Figlan v MEC for Department of Health, Eastern Cape and Others (430/2017) [2020] ZAECBHC 31 (1 December 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, BHISHO)

CASE NO. 430/2017

Date heard: 21 October 2020

Date delivered: 01/12/2020

In the matter between:

SAKHUMZI VICTOR MONWABISI FIGLAN

Applicant

and

THE MEC FOR DEPARTMENT OF HEALTH,

1st Respondent

EASTERN CAPE

SUPERINTENDENT-GENERAL FOR DEPARTMENT

2nd Respondent

OF HEALTH, EASTERN CAPE

GOVERNMENT EMPLOYEES PENSION FUND

3rd Respondent

JUDGMENT

LAING AJ

[1] This is an application for leave to appeal and cross-appeal against an order directing the first and second respondents to furnish the applicant with information pertaining to his pension benefits and requiring the parties to pay costs in the manner stipulated.

[2] More particularly, the applicant has applied for leave to appeal against the order directing the first and second respondents to pay his costs up to and including 23 August 2017, and the order directing him to pay the third respondent’s costs. He has also applied for condonation in relation to the late filing of his application for

leave. In turn, the first and second respondents have applied for leave to cross-appeal against the whole of the order.[1] Similarly, they have applied for condonation for the late filing of their application.

[3] Neither application for condonation was opposed. The court accepts that the COVID-19 restrictions imposed under the regulations made in terms of the Disaster Management Act 57 of 2002 have had a disruptive effect on normal litigation processes and that the resulting delays in the institution of appeal proceedings were not entirely within the control of the parties. On the basis of the submissions made by the parties, the court is satisfied that good cause has been demonstrated and both applications are hereby granted. No order is made with regard to costs.

[4] For immediate purposes, it is convenient to set out the grounds of the cross-appeal, as supplemented. The respondents assert that the court ought:

(a.) not to have attributed the meaning that it did to the applicant’s request for access to information;

(b.) to have applied the peremptory provisions of the Promotion of Access to Information Act 2 of 2000 (PAIA), as considered in Paul v MEC for Health, Eastern Cape Provincial Government and others and related matters [2019] 3 All SA 879 (ECM);

(c.) not to have made the costs order that it did;

(d.) not to have found that the applicant had discharged the onus of proof, inasmuch as he never filed a replying affidavit;

(e.) not to have found that the applicant had given a full and satisfactory explanation for the exercise of his rights;

(f.) not to have found that the applicant had completed Form A properly, with the consequence that an adverse finding should have been made against the applicant in that regard;

(g.) to have taken into consideration the explanation given by the respondents in relation to their refusal of the request;

(h.) not to have held that the third respondent was not a necessary party to the proceedings;

(i.) not to have applied section 82 of PAIA in the manner in which it did, inasmuch as it was not just and equitable, the respondents’ not being able to comply with the order;

(j.) to have applied the relevant PAIA manual and not to have made an order against the first respondent;

(k.) to have found that the information requested is in the possession of the applicant or that the applicant should have offered an explanation where otherwise; and

(l.) alternatively, with regard to (k.), not to have found that the third respondent was not in possession of the information.

[5] It is apposite to remark that the grounds listed by the respondents are not particularly well drafted. Nevertheless, counsel for the respondents ameliorated the effects thereof in his heads of argument, helpfully grouping the grounds for the respondents’ cross-appeal into the following themes: (a.) non-compliance with PAIA; (b.) the meaning and interpretation of the applicant’s request; (c.) refusal of the request; (d.) the discretion exercised in terms of section 82 of PAIA; and (e.) costs. Ultimately, these form the focal point for the court’s determination of the respondents’ application for leave to cross-appeal, but without overlooking the applicant’s arguments in relation to costs.

[6] The provisions of section 17 of the Superior Courts Act 10 of 2013 address leave to appeal. To that effect, sub-section 17(1)(a) stipulates that leave to appeal may only be given where the court is of the opinion that the appeal would have a reasonable prospect of success or where there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.

[7] First and foremost, the present court does not dispute the respondents’ assertion that the decision in Paul is relevant to the matter. It was not canvassed directly in the judgment and it may well have a decisive bearing on the present

application, provided that the test for granting leave is satisfied, as contained in sub-section 17(1)(a), described above. A full bench was constituted in Paul at the direction of the Judge President with a view to providing comprehensive guidance on PAIA applications.[2] This was motivated in part by the proliferation of such applications in the motion court proceedings of the Eastern Cape Local Division, Mthatha, where very few complied with the requirements of the legislation in question, leading to their removal from the roll, only to be re-enrolled at a later stage without amendment.[3]

[8] A key finding made by the court in Paul was that the procedures contained in PAIA for requesting access to information are peremptory and a court cannot waive compliance. The court held as follows:

‘[9] The starting point in PAIA applications is section 11 of PAIA which reads:

“11. Right of access to records of public bodies

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

(a) that requester complies with all the procedural requirements in this Act relating to a request for access to that record; and

(b) access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this Part.

