Treatment Action Campaign v Minister of Correctional Services and Another (18379/2008) [2009] ZAGPHC 10 (30 January 2009)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Date: 2009-01-30

NOT REPORTABLE

Case Number: 18379/2008

In the matter between:

TREATMENT ACTION CAMPAIGN Applicant

and

MINISTER OF CORRECTIONAL SERVICES First Respondent

JUDICIAL INSPECTORATE OF PRISONS Second Respondent

JUDGMENT

SOUTHWOOD J

[1] The applicant applies in terms of section 78 of the Promotion of Access to Information Act, 2 of 2000 (‘PAIA’ or ‘the

Act’) for an order in terms of section 82 of the Act that –

(1) the first respondent furnish the applicant within 5 days of the date of this order with unedited hard and electronic copies of the Judicial Inspectorate of Prison’s (the second respondent’s) report (‘the MM report’ or ‘the report’) on its investigation into the death of an inmate (‘MM’) at Westville Correctional Centre (‘WCC’);

(2) the court declare that the conduct of the first respondent in failing to provide the applicant with a copy of the MM report is –

(i) inconsistent with the Promotion of Access to Information Act 2 of 2000 and therefore unlawful;

(ii) inconsistent with the Constitution of the Republic of South Africa, 1996, and therefore invalid.

The applicant also seeks an order that the first respondent pay the costs of the application, including the costs consequent upon the employment of two counsel, on the scale as between attorney and own client.

[2] The applicant is a section 21 not-for-profit company and a registered non-profit organisation which has the capacity to sue and be sued. The applicant’s principal objectives, as set out in its constitution, are –

(1) to campaign for access to treatment for all people with HIV/AIDS;

(2) to campaign for the prevention and elimination of all new HIV infections;

(3) to promote and sponsor legislation to ensure equal access and equal treatment of all people living with HIV/AIDS;

(4) to challenge by means of litigation, lobbying, advocacy and mobilisation, all forms of discrimination relating to the treatment of HIV/AIDS in the private and public sector;

(5) to educate, promote and develop an understanding and commitment within all communities of developments in HIV/AIDS treatment and care;

(6) to campaign for affordable and quality access to health care for all people in South Africa; and

(7) to train and develop a representative and effective leadership of people living with HIV/AIDS on the basis of equality and non- discrimination irrespective of race, gender, sexual orientation, disability, religion, sex, socio-economic status, nationality, marital status or any other ground.

The applicant carries on its activities from offices throughout South Africa.

[3] The first respondent is the Department of Correctional Services represented by the Minister of Correctional Services (‘the Minister’), who is cited in his official capacity because he is the political head of the Department. This citation of the first respondent is in accordance with section 2 of the State Liability Act, 20 of 1957, which requires that actions against Government Departments must be brought in the name of the responsible nominal defendant, and section 34 of the General Law Amendment Act, 62 of 1955, which prescribes that a Minister is not cited by his name, but by his official title. This must be borne in mind as the first respondent’s counsel seemed to suggest during argument that

this application is against the Minister in his personal capacity and not against the Department of Correctional Services.

[4] The second respondent is the Judicial Inspectorate of Prisons, an independent office under the control of the Inspecting Judge established in terms of section 85 of the Correctional Services Act, 111 of 1998. The object of the Judicial Inspectorate is to facilitate the inspection of prisons in order that the Inspecting Judge may report

on the treatment of prisoners in prisons and on conditions in prisons. In terms of section 90(1) of the Correctional Services Act, the Inspecting Judge inspects or arranges for the inspection of prisons in order to report on the treatment of prisoners in prisons

and on conditions and any corrupt or dishonest practices in prisons. In terms of section 90(3) of the Correctional Services Act the Inspecting Judge must submit a report on each inspection to the Minister.

