Huijink-Maritz v Municipal Manager, Matjhabeng Municipality and Another

• Jurisdiction: South Africa
• Judge: Musi AJP
• Judgment Date: 20 July 2017
• Citation: 2018 (5) SA 614 (FB)
• Docket Number: 2050/2016
• Hearing Date: 20 July 2017
• Counsel: MC Louw for the applicant. AE Ayayee for the respondents.
• Court: Free State Division, Bloemfontein

Musi AJP: A

[1] What is the difference, if any, between an actual refusal and a deemed refusal in the context of the Promotion of Access to Information Act (the Act)? [1] This judgment is dedicated to this question.

[2] B The applicant is an attorney who owns property and lives in the jurisdictional area of the second respondent (municipality). [2] The first respondent is the municipal manager and information officer of the municipality. [3] The applicant and the municipality entered into an agreement in terms of which the municipality would render services to her and she undertook to pay for the services. The municipality fulfilled C its obligation in terms of the agreement. A dispute arose between them pertaining to the amounts charged by the municipality for supplying her with electricity. The municipality alleged that she owed it; she denied that she was indebted to it. She failed or refused to pay the amount alleged by the municipality, as a result of which the municipality terminated the electricity supply to her property.

[3] D The applicant alleged that the electricity supply was terminated without due process being followed and contrary to the municipality's debt and credit control policy. She insisted that the municipality was not entitled to terminate the electricity supply in the manner that it did. She requested information and documents relevant to the dispute, that she would require to establish the incorrectness of the municipality's E contention.

[4] The applicant sent numerous emails to the municipality requesting the relevant information. They all remained unanswered.

[5] F On 17 February 2016 she delivered a request for access to information held by the municipality, in the prescribed form, to the municipal manager's office. No response was forthcoming. On 4 April 2016, on counsel's advice, she attempted to pay the prescribed application fee. She was advised, by a cashier, that the municipality could not accept the money because its system did not make any provision for receipt of such G money. On 5 May 2016 she enquired, via email, from the municipal manager whether any fee was payable. Needless to say, she received no response.

[6] On 9 May 2016 she launched this application seeking an order that H the municipality provide her with copies of the relevant documents,

Musi AJP

which she tabulated, within five days of the date of the order. The A municipality filed a notice to oppose on 25 May 2016. It did not file an opposing affidavit but instead filed a notice in terms of Rule 6(5)(d)(iii). [4] It contended that she did not exhaust her internal remedies and that some of the information sought was not foreshadowed in her founding affidavit. [5] B

[7] At the hearing the parties agreed that only one issue needed to be decided by me: whether the applicant had to exhaust internal remedies when there was a deemed refusal, as opposed to an actual refusal.

[8] Mr Louw, on behalf of the applicant, contended that an internal C appeal is not peremptory where the refusal is a deemed refusal. He submitted that a deemed refusal cannot be accompanied by the reasons of the decision-maker and because the Act requires the reasons of the decision-maker to form part of the appeal documents, a deemed refusal can therefore not be the subject of an internal appeal. He further submitted that the next step after a deemed refusal is an application. [6] D He relied on the following authorities for his submission: Gabankalafe, [7] Masingi [8] and Dlusha. [9]

[9] Mr Ayayee, on behalf of the respondents, contended that the application is premature because the applicant failed to comply with a peremptory requirement of the Act. He relied on Sumbana [10] as authority E for his submission.

[10] The right to access to information is a constitutional right. Section 32 of the Constitution reads as follows:

'(1) Everyone has the right of access to — F

(a)

any information held by the state; and

(b)

any information that is held by another person and that is required for the exercise or protection of any rights. G

Musi AJP

(2) A National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.'

The Act gives effect to s 32 of the Constitution. In the preamble to the Act it is stated that it is enacted, inter alia, to —

'foster B a culture of transparency and accountability in public and private bodies by giving effect to the right to access to information; [and to] actively promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all of their rights'.

[11] C In Brümmer [11] the right to access to information was explained thus:

'The importance of this right too, in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid. To give effect to these founding values, the public must have access to information held by the State. Indeed one of the basic values D and principles governing public administration is transparency. And the Constitution demands that transparency must be fostered by providing the public with timely, accessible and accurate information.

Apart from this, access to information is fundamental to the realisation of the rights guaranteed in the Bill of Rights. For example, access to E information is crucial to the right to freedom of expression which includes freedom of the press and other media and freedom to receive or impart information or ideas.' [12]

[12] In Van Niekerk [13] it was said:

'In my view, s 23 entails that public authorities are no longer permitted F 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 s 23, is to subordinate the organs of State, including municipal authorities, to a new regimen of openness G and fair dealing with the public.' [14]

[13] Two of the objects of the Act must be emphasised: firstly, the Act seeks to establish voluntary and mandatory mechanisms or procedures to give effect to the right to access to information in a manner which enables persons to obtain access to records of public and private bodies swiftly, H inexpensively and effortlessly, as soon as reasonably possible; and secondly, it seeks to promote transparency, accountability and effective governance of all public and private bodies. [15]

Musi AJP

[14] A public body is defined, in s 1 of the Act, as any department of A state or administration in the national or provincial sphere of government or any municipality in the local sphere of government. [16] The municipality is therefore a public body as defined in para (a) of the definition of public body. It is common cause that a proper request was directed at the information officer of the municipality. In terms of B s 25(1) the information officer was supposed to decide whether to grant or refuse the request within a reasonable time but in any event within 30 days after receiving the request. [17] The requester must be notified of the outcome and the next step that he or she may take.

[15] The information officer may, seemingly without the consent of the C requester, extend the original period of 30 days once, for a period not exceeding 30 days. The information officer must, if he/she elected to extend the period, as soon as reasonably possible but within the original 30-day period notify the requester of that extension. The notice must state the period and reasons for the extension, and explain what the requester may do if he/she is aggrieved by the extension. [18] D

Musi AJP

[16] A However, if the information officer fails to give a decision on a proper request within 30 days, and no extension has been sought, the information officer is, for the purposes of the Act, regarded as having refused the request. [19] Section 27 of the Act reads as follows:

'If an information officer fails to give the decision on a request for access B 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.'

[17] The words 'deemed' or 'regarded as' are sometimes used in a statute in order to create a legal fiction. If used in that sense it becomes important to consider the purpose for which the statutory fiction was C introduced. [20] Often it is used in order to extend the denotation of a word or term to a thing or situation it would not in ordinary parlance denote.

[18] In Rosenthal [21] Trollip JA explained it thus:

'The words ''shall be deemed'' (''word geag'' in Afrikaans) are a familiar D and useful expression often used in legislation in order to predicate that a certain subject-matter, eg a person, thing, situation, or matter, shall be regarded or accepted for the purposes of the statute in question as being of a particular, specified kind whether or not the subject-matter is ordinarily of that kind. The expression has no technical or uniform connotation. Its precise meaning, and also its effect, must be ascertained E from its context and the ordinary canons of construction. . . . (I)n the absence of any indication in the statute to the contrary, a deeming that is exhaustive is also usually conclusive, and one which is merely prima facie or rebuttable is likely to be supplementary and not exhaustive.' [Own emphasis.]

Musi AJP

[19] Access to information is in most, if not all, cases sought in order to A exercise, advance or protect a right. It is in the interest of the requester to receive the information as...