Koalane and Another v Senkhe and Others (2854/2012) [2012] ZAFSHC 165 (6 September 2012)

Koalane and Another v Senkhe and Others (2854/2012) [2012] ZAFSHC 165 (6 September 2012)

The court found that PAIA does not provide for access to records held by private individuals who are not acting in a business or professional capacity. The second respondent, as a private individual, does not fall within the definition of a private body under PAIA. The applicants cannot rely directly on section 32 of the Constitution because PAIA is the legislation enacted to give effect to that right, and they did not challenge its constitutionality. Therefore, the application for access to the video recording must fail.

Citation
[2012] ZAFSHC 165
Parties
Applicant: Kunatu Stephen Koalane; Applicant: Masilonyana Local Municipality; Respondent: M M Senkhe; Respondent: P L Senkhe; Respondent: H D Sethoba
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
6 September 2012
Case Number
2854/2012
Procedural Posture
Urgent Application / First Instance
Outcome
Application dismissed.
Judges
Van der Merwe
Legal Topics
Access to Information, Promotion of Access to Information Act, Constitutional Subsidiarity
Constitutional Law Civil Procedure Access to Information Promotion of Access to Information Act Constitutional Subsidiarity

Case Brief

Summary, issues, holding and outcome

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Parties

Kunatu Stephen Koalane

Applicant

Masilonyana Local Municipality

Applicant

M M Senkhe

Respondent

P L Senkhe

Respondent

H D Sethoba

Respondent

Procedural Posture

Urgent Application / First Instance

Legal Issues

  1. 1 Whether the applicants are entitled to access the video recording under section 32 of the Constitution and PAIA.
  2. 2 Whether PAIA applies to records held by private individuals not acting in a business or professional capacity.
  3. 3 Whether the applicants can rely directly on the constitutional right to access information when legislation exists.

Ratio Decidendi

The court found that PAIA does not provide for access to records held by private individuals who are not acting in a business or professional capacity. The second respondent, as a private individual, does not fall within the definition of a private body under PAIA. The applicants cannot rely directly on section 32 of the Constitution because PAIA is the legislation enacted to give effect to that right, and they did not challenge its constitutionality. Therefore, the application for access to the video recording must fail.

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.