(2) A request contemplated in sub-section (1) includes a request for access to a record containing personal information about the requester.

(3) A requester’s right of access contemplated in sub-section (1) is, subject to this Act, not affected by–

(a) any reasons the requester gives for requesting access; or

(b) the information officer’s belief as to what the requester’s reasons are for requesting access.”

[10] One of the things which stand out in section 11 is that compliance with the procedural requirements of PAIA is not optional.

If any of the procedural requirements are not complied with, the requester is not entitled to the record. The court is similarly not at liberty to waive the peremptory provisions of section 11(1). On a proper construction of section 11(1) it is clear that both the requester’s entitlement to be given access to a record of a public body and the obligation imposed on the requester to comply with all the procedural requirements of PAIA are couched in peremptory terms. In the absence of full compliance with the procedural requirements of PAIA the information officer is entitled to refuse access and to not provide the record. The court may also not order the provision of the record to the requester unless it is satisfied that there has been full compliance with all the procedural requirements…’[4]

[9] The strict approach adopted by the full bench in Paul with regard to the need for an applicant to meet the procedural requirements of PAIA is pertinent to the present matter. So, too, is the insistence by the full bench that a court has no discretion to overlook non-compliance.

[10] Reference was made in Paul, with approval, to Makhambi v MEC for Health, Eastern Cape and another [2018] ZAECMHC 63 (20 November 2018), where Mbenenge JP dealt with the relevance of the information manual that is contemplated under section 14 of PAIA. He held, at [15], that:

‘…it is the manual of a public body contemplated in section 14 that sheds light regarding, inter alia, the address to which a request and, where applicable, an appeal should be sent; the functionary to whom the request should be made and a description of the remedies available to an aggrieved requester before court proceedings can be instituted. All these facts gleaned from the manual must be alleged in the affidavit filed in support of an application challenging the refusal and/or failure to consider and make a decision on a request for access to information. Needless to say the address used to request the information from the information officer must be that referred to in the manual. It would also perfect the cause of action for the applicant to annex the relevant pages of the manual. In this way, it would not be left to a judge to trawl the manual or telephone directory to verify the correctness of the address and the addressee. It is not hard to envisage a situation where a public body has not complied with section 14 and has thus not compiled a manual. In that event, it should be available to the aggrieved person to seek a mandamus compelling the public body concerned to compile the manual.’

[11] In Paul, the court appeared not to have been of the view that an applicant’s failure to annex the relevant pages of the manual would scupper his or her application. However, the court clearly interpreted the decision in Makhambi to mean that an applicant is required to demonstrate in his or her founding affidavit that he or she has complied with the provisions

stipulated in the manual in question.[5]

[12] The findings in Paul also underlined the need for an applicant to frame his or her application in accordance with the so-called PAIA rules.[6] Whereas the rules have since been repealed,[7] they were of application at the time that the present application was brought. The immediate relevance thereof is that sub-rules 3(1), (5) and (6) indicated that the information officer was the party to have been cited in any civil proceedings instituted under section 78 of PAIA. This was not done in relation to the first of the matters considered in Paul, where the court held that there was no basis to have cited the MEC for Health, the correct party was the information officer.[8]

[13] For present purposes, it cannot be said that the respondents placed the issue of procedural non-compliance directly before this court in their answering affidavits. It was raised obliquely, at best, when the Senior Manager: Legal Services stated under oath that:

‘I am still at a loss to know what exact document the Applicant seeks against the respondents, as the respondents are not in possession of any “detailed pension benefit fund print-out.”’[9]

[14] Elsewhere in his affidavit, however, the deponent appears to contradict the above statement by asserting that the documentation was in possession of the third respondent, which, by implication, seems to suggest that he certainly understood and had at least some knowledge about the information sought.[10] The question of whether the applicant complied with the provisions of PAIA only properly arose in the respondents’ application for leave to cross-appeal. Here, the respondents not only argued that the applicant’s request was vague, but, more importantly, they introduced the principle enunciated in Paul to the effect that the provisions of PAIA are peremptory. The respondents bolstered their approach by filing supplementary grounds,

which included the applicant’s alleged failure to have completed Form A correctly and his alleged non-compliance with the

PAIA manual.

[15] Leaving aside the question of whether the basis for the respondents’ cross-appeal can properly be located in the evidence placed before the court, there can be no avoiding at least one key aspect that emerged in Paul: the citation of the correct parties for purposes of the proceedings. Here, the applicant has indisputably failed to cite the information officer for the Department of Health, as required by rule 3 of the PAIA rules which applied at the time that the application was brought. This was a fatal shortcoming in the first of the matters considered by the full bench in Paul. It may well be decisive of this matter on appeal.

[16] The present court stands by its interpretation of the purpose of PAIA. The preamble thereto indicates, unequivocally, that the purpose is 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. Moreover, sub-section 2(1) provides that:

‘[w]hen interpreting a provision of this Act, every court must prefer any reasonable interpretation of the provision that is consistent with the objects of this Act over any alternative interpretation that is inconsistent with those objects.’

