Figlan v MEC for Department of Health, Eastern Cape and Others (430/2017) [2020] ZAECBHC 33 (29 April 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, BHISHO)

CASE NO. 430/2017

Date heard: 30 January 2020

Date delivered: 29 April 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 an order directing the respondents to furnish the applicant with a copy of his detailed pension benefit fund print-out, pursuant to the provisions of the Promotion of Access to Information Act 2 of 2000 (PAIA).

Background to the matter

[2] The applicant states that he was employed by the Department of Health before applying for a voluntary severance package on 16 August 1996. He was informed at the time that his application would not be considered because there were disciplinary proceedings pending against him. Charges against the applicant were withdrawn on 16 February 2005 and the applicant resumed his duties, only to part ways with his employer as a result of what appear to have been ongoing disagreements.

[3] Subsequently, avers the applicant, he has battled to obtain his pension benefits. It is not necessary to relate the full history of his engagement with the Department, save to remark that the applicant alleges that deductions made from his salary were never paid to the third respondent and that he requires information from the second respondent to verify that his pension benefits have been calculated correctly.

[4] On 1 February 2017, the applicant’s attorneys submitted a request for access to information in terms of PAIA. When the Department failed to respond, the applicant lodged an appeal. The continued lack of a response from the Department prompted the present application.

[5] The first and second respondents state that the applicant refused to return to work after the Department withdrew charges and lifted his precautionary suspension. After numerous instructions were given to the applicant to report for duty, the Department invoked sub-section 17(5) of the Public Service Act 103 of 1994 and the applicant was deemed to have been discharged.

[6] Consequently, aver the first and second respondents, the applicant brought a High Court application in terms of which he sought an order to the effect that the Department institutes disciplinary proceedings against him so that his application for a voluntary severance package could be considered. His application was unsuccessful.

[7] The Department deemed the applicant to have been discharged with effect from 28 February 2005 and provided him with form Z102 for completion and return. The form was required by the Department for submission to the third respondent for processing his pension pay-out. The first and second respondents allege that the applicant never returned the form, thereby preventing the Department from submitting it to the third respondent for the processing of the applicant’s pension pay-out.

[8] It would appear that there is a dispute between the parties with regard to the actual date of the applicant’s discharge. Despite the Department’s having deemed such date to have been 28 February 2005, the first and second respondents allege that he received his full salary until 31 December 2007. The dispute has complicated the calculation of the applicant’s pension pay-out amount and informs the context of the present application.

[9] The first and second respondents raise two points in limine. The first is that the applicant ought to have approached the third respondent for the information sought. This point seems to have prompted the applicant to launch a successful application for the joinder of the third respondent during the course of proceedings and nothing more turns on this but for the question of costs, which will be addressed later. The second is that the applicant has launched the present application prematurely. The Department responded to the applicant’s appeal, brought under PAIA, by requesting a copy of his initial request. Upon the applicant’s subsequent institution of these proceedings, the Department informed the applicant that it was not in possession of the information sought and that he should approach the third respondent. At the same time, the

Department furnished the applicant with print-outs detailing pension contributions made on his behalf to the third respondent and invited the applicant to withdraw his application. This was to no avail.

[10] With regard to the merits of the matter, the first and second respondents aver that the document sought by the applicant is not in their possession. They allege that it can be obtained from the third respondent. Furthermore, they go on to allege that the applicant has failed to cooperate with the Department in the processing of his pension pay-out inasmuch as he disputes the date of his discharge.

[11] For its part, the third respondent admits that it has received pension contributions for the applicant and confirms that no pension pay-out has been made. However, it states that it provided a benefit statement to the applicant on 7 August 2018, containing details of the estimated pension benefits for the applicant.

[12] The third respondent describes form Z102 as a prescribed multi-purpose form that requires completion by an employer upon the occurrence of any event that has an influence on the pension interests of employees. The employer must certify that the information contained therein is correct and must furnish it to the third respondent for the processing of any pension pay-out owed to an employee. Importantly, the third respondent states that it does not keep records in relation to employees and relies substantially on the form for purposes of any pay-out. In the present matter, the third respondent avers that it is not in a position to process the applicant’s pay-out because it never received the form from his employer.

Issues to be determined and legal framework

[13] This seems to be a matter with a long and complicated history. There are events in the past that may well have a bearing on the applicant’s rights in relation to the calculation of any final amount owed to him. However, they must not be permitted to cloud and obscure the real issue, which is whether the applicant has made out a case for the order sought, viz. the delivery by the respondents of a copy of his detailed pension benefit fund print-out, as he has described it. Any other issues that may exist are not for the determination of this court.

