Tariefdienste (Pty) Ltd v Executive Mayor of JB Marks Local Municipality and Others (1841/2024) [2025] ZANWHC 98 (10 June 2025)

FLYNOTES: PAIA – Public body – Municipal account information – Requirements and locus standi – Access to information is a constitutional right – Compliance with procedural requirements – Requester had a direct interest in litigation and had met PAIA’s procedural thresholds – No grounds of exclusion and no discretion on part of public body to refuse access – Muncipality did not address exemption grounds or provide factual evidence to justify withholding information – Application succeeds – Promotion of Access to Information Act 2 of 2000, ss 7 and 11.

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION MAHIKENG

CASE NO: 1841/2024

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

TARIEFDIENSTE (PTY) LTD APPLICANT AND THE EXECUTIVE MAYOR OF JB MARKS LOCAL MUNICIPALITY FIRST RESPONDENT THE SPEAKER OF THE JB MARKS LOCAL MUNICIPALITY SECOND RESPONDENT THE MUNICIPAL MANAGER OF THE JB MARKS THIRD RESPONDENT LOCAL MUNICIPALITY IN HIS CAPACITY AS INFORMATION OFFICER FOURTH RESPONDENT

Judgment is handed down electronically by distribution to the parties’ legal representatives by e-mail. The date that the judgment is deemed to be handed down is 10 JUNE 2025 at 14h00

ORDER

(i) The respondents are ordered to provide the applicant access to the information in respect of the municipal accounts and the holders thereof specified in prayers 1.1. to 1.38 of the Notice of Motion within a period of 30 days from the date of this order.

(ii) If all reasonable steps have been taken by the respondents to locate the records described in prayer 1, and they have reasonable grounds to believe that the records are not in the possession of the JB Marks Local Municipality, cannot be found or does not exist, the third respondent must by way of affidavit or affirmation inform the court within 30 days from the date of this order that it is not possible to provide access to these records accompanied with a full account of all reasonable steps taken to trace the records in issue.

(iii) The respondents are ordered to pay the costs of the application jointly and severally on a party and party scale B, the one paying the other to be absolved.

JUDGMENT

REDDY ADJP

Introduction

[1] What serves before this Court is an application predicated in terms of s78 read with s82 of the Promotion of Access to Information Act 2 of 2000 (PAIA). The applicant seeks authorization via this Court that an order be granted for access to specified information in respect of various persons and entities being the holders of municipal accounts.

The parties

[2] The applicant, Tariefdienste (Pty) Ltd, is a company with limited liability registered in terms of the laws of the Republic of South Africa. The first respondent is the Executive Mayor of the JB Marks Local Municipality. The second respondent is the Speaker of the JB Marks Local Municipality. The third respondent is the Information Officer of the JB Marks Local Municipality.

[3] The respondents have elected not to file the customary answering affidavit. In lieu thereof, the respondents chose to deliver a Notice in terms of Rule 6(5)(d)(iii) of the Uniform Rules of Court (the Rules).

Common cause facts

[4] Germane to this application are the following common cause facts. During April 2024 the applicant instituted an application for an order compelling the respondents to afford the applicant access to information forming the fulcrum of the notice of motion. On 5 October 2023, the applicant delivered a request for access to information within the structure of the PAIA.

[5] This delivery triggered into operation the peremptory provision evinced in s25(1) of PAIA. The substratum of this provision made it obligatory for the third respondent as soon as reasonably possible but in any event within thirty (30) days after the receipt of the request to decide whether to grant or refuse the request of the applicant. To this end, the third respondent had until 3 September 2023 to decide same. This did not occur. In terms of PAIA it was deemed that the third respondent had refused the applicant’s request.

[6] On 14 November 2023 pursuant to the deemed refusal by the third respondent, the applicant invoked s74 read with s75(1) of PAIA. The nub of these collective statutory provisions empowered the applicant to lodge an internal appeal against the decision of the third respondent in the prescribed form within sixty (60) days after the decision was taken.

[7] The applicant gave life to this internal appeal procedure by delivering a notification to this effect. Within thirty (30) days in terms s77(3) of PAIA of the receipt of the internal appeal, the first and second respondents had to decide thereon. Given the absence of a decision by the first and third respondents’, s77(7) of PAIA provides that this is regarded as a dismissal of the internal appeal. What followed is the present application within the framework of s78 read with s82 of PAIA to cohere compliance by the respondents.

