Bodlani v Minister of Police and Another (EL273/2019) [2020] ZAECELLC 3 (4 February 2020)

IN THE HIGH COURT OF SOUTH AFRICA

EAST LONDON CIRCUIT LOCAL DIVISION

CASE NO. EL 273/2019

Date heard: 28 November 2019

Date Delivered: 4 February 2020

In the matter between:

LUMKO BODLANI

Applicant

and

MINISTER OF POLICE

First Respondent

THE INFORMATION OFFICER

Second Respondent

JUDGMENT

RUGUNANAN, J:

[1] Following an unsuccessful appeal to the relevant authority of a public body against a refusal by the information officer to provide him with copies of a police docket, namely Beacon Bay CAS No. 06/09/2017, the applicant approaches this Court in terms of section 78 of the Promotion of Access to Information Act (“hereinafter referred to as “PAIA” or “the Act”). [1] He essentially seeks an order declaring unlawful and in conflict with the Constitution, the refusal to provide him with a copy of the relevant police docket and that he be furnished with a copy thereof. He requires the docket to enable him to consider his prospects for instituting an action for damages consequent to his arrest and detention on 2 September 2017.

[2] In argument, counsel for the respondents, Mr Frans, raised a legal point in limine. It is not disputed that the applicant’s initial request for access in terms of section 18 of the Act was made to the Information Officer: Beacon Bay Police Station. The issue raised by Mr Frans is that the applicant’s papers disclose that his appeal was delivered to the South African Police Services: Provincial Commissioner. He contended that section 75 of the Act read with clause 5.5(4)(f) of the “police manual” [2] obliges a requester (in this instance the applicant), to lodge an appeal with the National Deputy Information Officer who will in turn submit it to the Minister of Police for decision. Because the appeal was not lodged with the National Deputy Information Officer, Mr Frans submitted that the applicant failed to follow the proper appeal procedure. For this reason he contended that the issue raised in limine was dispositive of the matter and that the application should be dismissed with costs. I do not agree with the analysis of the

legislation postulated by Mr Frans but am in agreement that the want of mandatory procedural compliance with the Act is dispositive of the matter, albeit for different reasons.

[3] In Paul and Others v MEC for Health, Eastern Cape Provincial Government and Others,[3] Jolwana J (with Brooks J concurring), charted the road map in PAIA applications. The judgment is well reasoned and instructive for a requester seeking access to a record of a public body in terms of the Act.

[4] To begin with, PAIA is national legislation enacted to give effect to the Constitutional right of access to information.[4] PAIA contains provisions specifically designed to give effect to this right; and it follows that a person seeking access to information

held by the State cannot circumvent the express provisions of the Act (cf. the remarks by Chaskalson CJ in Minister of Health v New Clicks SA (Pty) Ltd and Others [5] in the context of the Promotion of Administrative Justice Act [6]). By enacting PAIA the legislature envisioned and devised an inexpensive and uncomplicated procedure for requesting the record of a public body to which access is typically given via an administrative route. A court application to secure access would be the exception rather than the norm (Paul supra at paragraph [7]).

[5] The Act exacts peremptory compliance with its procedural requirements. This much is clear from section 11 which, in so far as relevant hereto, reads:

“11. Right of access to records of public bodies

(1) A requester must be given access to the record of a public body if-

(a) that requester complies with all the procedural requirements in this Act …”

[6] What is evident from the section is that a requester’s entitlement to be given access to a record of a public body and the obligation imposed on the requester to comply with the procedural requirements in the Act, are formulated in peremptory terms. This means that the requester must be given access to the record of a public body provided the procedures set out in the Act are complied with.[7]

[7] The circumstances giving rise to an internal appeal against a refusal by an information officer of a request for access to a record are:

(i) where there has been a refusal of access which obliges the information officer to state adequate reasons under section 25(3); or,

(ii) where, in terms of section 27 of the Act, the information officer failed to give a decision on a request and is deemed to have refused access.

[8] Section 75 of the Act, where relevant hereto, provides as follows:

“75. Manner of internal appeal …

(1) An internal appeal-

(a) must be lodged in the prescribed form-

(i) within 60 days;

(ii) …

(b) must be delivered or sent to the information officer of the public body concerned …

[9] A reading of sections 11 and 75 conveys that it is the Act that provides guidance regarding the functionary to whom a request and, where applicable, an appeal should be sent. The provisions of section 75(1) clearly convey that the internal appeal must be delivered or sent to the information officer. This is the same functionary identified in section 18 of the Act. There was no legal basis for the applicant to have directed the appeal to the South African Police Services: Provincial Commissioner; nor as contended by Mr Frans, to have lodged it with the National Deputy Information Officer. In the latter instance where Mr Frans sought reliance on the police manual, I think its drafters may have misconstrued the provisions of section 75(1)(b) of the Act. It is however not the purpose of this judgment to pronounce on the validity or otherwise of the manual. My sense is that the police manual is subordinated to the Act. The Act is superior legislation and it prevails. [8] Ms Van Vuuren argued the applicant’s case squarely on the premise of the Constitutional right of access to information held by the state. The argument does not assist the applicant. As stated earlier in this judgment, the Act is constitutional legislation and cannot be circumvented.

