Sogaxa v Minister of Police and Others (CA96/2019) [2020] ZAECGHC 105 (15 September 2020)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA96/2019

Date heard: 07 September 2020

Date delivered: 15 September 2020

In the matter between:

SIYABONGA SOGAXA Appellant and THE MINISTER OF POLICE First Respondent THE INFORMATION OFFICER DUNCAN VILLAGE POLICE STATION Second Respondent THE NATIONAL DEPUTY INFORMATION OFFICER (SAPS) Third Respondent

JUDGMENT

LOWE, J

INTRODUCTION

[1] This matter has had a long, unfortunate and no doubt expensive history.

[2] On 30 January 2013 Appellant was arrested and charged with rape, robbery and murder. On 4 February 2013 he made his first appearance before the Magistrate’s Court and he was remanded in custody. The case was postponed on numerous occasions until it was withdrawn by the State on 27 February 2013 pending “further investigations”.

[3] Upon his release, Appellant approached his attorneys of record for legal advice regarding his arrest and detention. The attorney informed Appellant that he required a copy of the police docket for the latter to render proper advice. On 22 November 2013 Appellant’s attorney dispatched the request for information to Second Respondent as provided in the Promotion of Access to Information Act 2 of 2000 (“PAIA”). The request was refused by Second Respondent on 19 December 2013. The reason for the refusal was that the docket was “still under investigation”. On the same day Appellant’s attorneys enquired about some aspects of the alleged investigations. Despite reminders to Second Respondent, the information was not forthcoming.

[4] On 27 January 2014 Appellant lodged an appeal in terms of PAIA against the refusal by Second Respondent. The appeal elicited no response after thirty days. On 12 March 2014 Appellant launched the application.

[5] On 30 April 2015 an order was given in the application (by Defendant) as follows:

“1. It is recorded that there is no representation for the respondents, despite the notice in terms of directive 15A, advising the respondents that the matter will be proceedings, having been acknowledged by the State Attorney (the respondents attorney) on 9 April 2015.

2. The second respondent’s failure to furnish the applicant with the requested information (that is copies of the contents of docket MAS no. 252/01/2013 required for the exercise of the applicants rights) is reviewed.

3. The second respondent is directed to furnish the applicant with the aforesaid information within fifteen (15) days from the date of the granting of this order.

4. The respondents are directed to pay the costs of this application (jointly and severally the one paying the other to be absolved) on the scale as between attorney and client.”

[6] In due course the Minister of Police and Second Respondent brought a rescission application in respect of the order, which came before Hartle J on 29 October 2015. On 10 November 2015 and in a full reasoned judgment the order of 30 April 2015 was rescinded, Respondent (S. Sogaxa) to pay the costs on attorney and client scale.

[7] In May 2016 the initial application came before Mbenenge J (as he then was) and the main issue considered was the non-joinder of the National Prosecuting Authority. It was noted that the application was opposed, on the basis that the application could not succeed due to the provisions of Sections 7, 39(1)(b)(ii) and (iii) of PAIA.

[8] The Court found there to be a non-joinder and stayed the proceedings to allow joinder, costs reserved.

[9] The Court specifically did not deal with the merits of the application and correctly so.

[10] On 27 October 2016 the original application, with the joinder having been effected of Third Respondent, came before Malusi J.

[11] Having heard argument, the learned Judge reserved judgment and thereafter dismissed the application with no order as to costs, including the costs previously reserved.

[12] Appellant (the losing party) brings this Full Bench Appeal consequently with the leave of the Judge a quo.

THE ISSUES ON APPEAL

[13] There are three main issues on appeal:

[13.1] The question of condonation for the late prosecution of the appeal – hotly contested.

[13.2] The merits of the appeal itself.

[13.3] The issues of mootness and Section 16(2)(a) Superior Courts Act 10 of 2013.

[14] This is by no means a simple matter and has various complications which require to be considered and elucidated. In short it is necessary to step back and see the wood for the trees.

THE CONDONATION ISSUE

[15] The judgment of Malusi J was handed down on 25 May 2017.

