IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO.: D1269/2022
In the matter between:
PILISANANI TRADING ENTERPRISE 50 CC Applicant
and
THE INFORMATION REGULATOR (SOUTH AFRICA) First Respondent
RICHARDS BAY MINING (PTY) LTD ta RICHARDS
BAY MINERALS Second Respondent
RICHARDS BAY TITANIUM (PTY) LTD t/a RICHARDS
BAY MINERALS Third Respondent
RIO TINTO MANAGEMENT SERVICES SOUTH
AFRICA (PTY) LTD t/a RIO TINTO Fourth Respondent
a
JUDGMENT
a
Olsen J:
[1] On 16%" May 2022 the applicant, Pilisanani Trading Enterprise 50 CC
delivered a complaint to the Information Regulator, an office established in terms of s
39 of the Protection of Personal Information Act, 2013. The Information Regulator is
the first respondent. The complaint concerned what the applicant regarded as the
unlawful failure of the second, third and fourth respondents to produce records which
had been requested of them. The complaint was delivered out of time. The Regulator
advised the applicant that an application to condone this would be required. It was
delivered. The application for condonation was refused. The applicant now asks this
court to review and set aside the Regulator’s decision to refuse condonation, as well
as the finding made during the course of considering the application for condonation
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that there was in any event no merit in the complaint. This court is also asked to
substitute its own decision for that of the Regulator by granting the condonation which
the Regulator had been asked to grant.
[2] However the Regulator may have expressed itself in recording its view that
the complaint was without merit, its finding in that regard is in my view not reviewable.
It was necessary and appropriate for the Regulator to consider the merits of the
complaint as a prominent feature of the application for condonation for the late delivery
of the complaint. But it had no jurisdiction to make a final binding decision in regard to
that issue until and unless it granted the application for condonation. In considering
the application for condonation the Regulator was obliged to approach the subject in
the manner set out in paragraph 51 of the judgment in Golden Core Trade and Invest
(Pty) Limited v Merafong City Local Municipality and another [2023] 4 All SA 589 (SCA)
“Whether a delay should be overlooked does not and should not entail a
determination of the merits of the review or collateral challenge. The merits of
the challenge are to be weighed on the following basis: if the delay is to be
overlooked, is there a challenge that warrants the attention of the court? In other
words, whether there is a serious question to be decided. To decide the merits
assumes the very jurisdiction that is yet to be determined.”
A proper reading of the Regulator’s decision reveals that it approached the issue of
the merits of the complaint in that fashion.
[3] A further order sought is one authorising the applicant to continue to pursue
an earlier application that it launched out of this court to compel the production of the
records in question. That application (the “first application”) was launched prematurely,
because it preceded the submission of the complaint to the Regulator. The operative
provision is s 78 (1) of the Promotion of Access to Information Act, 2000 (PAIA), which
is to the effect that an application may only be made to court for relief after the
complaints procedure referred to in s 77A of PAIA has been exhausted. In order to
“exhaust” a procedure one must engage with it according to its terms, and, to proceed
further, exit the procedure without the relief which was sought. If that happens relief
may be sought from the court. This court cannot be asked to authorise the continued
pursuit of the earlier premature application unless the Regulator has considered the
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applicant's complaints, and refused to grant the relief sought by the applicant. The
Regulator has not yet done so because it refused the application for condonation.
[4] The applicant has asked in the alternative that the matter be remitted to the
Regulator. That is the correct approach. | accordingly proposed to approach this case
upon the basis that what is before this court is an application to review and set aside
the Regulator’s decision to refuse to condone the late delivery of the complaint. If it is
found that such an order should be granted a decision must then be made as to
whether the court will substitute its own decision on the application for condonation for
that of the Regulator. Depending on the decision on that issue the matter would then
fall to be remitted to the Regulator either to
(a) reconsider condonation, and if it is granted to consider the merits of the
complaint; or
(b) to consider the merits of the complaint.
[5] The second, third and fourth respondents in these proceedings are
Richards Bay Mining (Pty) Ltd, trading as Richards Bay Minerals; Richards Bay
Titanium (Pty) Ltd, trading as Richards Bay Minerals; and Rio Tinto Management
Services South Africa (Pty) Limited, trading as Rio Tinto. The precise nature of the
relationship between the second and third respondents cannot be discerned from the
papers in this application. One might assume from the fact that they share the trade
name “Richards Bay Minerals” that they are partners. On the other hand it may be that
the mining and industrial operation conducted on the North coast of KwaZulu-Natal
comprises two separate business enterprises whose efforts in their respective fields
produce and dispose of the output of the mining enterprise referred to as Richards Bay
Minerals (“RBM”). The fourth respondent, as its name implies, appears to provide
management services to RBM. A Mr Nair signed an affidavit in partial response to the
request for information on behalf of RBM and introduced himself as follows.
“| am currently employed by Rio Tinto Management Services (Pty) Ltd and
provide services for the Rio Tinto Group and to [RBM] as the Senior Business
Partner...”
Whether the terminology employed by Mr Nair is mere “business-speak”, or whether
he intended to convey that the fourth respondent is a partner of Richards Bay Minerals,
and that Richards Bay Minerals is indeed a partnership, is not clear.
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