About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2011
>>
[2011] ZAECMHC 23
|
|
Dlusha v King Sabatha Dalindyebo Municipality and Others (1494/09) [2011] ZAECMHC 23 (18 March 2011)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION MTHATHA)
CASE
NO: 1494/09
In
the matter between:
NONTSIKELELO
DLUSHA
…......................................................................
APPLICANT
and
KING SABATA DALINDYEBO MUNICIPALITY
….......................
FIRST
RESPONDENT
THE MUNICIPAL MANAGER
…...............................................
SECOND
RESPONDENT
CHIEF FINANCIAL OFFICER
…...................................................
THIRD
RESPONDENT
INFORMATION OFFICER (KSD
MUNICIPALITY)
…...............
FOURTH
RESPONDENT
JUDGMENT
MAGEZA AJ:
[1] Applicant is a ratepayer and
resident of North Crest, Mthatha, an area which falls under the
administration of KSD Municipality
(First Respondent).
[2] The Second, Third and Fourth
Respondents are all officials employed as such by the First
Respondent.
[3] This matter has its genesis in a
discontinuation of service notice served on the Applicant by Third
Respondent, the Chief Financial
Officer of the First Respondent, on 5
March 2009. In this notice, Third Respondent demanded the payment of
the sum of R61 098.49
for arrear municipal rates and services.
[4] Pursuant to this discontinuation
of service notice and on 1 July 2009, Applicant approached the First
Respondent and formally
requested information forming the basis of
the calculation of the rates said to be outstanding. Applicant was
handed a pro forma
document headed ‘Form For Application of
Information’ which she duly completed and submitted.
[5] On the face of this document is a
stamp purporting to be that of the Second Respondent. This stamp is
dated 1 July 2009 and
the recipient is one Babalwa Nonyukela, acting
on behalf of the Second Respondent. Babalwa Nonyukela received this
document at
09h52 on that day.
It is common cause that the Second
Respondent never favoured the Applicant with the information
requested. In fact none of the Respondents
reverted back to the
Applicant in any manner of form.
[6] Some (2) two months later on 24
August 2009, Applicant issued and served on the Respondents on Notice
of Motion an Application
in which the following relief is sought:-
“
6.1 That the
respondents’ failure to furnish applicant with information
requested relating to assessment of rates and other
service charges
with KSD Municipality be and is hereby declared unlawful and an
infringement on applicant’s constitutional
right to access to
information as provided for by the
Promotion of Access to
Information, Act 2 of 2000
;
6.2 That the respondents
be and are hereby ordered and directed to furnish applicant through
her attorneys with the following information
regarding assessment of
rates;
6.2.1 A copy of a
document which shows the valuing system used by the KSD Municipality
Valuers to value all properties within its
jurisdiction;
6.2.2 Copies of valuation
rolls (at applicant’s expense) used to determine rates from
1993/1994 financial year to the 2009/2010
financial year;
6.2.3 The Government
Gazette numbers of the gazettes in which notices of abstracts of
estimates of revenue and expenditure forming
the basis for rates
assessment have been promulgated for all the financial years referred
to above;
6.2.4 A copy of the rates
policy used all the financial years referred to above;
6.2.5 The provincial
Government Gazette numbers in which by laws have been
promulgated giving effect to first respondent’s
rates policies
for all the financial years referred to above;
6.2.6 A copy of the
booklet/book which shows the tariffs used to determine rates for all
the financial years referred to above (copies
at applicant’s
expense);
6.2.6 A copy of the
document from the MEC for Local Government approving an increase in
tariff for fixing rates which is higher
than the 2 cents in a rand as
stipulated by section 82 of the Municipality Ordinance 20 of 1974;
6.3 That the respondents
be and are hereby ordered and directed to furnish applicant through
her attorneys proof of respondents’
attempt to solicit
community participation in rates assessments, such proof in the form
of newspaper cuttings in which council
resolutions of rates
assessment for each financial year from 1993/1994 to 2009/2010 was
published;
6.4 That the respondents
be and are hereby ordered to also furnish applicant through her
attorneys with water tariffs and sewerage
tariffs from the financial
year 1993/1994 to 2009/2010;
6.5 That the respondents
be and are hereby ordered and directed to furnish applicant through
her attorneys with tariffs for refuse
collection and the fire levy
from the financial year 1993/1994 to 2009/2010 (or 2013);
6.6 That the respondents
be and are hereby ordered and directed to furnish the information
referred to in paragraphs above within
fifteen (15) days of the issue
of this court’s order;
6.7 That the respondents
pay costs of this application jointly and severally each paying the
other to be absolved;
6.8 Granting applicant
further and/or alternative relief.”
