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[2024] ZAECMHC 35
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Sithetho v Information Officer for Department of Higher Education and Training, Eastern Cape, KSD TVET College, Cicira Campus (2281/2023) [2024] ZAECMHC 35 (24 May 2024)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
Case no: 2281/2023
In the matter between:
ZUKISANI
SITHETHO Applicant
and
THE INFORMATION OFFICER FOR THE
Respondent
DEPARTMENT OF HIGHER EDUCATION AND
TRAINING, EASTERN CAPE, KSD TVET
COLLEGE
CICIRA CAMPUS
EX TEMPORE JUDGMENT
KUNJU AJ:
[1]
The applicant applies for the following
relief:
1.1
That the applicant be condoned for
his failure to comply with any law of general application and/or
other provision of the PAIA
relevant to the current proceedings;
1.2
That the respondent should consider
and decide on the aplicant’s application for the access to the
contract of employment
between the parties and the record of the
hearing proceedings of the 16
th
February 2022 within 30 days from the date of this order;
1.3
Reviewing, correcting and/or setting
aside the respondent’s decision of failing to pronounce on the
applicant’s application
as set out in paragraph 2 above; and
1.4
Directing that where the respondent
has considered and decided the application in issue favorably, an
order be issued directing
the respondent to furnish the applicant,
through his attorneys, within thirty (30) days of such a decision and
set out therein
the following information:-
i.
a copy of the employment contract
between the parties and the record of proceedings for the hearing on
the 16 February 2022; the
reasons why the matter has not been
set-down again or finalized.
ii.
Granting the applicant such further
and/or alternative relief.
1.5
If, for any legitimate reasons, the
respondent is of the view that applicant’s application cannot
be considered favourably,
then in that event only and not otherwise,
an order directing the respondents to provide decision to that effect
as set-out therein
with such adequate written reasons as would be
necessary or required in law and:-
1.6
Directing respondent to pay the
costs of this application on a scale as between attorney and client.”
[2]
The applicant is the employee of the
respondent who is on suspension due to certain allegations against
him.
[3]
The respondent is described as setout above
in the heading and in the founding affidavit the citation is as
follows:
“
4.3.1 The
respondent is the information officer for the Department of Higher
Education, within the Republic of South Africa who
is employed by the
Department of Higher Education. This is the functionary, designated
in terms of section 56 of Act 2 of 2000,
upon whom it is incumbent to
decide on the request for access to information by the Department on
behalf of its client, in terms
of PAIA, should be granted or refused;
and
4.3.2 The respondent is
exercising powers and functions in terms of section 50 to 56 of the
promotion of access to information
Act no2 of 2000;
4.3.3 The respondent as
the employee of the department or their official have in their
possession and control the information
relating to anyone requesting
it which information was sought by my attorneys of record.
4.3.4 The respondent
has the capacity to consider and decide my application for access to
the information sought, comply
and furnish me, through my attorney of
record; and
4.3.5 The respondent
and/or his officials are, for purposes of section 1(1)(c) of the
promotion of Access to information
Act No.: 2 of 2000(hereinafter
referred to as “PAIA”) information officers who are duty
bound in terms of the law to
disclose, on request, such information
as may be sought as is necessary in the circumstances, to
members of the public or
any other entity; and
4.3.6 Is and/or his
officials are legally obliged in terms of Section 56 of the PAIA to
share, on request, such information
with any other person or
establishment as is necessary for any legitimate purpose, within the
ordinary course of their employment,
scope of their duties and in
furtherance of business activities of the employer where such request
and/ or discloser is in the
interest of the person who is the subject
matter of the information so sought; and
4.3.7 Where the
respondent has and/ or his officials have considered and decided the
application for access to the records
in question and are therefore
refusing the application, the respondent and/or his officials are
required to, in terms of Section
56(2) &(3) of PAIA, notify
me through those represent me, of such decision if taken;
4.3.8 In terms of
Section 56 (2)(3) of PAIA, the respondent is and/or his officials are
obliged to furnish a requester
with written reasons underpinned an
adverse decision if so taken and they are further legally obligated
to advise the requester
of his rights to lodge an internal appeal as
well as the procedure and time frames pertaining thereto; and
4.3.9 In compliance
with rule 3(1) of the rules of procedure for the application to
court, in terms of the promotion
of access to information Act
application papers on the respondent will be served at No 123 Francis
Baard Street, Pretoria, 001
c/o The Acting head K.S.D TVET College,
R61 Road, Cicira Site/Campus Mthatha.”
[4]
It is not clear to me why is the
Information Officer for the department of Higher Education is a party
to these proceedings, because:
[4.1] Section 3 (1) of
Further Education and Training Act 16 of 2006 (the Act) provides:
i.
“
The
Member of the Executive Council may, by notice in the Gazette and
from money appropriated for this purpose by the provincial
legislature, establish a public college;
ii.Every public
college is a juristic person”; and
[4.2] Section 5 of the Act
deals with consequences of declaration of public colleges. In section
5(1)(b) the Act provides:
i.
