Huijink-Maritz v Municipal Manager, Matjhabeng Municipality and Another

• Jurisdiction: South Africa
• Citation: 2018 (5) SA 614 (FB)

Huijink-Maritz v Municipal Manager, Matjhabeng Municipality and Another
2018 (5) SA 614 (FB)

2018 (5) SA p614

Citation	2018 (5) SA 614 (FB)
Case No	2050/2016
Court	Free State Division, Bloemfontein
Judge	Musi AJP
Heard	July 20, 2017
Judgment	July 20, 2017
Counsel	MC Louw for the applicant.; AE Ayayee for the respondents.

Flynote : Sleutelwoorde

Administrative law — Access to information — Request for access — Refusal — Deemed refusal — Internal appeal procedure peremptory also in case of F deemed refusal — Promotion of Access to Information Act 2 of 2000, ss 27 and 74(1)(a).

Headnote : Kopnota

Section 74(1)(a) of the Promotion of Access to Information Act 2 of 2000 (PAIA) provides that '(a) requester may lodge an internal appeal against a decision G of the information officer of a public body . . . to refuse a request for access'; and s 27, that 'if an information officer fails to give the decision on a request for access to the requester concerned within the period contemplated in section 25(1), the information officer is, for the purposes of this Act, regarded [ie deemed] as having refused the request'.

At issue here was whether the internal appeal procedure prescribed by s 74(1)(a) H was peremptory also in the case of a deemed refusal in terms of s 27. This where the applicant had requested information and documents relevant to a dispute between her and the respondent, and when none were forthcoming, launched the present application seeking an order that the municipality provide her with the requested documents — that is, without first lodging an internal appeal in terms of s 74(1)(a).

Held I

Section 74(1)(a) did not exclude a deemed refusal, nor did it differentiate between a deemed and actual refusal. An internal appeal was an administrative appeal available to a requester in the case of a deemed and an actual refusal. The appeal provisions of PAIA included an administrative appeal based on a deemed refusal. In the context of PAIA, a failure to take a decision J amounted to a refusal of the request. (At [21], [23] and [26].)

2018 (5) SA p615

A failure to take a decision was already a ground of review under the Promotion A of Administrative Justice Act 3 of 2000. It followed that the deeming provision was meant to achieve something more than what PAJA regulated: it imputed a decision (the refusal) and thereby obviated the need for the requester to apply to a court to compel the information officer to make a decision. (At [29].)

Section 78 of the Act made it compulsory for an aggrieved requester to first B exhaust internal remedies against a decision of the information officer before approaching a court. The applicant did not exhaust her internal remedy of appeal as provided for in PAIA, and the application was therefore premature and must fail. (At [29] and [43].)

Cases cited

Southern Africa C

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): dictum in para [56] applied

Brümmer v Minister for Social Development and Others 2009 (6) SA 323 (CC) (2009 (11) BCLR 1075; [2009] ZACC 21): dictum in paras [62] – [63] D applied

Centre for Social Accountability v Secretary of Parliament and Others [2011] ZAECGHC 33: dictum in para [28] applied

Dlusha v King Sabata Dalinyebo Municipality 2012 (4) SA 407 (ECM): criticised

Gabankalafe v Member of the Executive Council for Health, Northern Cape Province E [2016] ZANCHC 40: dictum in paras [15] – [16] criticised

Koyabe and Others v Minister for Home Affairs and Others (Lawyers for Human Rights as Amicus Curiae) 2010 (4) SA 327 (CC) (2009 (12) BCLR 1192; [2009] ZACC 23): dictum in paras [35] – [37] applied

Masingi v Greater Giyani Municipality [2016] ZAGPPHC 1052: criticised F

President of the Republic of South Africa and Others v M & G Media Ltd 2011 (2) SA 1 (SCA) (2011 (4) BCLR 363; [2010] ZASCA 177): dictum in para [11] applied

S v Rosenthal 1980 (1) SA 65 (A): dictum at 75F – 76A applied

Sumbana and Others v Head of the Department of Public Works, Limpopo Province, and Others 2009 (3) SA 64 (V): dictum in paras [17] – [18] applied G

Van Niekerk v Pretoria City Council 1997 (3) SA 839 (T) ([1997] 1 All SA 305): dictum at 850A – B applied.

Australia

Muller v Dalgety & Co Ltd (1909) CLR 693: dictum at 696 applied. H

England

The Queen v Norfolk County (1891) 60 LJ QB 379: applied.

Legislation cited

Statutes

The Promotion of Access to Information Act 2 of 2000, ss 27 and 74(1)(a): see Juta's Statutes of South Africa 2016/17 vol 5 at 1-235 and 1-246. I

Case Information

MC Louw for the applicant.

AE Ayayee for the respondents.

An application to compel delivery of information. The order dismissing the application is in [47]. J

2018 (5) SA p616

Judgment

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,

2018 (5) SA p617

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

2018 (5) SA p618

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...