[7] The Respondents following upon
service of the Application, filed a notice to oppose on 27 August
2009. This was then followed
by a Notice in terms of Rule 6 (5) (d)
(iii) raising a special defence in the following terms:-
“
7.1
Section 1
of
the
Promotion of Access to Information Act No 2 of 2000
(
the
Act)
defines
the Respondent as a public body in that it states ‘public body’
means:
“
any department of
state or administration in the national or provincial sphere of
government or any municipality in the local sphere
of
government. . .”
7.2
Section 27
of the Act
is a deeming clause. It provides that 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 purpose of this Act, regarded as
having refused the request;
7.3
Section 78
(1) of the
Act provides that a requester or third party referred to in
section
74
of the Act may only apply to a court for appropriate relief in
terms of
section 82
of the Act after that requester or third party
has exhausted the internal appeal procedure against a decision of the
information
officer of a public body provided for in
section 74
given
the deemed refusal;
7.4 In the circumstances,
first respondent being a public body or functionary, the applicant
has failed to exhaust the internal
remedies contemplated in
section
82
of the Act;
7.5 In the event of the
above points do not succeed the respondents will seek the leave of
this Honourable court to file the affidavits
on merits.”
[8] The matter was then set down for
argument on 4 February 2010 before this court.
[9] The Respondents’ special
defence as set out in its
rule 6
(5) (d) (iii) is in essence that to
the extent Applicant has not, in its view, exhausted internal appeal
related remedies in terms
of section 74 (1) of the Promotion of
Access to Information Act 2 of 2000 (PAIA), Applicant’s request
for relief in the court
is premature.
[10] In sum, that Respondents are of
the view that Applicant ought to be directed back to the First or
Second Respondent for the
information sought.
[11] Section 74 (1) reads as follows:-
“
a requester may
lodge an internal appeal against a decision of the information
officer of a public body referred to in paragraph
of the definition
of “public body” in section 1 –
to refuse a request for
access.”
[12] Section 27 of the Act is a
deeming provision which reads as follows:
“
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.”
[13] Whilst the Respondents rely on
the deeming provision referred to, counsel for the Respondents’
heads of argument at paragraph
1.2 of the introduction appear to in
fact for the first time, provide the reason why the Applicant’s
request was met with
silence by the Respondents. This paragraph
reads:-
“
The applicant’s
papers seem to reflect that the applicant seeks or demands
information which has a potential of crippling
and jeopardizing the
first respondent’s claims against various consumers in the area
of jurisdiction of the first respondent.”
If this then fairly reflects the real
disposition of the Respondents towards Applicant’s request for
the relevant information,
it is somewhat inexplicable as to why the
court is simultaneously invited to rely on the deeming provision. It
is difficult to
understand the reason why this position was not
communicated to the Applicant to enable her to exercise the various
options at
her disposal including, among others, exercising her right
to an internal appeal; abandoning the request if so desired or to
approach
the court for relief.
[14] Section 34 of the Constitution of
the Republic of South Africa Act 108 of 1996 (the Constitution)
entitles all citizens to
a just and fair resolution of disputes they
may be involved with in a fair public hearing before a court or by an
impartial tribunal.
[15] Section 36(1) of the Constitution
establishes a right of access to any information held by the state
and section 36(2) requires
national legislation to effect this right.
The
Promotion of Access to Information Act 2 of 2000
is such Act.
