Nkuna v Minister of Police and Another (53261/17) [2018] ZAGPPHC 401 (21 May 2018)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVSION, PRETORIA

DATE: 21/5/2018

CASE NO: 53261/17

In the matter between:

MAKASELA BENNY NKUNA

Applicant

ID NO: [….]

And

MINISTER OF POLICE

1st Respondent

LIEUTENANT GENEREAL MATAKATA

2nd Respondent

JUDGMENT

INTRODUCTION

[1] The Applicant seeks an order compelling the respondent to provide him with full results of the interviews, assessment and presentation for the position of a brigadier held on the 5 and 8 December 2016 for post number DPCI/SMS/HOD/18/16(re-advertisement).

[2] He further seeks a disclosure of the recommendations made for post number DPCI/SMS/HOD18/16 request that he be furnished with full reasons as to why he was not appointable in respect of the interviews, assessment and presentation he attended. The Applicant seeks a costs order against the Respondents.

FACTUAL MATRIX

[3] Applicant applied for a post of the Brigadier and was shortlisted. He was invited for an interview on the 5th and the 8th December 2016.

[4] The position which the applicant applied for was allocated post number DPCI/SMS/HOD/18/16. He was interviewed, assessed on the 5 December 2016 and made a presentation for the same post on 8 December 2016. Applicant also applied for the position with post number

DPCI/SMS/H0/163/2016 and was interviewed on the 12th and 13th September 2016 and was unsuccessful.

[5] The second Respondent had not announced the outcome of post number DPCI/SMS/HOD/18/16. On the 13th June 2017 applicant addressed a letter to the second Respondent requesting the outcome of the interview, assessment and presentation of post DPCI/SMS/H0/18/2016.

[6] Seeing that the second Respondent had not responded to the Applicant's letter of the 13th June 2017, a second letter dated 26 June 2017 was sent to the second Respondent requesting the outcome of the said interview.

[7] On the 27th June 2017 the second Respondent informed the applicant by a letter that the post number DPCI/SMS/HOD/18/2016 was not filled and that the information requested by the applicant was not available. The second Respondent did not provide any reasons for her decision.

[8] The second Respondent had however sent to the applicant information to post number DPCI/SMS/163/2016. The Applicant caused letters to be addressed to the second Respondent on the 28 June 2017 and 3 July 2017 requesting reasons why post number DPCI/SMS/H0/18/16 was not filled and why the applicant was not appointed.

[9] On the 4 July 2017 second Respondent informed the applicant that she has a prerogative not to feel any post for whatever reason and that the required information is not missing. In a nutshell second Respondent refused to provide applicant with the requested information. The Applicant requested to be provided with the particulars of the second Respondent's information officer, the appeal process and the required fee by close of business on 28/07/2017.

[10] Applicant approached this court to compel second Respondent to provide him with the requested information.

[11] Applicant submits that the second Respondent does not have a designated information officer nor internal processes and remedies available. In any event the second Respondent is the person who is supposed to entertain the appeal and has since rejected the applicant's request for access to information.

[12] It is the Applicant's contention that 30(thirty) days as required by the Promotion of Access to Information Act No 2 of 2000 "PAIA" has lapsed and the respondents have failed to exercise their rights in terms of "PAIA". Applicant further contends that he is being deprived of his constitutional right by the respondent for not providing him with the outcome of his interview for the post of the brigadier he applied for. The first and second Respondents oppose the application on the bases that it is premature and must be dismissed with costs.

[13] The Respondents contend that the Applicant failed to comply with section 74 of the Promotion of Access to Information Act (PAIA) in that he failed to exhaust internal remedies before lodging this application. In essence the second Respondent raised a point in limine) that the application was brought premature. She submits that the Applicant failed to comply with sections 24, 75 and 78 of "PAIA".

[14] The Respondents further contend that the Applicant failed to afford them sufficient time to respond to their request for access to information. The Respondents argues that the Applicant failed to utilise the appeal process internally after they refused his request for information.

ISSUES TO BE DETERMINED

[15.1.] Whether the application has been brought prematurely.

2. Whether the Applicant is entitled to information as requested

3. Whether the second Respondent should disclose the requested information.

THE LAW AND ITS APPLICATION

[16] PAIA was enacted in compliance with section 32 of the constitution of the Republic of South Africa. Section 32(1) (a) thereof provides that everyone has the right of access to any information held by the state. Whereas section 32 (1)(b) of the constitution provides that every person has the right of access to any information held by another person.

[17] Any person requiring such information must be for the protection of any right to be exercised.

[18] Effectively PAIA has been enacted to give effect to the constitutional rights to access information held by the state or any other person that is required for the exercise and protection of any right.

[19] Section 36 of the Constitution provides and recognises a limitation clause. The implication thereof is that the information to be provided is limited in certain instances. The request for information is to be refused if such information would result in breach of confidence due to another person in terms of the agreement.

[20] The second instance would be where access would result in the unreasonable disclosure of information involving a third party without his or her consent. On the one hand, access may be refused if among others the request for information is frivolous or vexatious.