The respondents Notice in terms of Rule 6(3)(d)(iii)

[8] As denoted in paragraph [3] the respondents elected not to file any opposing papers instead filed a Notice in terms of Rule 6 (3) (d) (iii). The notice reads as follows:

“1. The applicant as a legal persona seeks to gain insight into documents relating to the municipal accounts of various persons and/or entities as appears from paragraph 5 of the founding affidavit.

2. The applicant, does not make out a case in its founding affidavit that it is entitled to access the information that it seeks that it relates solely to other persons and/or entities and where such right is allegedly derived from.

3. The applicant therefore does not make out a case that it has locus standi in iudicio to bring this application.”

The applicant’s submissions

[9] Adv Louw asserted that the applicant as the requester of information, had complied with the relevant procedure, resultantly access to the requested information can only be refused on the defined grounds contemplated by Chapter 4 of PAIA. Therefore, if the requester has acquiesced with PAIA and the information does not fall within one of the grounds of exclusion, there is no discretion on the part of the public body or the court to refuse access. See: Transnet Ltd and Another v SA Metal Machinery Co (Pty) 2006 (6) 285 (SCA) para 58. Simply put, Adv Louw continued, the respondents in casu have not formally refused access to the information sought.

[10] Adv Louw contended that the respondents’ legal point regarding locus standi is misplaced. Appositely, Adv Louw underscored that in Firm-O-Seal CC v Prinsloo & Van Eeden Inc and Another 2024 (6) SA 52 (SCA) the following was held in addressing same:

“Locus standi in iudicio is an access mechanism controlled by the court itself. Generally, the requirements for locus standi are these: the plaintiff must have an adequate interest in the subject matter of the litigation, usually described as a direct interest in the relief sought; the interest must not be too remote; the interest must be actual, not abstract or academic; and it must be a current interest and not a hypothetical interest one. Standing is thus not just a procedural question, it is also a question of substance, concerning as it does the sufficiency of a litigant’s interest in the proceedings. The sufficiency of the interest depends on the particular facts in any given situation. (footnotes omitted)

[11] Dovetailing on Firm-O-Seal, Adv Louw stated that the question is not if the applicant has an adequate interest in the information sought. The relevant question is if the applicant has an adequate interest in the subject matter of the litigation. Closing on this issue, Adv Louw declared that the applicant undoubtedly has an adequate interest in litigation aimed at compelling an answer to the very same request the applicant made to the respondents with the strictures of PAIA. Consequently, this point is meritless.

Submissions by respondents

[12] Adv Van Rooyen contended that the applicant had not made out a proper cause of action in its founding affidavit, that it is legally entitled to access the information that it seeks. Notably, the information that falls within the Notice of Motion relates exclusively to other persons and/or entities.

[13] Adv Van Rooyen continued that the applicant has not taken the court into its confidence by disclosing the basis of its right which makes it permissible for information of third parties to be accessed within the framework of PAIA.

[14] In embroidering the argument on the nature of the right, Adv Van Rooyen asserts:

(i) On the one hand the allegation is made that the applicant has requested the information.

(ii) On the other hand, Venter, the deponent for the applicant, alleges that he is entitled to access to such information.

(iii) In the annexures the applicant under the hand of Venter ascribes a right to access the information thereto that the applicant is cessionary to the various account holders’ rights as the basis for the right to claim access to the information at issue.

[15] Adv Van Rooyen concluded that it is for the applicant firstly:

(i) in the instituting of this application to establish locus standi and,

(ii) to make out a cause of action with primary evidence in its founding affidavit.

[16] Self-evidently, goes the argument, the absence of any of these two fundamental tenets would be fatal to the applicant’s relief. In the opinion of Adv Van Rooyen the applicant has not met the threshold of both these requirements, which are fatal to its application. Reliance for the argument is placed on Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South African and Others 1999 (2) SA 279 (T) at 323F -325C, Firm-O-Seal v Wynand Prinsloo & Van Eeden Inc and Another 2024 (6) SA 52 (SCA) 52 at para [6].

The law

[17] PAIA was enacted to give effect to the constitutional right to access of information. The constitutional right to access of information is predicated on s32 of the Constitution. It follows that everyone has a right to access to any information held by the state and any information held by another person that is required for the exercise or protection of any rights. See: President of the Republic of South Africa v Mail and Guardian 2012 (2) SA 50(CC). Palpably, all persons who fall under the protection of the Constitution can request information from public and private bodies.