[14] As a starting point, it is useful to bear in mind that section 82 of PAIA permits a relatively wide discretion to a court in hearing an application of this nature. The text states as follows:

’82. Decision on application. – The court hearing an application may grant any order that is just and equitable, including orders–

(a) confirming, amending or setting aside the decision which is the subject of the application concerned;

(b) requiring from the information officer or relevant authority of a public body or the head of a private body to take such action or to refrain from taking such action as the court considers necessary within a period mentioned in the order;

(c) granting an interdict, interim or specific relief, a declaratory order or compensation;

(d) as to costs; or

(e) condoning non-compliance with the 180-day period within which to bring an application, where the interests of justice so require.’

[15] From the text, it is clear that a court must approach matters falling within the ambit of PAIA on a case-by-case basis. It is required to consider the circumstances attached to any particular application and to make an order that is just and equitable.

Points in limine

[16] The first and second respondents’ first point in limine, pertaining to non-joinder of the third respondent, has already been addressed and requires no further attention. Their second point is to the effect that the application was premature. It is not disputed by the first and second respondents that the applicant’s appeal was received but they rely on their request for a copy of the initial request and proof of delivery to argue that the applicant should have replied thereto before instituting proceedings.

[17] It is evident from the founding affidavit that the applicant’s initial request for access to information was received by the Office of the Senior Manager: Legal Services on 7 February 2017.[1] Under the provisions of PAIA,[2] the Department had until 9 March 2017 by which to make a decision on the request. It failed to do so and never extended the period within which it was required to deal with the request.[3] The applicant delivered its appeal to the same office on 19 April 2017. Consequently, the Department had until 19 May 2017 by which to make a decision but instead sent its request to the applicant on 22 June 2017, some 34 days after the expiry of the prescribed period.[4] Whereas it may have been courteous for the applicant to have replied to the Department’s request, the applicant was nevertheless

well within his rights to have brought the present application on 21 July 2017.[5] There is no merit in the first and second respondents’ second point in limine

Whether a dispute of fact arises

[18] The applicant seeks ‘a copy of the detailed pension benefit fund print-out relating to the applicant, with Persal no. 524 884 46.’ It should be mentioned that the applicant filed an amended notice of motion and a supplementary affidavit subsequent to the joinder of the third respondent.[6] The amended relief is wider in extent inasmuch as the applicant seeks a pension benefit fund print-out in relation to his pension

contributions and the respondents’ receipt of same, as well as all information that pertains to the pension benefits due to him.[7] The first and second respondents never took issue with the filing of the notice and never filed supplementary affidavits. However, when pressed by the court to indicate precisely what relief was sought, counsel for the applicant indicated that he relied on the original notice of motion.

[19] The first and second respondents aver that they have already furnished the applicant with whatever information was available from the Human Resource Department. This seems to consist of a record of the contributions made by the applicant to the third respondent and was allegedly provided to him on 23 August 2017. They assert that the applicant must approach the third respondent for any outstanding information. The third respondent states, however, that it supplied the applicant with a benefit statement on 7 August 2018 after having been joined in the proceedings. The statement reflected the estimated benefits as at 31 July 2018.

[20] The third respondent points out that it cannot process and pay any pension benefits to the applicant until it has received form Z102, upon which it places substantial reliance for the calculation of such benefits. The first and second respondents assert that it is incumbent upon the applicant to complete and return the form. They assume that he has not done so because the applicant disputes the date of his discharge.

[21] In the present matter, it is necessary to consider the question of whether a dispute of facts arises from the papers. The principles were laid down in Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd [1957] 1 All SA 123 (C), where Van Wyk J held, at 124, that:

‘It seems to me that where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant’s affidavits justify such an order… Where it is clear that facts, though not formally admitted cannot be denied, they must be regarded as admitted.’

[22] This passage was referred to with approval by Corbett JA in the oft-quoted case of Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; [1984] 2 All SA 366 (A) where he went on to state, at 368, that:

‘It seems to me, however, that this formulation of the general rule, and particularly the second sentence thereof, requires some clarification and, perhaps, qualification. It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances, the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact… If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6(5)(g) of the Uniform Rules of Court… and the court is satisfied as to the inherent credibility of the applicant’s factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks… Moreover, there may be exceptions to this general rule, as, for example, where the allegations or denials of the respondent are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers…’

[23] The above principles were reaffirmed in National Director of Public Prosecutions v Zuma (Mbeki intervening) 2009 2 All SA 243 (SCA) and remain good authority for how a court should handle an apparent dispute of facts on the papers.

[24] The applicant never filed a replying affidavit in the present matter. Accordingly, the court is restricted to the allegations made in the founding and answering papers. From a reading thereof, a distinction must be drawn between: (a.) the reasons for why the applicant has never received his pension pay-out; and (b.) whether he is entitled to the information sought. Whereas there appears to be a dispute of facts in relation to (a.), the court is simply not required to deal

with the actual date of the applicant’s discharge, his non-completion and failure to return form Z102, and related matters.