[16] The application for Leave to Appeal was launched a long time later on 22 September 2017, and leave granted on 14 June 2018.

[17] Appellant’s Notice of Appeal was filed on 17 July 2018, with an application condoning the late filing of the Notice of Appeal. This though out of time was not egregiously so and by consent, we granted condonation in this respect.

[18] On 11 April 2019 Appellant filed an unsigned notice of prosecution of the appeal and on 15 April 2019 Appellant launched a condonation application for the late prosecution of the appeal. This was opposed, for good reason, as the delay was substantial.

[19] The real issue is the delay between lodging the Notice of Appeal (17 July 2018) to (or after) the filing of the unsigned notice of prosecution of the appeal on 15 April 2019.

[20] The delay, alleges Appellant, was due to the missing court record. It is alleged that after considerable enquiry by Appellant the record was finally located in Grahamstown at the Registrar’s Office on 25 April 2019. This reached Appellant’s attorneys “due to some postage hick-ups” on 5 April 2019. (The original record had been requested on 25 July 2018.)

[21] It is common cause that Appellant failed to lodge the record as required in the sixty-day time period following the filing of the Notice of Appeal and, absent the record, failed to comply with Rule 49(7)(a) of the Rules as to the late filing of a Record of Appeal. No explanation for such failure is tendered.

[22] In Appellant’s explanation there is much unexplained particularly the period 26 July 2018 to 6 February 2019, during which there were only monthly follow ups with the Registrar and no real sense of urgency exhibited.

[23] Respondents complain of prejudice in the delay of the administration of justice, and condonation was opposed.

[24] In considering condonation applications, a Court has a discretion to be exercised judicially upon consideration of all the facts, it being a question of fairness to both sides.

[25] Usually the relevant considerations include the degree of non-compliance, the explanation, the prospects of success on appeal, the importance of the case, Respondent’s interest in finality, convenience of the Court and avoidance of delay in the administration of justice[1]

[26] Prospects of success pale into insignificance in the face of inordinate delay coupled with the absence of a reasonable explanation[2]. Added to this on the negative side would be when an issue is moot[3].

[27] It must be said that whilst the explanation is lacking in detail there can be no doubt that the record was missing, through no fault of Appellant, and the matter proceeded when this was located. The failure to comply with Rule 49(7)(a) is more likely due to the attorney’s oversight than to adhere to Appellant.

[28] The resolution of this issue must consider mootness and prospects of success and thus I consider these below prior to a finding on condonation.

PROSPECTS OF SUCCESS

[29] This matter turns on PAIA. Recently the correct approach to an interim application of PAIA was fully dealt with[4], in the Eastern Cape High Court in two matters referred to below.

[30] I do not intend to restate the above save to say I agree with both matters entirely.

[31] Strictly speaking the application, the subject matter of this appeal, contravenes the requirements and principles set out in two respects. Firstly, there was no reason to join the Minister of Police, and secondly, the completion of Form A, the request form, with reference to a covering letter as to what information was sought was inadequate.

[32] However, the points relevant were not taken in the papers or pursued in the application, or on appeal, by Respondents and this having regard to the clear understanding that it was the criminal docket that was sought. I leave these issues thus out of contention nor was the contrary argued.

[33] It also suffices to say that the Judgment a quo erred in its approach and reasoning, incorrectly being of the view that Section 50 of PAIA was of application. That section applies to “Private Bodies” and has no relevance to this matter. In fact, it is Section 7, 11 and Chapter 4 of PAIA that are of relevance. The matter must thus be considered afresh de novo.

[34] In the application Respondents opposed same on the basis that:

[34.1] Whilst the criminal proceedings against Appellant had been “Provisionally Withdrawn”, Section 7(1)(b) of PAIA found application, as the matter was subject to, and had been withdrawn “pending further investigation”;

[34.2] The docket should have been requested from the NPA;

[34.3] Section 39(1)(b)(ii) and (iii) of PAIA were of application and that to grant access to the docket would prejudice the investigation, reveal the source of confidential information, result in the intimidation of witnesses and result in a miscarriage of justice[5].