“
From
the date determined in terms of section 4(2)(a)
a)
the assets, liabilities, rights and
obligations of the institution vest in the public college”
[5]
Also, relevant in these proceedings are the
provisions of section 45(1) of the Act. The section provides
:
“
A college
must make information available for inspection by any person in so
far as such information is required for the exercise
and protection
of the rights of such person”.
[6]
A point of improper citation and
non-joinder of the KSD TVET College is taken by the respondent. Not
only that, it also alleges
that the Promotion of Access to
Information Act is not applicable in this matter because the
information sought was demanded after
the institution of criminal and
civil proceedings or disciplinary procedures. Correctly,
sub-paragraph 27.2 of the answering affidavit
of the respondent
mentions a pending criminal case as a common area between the
parties.
[7]
These two points are likely to be
dispositive of the application and for that reason I address them
hereunder as preliminary points
of law.
(a) The citation of the
respondent
[8]
There can be no denying that KSD TVET
College is a public College that was established in terms of section
3 and declared as such
in terms of Section 4 of the Act.
[9]
Section 5 of the Act reinforces what is
contained in Section 3(2) of the Act, i.e. that every public college
is a juristic person.
[10]
All the above taken into consideration,
makes it difficult to understand without more why is the Information
Officer of another
entity is liable for the action of a totally
different entity, especially in light of the provisions of section
45(1) of the Act
as set out above.
[11]
Paragraph 16 at page 96 of the papers has
compounded and complicated the problem of the applicant though on the
other side, puts
credence to the contention of the respondent. The
pertinent part of this paragraph records:
“
The
argument raised is that the citation is unclear and or ambiguous,
fails to appreciate the fact that service of papers was effected
on
the campus manager
who is the
Information Officer in that institution for the purposes of access to
the requested records”
[12]
Section 1 of the Promotion of Access to
Information Act no 2 of 2000 (PAIA) defines Information Officer as:
“
(a)
. . .
(b)
. . .
(c)
in the case of any
other
public body
, means
the
chief executive officer
, or
any equivalent officer
,
of that public body or the person who is acting as such.”
[13]
On the basis of the papers placed before me
I can find no basis for the citation of the Information Officer for
the Department of
Higher Education. I uphold the point of non-joinder
of the College and misjoinder of the Information Officer for the
Department
of Higher Education.
b)
The pending criminal and
disciplinary proceedings
[14]
Section 7 of PAIA provides:
“
7(1)
This Act does not apply to a record of a public body or a private
body if-
(a)
that record is requested for the
purpose of criminal or civil proceedings;
(b)
so requested after the commencement
of such criminal or civil proceedings, as the case may be; and
(c)
the production of or access to that
record for the purpose referred to in paragraph (a) is provided for
in any other law.”
[15]
Sub paragraphs 6.1 and 6.2 of the founding
affidavit states unequivocally that the applicant is facing criminal
charges and he is
on bail. A Charge sheet and bail receipt are marked
as annexures “zs1” and “zs2” respectively. In
response
to these sub paragraphs, respondent joined hands with the
applicant in paragraph 50 of its answering affidavit. There the
respondent
responded as follows:
“
AD
PARAGRAPHS 1,2,5,6,7,8,9,10 THEREOF
The contents of these paragraphs
are noted”.
[16]
The allegations relating to criminal
charges are made common cause between the parties, both in the
founding and answering affidavits.
[17]
On the point of pending criminal
proceedings, it is known that there is a pending criminal case
involving the applicant and as such
section 7(1)(a) of PAIA is also
met in this case. For this reason it is impossible for the applicant
to invoke the provisions of
PAIA in circumstances where documents
sought will be used during civil or criminal proceedings.
[18]
The Constitutional Court in the case of
Competition Commission of South Africa
vs Standard Bank of South Africa Limited 2020(4)BCLR 429CC
at
in paragraphs 14-17 the court said:
“
[14]
Chapter 4 of PAIA envisages
various grounds upon which a public body may deny a request for
access to information. Chapter 2 of
PAIA is headed
“General Application Provisions”. The most
relevant of these provisions to this matter is
section 7.
It provides that PAIA
does
not apply to information sought for the purpose of civil or
criminal proceedings if the request for access is made after
the
commencement of these proceedings and access to that information is
provided for in another law
.
This
is the position irrespective of whether the information is held by a
public or private body.
[15]
It
is significant that section 7 of PAIA does not provide a ground upon
which a public body may restrict access to requested information
under PAIA. Conversely, it expressly limits PAIA’s scope
of application from extending to information requested for
the
purpose
of court
proceedings which have already commenced.
It is also important to note that rules 14 and 15 of the Commission
Rules did not (at the relevant time) contain similar
provisions
preventing their application where the information sought relates to
litigation.
