Claase v Information Officer of South African Airways (Pty) Ltd. (39/06) [2006] ZASCA 134; 2007 (5) SA 469 (SCA) (30 November 2006)

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[2006] ZASCA 134
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Claase v Information Officer of South African Airways (Pty) Ltd. (39/06) [2006] ZASCA 134; 2007 (5) SA 469 (SCA) (30 November 2006)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
Case no:
39/2006
In the
matter between:
WILLEM
JOHANNES CLAASE APPELLANT
and
THE
INFORMATION OFFICER OF SOUTH
AFRICAN
AIRWAYS (PTY) LIMITED RESPONDENT
______________________________________________________________
Coram:
MPATI
DP, BRAND, CLOETE, MLAMBO JJA
et
COMBRINCK
AJA
Date of hearing: 20 NOVEMBER 2006
Date of
delivery: 30 NOVEMBER 2006
Summary: Request for information in terms of s 50 of
Promotion of Access to Information Act 2 of 2000
– standard of
proof in application – when access unreasonably denied – punitive
costs order
Neutral Citation: This judgment may be referred to as
Claase v Information Officer of South African Airways
[2006]
SCA 163 (RSA)
JUDGMENT
_______________________________________________________
COMBRINCK
AJA
/….
COMBRINCK AJA:
[1] It is
unfortunate that the Promotion of Access to Information Act 2 of 2000
(’the Act’) which (as appears from the preamble)
was intended to:
‘
* foster
a culture of transparency and accountability in public and private
bodies by giving effect to the right of access to information;
* actively promote a society in which the people of
South Africa have effective access to information to enable them to
more fully
exercise and protect all of their rights,’
should result in pre-trial litigation involving huge costs before the
merits of the matter are aired in court. One of the objects
of the
legislation is to avoid litigation rather than propagate it. This is
the fourth case in which information has been sought
in terms of the
Act that has in the past eighteen months required the attention of
this court. I refer to
Clutchco (Pty) Ltd v Davis
2005 (3) SA
486
(SCA),
Unitas Hospital v Van Wyk
[2006] ZASCA 34
;
2006 (4) SA 436
(SCA) and
MEC for Roads and Public Works v Intertrade Two (Pty) Ltd
2006 (5) SA 1
(SCA).
The present appeal
illustrates how a disregard of the aims of the Act and the absence of
common sense and reasonableness has resulted
in this court having to
deal with a matter which should never have required litigation.
[2] The facts are straight forward, and save for one crucial issue,
not in dispute. The appellant is a retired airline pilot. He
worked
for SAA for 30 years and as part of his retirement package he was
entitled to two free business class tickets on any of SAA’s
international flights every year. He had two such tickets. He had
travelled to New York and was booked to return to Johannesburg
on 20
August 2004. On the 14
th
August 2004 he wished to fly from
New York where he and his companion were, to Johannesburg on SAA’s
flight 204. On the previous
day he had telephonically attempted to
make a booking in New York but this was refused. He and his companion
then went to the SAA
counter at J F Kennedy airport to make the
booking. One of the personnel at the weigh-in counter told him that
there were seats available
in business class. He was told however by
the official in charge of the counter that she could not allocate him
seats until the booking
had closed. He then waited for the counter to
close. Instead of being served first (he had arrived first) he was
told to fall in
at the back of the queue. He witnessed passengers
being upgraded from economy class to business class. When his turn
came he was
told that there was only one seat remaining in business
class and he or his companion would have to travel economy class. He
refused
to accept this and returned to his hotel. The next evening,
after making a booking through SAA’s Johannesburg offices, he was
given
two seats in business class on the Johannesburg flight. The
crucial disputed issue is whether, when appellant attempted to make a
booking on flight SA 204, there were seats available in business
class.
[3] The appellant intends suing SAA for damages for breach of
contract. In order to establish whether there were seats available
in
business class on the particular flight he telephonically contacted
an employee of SAA, Mr Michael Brewis. He was told that records
of
the seats available were in his (Brewis’) possession on his
computer but that he could not without authorization part with them.
Appellant then in a series of e-mails from the 25
th
August
2004 to 9
th
February 2005 sought the information contained
in those records, without success. On the 5
th
November
2004 in terms of s 53 he submitted to SAA a ‘Request for Access to
Records’ on the form prescribed by regulation 4.
