Claase v Information Officer, South African Airways (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Mpati DP, Brand JA, Cloete JA, Mlambo JA and Combrinck AJA
• Judgment Date: 30 November 2006
• Docket Number: 39/2006
• Hearing Date: 20 November 2006
• Counsel: J G Bergenthuin SC for the appellant G I Hoffman SC (with G E Nameng) for the respondent
• Court: Supreme Court of Appeal

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

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foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information;

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actively promote a society in which the people of South Africa have effective access to information I 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 . J

Combrinck AJA

avoid litigation rather than propagate it. This is the fourth case in which A information has been sought in terms of the Act that has in the past 18 months required the attention oC this Court. I refer to Clutchco (Pty) Ltd v Davis 2005 (3) SA 486 (SCA) ([2005] 2 All SA 225), Unitas Hospital v Van Wyk and Another B 2006 (4) SA 436 (SCA) and MEC for Roads and Public Works, Eastern Cape, and Another 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 straightforward, and save for one crucial issue, not in C 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 14 August 2004 he D 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 E 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 F 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 G 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 H 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 authorisation part with them. Appellant then in a series of e-mails from 25 August 2004 to 9 February 2005 sought the information contained I in those records, without success. On 5 November 2004, in terms of s 53, he submitted to SAA a 'request for access to records' on the form prescribed by reg 4. In response he was advised by e-mail on 8 February 2005 that there had been 37 passengers in business class on the particular flight and 220...