Treatment Action Campaign v Minister of Health

• Jurisdiction: South Africa

Treatment Action Campaign v Minister of Health
2005 (6) SA 363 (T)

2005 (6) SA p363

Citation	2005 (6) SA 363 (T)
Case No	15991/04
Court	Transvaal Provincial Division
Judge	Ranchod AJ
Heard	November 4, 2004
Judgment	December 14, 2004
Counsel	M Chaskalson for the applicant.; B Vally for the respondent.

Flynote : Sleutelwoorde E

Costs — Generally — When to be awarded to unsuccessful party — Successful party precipitating F litigation by withholding information — Respondent refusing to grant applicant access to information in terms of Promotion of Access to Information Act 2 of 2000, s 11 — Applicant approaching Court but withdrawing application when informed that information sought did not exist — Conduct of respondent falling short of standards set for public administration G in s 195 of Constitution — Respondent's unconstitutional conduct fundamental cause of litigation — Applicant entitled to attorney-and-client costs under constitutional principles of appropriate relief and just and equitable redress for unconstitutional conduct, as well as under ordinary common-law principles. H

Headnote : Kopnota

In November 2003 the respondent published her department's operational plan for Comprehensive HIV and Aids Care, Management and Treatment for South Africa. The published version referred to annexures, a week-by-week schedule for the pre-implementation period and a detailed implementation plan. In the instant application the applicant sought access to these annexures under the Promotion of I Access to Information Act 2 of 2000, the respondent having ignored all earlier requests for their release. In her answering affidavit, filed seven weeks out of time, the respondent for the first time admitted that the references to the annexures had been an error and that no approved annexures actually existed. As soon as it was informed of this state of affairs, the applicant indicated it would withdraw the prayer J

2005 (6) SA p364

for access to documents but expected the respondent to tender its costs up to that point on an attorney and client scale. The A respondent failed to make any tender and contended that had the application proceeded it would not have been successful.

Section 195 of the Constitution of the Republic of South Africa, 1996, sets out the 'basic values and principles governing public administration', including the maintenance of 'a high standard of professional ethics' (s 195(1)(a)); accountability (s 195(1)(f)); and transparency (s 195(1)(g)). B

Held, that the respondent and her department had not complied with the constitutional obligations resting on them by virtue of s 195(1)(a), (f) and (g) of the Constitution. They published references to the annexures in the version of the operational plan when such annexures were not part of the plan, and they had not corrected these errors, but rather continued to make C that version available to the public from their website until as late as October 2004, that is until shortly before the application was heard the following month. (At 369F - G.)

Held, further, that the respondent's assumption that the applicant would not have succeeded in its application for an order in terms of the prayers was not warranted: there was a strong probability that the applicant would have succeeded in its application D but for the fact that the annexures were not part of the operational plan. The respondent's conduct was the fundamental cause of the litigation. (At 370C - E.)

Held, further, that in the circumstances, both in terms of the constitutional principles of appropriate relief and just and equitable redress for unconstitutional conduct and in terms of the ordinary common-law principles of liability for costs, the E respondent had to be ordered to pay the applicant's costs notwithstanding the fact that the applicant had withdrawn its prayers for the substantive relief originally sought in the application. (At 372C - D.)

Cases Considered

Annotations

Reported cases F

Bonn v Watson (1906) 16 CTR 534: referred to

Bosch v Titley 1908 ORC 27: referred to

Carephone (Pty) Ltd v Marcus NO and Others 1999 (3) SA 304 (LAC) (1998 (10) BCLR 1326): applied

Chetty v Louis Joss Motors 1948 (3) SA 329 (T): referred to

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others G 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458): applied

Fielding v Sociedade Industrial de Oleos Limitada 1935 NPD 540: referred to

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851): referred to

Kent v Bevern & Co 1907 TS 395: referred to H

Kruger Bros & Wasserman v Ruskin 1918 AD 63: referred to

Meyer v Meyer Sons & Co Ltd and Others 1926 CPD 109: referred to

Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae); President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae) 2004 (6) SA 40 (SCA) (2004 (8) BCLR 821): referred to I

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39): referred to

Nextcom (Pty) Ltd v Funde NO and Others 2000 (4) SA 491 (T): applied

Nxumalo and Another v Mavundla and Another 2000 (4) SA 349 (D): referred to J

2005 (6) SA p365

Permanent Secretary, Department of Welfare, Eastern Cape, and Another v Ngxuza and Others 2001 (4) SA 1184 (SCA) (2001 (10) BCLR 1039): applied A

Premier, Western Cape v President of the Republic of South Africa 1999 (3) SA 657 (CC) (1999 (4) BCLR 382): applied

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (2) SA 14 (CC) (1999 (2) BCLR 175): applied B

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059): applied

Reuters Group plc and Others v Viljoen NO and Others 2001 (2) SACR 519 (C) (2001 (12) BCLR 1265): applied C

Sandler v Middelburg Coal Agency (Pty) Ltd 1940 WLD 282: referred to

Scheepers and Nolte v Pate 1909 TS 353: referred to

Vassen v Cape Town Council 1918 CPD 360: referred to.

Statutes Considered

Statutes

The Constitution of the Republic of South Africa, 1996, s 195: see Juta's Statutes of South Africa 2004/5 vol 5 at 1-164 D

The Promotion of Access to Information Act 2 of 2000, s 11: see Juta's Statutes of South Africa 2004/5 vol 5 at 1-224.

Case Information

Argument on the question of liability for costs in an application for access to information. The facts appear from the reasons for judgment.

M Chaskalson for the applicant. E

B Vally for the respondent.

Cur adv vult.

Postea (December 14). F

Judgment

Ranchod AJ:

The only issue in this matter is the question of costs. It is necessary, to determine the issue of costs, to look at the background leading to the application and the application itself. The applicant initially sought the following relief:

'1.

Declaring that the failure of the respondent to provide the applicant with the information requested in the G applicant's request dated 2 March 2004 and made in terms of s 18(1) of the Promotion of Access to Information Act 2 of 2000 (''the records'') is:

1.1

inconsistent with the Constitution of the Republic of South Africa, 1996, and invalid, and H

1.2

inconsistent with the Promotion of Access to Information Act, 2000 and invalid.

2.

Directing the respondent to furnish the applicant with copies of the records within 5 days of the date on which this order is served on her. I

3.

Directing the respondent to pay the applicant's costs of suit on an attorney-and-own-client scale, including the costs of two counsel.

4.

Granting the applicant further and/or alternative relief.'

The applicant is a non-governmental organisation whose principal objective is to campaign for access to teatment for all people with HIV J

2005 (6) SA p366

Ranchod AJ

(Human Immunodeficiency Virus)/Aids (Acquired Immunodeficiency A Syndrome). In November 2003 the respondent published her department's operational plan for Comprehensive HIV and Aids Care, Management and Treatment for South Africa (the operational plan). The published version of the operational plan referred to two annexures, annexures A1 and A2 which, according to the published version, were respectively 'a week-by-week schedule for the pre-implementation period with deliverables for each of the main focus areas' and 'the B Detailed Implementation Plan'.

In this application before me the applicant sought...