In response he was
advised by e-mail on the 8
th
February 2005 that there had
been 37 passengers in business class on the particular flight and 220
in economy class. This information
was, as SAA must have known, of no
use to him. The record was not supplied.
[4] Having still not been afforded access to SAA’s records of the
flight and more particularly the record on Brewis’ computer,
the
appellant launched an application in the Pretoria High Court. In
paragraph 2 of the Notice of Motion he sought an order compelling
SAA
to furnish him with records reflecting: (a) the number of bookable
seats in business and economy class on flight SA 204; (b)
the number
of seats booked in each class; (c) the number of people who arrived
to take up their seats in the respective classes and
(d) the number
of passengers upgraded from economy to business class. In paragraph 3
of the Notice of Motion the appellant sought
attorney and client
costs. The application was vigorously opposed by SAA on a number of
grounds, some of which were clearly without
foundation.
[5] The court
a quo
found against appellant on two grounds.
First, it held that the agreement regulating appellant’s right to
two free tickets did
not entitle him to a seat unless he had a
confirmed reservation on the particular flight. He did not have a
reservation on flight
SA 204 and was correctly, so it was held,
treated as a standby passenger. He therefore failed to establish a
right which was in need
of protection. Second, it was found that the
information given by SAA as to the number of passengers in business
class on the flight
was sufficient for appellant’s purposes.
Accordingly, so it was said, he ‘
. . . failed to establish that
SAA had failed to provide him with information necessary for him to
exercise or protect a right conferred
on him by the agreement’.
[6] What an applicant needs to prove when seeking to exercise his
rights in terms of ss 50(1) of the Act has been dealt with in detail
by this court in the cases referred to in para [1] above. To these
cases may be added
Cape Metropolitan Council v Metro Inspection
Services CC
2001 (3) SA 1013
(SCA). Brand JA in the
Unitas
Hospital
case (
supra
) remarked that: ‘Generally
speaking, the question whether a particular record is “required”
for the exercise or protection
of a particular right is inextricably
bound up with facts of that matter’. (Para [6].)
[7] The right which the appellant relies on and which he seeks to
protect is a contractual one and is to be found in the so-called
‘Regulating Agreement’ governing the conditions of retirement of
SAA pilots. The relevant clauses are clauses 1.2 , 1.7 and 1.8.
They
read as follows:
‘
1.2 A pilot with five years service shall be granted
two confirmed domestic 100% rebated tickets and two confirmed
international 100%
rebated tickets, and unlimited 90% rebated
domestic and international tickets on a seat available basis.
. . .
1.7 Confirmed reservations may be made up to 90 days in
advance in respect of the above
100%
rebated tickets. Such reservations constitute a contractual right and
the holders of such
confirmed
reservations shall not be offloaded under any circumstances at any
time.
1.8 A pilot who retires from the services of the
COMPANY, spouse and dependent children shall be granted travel
benefits in accordance
with 1.1 to 1.2 above. Confirmed reservations
may be made up to 90 days in advance in respect of the 100% rebated
domestic ticket
and in respect of the 100% rebated international
ticket. All other tickets are granted on a seat available basis. Any
additional
travel benefits granted in terms of 1.1 to 1.2 above shall
also be granted to such retirees.’
As I interpret these clauses on the information available to this
court (it is undesirable to express a final view) appellant has,
in
recognition of his service, the right to two tickets in business
class on any of SAA’s international routes. He has the right
to
make a confirmed reservation up to 90 days in advance. Within
that period he may make reservations as long as there are
seats available at that time. He does not have to wait until normal
reservations
by the public close before he may make a reservation.
Once he makes a reservation, or even changes his reservation, as any
member
of the public is entitled to, his right to be conveyed in
business class is established. I cannot accept the reasoning of the
court
a quo
that because the appellant had a reservation for
the 20th August 2004 he only had a right to be on that flight and in
respect of any
other flight he was correctly treated as a stand-by
passenger.
[8] Counsel for appellant suggested that in an application for
information in terms of s 50 the applicant need only put up facts
which
prima facie
, though open to some doubt, establish that
he has a right which access to the record is required to exercise or
protect. I agree.
I consider the traditional standard of proof in
applications for an interim interdict to be appropriate. I am
satisfied applying
that test that appellant established that he does
have such a right. The record he seeks is a computer printout, which
will determine
whether there were seats available in business class
on that particular flight when he sought to make a booking. He has
put up evidence
that
prima facie
proves that there were. Not
only does he say that he was told so by an unknown employee of SAA
but he personally witnessed economy
class passengers being upgraded.
