he was the wrong person, and that he gave the
applicant’s attorney the name of the
person who should be
approached. A situation similar to what is known in company law
as the
Turquand
rule applies here. An outsider is not
expected to know the internal workings of the department. Applicant
did not want
to get information under section 18 of Act 2 of 2000, it
wanted reasons under section 5 of Act 3 of 2000. If Barnard
believed
that applicant merely wanted information, he should have
referred applicant’s attorney to the information officer. From
the papers it is clear that Barnard did not want to disclose the
information or reasons.
[7]
In these circumstances there is no reason why the first respondent
should not be ordered to pay the costs of the application.
The
situation is comparable to that in
Robcon Civils / Sinawamandla
2 Joint Venture v Kouga Municipality and Another
2010 (3) SA
241 (ECP). There the court found that the municipality had
provided misleading information in its correspondence
(par 24), in
breach of its constitutional obligation in terms of section 217 of
the Constitution. There appears to be no
reason why the
information was not provided to the applicant’s attorney.
Because of the flagrant disregard of the municipality
in the
Robcon
-case, the court ordered it to pay the costs on
an attorney and own client scale. In
Tetra Mobile Radio
(Pty) Ltd v MEC, Department of Works and Others
2008 (1) SA
438 (SCA) an ordinary costs order was made in circumstances
comparable with the facts in this case.
[8]
In this case the first respondent says it would have provided the
information if the request had been directed at the correct
person.
Yet there is no suggestion that Barnard ever offered to tell
applicant’s attorney who the correct person was.
This is
not the type of attitude one would expect from a public body.
Barnard should have directed the applicant’s
attorney to
the correct person, and not have said he refuses to disclose any
reasons. The conduct as evidenced by that of
the first
respondent and its officials in this matter should be discouraged.
In this case no misleading information was given
by the officials of
the first respondent. The first respondent was merely
uncooperative. A special costs order is not
warranted.
[9]
ORDER
1. The first
respondent is ordered to pay the costs of this application.
____________
A.
KRUGER, J
On
behalf of applicant: Adv S Grobler
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of 1
st
respondent: Adv NJ Khooe
Instructed
by:
State
Attorney
BLOEMFONTEIN