[5] The applicant brings this application in terms of section 78 of PAIA. That section provides that a requester who has exhausted the internal appeal procedure against a decision of the information officer of a public body provided in section 74 of the Act, may apply to a court for appropriate relief in terms of section 82. Section 82 provides 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; or

(d) as to costs.’

[6] Briefly summarised the applicant’s case is as follows: It has exhausted all internal remedies. It lodged a request for the MM report with the Department’s information officer, the National Commissioner, on 7 November 2007. The request was, in terms of section 27 of PAIA, deemed to have been refused on 7 December 2007. The applicant thereupon launched an internal appeal under section 74 of PAIA on 11 December 2007. The internal appeal was, in terms of section 77(7), deemed to have been dismissed on 11 January 2008. The applicant was in consequence entitled to launch this application. It did so but after the expiry of the 30 day period prescribed by section 78(2). The applicant seeks an order in terms of section 82 condoning the delay in bringing the application.

[7] The first respondent raised four points (which it called points in limine) in its answering affidavit:

(1) PAIA does not apply because of the provisions of section 7 of the Act. The respondent contends that the applicant seeks the MM report for the purpose of civil proceedings.

(2) The applicant is precluded from bringing the application because it has not exhausted the internal appeal procedure as required by section 78(1) of the Act.

(3) The applicant is precluded from bringing the application because it failed to bring the application within 30 days of the expiry of the period for the relevant authority to give notice of its decision in terms of section 77(7) of the Act.

(4) The Minister personally does not have, nor ever had, in his possession the MM report. The Minister denies that the report was ever handed to him as alleged by the applicant.

In the first respondent’s heads of argument the first respondent’s counsel relies on two other points –

(i) that the applicant has no locus standi to institute these proceedings; and

(ii) that the first respondent must refuse to furnish the MM report in terms of section 34(1) of the Act as it would involve the disclosure of personal information, alternatively, in terms of section 14 of the National Health Act, No 61 of 2003, as it contains information relating to MM’s health status or treatment in a health establishment. These defences will be considered seriatim.

[8] The background to this application is as follows:

(1) On 12 April 2006, the applicant’s legal representatives launched an application against the government in the Durban High Court on behalf of 15 inmates at the WCC, including MM (‘the WCC case’). The main relief sought in the WCC case was for the provision of anti-retroviral treatment to inmates at WCC who met certain criteria for receiving the treatment. The applicants in the case also sought an order protecting their anonymity in the following terms:

‘(a) the first to fifteenth applicants are granted leave to be described in these proceedings only by their initials;

(b) the names of the first to fifteenth applicants are to be provided to the Registrar of this Court, to be retained in a safe place and are not to remain in the Court file;

(c) the names of the first to fifteenth applicants are not to be disclosed or published in any manner or form by the Registrar, the respondents or any other person or entity.’

(2) MM, the seventh applicant in the WCC case, authorised the applicant’s legal representatives to act on his behalf and to take whatever steps were necessary to protect his rights. He also authorised the release of his medical records and information to the applicant’s legal representatives.

(3) On 22 June 2006, Pillay J handed down his judgment and found for the applicants. In consequence of the finding, MM commenced his anti-retroviral treatment on 12 July 2006. His medical records indicated that he should have commenced treatment in November 2003 as he already had a stage IV illness by then and was therefore eligible to begin anti-retroviral treatment.

(4) MM passed away on 6 August 2006, less than four weeks after he started anti-retroviral treatment. The applicant uses his initials in this case to protect his and his family’s privacy.

(5) The applicant contends that there is a strong prima facie case that MM’s death may have been caused by the delay in giving him anti-retroviral treatment.

(6) As a result of MM’s death, the applicant recognised the need for a thorough independent investigation into his and all other AIDS- related deaths at the WCC. The second respondent was therefore requested to conduct an investigation.

(7) On 29 August 2006 the applicant requested the then Inspecting Judge of Prisons (N. Erasmus J) to investigate inter alia the circumstances surrounding the death of MM at the WCC.

