IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO : 082711/2023
DATE : 19 -02 -2026
In the matter between
ABT TELECOMS (PTY) LTD First Applicant
THULASIZWE GIFT NKUMANE Second Applicant
and
NONKULULEKO ZAMAZINDLE MAKHAYE N.O. First Respondent
NONKULULEKO ZAMAZINDLE MAKHAYE Second Respondent
J U D G M E N T
LEAVE TO APPEAL
WATT -PRI N GL E, J: In this m atter the unsucces sful
respondent s a quo applied for leave to appeal . A number o f
arguments were ad vanced but the one which in my view
determines the application is the respondent's (applicant for
leave) point raised for the first time in the application for
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE : NO
(2) OF INTEREST TO OTHER JUDGES : NO
(3) REVISED 20 March 2026
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leave to appeal.
Neither party raised it either on the papers or in the
course of argument before me when t he matter was heard on
the merit s. Section 78(1) of the P romotion of Access to
Information Act 2 of 2000 provides that a request er or third
party may only apply to a Court for ap propriate relief in terms
of Section 82 in the following circums tances , and subsection
78(1) (b) reads : after that request er or third party has
exhausted the complaints procedure referred to in Section
77(A) . S ection 77A provides inter alia for a requester for
information from a private body to com plain to the Information
Regulator in the event that the party from whom the
information is sought does not acced e to the request.
While it is true a s pointed out by counsel for
respondent (in the application for leave) that the reference of
a complaint to the Infor mation Regulator is not p er emptory
because section 77A (2) states that a party “may ” sub mit a
complaint , my reading of that provision is that a party whose
request for information has been refu sed can either leave the
matter th ere, or complain to the Information Regulator. It is
in that sense not peremptory to co m plain to the Infor mation
Regulator .
But if you wish to apply to Court then you have to have
gone through this particular step of making a complaint to the
Information Regulator. That is the effect of section 78(1) , as
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I see it .
My hands are somewhat tied in the context of an
application for leave to appeal , not only by the fairly clear
wording of Section 78(1) but also by the judgment of Hopkins
AJ in the matter of Elite Plum bing and Industrial Solutions
Pty Limited vs. Casper le Roux Inc Attorneys and Anothe r,
2023 JDR 0756 G J where the learned Acting Judge held that
Section 78(1) is p eremp tory and in circumstances some what
similar to this matter , dismissed the application ultimately on
that basis alone.
In the course of argument I raised with both counsel
the question of whether Section 78(1) is somewhat
contradicted by 78(2), specifically 7 8(2) , (d) and (e) which
state that a request er ag grieved by t he decision of the head
of a private body to refuse acces s in terms of Section 54,
56(1) or 60 or that is aggrieved by any decision of the
Information Regulator , ma y by way of application within 180
day s apply to a Court for appropriate relie f in terms of Sec tion
82 . That on the face of it appears to give a p arty the right to
apply to this Court in the circumsta nces postulated in (d)
which is simply a refusal of a request for information . The
word “or ” after sub -section 78 (2)(d) and before (e) suggests
that the application could be made t o court either after the
refusal of the request for information (78(2)( d)(i)) or after one
is aggrieved by the decision of the Information Regulator ,
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(78(2)( d)(i) ).
It is an interesting argument , but the role of a Court is
to try and reconcile such apparent anomalies . I consider that
if it is an argument at all , it is one for the appeal court and
not for me resolve in an application for leave to appeal . If
anything this militates in favour of the granting of leave.
I do not think tha t this matter warrant s the attention of
the Supreme Court of Appeal. In the circumstances I intend
to grant leave to appeal to the Full Court of the Gauteng
Division of the High Court and I there fore make the following
order.
Leave to appeal is granted against the whole of the
judgment and order dated 28 Novem ber 2025. The cost s of
this application for leave to appeal are to be costs in the
appeal.
…………………………..
WATT -PRI N GL E, AJ
ACTI N G JUD G E OF TH E HI GH C OU RT
DAT E : 20 March 2026
Date heard: 19 February 2026
Date of ex tempore judgment: 19 February 2026
Date judgment was revised and signed: 20 March 2 026
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Appearances
Counsel for the Applicant : A van der Merwe
Attorneys for the Applicant: BDK Attorneys
Counsel for the Respondents: P Carstensen SC (with him J Berger )
Attorneys for the Respondent s: Edward Nathan Sonnenbergs Inc.