Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Mthiyane DP, Bosielo JA, Leach JA, Wallis JA and Plasket AJA
• Judgment Date: 21 November 2012
• Docket Number: 864/2011 [2012] ZASCA 166
• Hearing Date: 14 November 2012
• Counsel: RG Buchanan SC (with G Ngcangisa) for the appellants. (Instructed by the State Attorney, Port Elizabeth and Bloemfontein. J Brickhill for the first respondent.
• Court: Supreme Court of Appeal

Wallis JA (Mthiyane DP, Bosielo JA, Leach JA and Plasket AJA G concurring):

[1] In August 2009 the MEC responsible for the Department of Local Government and Traditional Affairs in the Eastern Cape appointed Kabuso CC to investigate concerns of maladministration in relation to H the affairs of the Nelson Mandela Bay Metropolitan Municipality. The MEC was acting in terms of s 106(1)(b) of the Local Government: Municipal Systems Act 32 of 2000 (the Systems Act). Kabuso CC's report (the Kabuso report) was handed to the MEC in February 2010. In November 2010 Avusa Publishing Eastern Cape (Pty) Ltd (Avusa), the I first respondent, which publishes The Herald and the Weekend Post newspapers in the Eastern Cape, sought access to the Kabuso report in terms of the provisions of the Promotion of Access to Information Act 2 of 2000 (PAIA). The refusal of that request, initially by the information officer and on appeal by Mr Qoboshiyane, the first appellant and the present incumbent of the post of MEC for Local Government and J

Wallis JA (Mthiyane DP, Bosielo JA, Leach JA and Plasket AJA concurring)

A Traditional Affairs in the Eastern Cape, led Avusa to commence proceedings in terms of ss 78 and 82 of PAIA to obtain access to the report.

[2] The application was granted by Dukada AJ on the basis that, whilst B the MEC had shown grounds for not disclosing the report in terms of s 44 of PAIA, it was nonetheless subject to mandatory disclosure in the public interest under s 46 of PAIA. He ordered that the report be disclosed within five days. Such disclosure was duly made at a public ceremony at which the MEC handed the report to a representative of the newspaper. At the handing over the MEC made a public statement that, C although he disagreed with the judgment, he would deliver a copy of the report and its annexures as ordered by the court. Eight days later an application for leave to appeal was lodged. Some two months later the judge granted leave to appeal to this court on the basis that there were no decided cases on the application of s 46 of PAIA, and that the concept of disclosure in the public interest was important and likely to arise again in D other cases in the future. He did not address the fact that the report had already been disclosed.

[3] In their heads of argument the parties addressed questions of mootness. However, they overlooked the prior question, whether the appellant's unequivocal compliance with the terms of the court's order E perempted the appeal. Where, after judgment, a party unequivocally conveys an intention to be bound by the judgment, any right of appeal is abandoned. The principle can be traced back to the judgment of this court in Dabner v South African Railways & Harbours, [1] where Innes CJ said:

F 'The rule with regard to peremption is well settled, and has been enunciated on several occasions by this Court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. G And the onus of establishing that position is upon the party alleging it. In doubtful cases acquiescence, like waiver, must be held non-proven.'

That judgment has been consistently followed in this court. [2]

[4] The facts here are simple. The MEC was ordered to disclose a copy H of the report to Avusa within five days of the court's order. He did so. He did not indicate any reservation of rights or any intention to appeal at that time. The application for leave to appeal was delivered later. There was only one thing that the MEC had to do in terms of the court's order I and he did it without reservation. His conduct was unequivocal and

Wallis JA (Mthiyane DP, Bosielo JA, Leach JA and Plasket AJA concurring)

inconsistent with an intention thereafter to challenge the judgment on its A merits. The appeal was perempted and must be dismissed. In those circumstances it is strictly unnecessary for the court to reach the question of mootness. However, as it leads to the same result I shall briefly deal with it.

[5] The disclosure of the report means that any judgment or order by B this court will have no practical effect or result as between the parties. In the circumstances this court may dismiss the appeal on that ground alone. [3] The court has a discretion in that regard and there are a number of cases where, notwithstanding the mootness of the issue as between the parties to the litigation, it has dealt with the merits of an appeal. [4] With C those cases must be contrasted a number where the court has refused to deal with the merits. [5] The broad distinction between the two classes is that in the former a discrete legal issue of public importance arose that would affect matters in the future and on which the adjudication of this court was required, whilst in the latter no such...