(8) On 12 January 2007 the Aids Law Project (‘ALP’) addressed a letter to the Inspecting Judge to request a copy of his report. The letter states inter alia that the applicant was advised that the MM report was finalised in December 2006 but was submitted to the Minister where it presently remains.

(9) On 5 February 2007 the ALP, on behalf of the applicant, addressed a letter to the Minister to request a copy of the MM report. The letter, which is clearly headed ‘REQUEST FOR ACCESS TO THE JUDICIAL INSPECTORATE REPORT OF THE INVESTIGATION INTO THE DEATH OF MM, A PRISONER AT WESTVILLE CORRECTIONAL CENTRE’ states inter alia the following:

‘2. On 29 August 2006, the TAC sent a request to the Office of the Inspecting Judge of Prisons, Judge Erasmus, to investigate the culpability for the death of MM, a prisoner at Westville Correctional Centre (WCC), who died as a result of an AIDS- related illness on 6 August 2006. MM was also the seventh applicant in EN and Others v Government of SA and Others (hereafter referred to as EN & Others). The size of the written request makes it cumbersome to annex hereto. It contains detailed information as to the events

leading to the death of MM, including MM’s medical history and a doctor’s report based on the medical record.

3. The TAC was advised by the Office of the Judicial Inspectorate that this investigation was finalised in December 2006, and that the report was submitted directly to you. We have made repeated oral and written requests to the Judicial Inspectorate for access to the final report. A copy of our written request is attached hereto, marked “A”. The TAC was eventually informed by the Judicial Inspectorate that they could not release the report, and that the request should be directed to you instead.’

(10) On 13 March 2007, the ALP, on behalf of the applicant, addressed another letter to the Minister to request a copy of the MM report. Attached to this letter was a copy of ALP’s letter to the Minister dated 5 February 2007.

(11) On 30 March 2007 the ALP, on behalf of the applicant, addressed a letter to the state attorney in connection with the WCC case. The letter also deals with the MM report –

‘6. Finally, we request that you take instruction from your clients about when the MM report will be made available to us.

7. We previously requested the report from the Minister on 5 February 2007 after TAC was told by the Office of the Inspecting Judge that the report had been submitted to him.

8. Upon querying what had become of our request, we were asked to refax the request, which we duly did on 13 March 2007. Two weeks have passed since this fax was sent.’

(12) On 7 November 2007 the ALP, on behalf of the applicant, submitted a request for access to the Department’s information officer, the National Commissioner, in accordance with section 18 of the Act under cover of the following letter (wrongly dated 10 November 2007) to Mr V Peterson, the National Commissioner of Correctional Services:

‘REQUEST FOR ACCESS TO THE JUDICIAL INSPECTORATE REPORT ON THE INVESTIGATION INTO THE DEATH OF AN INMATE AT WESTVILLE CORRECTIONAL CENTRE: REQUESTED IN TERMS OF THE PROMOTION OF ACCESS TO INFORMATION ACT, 2000

1. We act on behalf of the Treatment Action Campaign (TAC) and individual prisoners at Westville Correctional Centre (WCC).

2. In or about August 2006, the TAC was advised by the Office of the Inspecting Judge of Prisons (‘the Judicial Inspectorate’) that the investigation into the death of MM – an inmate at WCC who died on 6 August 2006 – had been finalised. The TAC was further advised thereafter that the Inspecting Judge’s report on the investigation had been submitted to the Minister of Correctional Services (‘the Minister’) in or around December 2006. MM was the seventh applicant in the case of EN and Others v Government of the Republic of South Africa and Others, (High Court of South Africa, Durban and Coast Local Division in case no 4576/2006).

3. We have made repeated oral and one written request to the Judicial Inspectorate for access to the final report. A copy of the written request is attached hereto marked ‘A’. The TAC was eventually informed by the Judicial Inspectorate that it could not release the report and that the request should be directed to the Minister.