[35] It is for the public body to motivate a refusal and it has the onus in this regard[6]. Importantly if procedure has been followed access must be granted, in pre-litigation requests, and of course subject to Part 2 and Chapter 4 of PAIA.

[36] Section 7 of PAIA is to be interpreted restrictively to limit this to circumstances referred to in the section and to ensure protection of

the right[7].

[37] In my view Section 7 does not impact upon pre-litigation disclosure, nor does it have any impact on discovery in litigation[8].

[38] In Unitas Hospital v Van Wyk [9] (SCA) Brand JA cautioned against letting pre-trial discovery become the Rule rather than the exception.

[39] In short PAIA facilitates pre-action access on a flexible and accommodating basis[10]. The three conditions in Section 7(1) must all be present before the exclusions referred to therein operate.

[40] Section 7 clearly did not apply such as to exclude the access sought, as proceedings had commenced but had been withdrawn and not yet reinstated. The “Provisional” nature of the withdrawal cannot assist Respondents and clearly civil proceedings had not commenced in any shape or form at the time the docket was requested.

[41] Respondents defence based on Section 7 of PAIA thus fails.

[42] Turning then to the second defence, Section 39(1)(b) of PAIA raised by Respondents.

[43] The refusal contemplated in Section 39(1)(b) of PAIA is discretionary. The word “may” indicates as much, as does Section 33(1)(b).

[44] In this matter Respondents having provisionally withdrawn the prosecution against Appellant relies on Section 39(1)(b)(ii) and (iii).

[45] Not a word is said in the affidavits by Respondents about the particulars of the investigation save that “it is not an unreasonable apprehension” that if access were granted the prosecution “would be” impeded and would prejudice the investigation revealing witnesses’ identity which “might result” in possible harm, intimidation or coercion. Reference is also made to endangerment of life of individuals in terms of Section 38 of PAIA.

[46] In my view, there is no detail given to back up these general averments which appear to be entirely divorced from the details of the charges, investigation and concerns.

[47] As previously pointed out the State has the onus to justify a refusal. The generalised grounds set out are devoid of any relevant detail to support the defence and are patently insufficient.

[48] In my view the application clearly then fell to be granted and ought to have been successful on its merits.

MOOTNESS

[49] In this matter the Judge a quo was informed from the bar that the letter of intention to institute action had been sent to the Police, [11] after the application had been launched. This was not on any affidavit evidence.

[50] It is suggested that this fact renders the relief sought moot.

[51] The argument is misplaced for various reasons. Firstly, it is argued that on the basis that the “reason” for the request has fallen away being originally to inform the letter of demand. That can never be an answer to a legitimate PAIA request as it is not for the public body to hold back production on the basis of the “reason” the document is sought. If the procedural requirements are met and there is no statutory defence the documents must be produced[12].

[52] There was nothing before the Judge a quo, or before us in the appeal, as to the further conduct of the litigation or that Appellant has had access to the docket in the course of litigation.

[53] Moot means that the dispute no longer presents an existing or live controversy, in circumstances where to pronounce on the issues would be to give an opinion on an abstract proposition of law[13].

[54] That is not, on the papers, what is before us in this matter.

[55] The letter of demand went out after the request for information was sent. In any event that request did not, in terms of Section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, constitute the commencement of proceedings and the issue of a Section 3 notice did not amount to same. Until legal proceedings are commenced, post a Section 3 Notice, there is no adjudicable dispute. Section 3 does not implicate the right of access to a Court[14].

[56] In this regard on the facts Unitas Hospital v Van Wyk[15] is entirely distinguishable and no authority for Respondents’ argument as to mootness.

[57] As was pointed out in Van Wyk v Unitas Hospital [16], in the Constitutional Court, mootness in any event does not constitute an absolute bar to the justiciability of an issue – the Court has a discretion. The test is what is in the interests of justice[17]. This can include the practical effect of an order and the public interest.

[58] In my view the matter is not, on what is before us, moot. In any event, it is in the public interest to pronounce on the issues raised.

[59] Whilst this must be seen in the light of Appellant’s need for condonation which compounds the moot argument (if it is in fact moot). I am of the view that condonation should in any event be granted having regard to the strong prospects of success, and having regard to all the relevant facts and circumstances pointed out above.