[17] Within the context of the clear and compelling raison d’être for PAIA, the present court also stands by the views that were expressed in relation to the discretion that is afforded in terms of section 82. The meaning attributed to ‘[t]he court… may grant any order that is just and equitable’ must be derived from the duty imposed under sub-section 2(1), supported by a proper appreciation of the purpose of PAIA. As Howie J observed in Transnet Ltd and another v SA Metal Machinery Co (Pty) Ltd 2006 (4) BCLR 473 (SCA), at [58]:

‘…The primary purpose of the Act is to give effect to the constitutional right of access to state information. The limitations on that right, in favour of a third party’s right to privacy in general and commercial confidentiality in particular, are set by sections 36 and 37. If the public body fails under those sections to justify its refusal of access there can no longer be anything in the way of the requester’s right to access. It follows that there can beno such discretion as that contended for. This conclusion accords with the aim and objects of the Act. If confirmation were needed it is provided by the terms of section 11. The power “to grant any order that is just and equitable” is therefore intended to enable the court to tailor the relief to which a successful applicant is entitled.’[11]

[18] In the present matter, the meaning and interpretation of the applicant’s request were straight-forward: he required such information as would have enabled him to establish whether his rights as an employee of the state had been compromised. His request may not have been set out with pinpoint accuracy. It may not have contained adequate enough detail to have left the respondents in no doubt whatsoever about what he required. Yet the request was sufficient for purposes of placing the evidentiary burden created in terms of sub-section 81(3) of PAIA squarely on the shoulders of the respondents. Their response was ambivalent: they had indeed been able to supply some of the information but not all of it, alternatively they were simply not able to provide the information as requested and the applicant ought to have sought it from the third respondent. Either way, the response failed to persuade the court that the respondents had discharged the burden of establishing that their deemed refusal complied with the provisions of PAIA. The resulting order was the exercise of a statutory discretion to tailor the relief to which the applicant was entitled.

[19] Notwithstanding the above, the court is bound by the full-bench decision in Paul. The respondents have raised the issue of non-compliance with the peremptory provisions of PAIA. And the applicant failed to cite the information officer. For the above reasons, the court is satisfied that the respondents have a reasonable prospect of success on appeal. In addition, the court is of the respectful view that an appeal court may further develop the jurisprudence in relation to PAIA, especially with regard to the findings in Paul.

[20] Turning to the applicant’s grounds of appeal, these are restricted to the question of costs. This is an issue, however, that is inextricably bound to the outcome of the cross-appeal. If this court grants leave to the respondents then it cannot refuse leave to the applicant, on the premise that an appeal court would be best placed to deal with the question of costs as a whole, rather than be limited by any decision taken by the present court to that effect.

[21] In the circumstances, the following order is made:

(a) the application for leave to appeal is granted;

(b) the application for leave to cross-appeal is granted; and

(c) costs in the applications for leave are those in the appeal.

____________________

JGA LAING

ACTING JUDGE OF THE HIGH COURT

Appearances:

For the applicant:

Adv LJ Kilani

Instructed by:

Bacela Bukula & Associates

115 Cambridge Road

KING WILLIAM’S TOWN

Tel: 043 642 1175

Fax: 043 643 3033

Email: brenko@mweb.co.za

Ref: Ms Bacela

For the 1st and 2nd respondents: Adv BN Hansjee

Instructed by:

State Attorney

17 Fleet Street

Old Spoornet Building

EAST LONDON

Tel: 043 706 5100

Fax: 043 722 0926

Email: tmbusi@justice.gov.za

Ref: Mr Mbusi

c/o Shared Legal Services

Office of the Premier

Alexandra Road

For the 3rd respondent:

Adv NO Nhantsi

Instructed by:

Mpoyana Ledwaba Attorneys

c/o SZ Sigabi & Associates

5 Arthur Street

Tel: 043 642 2255

Fax: 043 642 2247

Email: szsigabi@sainet.co.za

Ref: Mr Sigabi

[1] The manner in which the parties have proceeded is not as envisaged under rule 49, where it would have been expected of the respondents to have applied for leave to appeal and for the applicant to have applied for leave to cross-appeal, rather than vice versa. However, this is likely to have been as a result of the sequence in which the respective parties brought their applications and nothing turns on this for purposes of the judgment.

[2] See Paul, 881, at [2].

[3] Ibid.

[4] The court went on to refer to the decision of the Constitutional Court in President of the Republic of South Africa v M & G Media Ltd 2012 (2) SA 50 (CC) in support thereof.

[5] At [14] – [15].

[6] Rules of Procedure for Application to Court in terms of the Act, published under GNR 965 of 9 October 2009 in GG No. 32622.

[7] See GNR 1284 of 4 October 2019, GG No. 42740.

[8] At [40].

[9] See para 41 of the answering affidavit of Mlungisi Langelihle Andy Mlambo, at p 65 of the record.

[10] Op cit, para’s 16-17, p 58. See, too, para’s 23 and 28, pp 59-60

[11] Emphasis added.