4. On 5 February 2007, a letter was sent to the Minister to request access to the report of the Judicial Inspectorate. A letter reminding the Minister of the same request was sent on 13 March 2007. Copies of these letters are attached hereto marked ‘B’ and ‘C’ respectively. To date, the TAC has neither received the report nor any acknowledgment of receipt of the letters requesting access to the report.

5. We therefore request access to the Judicial Inspectorate report in terms of section 11(1) of the Promotion of Access to Information Act, 2000 (PAIA). We do so without prejudice to the rights of our clients.

6. Please find attached the form completed in terms of section 18(1) of the Act for your immediate attention.

7. As you are aware, a public body can in effect delay the furnishing of information under PAIA for as long as 90 days. However, inmates at WCC (and other correctional centres) continue to die of AIDS- related illnesses, making the findings of the investigation a matter of public importance and this matter of some urgency. Further, the document is in the possession of the Minister and must be readily available.

8. In the event that the report is not made urgently available, our clients reserve the right to institute legal action to compel the Minister to release it. In that event, this correspondence will be placed before the appropriate court which will be asked to draw the appropriate inference.

9. We look forward to your prompt response.’

(13) On 13 November 2007 the Director, Management Secretariat of the office of the National Commissioner informed the applicant that the request had been forwarded to the office of the Minister ‘as this matter lies in his authority’.

(14) Neither the ALP nor the applicant received a response to the request in terms of section 18 of the Act or the letter dated 10 November 2007. The National Commissioner, who is the Department’s

information officer, failed to give a decision on the applicant’s request for access within 30 days or thereafter. In terms of section 27 of the Act the information officer was regarded as having refused the request.

(15) On 11 December 2007 the ALP, on behalf of the applicant, submitted a notice of internal appeal in terms of section 75 of the Act to the relevant authority, i.e. the Minister of Correctional Services, under cover of a letter to Mr Nkuli Lebogo, Acting Head of Ministry: Department of Correctional Services with copies by e-mail to both the National Commissioner and the Director of his management secretariat:

‘NOTICE OF INTERNAL APPEAL REGARDING REQUEST FOR ACCESS TO THE JUDICIAL INSPECTORATE REPORT ON THE INVESTIGATION INTO THE DEATH OF AN INMATE AT WESTVILLE CORRECTIONAL CENTRE: REQUESTED IN TERMS OF THE PROMOTION OF ACCESS TO INFORMATION ACT, 2000

1. We act on behalf of the Treatment Action Campaign (TAC) and individual prisoners at the Westville Correctional Centre (WCC).

2. On 7 November 2007, a request for access to the Judicial Inspectorate Report on the Investigation into the Death of an Inmate at Westville Correctional Centre was made in terms of the Promotion of Access to Information Act, 2000 (the Act). This request was e-mailed and faxed to Mr V Peterson, National Commissioner of Correctional Services.

3. Our correspondence since our request is detailed below:

3.1 Confirmation of receipt was sent via e-mail by Ms Ofentse Morwane, Administrative Secretary at Department of Correctional Services, on 12 November 2007.

3.2 On 13 November 2007, Ms Val Shabalala from the Office of the National Commissioner notified us that our request had been referred to Mr Lebogo, the Acting Head of Ministry since the authority to grant access to the report was within the office of the Ministry.

3.3 On 15 November 2007, an e-mail was sent to Mr Lebogo correcting the date on our initial request which had been mistakenly dated 10 November, rather than 7 November 2007.

4. In terms of section 25 of the Act, the Department has thirty (30) days to decide whether or not to grant a request received under the Act and to inform the requester of the decision in writing, or in the manner stated on the request form.

5. In an effort to ensure we would receive a response within the appropriate time frame, we faxed a letter on 3 December 2007 informing you that 30 days since our request was made would expire on 7 December.

6. Given that we have received no decision on our request, nor any communication other than those detailed above, in terms of section 27 of the Act our request for access to the report is deemed to have been refused.

