Sumbana and Others v Head of Department of Public Works, Limpopo Province, and Others

• Jurisdiction: South Africa
• Judge: Snyman AJ
• Judgment Date: 04 September 2008
• Citation: 2009 (3) SA 64 (V)
• Docket Number: 15/2008
• Hearing Date: 04 September 2008
• Counsel: SM Lebala for the applicants. MS Sikhwari for the first, second and third respondents. AO Cook SC for the fourth respondent.
• Court: Venda High Court

Snyman AJ:

[1] The applicants apply for an order directing the respondents to grant access to the records referred to in the applicants' request for access to G information dated 5 December 2007 in terms of the provisions of s 18(1) of the Promotion of Access to Information Act 2 of 2000 and for an order as to costs on a scale as between attorney and own client. The four respondents are opposing the application. The matter was heard on 21 August 2008 and judgment was reserved.

H [2] The applicants, through their attorneys, on 5 December 2007 requested access to certain records from the second and fourth respondents in terms of the provisions of s 18 of the Promotion of Access to Information Act 2 of 2000 (hereinafter referred to as 'the Act'), and it is common cause that the second and fourth respondents did not I provide the applicants with a decision on this request. As a result hereof, the applicants then, without following the internal appeal procedure referred to in s 74 of the Act, brought this application which was issued by the registrar on 16 January 2008. The fourth respondent filed its answering affidavit on 15 February 2008 and raised a point in limine to the effect that, since the applicants did not pursue the internal appeal J procedure, the applicants are in terms of the provisions of s 78(1) of the

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Act precluded from approaching a court for relief. The first, second and A third respondents filed their answering affidavit on 4 June 2008 and also raised the point in limine aforesaid.

[3] In argument, counsel for the fourth respondent, Mr Cook SC, submitted that the internal appeal procedure and the provisions of s 78 of the Act are mandatory and that the applicants should therefore B have followed the internal appeal procedure against the deemed refusal of their request, before launching these proceedings. Mr Sikhwari, on behalf of the first, second and third respondents, adopted a similar argument. In view hereof, the four respondents submitted that the applicants' application should be dismissed with costs. C

[4] In argument, counsel for the applicants, Mr Lebala, made the following submissions:

(a)

That, in view of the provisions of s 32 of the Constitution of the Republic of South Africa, 1996 (hereinafter referred to as 'the Constitution'), s 27 of the Act seems to contradict the D provisions of s 32 of the Constitution, that there is a conflict between the Constitution and the Act, and that s 27 of the Act is unconstitutional;

(b)

that the provision in s 25(3)(c) of the Act to the effect that a E requester may lodge an internal appeal or an application with a court is contradictory to the provisions of ss 74 and 78 of the Act;

(c)

that the conduct of the respondents is a violation of the Constitution and, because it is an administrative action, it does not matter what s 74 or 78 of the Act stipulates and that one has only to look at the conduct of Government; F

(d)

that this court has a discretion to exempt the applicants from exhausting the internal appeal remedy, there being exceptional circumstances and if deemed in the interests of justice;

(e)

that there is a discretion to condone non-compliance with the G provisions of s 78 of the Act as they are not mandatory, where the use of the remedy is discretionary.

[5] On the facts in casu, counsel for the parties could not refer me to any authority regarding the provisions of s 78 (read with s 74) of the Act.

[6] The long title to the Act states that the Act was enacted: H

To give effect to the constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights, and to provide for matters connected therewith.

The preamble recognises the Act's need to give effect to the right in I s 32 of the Constitution and, subject to reasonable and justifiable limitation under s 36 of the Constitution, the need to foster transparency and accountability in public and private bodies.

[7] The objects of the Act are set out in s 9, and the relevant parts thereof, insofar as this application is concerned, are: J

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(a)

A to give effect to the constitutional right of access to -

(i)

any information held by the State, and

(b)

. . .

(c)

. . .

(d)

to establish voluntary and mandatory mechanisms or procedures to give effect to that right in a manner which enables persons to B obtain access to records of public and private bodies as swiftly, inexpensively and effortlessly as reasonably possible;

(e)

. . .

[8] In casu, it is common cause that the respondents (and then in particular the second and fourth respondents) are public bodies as C defined in para (a) of the definition of 'public body' in s 1 of the Act - the said para (a) refers to 'any department of State or administration in the national or provincial sphere of government or any municipality in the local sphere of government'. At this stage I must stress that...