[21] It is provided in Section 11(1) of PAIA that a requester is to be given access to a record of a public body if the requester has complied with all the procedural requirements relating to a request for access to that record and that access is not refused on any ground contemplated in chapter 4 of this part.

[22] Section 74 of PAIA provides that a requester may lodge an appeal internally against a decision of the information officer of a public body who refuses a request for access to information. It is provided in Section 78 of PAIA that a requester may only apply to court for an appropriate relief after all the internal remedies have been exhausted.

[23] The Applicant contends that his application is not premature. A request to access information from the second respondent was made on the 13 June 2017. As of the date of the lodging of his application on the 1st August 2017, second

[24] Respondent has refused to provide him with access to information he requested. The Applicant submits that a period of 30 days as provided has since lapsed.

[25] It is my view that second Respondent failed to comply with the provision of Section 25 of PAIA and that the Applicant was not given access to information within a period of 30 days. The second Respondent failed to seek clarity on information require and did not request an extension of time to do so. Her counsel conceded that the second Respondent does not have a designated information officer. She utilises the services of the Human Resource Officer for this purpose.

[26] The second Respondent has failed to forward the Applicant's request to the Human Resource Officer. The only inference to be drawn is that indeed the second Respondent does not have a designated information officer.

[27] The second Respondent contends that Applicant did not give her enough time to respond to the enquiry and was only afforded a day in which to respond.

[28] The Applicant made it very clear in his letter of the 28 June 2017 addressed to the second Respondent that a response is due by close of business on that day. Failure to do so, the Applicant will approach the court for a suitable relief. The second Respondent failed to comply with the Applicant's request.

[29] The Applicant in my view was not unreasonable by putting the second Respondent on terms due to the second Respondent having failed to timeously respond to the correspondences and requests from the Applicant. Applicant had no other option but to act as he did. He has checked the second Respondent's website and made other enquiries with a view of establishing what appeal processes are there to be complied with, without any luck. The second Respondent website is also silent as to who its information officer is.

[30] The second Respondent further contends that the Applicant did not exhaust internal remedies as provided for in section 74 which is peremptory and he failed to follow proper procedure in terms of the Act and thus the application was launched prematurely.

[31] Careful reading of section 74 of PAIA reveals that the Applicant may lodge an internal appeal against the decision of the information officer to refuse a request for access to information. The second Respondent does not have information officer but allegedly uses an officer from the human resource department for that purpose. The Applicant was not privy to this information as it is not made available.

[32] My view is that it was not going to be helpful for the Applicant to approach the second Respondent with an appeal application. The second Respondent has already refused the applicant's request for access to information. As the person to adjudicate on the appeal process if such processes did exist, it was going to be fruitless to launch such an appeal.

[33] It cannot be expected from the Applicant to follow and exhaust internal remedies which are non-existent.

[34] The Applicant has under the circumstances, no other options but to approach the court for an appropriate relief. I find that the application by the applicant is not premature

[35] The right to be provided with information held by a public body or any other person in exercising the protected rights is a constitutionally entrenched rights. The applicant seeks an order compelling the respondent to furnish him with the information relating to the results of the interview he attended. He further seeks a disclosure of recommendations made on post number DPCI/SMS/H0/1816 and reasons why he was not appointed.

[36] Respondents are refusing to provide such information on the basis that the post was not filled.

[37] The Respondents did not provide the Applicant with reasons why the post was not filled and why was he not appointed. The Respondent however furnished the applicant with all the information pertaining to post number DPCI/SMS/163/2016 including personal information of the candidates interviewed for the mentioned post. In my view, I cannot think of any reason why Applicant is denied access to information to post DPCI/SMS/H0 /18/16.

[38] The Respondent has a prerogative to decide to fill any vacancy or not, however it is expected that Respondents should provide reasons for its decisions. Equally so the candidates interviewed are entitled to be advised of the outcome of the interviews and reasons taken to appoint or not.

[39] The court may grant an order that is just and equitable including requiring the information officer or relevant officer of the public body to take such action as the court considers necessary within a period mentioned in the·order. See 82 of PAIA.

[40] I find that there are no equitable or justifiable reasons enjoining the Respondents not to provide Applicant with the information he has requested. Regarding the cost, the general principle is that costs follow the results. Applicant is successful and he should therefore be awarded costs.

In the premises I make the following order:

a) that the Applicant be provided with the full results of the interviews, assessment and presentations held on the 5th and 8th December 2016 by the Respondent including the scoring or the aggregate of all candidates in respect of post number DPCI/SMS/HO/18/16.

b) that the Respondents disclose and provide the Applicant with recommendations made on post number DPCI/SMS/HO/18/16 following the

interviews held on the 5th and 8th December 2016.

c) that respondent discloses and provides the full reasons why Applicant was not appointed following the interviews held on 5th and 8th December 2016.

d) that the Respondents be ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved.

MADIBA, S.S

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

For the Applicant:

Adv g.d. Dube

Instructed by:

Moaba Attorneys

178 Bosbok Street

Kwaggasrand, Pretoria

For the Respondent:

Adv M. H. Mhambi

Instructed by:

State Attorney

SALU Building

316 Thabo Sehume Street

Date of Judgment:

21 May2018