[18] There is a limitation to the information that the requester has right to access. Section 7 of PAIA contemplates instances where PAIA will not apply. It provides as follows:

“7. Act not applying to records requested for criminal or civil proceedings after commencement of proceedings-

(1) This Act does not apply to a record of a public body or a private body if-

(a) that record is requested for the purpose of criminal or civil proceedings;

(b) So requested after the commencement of such criminal or civil proceedings, as the case may be; and

(c) The production of or access to that record for the purpose referred to in paragraph (a) is provided for any other law.

(2) Any record obtained in a manner that contravenes subsection (1) is not admissible as evidence in the criminal or civil proceedings referred to in that subsection unless the exclusion of such record by the court in question would, in its opinion, be detrimental to the interests of justice.

[19] Additionally, PAIA also provides for instances where, though the information is protected, it may under certain circumstances, become mandatory to provide to the requester such information. See ss 46 and 50.

Analysis

[20] Access to information is an essential element of any well-functioning democracy. When implemented effectively, it facilitates transparency, accountability and good governance. It is a leveraging right that, in principle, enables people the opportunity to access information that can be used to protect, promote and fulfil other human rights. See: Promotion of Access to Information Act 2 of 2000, Manual by the Department of Public Service and Administration, Republic of South Africa 21, 1 April 2021 page 1.

[21] In my view the access to information is not an all-encompassing blanket right. It follows inexorably that where an informed invocation is made to proceed by way of motion proceedings to enforce PAIA, the key principles on which motion proceedings hinge are not jettisoned. It follows that central to this is locus standi.

[22] In Four Wheel Drive Accessory Distributors CC v Rattan NO 2018] ZACSA 124; 2019 (3) SA 451 (SCA) (26 September 2018) at para 7 Schippers JA said:

“The logical starting point is locus standi – whether in the circumstances the plaintiff had an interest in the relief claimed, which entitled it to bring the action. Generally, the requirements for locus standi are these. The plaintiff must have an adequate interest in the subject matter of the litigation, usually described as a direct interest in the relief sought; the interest must not be too remote; the interest must be actual, not abstract or academic; and it must be a current interest and not a hypothetical one. The duty to allege and prove locus standi rests on the party instituting the proceedings.”

[23] In Firm-O-Seal CC v Prinsloo & Van Eeden Inc and Another (483/22) [2023] ZASCA 107; 2024 (6) SA 52 (SCA) (27 June 2023), Ponnan JA and Kathree-Setiloane AJA (Meyer JA concurring), addressed locus standi as follows:

“[6] Locus standi in iudicio is an access mechanism controlled by the court itself. Generally, the requirements for locus standi are these: the plaintiff must have an adequate interest in the subject matter of the litigation, usually described as a direct interest in the relief sought; the interest must not be too remote; the interest must be actual, not abstract or academic; and, it must be a current interest and not a hypothetical one. Standing is thus not just a procedural question, it is also a question of substance, concerning as it does the sufficiency of a litigant’s interest in the proceedings. The sufficiency of the interest depends on the particular facts in any given situation. The real enquiry being whether the events constitute a wrong as against the litigant.” (Footnotes omitted.)

[24] Our transition to a democratic state resulted in a change in the contour of locus standi. Of significance, s38 of the Constitution introduced a statutory texture to this common law principle. It reads:

“Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are-

(a) anyone acting in their own interest;

(b) anyone acting on behalf of another person who cannot act in their own name;

(c) anyone acting as a member of, or in the interest of, a group or class of persons,

(d) anyone acting in public interest; and

(e) an association acting in the interests of its members.

[25] On a plain reading of s38 of the Constitution, it applies where a party alleges that a right in the Bill of Rights has been infringed or threatened. In other words, s38 may ordinarily be invoked where a challenge is based on a right in chapter 2 of the Constitution.

[26] In Kruger v President of the Republic of South Africa and Others [2008] ZACC 17; 2009 (1) SA 417 (CC) at 428 C-D Skweyiya J posits:

“Section 38, however, is not of direct application in this case as it does not concern a challenge based on a right in chapter 2 of the Constitution. Nevertheless, in my view, we should adopt a generous approach to standing in this case. In so doing, I am mindful of the fact that constitutional litigation is of particular importance in our country where we have a large number of people who have had scant educational opportunities and who may not be aware of their rights. Such an approach to standing will facilitate the protection of the Constitution.”