The court is concerned primarily with (b.).

[25] Subsequent to the applicant’s institution of proceedings, the first and second respondents furnished the applicant with information from the Human Resource Department. In a similar fashion, the third respondent furnished the applicant with a statement of estimated benefits. The affidavits filed by the parties do not suggest that there was ever any contention that the applicant was not entitled to such information. There may well be a dispute in relation to the reasons for why the applicant has never been paid his pension benefits, in which case the court would be required to apply the Plascon-Evans rule,[8] the principles of which having been canvassed earlier. Nevertheless, the real issue remains whether the applicant is entitled to the delivery by the respondents of a copy of his detailed pension benefit fund print-out, nothing more.

Merits of the application

[26] On the face of it, the respondents have delivered the information that the applicant seeks. Although the information may not consist of a single print-out, it is evident from the affidavits filed by the first, second and third respondents that they have attempted to address the request made by the applicant. However, whether the information supplied is sufficient for the applicant’s purposes is difficult to tell. From the attachments to the letter sent by the first and second respondents to the applicant on 23 August 2017,[9] it is possible that there is a considerable amount of information that is still outstanding. In that regard, the attachments comprise

only an enquiry service record, a page dealing with service termination, and a record of allowances, deductions and fringe benefits as at 31 October 2000. The applicant was employed by the Department until at least 28 February 2005, some four years after the date of the document supplied.

[27] In his founding affidavit, the applicant states that it is important for him to have access to the requested information so that he can satisfy himself that his pension benefits have been calculated correctly. By reason of the acrimonious relationship between the applicant and the first and second respondents, he is not convinced that they will act in his best interests.[10] The first and second respondents deny this and assert that the applicant is holding up the processing of his pension pay-out because

he disputes the date of his discharge. Notwithstanding, the first and second respondents do not present any basis for why the applicant

should be refused his request for the information stipulated.

[28] In Transnet Limited and another v SA Metal Machinery Co (Pty) Ltd [2006] 1 All SA 352 (SCA), Howie P observed, at [58], that the primary purpose of PAIA is to give effect to the constitutional right of access to state information. This much appears from the preamble to PAIA and is a vital characteristic of a constitutional democracy such as exists in South Africa. Furthermore, Nugent JA remarked in President of RSA and others v M & G Media Ltd [2011] 3 All SA 56 (SCA), at [1], that:

‘Open and transparent government and a free flow of information concerning the affairs of the State is the lifeblood of democracy. That is why the Bill of Rights guarantees to everyone the right of access to “any information that is held by the state’, of which Ngcobo J said the following in Brümmer v Minister for Social Development and others:

“The importance of this right… in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid. To give effect to these founding values, the public must have access to information held by the State. Indeed, one of the basic values and principles governing public administration is transparency. And the Constitution demands that transparency ‘must be fostered by providing the public with timely, accessible and accurate information.’”’[11]

[29] The constitutional right of access to state information also means that a requester, under PAIA, is entitled to the complete set of information necessary to enforce such right. This must not be restricted to merely a portion thereof, based on a public body’s narrow interpretation of the request. If the wording of the request is not a picture of clarity but the meaning thereof can be discerned without difficulty, then the requester’s enforcement of his or her constitutional right of access cannot be limited by the information officer’s provision of some but not all of the relevant information solely as a result of the manner in which the request has been formulated.

[30] Here, the applicant has requested ‘a copy of the detailed pension benefit fund print-out relating to the applicant, with Persal no. 524 884 46.’ Understandably, this may give rise to some confusion inasmuch as it may not be feasible to reduce the information to a single print-out.

Nevertheless, the meaning is not impossible to discern. The applicant seeks the information necessary to determine how much was deducted from his salary during the course of his employment by the Department, when such deductions were made, and whether they were indeed paid over to the third respondent. The applicant requires details of the pension benefits paid to the third respondent so that he can determine the extent to which his rights as an employee may or may not have been infringed. There is no reason why he is not entitled to a complete set of information in this regard.

Relief to be granted and costs

[31] The court has a relatively wide discretion in dealing with an application of this nature, as evident from section 82 of PAIA. It is the view of this court that it would be just and equitable to require the first and second respondents to furnish the applicant with whatever information is still outstanding with regard to the deduction and payment of his pension contributions to the third respondent. Insofar as form Z102 is concerned, the real impact of its non-completion and non-return seems to be limited to the issue of the delay in processing the applicant’s pension pay-out, rather than the furnishing of information requested by the applicant. This stands to reason inasmuch as the first and second respondents have already obtained information, albeit incomplete, from the Human Resource Department despite the outstanding form.