[16]
Section
7 of PAIA reflects the rationale that the right of access to
information, as given effect to by PAIA, should not be used
to
circumvent the particular rules of procedure in litigation –
litigants should not be afforded a dual system of access
to
information. In PFE International SCA, it was held that
permitting “a dual system of access to information,
in terms of
both PAIA and the particular court rules, has the potential to be
extremely disruptive to court proceedings”.
The Supreme Court
of Appeal explained that:
“
This
anomaly, that [a litigant] may be entitled to information the day
before the commencement of proceedings but not the day thereafter,
must be seen as a necessary consequence of the intention, on the part
of the Legislature, to protect the process of the court.
Once
proceedings are instituted then the parties should be governed by the
applicable rules of court.”
[17]
This
Court in PFE International endorsed the approach of the
Supreme Court of Appeal on the basis of the plain meaning
of the
language of section 7 of PAIA, and in light of the presumed
legislative intent of preventing a dual system of access to
documents
and information that would be disruptive to court proceedings.
Notwithstanding this, the Court recognised that section
7 must be
interpreted restrictively:
“
When
construing section 7(1) it must be borne in mind that the purpose of
PAIA is to give effect to the right of access to information.
On
the contrary, section 7 excludes the application of PAIA. A
restrictive interpretation of the section is warranted
so as to limit
the exclusion to circumstances contemplated in the section only. A
restrictive meaning of section 7(1) will
thus ensure greater
protection of the right.”
[19]
There is no dispute that both the criminal
and civil proceedings pre-date this application. There is no dispute
that section 45(1)
of the Act allows the applicant to access the
required information. If there is no dispensation available during
disciplinary hearing
to obtain the required documents, I see no
reason why section 45(1) cannot be invoked. It is not my finding that
there is none.
It is also not the case of the applicant that there is
no dispensation available to it.
[20]
In these circumstances I do find that in
this application there are pending criminal proceedings. It is not
the case of the applicant
that the pending civil or disciplinary
proceedings do not afford him a remedy to get the required documents.
As said above, section
45 of the Act instead gives the applicant a
right to demand the required information. I see no reason why the
applicant cannot
request the information during the disciplinary
proceedings relying on section 45 as opposed to PAIA.
[21]
Taking into account the common cause facts
set out in the founding and the answering affidavits, it would seem
that the applicable
test in motion proceedings as set out in the case
of
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
finds application.
There the court held:
“
[26]
Motion proceedings, unless concerned with interim relief, are all
about the resolution of legal issues based on common cause
facts.
Unless the circumstances are special they cannot be used to resolve
factual issues because they are not designed to determine
probabilities. It is well established under the Plascon-Evans rule
that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts averred in
the applicant's (Mr Zuma's) affidavits, which have been admitted
by
the respondent (the NDPP), together with the facts alleged by the
latter, justify such order. It may be different if the respondent's
version consists of bald or uncreditworthy denials, raises fictitious
disputes of fact, is palpably implausible, far-fetched or
so clearly
untenable that the court is justified in rejecting them merely on the
papers. The court below did not have regard to
these propositions and
instead decided the case on probabilities without rejecting the
NDPP's version.”
[22]
There are new allegations I spotted out in
the replying affidavit which seeks to introduce a new matter. Such a
new matter may prejudice
the respondent. Though not fully explained
as one would expect in motion proceedings, it tersely states that the
criminal proceedings
were dismissed. That is an unusual terminology
in criminal proceedings. However, that appears to be disputed in the
heads of argument
filed by the respondent. Mr Nkele impressed that
the applicant should stand and fall by his founding affidavit. He
also submitted
that the disciplinary action is still pending.
[23]
In light of the common cause facts, the
point taken under section 7 of the Act, the improper citation of the
respondent and the
reasons set out above in this judgment, this
application stands to be dismissed.
[24]
On costs, it would seem that the applicant
sought to champion and vindicate his constitutional right against the
organ of the State.
Access to information is a right guaranteed in
the constitution. Such a cost order would discourage people from
asserting their
rights such as the one implicated herein. Following
Biowatch
principles (
Biowatch Trust v
Registrar Genetic Resources and Others
2009 (6) SA 232
(CC
),
I am not prepared to order the respondent to pay costs despite the
strong argument on costs by Mr Nkele.
[25]
I have taken into account the nature of the
relationship between the applicant and the college. It is an employee
and employer relationship.
I would not want to make it more hostile
by awarding costs against the applicant.
[26]
In the circumstances, the following order
shall issue:
[26.1] The application is
dismissed.
[26.2] There shall be no order
as to costs.
[26.3] The interlocutory
application that was postponed on Tuesday, 21 May 2024 to 23 May 2024
is hereby removed from the
roll with no order as to costs.
V KUNJU
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the applicant:
Mr Wakaba
Instructed by:
M Wakaba Attorneys
No 158 1
st
Floor, Cnr York
Road and Elliot Street, MTHATHA, 5099
For the respondent:
Mr Nkele
Instructed by:
T A Nkele &
Sons
Ste204 Floor 1 City
Centre, York Rd, Mthatha, 5100
Heard: 23 May 2024.
Delivered: 24 May 2024.