[27] Locus standi in the legal sense has two connotations. In one sense it connotes a person’s right to bring legal proceedings to court. In the second sense it means that a party bringing proceedings, must have a direct and substantial interest in the matter. See: Desai-Chilwan NO v Ross and Another 2003 (2) SA 644 (C) at para 30.

[28] There is no underscoring that the applicant has a right to institute legal proceedings in this Court. The crisp question is whether the applicant has a direct and substantial interest in the matter.

[29] The applicant’s founding affidavit undeniably meets the objects of PAIA. To this end, the applicant contends:

“I am an adult male, sole director of Tariefdienste (Pty) Ltd (registration number 2018/111050/07), a company with limited liability registered in terms of the laws of the Republic of South Africa, with registered address at 10 Cilliers Street, La Hoff, Klerksdorp, North West Province.

2.

“The facts deposed to herein are within my personal knowledge and are true and correct is as far as it refer to me.

3.

“ I am the sole director of the Applicant and am duly authorized to depose of this affidavit and to bring this application on behalf of the Applicant.”

[30] Strictly speaking, the applicant does have the locus standi to the information sought. Context is paramount, resultantly section 11 of PAIA must be brought into sharp focus. It provides as follows:

PAIA provides for the right to access to information and section 11 states thus:-

“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 subsection (1) includes a request for

access to a record containing personal information about the requester.

(3) A requester's right of access contemplated in subsection (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”.

[31] Having found that the applicant is clothed with locus standi, I now move to consider the respondents’ legal strategy and the impact thereof. The respondents rule 6(d)(iii) notice obfuscates the issue of locus standi. The respondents have pinned their colours to the mast and relied exclusively on this notice. No answering affidavit was filed. In Minister of Finance v Public Protector and Others (15862/2019) [2020] ZAGPPHC 804; 2022 (1) SA 244 (GP) (31 August 2020) at paras 13-15, reflecting on a notice in terms of rule 6(5)(d) (iii) the following was posited:

“What, by way of comparison, is a rule 6(5)(d)(iii) notice? In terms of this rule, where a respondent who opposes the relief sought in the notice of motion, intends to rely on a point of law only, he or she must deliver a notice to that effect in lieu of an answering affidavit setting out the point or question of law. A rule 6(5)(d)(iii) notice may, however, be filed together with or without the answering affidavit. In instances, such as we have here, where the respondent elects not to file an answering affidavit in response to the applicant’s allegations, but to take a legal point only by way of a rule 6(5)(d)(iii) notice, a court may hear the case without giving the respondent an opportunity to file an answering affidavit on the merits. Alternatively, it may grant a postponement to enable the respondent to prepare and file an answering affidavit. This approach is, however, discouraged as it is likely to give rise to an undue protraction of the proceedings and a piecemeal handling of the matter.

Once a respondent intending to rely on a point of law only, delivers a rule 6(5)(d)(iii) notice of his or her intention to do so to the applicant, then the matter is ready to be set down for hearing in court. The applicant will have an opportunity, at the hearing, to present argument on, inter alia, why the law points raised, in the notice, fail to establish a defence capable of being adjudicated without a factual basis (supported by evidence) being put up by the respondent in an answering affidavit.

Viewed in its proper context, a rule 6(5)(d)(iii) notice is not a pleading as contemplated in Rule 23(1). It is merely a notice in which the respondent sets forth its intention to rely on point/s of law that are dispositive of the dispute between the parties. The respondent is merely required to set out, in the rule 6(5)(d)(iii) notice, the points of law that it seeks to rely on that will be dispositive of the issues for determination in the matter. Since a rule 6(5)(d)(iii) notice is neither a pleading nor an affidavit, it is impermissible for the respondent to plead facts or produce evidence in support of the law points raised, which should have been placed before the court in an answering affidavit. In the absence of an answering affidavit dealing with the merits of the dispute, the court has a discretion to simply deal with the matter on the points of law raised and the evidence in the founding affidavit. If the respondent relies exclusively on the notice in terms of rule 6(5)(d)(iii), as the Public Protector does in this case, the allegations in the founding affidavit must be taken as established facts by the court.’

[32] No amount of legalistic acrobats or sophistries can alter the content of the notice. It hones in exclusively on locus standi which has been extensively dealt with. Self-evidently, the notice does place store on the provisions of section 34 of PAIA, which reads as follows:

“34. Mandatory protection of privacy of third party who is natural person

(1) Subject to subsection (2), the information officer of a public body must refuse a request for access to a record of the body if its disclosure would involve the unreasonable disclosure of personal information about a third party, including a deceased individual.