[10] I am, accordingly, of the view that no valid appeal was lodged, and since the purported appeal was directed to a functionary other than the information officer, this Court should dismiss the application. To this end Paul correctly holds that where the internal appeal has been lodged in a manner contrary to the clear provisions of section 75(1), it follows that no valid appeal has been lodged; and in an application to court in terms of section 78 in which the appeal was sent, not to the information officer, but to another authority, the court is obliged to dismiss the application.[9]

[11] I consider it unnecessary to deal with the other remaining issues raised by Mr Frans.

[12] The following order is made:

(i) The application is dismissed with costs.

____________________________

S. RUGUNANAN

JUDGE OF THE HIGH COURT

Appearances:

For the Applicant: Adv. L. Van Vuuren

Instructed by Sipunzi Attorneys

Applicant’s Attorneys

EAST LONDON

(Ref: BON/016/18/Sipunzi)

Tel: 043-748 1828

For the Respondent: Adv. Z. Frans

Instructed by The State Attorney.

Respondents’ Attorneys

(Ref: 285/19-P5 Ms Sakasa)

[1] Act No, 2 of 2000, as amended

[2] Correctly known as the “Manual of the South African Police Service In Accordance With Section 14 Of The Promotion Of Access To Information Act, 2000” available at https://www.saps.gov.za/resource_centre/paia/sec_14_paia_manual_2016_2017_english.pdf Date of access 24 January 2020

[3] (5031/2018; 5108/2018; 5689/2018) [2019] ZAECMHC 18 (29 March 2019)

[4] Section 32, Constitution of the Republic of South Africa Act No. 108 of 1996, as amended; see also President of the RSA and Others v M&G Media Ltd 2012 (2) SA 50 (CC) at paragraph [9]

[5] 2006 (2) SA 311 (CC) at paragraphs [95]-[97] where it is stated: “PAJA is the national legislation that was passed to give effect to the rights contained in s 33. It was clearly intended to be, and in substance is, a codification of these rights. It was required to cover the field and purports to do so. A litigant cannot avoid the provisions of PAJA by going behind it, and seeking to rely

on s 33 (1) of the Constitution or the common law. That would defeat the purpose of the Constitution in requiring the rights contained in s 33 to be given effect to by means of national legislation. Professor Hoexter sums up the relationship between PAJA, the Constitution and the common law, as follows: ‘The principle of legality clearly provides a much-needed safety net when the PAJA does not apply. However, the Act cannot simply be circumvented by resorting directly to the constitutional rights in section 33. This follows logically from the fact that the PAJA gives effect to the constitutional rights. (The PAJA itself can of course be measured against the constitutional rights but that is not the same thing.) Nor is it possible to sidestep the Act by resorting to the common law. This, too, is logical, since statutes inevitably displace the common law. The common law may be used to inform the meaning of the constitutional rights and of the Act, but it cannot be regarded as an alternative the Act.’ I agree.”

[5] 2006 (2) SA 311 (CC) at paragraphs [95]-[97] where it is stated: “PAJA is the national legislation that was passed to give effect to the rights contained in s 33. It was clearly intended to be, and in substance is, a codification of these rights. It was required to cover the field and purports to do so. A litigant cannot avoid the provisions of PAJA by going behind it, and seeking to rely

on s 33 (1) of the Constitution or the common law. That would defeat the purpose of the Constitution in requiring the rights contained in s 33 to be given effect to by means of national legislation. Professor Hoexter sums up the relationship between PAJA, the Constitution and the common law, as follows:

‘The principle of legality clearly provides a much-needed safety net when the PAJA does not apply. However, the Act cannot simply be circumvented by resorting directly to the constitutional rights in section 33. This follows logically from the fact that the PAJA gives effect to the constitutional rights. (The PAJA itself can of course be measured against the constitutional rights but that is not the same thing.) Nor is it possible to sidestep the Act by resorting to the common law. This, too, is logical, since statutes inevitably displace the common law. The common law may be used to inform the meaning of the constitutional rights and of the Act, but it cannot be regarded as an alternative the Act.’

I agree.”

[6] Act No. 3 of 2000, as amended

[7] President of the RSA and Others v M&G Media Ltd supra at paragraph [9]

[8] Baxter, Administrative Law, 1984 Juta at page 388

[9] Paul and Others v MEC for Health, Eastern Cape Provincial Government and Others(5031/2018; 5108/2018; 5689/2018) [2019] ZAECMHC 18 (29 March 2019) at paragraph [24]