In his founding affidavit appellant avers that he had been told by
Brewis that the record containing
the details sought by appellant
exists and that he (Brewis) had sent it through to SAA’s Client
Service department. In the answering
affidavit these allegations are
not dealt with and neither is an affidavit put up by Brewis to refute
them. They stand unchallenged.
[9] The next question is whether access to the record sought is
‘required’ for the protection of the right. In
Clutchco
para [13] (followed in
Unitas
para [17]) this court said:
‘
I
think that “reasonably required” in the circumstances is about as
precise a formulation as can be achieved, provided that it
is
understood to connote a substantial advantage or an element of need.’
The substantial advantage in this matter consists in the fact that
the contents of the record would be decisive. (
Unitas
para
[54]) ie they would bring a short sharp end to the dispute (
Van
Niekerk v Pretoria City Council
1997 (3) SA 839
(T) at 848G.)
They would either confirm the appellant’s contentions in which
event SAA would apparently have no defence, or they
would support the
latter’s case in which event the appellant would obviously, as his
counsel said in argument, not proceed with
the proposed litigation.
SAA’s reluctance to produce the document in these circumstances is
inexplicable.
[11] The second ground upon which the application failed in the court
below need not detain us. It was held that the information
extracted
from its records in New York by SAA and forwarded by e-mail to
appellant was sufficient for his purposes and in compliance
with s
50. The short answer is that what appellant requested, and was
entitled to obtain, was access to the actual record of the
flight
kept by Brewis. Section 50 is headed: ‘
Right of access to
records
of private bodies.
’
Subsection 50(1) states
that ‘
a requester must be given access to any
record
. .
. .
’ (Emphasis added.) ‘Record’ as defined in s 1:
‘
.
. .
means any recorded information –
(a) regardless of form or medium;
(b) in the possession or under the control of that
public or private body, respectively; and
(c) whether or not it was created by that public or
private body, respectively.’
Appellant
was rightly not content with what SAA said was in their records. His
right was to be granted access to the record itself
in the form he
requested, namely, a computer print-out (see s 54(2)(b) of the Act.)
It follows that the appellant should have been
granted the relief he
sought.
[10] In
MEC for Roads and Public Works
(
supra
) this court
expressed the view that where a record of information is requested in
terms of s 50 and the State body or private person
or institution
obdurately and unreasonably refuses to furnish it in circumstances
where it obviously should have, the court may make
a punitive award
of costs to mark its displeasure (paras [20] and [21] of that
judgment). The conduct of SAA in this case in my view
warrants such
an order. Section 9 of the Act states that one of the objects of the
Act is:
‘
(d) to
establish voluntary and mandatory mechanisms or procedures to give
effect to that right in a manner which enables persons to
obtain
access to records of public and private bodies as swiftly,
inexpensively and effortlessly as reasonably possible; . . . .’
I emphasize the words ‘swiftly’ and ‘effortlessly’. How did
SAA give effect to these objects? From the 25
th
August
2004 and until he launched the application in February 2005 the
appellant by means of 10 e-mail letters requested the information
referred to earlier in the judgment. He was variously told in return
e-mails by SAA officials that they were unable to furnish the
information, that for security reasons the information could not be
given, that the official concerned was on leave and eventually
he was
told how many passengers went on board in business class and economy
class on the particular flight – information which
was of no
assistance to him. Appellant in an e-mail dated 8
th
September 2004, in the prescribed form submitted on 21 November 2004
and again in his founding affidavit stated that the information
on
record he sought was on the computer of Brewis. As stated earlier,
this was never disputed by SAA. By the simple expedient of
furnishing
appellant with the computer print-out this whole issue could have
been resolved. Even if SAA’s conduct in persistently
refusing to
make the record available was not intentionally vexatious, it had
that effect. (
In Re Alluvial Creek Ltd
1929 CPD 532
at 535.)
As a mark of this court’s displeasure at SAA’s conduct a
punitive costs order will be made in respect of the proceeding in the
court below.
[12] The following
order is made:
(a) the appeal is
upheld with costs;
(b) the order of the court below is set aside and substituted by the
following:
‘
An
order is granted in terms of paras 2 and 3 of the Notice of Motion.’
______________
P
C COMBRINCK
ACTING JUDGE OF
APPEAL
CONCUR:
MPATI DP
BRAND JA
CLOETE JA
MLAMBO JA