(2) A record may not be refused in terms of subsection (1) insofar as it consists of information—

(a) about an individual who has consented in terms of section 48 or otherwise in writing to its disclosure to the requester concerned;

(b) that was given to the public body by the individual to whom it relates and the individual was informed by or on behalf of the public body, before it is given, that the information belongs to a class of information that would or might be made available to the public;

(c) already publicly available;

(d) about an individual’s physical or mental health, or well-being, who is under the care of the requester and who is—

(i) under the age of 18 years; or

(ii) incapable of understanding the nature of the request,

and if giving access would be in the individual’s best interests;

(e) about an individual who is deceased and the requester is—

(i) the individual’s next of kin; or

(ii) making the request with the written consent of the individual’s next of kin; or

(f) about an individual who is or was an official of a public body and which relates to the position or functions of the individual, including, but not limited to—

(i) the fact that the individual is or was an official or that public body;

(ii) the title, work address, work phone number and other similar particulars of the individual;

(iii) the classification, salary scale, remuneration and responsibilities of the position held or services performed by the individual; and

(iv) the name of the individual on a record prepared by the individual in the course of employment.

[33] Section 34 of PAIA can best be described as an exemption ground. For an organ of state to rely on same, the guidelines provided in the President of the Republic of South African and others v M & G Media Ltd & Guardian 2012 (2) BCLR 181 (CC) at paras 23-25 are apposite. The following was postulated as regards as an organ of state refusing access to information on an exemption ground:

‘The proper approach to the question whether the state has discharged its burden under section 81(3) is therefore to ask whether the state has put forward sufficient evidence for a court to conclude that, on the probabilities, the information withheld falls within the exemption claimed…

As evidence is required, reciting the language of the statute, ipse dixit affidavits and affidavits that merely assert the conclusion

that a particular exemption applies are insufficient, the public body is required to lay a factual basis for its reliance on specific

provisions….

If a public body is unable to discharge its burden and does not give any indication that its inability to do so arises from other provisions of the act, then the state actor has only itself to blame.’

[34] The respondents elected to take a legal point in invoking rule 6(5)(d)(iii) rather than filing an answering affidavit with sufficient evidence to counter the application of the applicant. The rule 6(5)(d)(iii) notice is not a pleading in terms of rule 23(1) nor is it an affidavit. The respondents having elected to rely exclusively on the notice in terms of rule 6(5)(d)(iii), this is not without consequence.

Conclusion

[35] In my view there is no merit in the legal point taken in the rule 6(5)(d)(iii) notice of the respondents. In the absence of an answering affidavit, it follows therefore that the allegations in the founding affidavit must be taken as uncontroverted established facts. I am further satisfied that those uncontroverted facts when juxtaposed against the exposition of the law set out supra, merits the granting of the relief sought by the applicant in the notice of motion.

Costs

[36] In awarding costs, the Court exercises a wide discretion which must be judicially exercised. This discretion is retained by the Court even in circumstances where the parties have reached an agreement on the issue of costs. While the court will recognise and respect the rights of the parties to contract, it may interfere in the agreement on the issue of costs, should good cause exist. There is no basis to deviate from the general principle that costs follow the result.

Order

[37] In the premises I make the following order:

(i) The respondents are ordered to provide the applicant access to the information in respect of the municipal accounts and the holders thereof specified in prayers 1.1.to 1.38 of the Notice of Motion within a period of 30 days from the date of this order.

(ii) If all reasonable steps have been taken by the respondents to locate the records described in prayer 1, and they have reasonable grounds to believe that the records are not in the possession of the JB Marks Local Municipality, cannot be found or does not exist, the third respondent must by way of affidavit or affirmation inform the court within 30 days from the date of this order that it is not possible to provide access to these records accompanied with a full account of all reasonable steps taken to trace the records in issue.

(iii) The respondents are ordered to pay the costs of the application jointly and severally on a party and party scale B, the one paying the other to be absolved.

A. REDDY

ACTING DEPUTY JUDGE PRESIDENT OF

THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKEN

APPEARANCES

For the Applicant: Advocate

M Louw

Instructed By: Nienaber

& Wissing Attorneys

4204 Palmer Crescent

Leopard Park

2575

For the Respondents: Advocate

Van Rooyen

Instructed By:

Smit & Neethling Attorneys

29 Warren Street

Mahikeng

Date judgment reserved 14 March 2025

Date of judgment: 10

June 2025