[16] Section 237 of the Constitution
requires that all constitutional obligations must be performed
diligently and without delay.
[17] In
Nouport Christian Care
Centre v Minister, National Department of Social Development
2005
(1) BCLR 1034
(T) at paragraph 28 the court held that:
“
The approach to be
followed in matters where the exercise of public power is challenged
by way of review proceedings, has been encapsulated
in various
decisions by the Constitutional Court. For present purposes I only
refer to the judgment in
Pharmaceutical
Manufacturers Association of South Africa and Another, in re: Ex
parte President of the Republic of South Africa
& Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) at 696 E H (paragraph 45):
The interim Constitution
which came into force in April was a legal watershed. It shifted
constitutionalism, and with it all aspects
of public law, from the
realm of common law to the prescripts of a written Constitution which
is the supreme law. That is not to
say that the principles of common
law have ceased to be material to the development of public law.
These well established principles
will continue to inform the content
of administrative law and other aspects of public law, and will
contribute to their future
development. But there has been a
fundamental change. Courts no longer have to claim space and push
boundaries to find means of
controlling public power. That control is
vested in them under the Constitution, which defines the role of the
courts, their powers
in relation to other arms of Government and the
constraints subject to which public power has to be exercised.
Whereas previously
constitutional law formed part of and was
developed consistently with the common law, the roles have been
reversed.”
[18] In
Armbruster & Another v
Minister of Finance and Others
2007(12) BCLR 1283 (CC) at page
1309 paragraph 81, the Constitutional Court per Mokgoro J stated:-
“
Finally, though
nothing untoward in the conduct of the official in this case has been
established, it is necessary to underline
the fact that officials are
constitutionally bound, in the daily operation of their role and
functions, to observe the rule of
law and promote the spirit, purport
and objects of the Bill of Rights. The public administration must
always and in every sphere
be governed by the democratic values and
principles enshrined in the Constitution and services must be
provided impartially, fairly,
equitably, and without bias.”
(Section 195 of the
Constitution).
[19] In
University of Western Cape
v MEC for Health and Social Services
1998(3) SA 124 (C) at 1301,
Hlophe J,
(as he then was),
stated:-
“
Our courts have
repeatedly laid down that they do not want to usurp the powers of the
authorities to whom the legislation has vested
the powers to decide
one way or the other. To do otherwise would constitute an unwarranted
usurpation of the powers entrusted to
the public authorities by the
relevant statute. Therefore in the ordinary course the Courts will
refer the matter back because
the Court is slow to assume a
discretion which has by statute been entrusted to another functionary
or repository of power. It
is only in exceptional cases that this
principle will be departed from. Over the years, South African Courts
have recognised that
in exceptional circumstances the Court will
substitute its own decision for that of a functionary who has a
discretion under the
Act. Where the end result is in any event a
foregone conclusion and it would merely be a waste of time to order
the tribunal or
functionary to reconsider the matter, the Courts have
not hesitated to substitute their own decision for that of the
functionary.
Our Courts have further recognised that they will
substitute a decision of a functionary where the functionary or
tribunal has
exhibited bias or incompetence to such a degree that it
would be unfair to require the applicant to submit to the same
jurisdiction.”
[20] In
MEC for Roads and Public
Works, EC v Intertrade Two (Pty) Ltd
2006(5) SA 1 (SCA), Maya JA
para (8) observed:
“
Section 32 of the
Constitution confers upon every person a general and unqualified
right of access to any information held by the
State and its organs.
It then requires the enactment of national legislation to give effect
to the right, which legislation ‘may
provide for reasonable
measures to alleviate the administrative and financial burden on the
State’. The
Promotion of Access to Information Act is
that
legislation. The right to obtain information is conferred also,
albeit for the limited purpose of litigation, by Uniform Rules
53 and
35, which regulate review proceedings and the discovery procedure,
respectively.”
