Minister for Provincial and Local Government v Unrecognised Traditional Leaders, Limpopo Province (Sekhukhuneland)

• Jurisdiction: South Africa
• Judge: Mpati DP, Scott JA, Navsa JA, Heher JA and Jafta AJA
• Judgment Date: 29 September 2004
• Citation: 2005 (2) SA 110 (SCA)
• Docket Number: 375/2003
• Hearing Date: 23 August 2004
• Counsel: Seth A Nthai (with Selewe P Mothle) for the appellant. W R C Prinsloo SC (with P M van Ryneveld) for the respondent.
• Court: Supreme Court of Appeal

Jafta AJA: B

[1] This appeal concerns the interpretation and application of s 44(1) of the Promotion of Access to Information Act 2 of 2000 (the Act). Parliament enacted this legislation in compliance with an obligation imposed on it by s 32 of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) which provides: C

'(1) Everyone has the right of access to -

(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.

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

[2] Section 44(1) of the Act reads:

' (1) Subject to ss (3) and (4) the information officer of a public body may refuse a request for access to a record of the body - E

(a)

if the record contains -

(i)

an opinion, advice, report or recommendation obtained or prepared; or

(ii)

an account of consultation, discussion or deliberation that has occurred, including, but not limited to, minutes of a meeting,

for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law; or F

(b)

if -

(i)

the disclosure of the record could reasonably be expected to frustrate the deliberative process in a public body or between public bodies by inhibiting candid -

(aa)

communication of an opinion, advice, report or recommendation; or G

(bb)

conduct of a consultation, discussion or deliberation; or

(ii)

the disclosure of the record could, by premature disclosure of a policy or contemplated policy, reasonably be expected to frustrate the success of that policy.'

[3] The appellant is the Minister for Local and Provincial Government (the Minister) whose department is, for the purposes of H s 44(1), a public body. The respondent is a voluntary association of traditional leaders (the association) in the Province of Limpopo. As its name indicates its existence has its origin in the refusal by the government to recognise the status of its members. In October 2002 the association applied to the Pretoria High Court for an order declaring I that it had a right of access to a report compiled by a commission of enquiry known as the Ralushai Commission. This report was held by officials in the department. The association also sought an order setting aside a decision by the Minister's information officer denying it access to the report. J

Jafta AJA

[4] The facts on which the association relied for the relief sought by it were common cause. During February 1996 the Premier of the A then Northern (now Limpopo) Province established the Ralushai Commission to investigate disputes relating to irregularities and malpractices in the appointment of certain traditional leaders in that province. The Commission was also required to recommend steps to be taken by the Premier to resolve such disputes. In 1997 the Commission presented its interim report to the Premier. This report was made B available to the public and the association obtained a copy thereof.

[5] The Commission's final report, which was subsequently presented to the Premier, was not made public. On 30 April 2001 the association, acting in terms of s 18 of the Act, addressed a C letter to the office of the Premier requesting access to the report. The reply elicited was that the report had been referred by the Premier 'for further handling' and the letter was, therefore, being redirected to the Minister to communicate directly with the association. On 31 August 2001 the association sent a letter to D the Minister demanding compliance with its request and threatening legal action should there be no reply. The Minister failed to respond. A second letter dated 22 February 2002 also failed to elicit a prompt response.

[6] Eventually the Minister replied by way of a letter dated 9 July 2002. In it the information officer, Mr Craig...