[32] Turning to the question of costs, these would usually follow the result of the application. However, the first and respondents previously furnished the applicant with at least some of the information sought and invited him to withdraw his application, creating an opportunity for the applicant to have engaged further with them to avoid litigation. It is not apparent why he failed to take this opportunity. Moreover, the somewhat vague wording of the applicant’s request and the inadequate response of the first and second respondents, overall, led to the unnecessary joinder of the third respondent. This could have been avoided. Accordingly, it would be fair to limit the applicant’s award of costs in the main application to the date of the inception of proceedings until the date upon which the first and second respondents supplied the information mentioned in their affidavits.

[33] In relation to the joinder application, costs were reserved, presumably for decision in the main application. The immediate problem facing this court is that the record of the proceedings in the joinder application has not been placed before it, making it impossible to discern who should be liable for costs. It would seem reasonable in the circumstances simply not to make any order in that regard.

Order

[34] The following order is made:

(a.) the first and second respondents are ordered to:

(i.) furnish the applicant with such outstanding information as will enable the applicant to determine:

(aa.) how much has been deducted from his salary during the course of his employment with the Department for the purpose of his pension benefits;

(bb.) when such deductions were made;

(cc.) whether and how much of such amounts, as deducted, were indeed paid to the third respondent;

(ii.) ensure that such information is supplied to the applicant within 60 days of the date of this order;

(iii.) pay the applicant’s costs in the main application up to and including 23 August 2017 on a party-and-party scale;

(b.) the applicant and the first and second respondents are liable for the costs of the third respondent in the main application, jointly and severally, and in the event of one party’s paying the others are to be absolved; and

(c.) no order as to costs is made with regard to the joinder application.

____________________

JGA LAING

ACTING JUDGE OF THE HIGH COURT

*Judgment delivered by email to the parties on 29 April 2020, by reason of the COVID-19 restrictions imposed under the regulations made in terms of the Disaster Management Act 57 of 2002.

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] See p 33 of the record.

[2] In terms of sub-section 25(1), the information officer has 30 days after receipt of the request to make a decision thereon.

[3] The period may be extended for a further 30 days in terms of the provisions of sub-section 26(1).

[4] The relevant authority has 30 days within which to decide on the appeal, calculated from the date of receipt of the appeal by the information officer. See sub-section 77(3)(a).

[5] In terms of sub-section 78(2), an applicant has 180 days within which to institute proceedings.

[6] The order for joinder was granted on 17 July 2018, the applicant’s amended notice of motion is dated 26 November 2018.

[7] See p 43 of the record.

[8] This is the terms used by Harms DR in ‘Civil Procedure: Superior Courts’ in LAWSA (Volume 4, 3rd Edition Replacement, 2016), at para 211.

[9] The letter is attached as annexure ‘MLAM 5’ to Mlungisi Mlambo’s answering affidavit. See pp 98-13 of the record.

[10] See sub-paragraph 10.2 of the applicant’s founding affidavit, at p 9 of the record.

[11] Closely associated with this is the need to entrench a culture of justification within the context of a constitutional dispensation. See M & G Media Ltd, where Nugent JA stated, at [10] to [11], that: ‘Etienne Mureinik captured the essence of the Bill of Rights when he described it as a “bridge from a culture of authority…

to a culture of justification”- what he called “a culture in which every exercise of power is expected to be justified.”…The “culture of justification” referred to by Mureinik permeates the Act [i.e. PAIA]. No more than a request for information that is held by a public body obliges the information officer to produce it unless he or she can justify withholding it. And if he or she refuses a request then “adequate reasons for the refusal” must be stated (with a reference to the provisions of the Act that are relied upon to refuse the request). And in court proceedings under section 78(2) proof that a record has been requested and declined is enough to oblige the public body to justify its refusal.’

[11] Closely associated with this is the need to entrench a culture of justification within the context of a constitutional dispensation. See M & G Media Ltd, where Nugent JA stated, at [10] to [11], that:

‘Etienne Mureinik captured the essence of the Bill of Rights when he described it as a “bridge from a culture of authority…

to a culture of justification”- what he called “a culture in which every exercise of power is expected to be justified.”…The “culture of justification” referred to by Mureinik permeates the Act [i.e. PAIA]. No more than a request for information that is held by a public body obliges the information officer to produce it unless he or she can justify withholding it. And if he or she refuses a request then “adequate reasons for the refusal” must be stated (with a reference to the provisions of the Act that are relied upon to refuse the request). And in court proceedings under section 78(2) proof that a record has been requested and declined is enough to oblige the public body to justify its refusal.’