The learned Judge of the Appeal went
on to say at para 20:
“
There is another
issue that requires comment. The appellant’s resistance to
Intertrade’s request for documentation on
technical grounds
was, in my opinion, most reprehensible. Important issues are at stake
here. Intertrade seeks to establish the
truth about an
extraordinarily extended tender process to exercise and protect its
rights. The appellant’s knew precisely
what documents it
required from the outset. They did not raise any impediment which
would prevent them from producing the documents.
Neither did they
deny that they had the documents in their possession. Their response
is rendered more deplorable by the report
contained in the
department’s own correspondence which shows that, whilst they
were embarking on delaying tactics at the
taxpayer’s expense,
sick and vulnerable citizens were suffering and children were dying
in poorly maintained hospitals as
a direct result of their failure to
comply with their constitutional obligations.”
[21] I refer to the aforegoing
decision in an effort to send the clear message that an Applicant who
has in good faith and as of
right requested information in terms of
PAIA ought to be dealt with in a rational, fair and just manner by
public authorities.
In an open and democratic society, government
must be accountable for its decisions and its actions should be
informed by rational
considerations that are explicable to those
affected. Public access to information is fundamental to encouraging
transparency and
accountability in the way in which government and
public authorities operate. Executive action must not be arbitrary.
Arrogant
disregard and failure to positively engage the public is not
one of those values contemplated in the Constitution. There is no
room for a policy of ‘don’t ask, don’t tell’.
In this case, there seems to exist an
apparent lack of insight by Respondents of their legal position as a
body that is there in
order to serve citizens and ratepayers. I still
do not understand why, if the reason Applicant was not furnished the
information
arose out of the Respondents’ perception to be
gathered from counsel’s heads, this was not communicated to
Applicant
as Applicant is entitled to be told by law.
[22] The nature and extent of a public
body’s obligation where the right of access to information is
involved is eloquently
expressed in
Van Niekerk v Pretoria City
Council
1997 (3) SA 839
(T). There, Cameron J,
(as he then
was)
dealing with a claim brought under section 23 of the interim
Constitution (the precursor to section 32 of the Constitution) said
at 850 A-C:-
“
In my view,
section 23 entails that public authorities are no longer permitted to
‘play possum’ with members of the
public where the rights
of the latter are at stake. Discovery procedures and common law
claims of privilege do not entitle
them to roll over and play dead
when a right is at issue and a claim for information is consequently
made. The purpose of the Constitution,
as manifested in section 23,
is to subordinate the organs of State. . . to a new
regimen of openness and fair dealing
with the public.”
[23] The election by the Respondents
not to simultaneously file answering affidavits is also a matter of
concern in light of the
unwarranted additional costs to be incurred
by the Applicant where Respondents are given leave to file. This
matter could have
been concluded but for the Respondents’
conduct. The duty of the Respondents is always to facilitate rather
than to obstruct
the dissemination of reasonably requested
information.
[24] Where the manner in which an
Applicant was dealt with and both the decision to oppose and the way
in which the case was conducted
represented unconscionable conduct on
the part of any sphere of government, the court can express its
displeasure by an award of
costs on a punitive scale.
See:
Njongi v MEC Department of Welfare, Eastern Cape
2008(4) SA
237 (CC).
[25] In the result the following shall
issue:
1. The Respondents’ special plea
is dismissed;
2. The Respondents are ordered to file
their answering affidavits within fifteen (15) days of this order;
3. The Respondents are ordered jointly
and severally, to pay Applicant’s costs on a scale as between
attorney and client,
the one paying the others to be absolved.
________________________
P T MAGEZA
ACTING JUDGE OF THE HIGH COURT
Attorney for the Applicant: Mrs E N
Nyobole
Attorneys for the Applicant:
Voyi-Nyobole Attorneys
Suite 318 & 325, 3
rd
Floor
Development House
York Road
MTHATHA
Counsel for the Respondents: Mr V
Kunju
Attorneys for the Respondents: X M
Petse Incorporated
4
th
Floor Suite 445
Development House
York Road
MTHATHA
Heard on: 4 February 2010
Delivered on: 18 March 2010