[60] The constitutional right to the access to information is an important question requiring to be decided.

SECTION 16(2)(a) OF THE SUPERIOR COURTS ACT

[62] Similar to mootness a Court may nevertheless enter the merits of an appeal in such circumstances especially in respect of a matter of public importance[19].

[63] As already pointed out above in my view this matter remained, on the papers, a live issue and in any event is a matter of public interest.

[64] For the same reasons then Section 16(2)(a) of the Superior Courts Act is no bar to this appeal.

RESULT

[65] In the result the appeal must succeed.

ORDER

[66] The following order issues:

1. The late prosecution of the appeal is condoned.

2. The appeal succeeds.

3. The order of the Court a quo is set aside.

4. Second Respondent’s failure to provide Applicant with the docket MAS No. 252/01/2013 (“the docket”) is declared unlawful and reviewed.

5. Second Respondent is ordered to furnish Appellant with the docket, through the office of his Attorneys within 15 days of the date hereof.

6. First and Second Respondents are jointly and severally to pay Appellant’s costs occasioned in the application, and in the proceedings before Mbenenge J (as he then was) and the costs of appeal.

__________________________

M.J. LOWE

JUDGE OF THE HIGH COURT

RONAASEN, AJ:

I agree.

O.H. RONAASEN

JUDGE OF THE HIGH COURT (ACTING)

KROON, AJ:

P.N. KROON

Appearances:

Obo Appellant:

Adv L.S. Kalimashe

Instructed by:

Sipunzi Attorneys, East London

c/o Yokwana Attorneys, Grahamstown

Obo Respondents:

Adv L. Burger

Instructed by:

The State Attorneys, East London

c/o Mili Attorneys, Grahamstown

[1] Limited Plant Hire v Hills 1976 (1) SA 717 (A) at 720E-G; Van Wyk v Unitas Hospital and Another [2007] ZACC 24; 2008 (2) SA 472 (CC) 477A-B; Brummer v Gorfil Brothers Investments (Pty) Ltd [2000] ZACC 3; 2000 (2) SA 837 (CC) [3].

[2] Van Wyk supra [32].

[3] Van Wyk supra [33].

[4] Makhambi v MEC for Health Eastern Cape and Another [2018] ZAECMHC 63 (20 November 2018) and Paul v MEC for Health Eastern Cape and 2 Others [2019] 3 All SA 879 (ECM)

[5] The affidavit made it clear that the investigation was “on-going” though no detail at all was provided.

[6] President of the RSA v M&G Media (Ltd) [2011] 3 All SA 56 SCA [11].

[7] PFE International Inc (BVI) and Others v IDC of SA 2013 (1) BCLR 55 (CC) [7]; generally also see Competition Commission of South Africa v Standard Bank & Others (CCT158/18; CCT179/18; CT218/18) [2020] ZACC 2.

[8] CCII Systems (Pty) Ltd v Fakie NO 2003 (2) SA 325 (T) [21]; MEC for Roads and Public Works EC v Intertrade Two (Pty) Ltd 2006 (5) SA 1 (SCA).

[9] [2006] ZASCA 34; 2006 (4) SA 436 [21].

[10] Cameron J dissenting [44-45].

[11] Section 3 of Act 40 of 2002.

[12] PFE (supra) [20].

[13] President, Ordinary Court Martial v Freedom of Expression Institute [1999] ZACC 10; 1999 (4) SA 682 (CC) [12-16], [18] and [23].

[14] Mabaso v National Commissioner of Police and Another 2020 (2) SA 375 (SCA).

[15] 2006 (4) SA 456.

[16] [2007] ZACC 24; 2008 (2) SA 472 CC [28-33].

[17] Radio Pretoria v Chairperson of the Independent Communications Authority of South Africa and Another [2004] ZACC 24; 2005 (4) SA 319 (CC); Van Wyk (supra) [29].

[18] Section 16(2)(a) Superior Court Act 10 of 2013

[19] Mabaso (supra) [6-12].