7. Section 74(1) of the Act grants a right of an internal appeal against any refusal of a request for access. In terms of section 77(3) of the Act, the Office of the Ministry must as soon as possible, but not more than thirty (30) days from receipt of this appeal, inform us of a decision on whether access to the report is granted.

8. As we are not requesting a broad range of information requiring research, but rather a specific report which has been in the Minister’s possession for nearly a year, we believe a response should be delivered within one week of receipt of this appeal.

9. In the event that the report is not made urgently available, our clients reserve the right, as provided for in section 78 of the Act, to make an application to court to compel the Minister to grant us access to the report.

10. We look forward to your prompt response in this regard.’

(16) On 19 December 2007 the ALP, on its own behalf and on behalf of the applicant, addressed a letter to Ms L. Jacobus, Deputy Minister of Correctional Services, in connection with a meeting held with her on 13 December 2007 concerning a national framework for a comprehensive prevention treatment and care plan for HIV and AIDS in correctional centres. The letter states that agreement had been reached inter alia that –

‘You will contact the Minister of Correctional Services regarding the ALP’s request – in terms of the Promotion of Access to Information Act (PAIA) – for a copy of the report of the Judicial Inspectorate of Prisons regarding its investigation into the death of inmate ‘MM’ at Westville Correctional Centre. The request was initially made on 7 November 2007; the internal appeal was lodged on 11 December 2007.’

(17) Neither the ALP nor the applicant received a response to the notice of internal appeal from the Minister (‘the relevant authority’), his Ministry, the National Commissioner (‘the information officer’) or his management secretariat. Neither the Minister nor the National Commissioner gave notice to the ALP or the applicant of a decision on the internal appeal within the period of 30 days after the internal appeal was received by the information officer or thereafter. Accordingly, in terms of section 77(7) of the Act the relevant authority was regarded as having dismissed the internal appeal.

(18) As already mentioned, the applicant was entitled to launch this application within 30 days of the dismissal of the internal appeal. The period of 30 days expired on 10 February 2008.

(19) The applicant did not launch the application immediately because it was hopeful that at the meeting scheduled to take place with the Deputy Minister on 29 February 2008 the applicant would obtain the MM report. The Deputy Minister had undertaken on 13 December 2007 that she would make the MM report available to the applicant. The applicant’s hope was reinforced by an e-mail forwarded to it on 21 January 2008 in which Mr Lebogo expressed concern to the recipient Dr Mbuli that the matter had been outstanding for a long time and that it would be appreciated if Dr Mbuli could handle the matter as a matter of urgency. In view of this communication the applicant delayed the launching of the application.

(20) The scheduled meeting for 29 February 2008 was postponed because a senior official in the Department of Health was not available. On 3 March 2008, the applicant caused a letter to be addressed to Mr Lebogo in which the applicant put the Minister on terms to furnish the report. The response to this letter was an e-mail from Mr Lebogo to Adv Malebye and Dr Mbuli which was copied to the applicant’s legal representatives in which Mr Lebogo requested Adv Malebye and Dr Mbuli to please handle the matter further.

(21) The meeting eventually took place on 17 March 2008. The minute of the meeting which was adopted at a meeting on 24 June 2008 reflects the resolutions taken. Item 7 of the minute of 17 March 2008 records that the Deputy Minister undertook to ensure that the applicant’s legal representatives received a formal response by no later than 21 March 2008. The applicant agreed not to file its court application that week.

(22) In accordance with the Deputy Minister’s promise, Dr Mbuli addressed a letter to the applicant’s legal representatives on 20 March 2008 in which they were advised that the state attorney had been requested to respond to the applicant’s letter. The applicant’s legal representatives responded to this on the same day and gave Dr Mbuli until 28 March 2008 to respond, failing which the applicant would bring an application.

(23) Instead of receiving a response from Dr Mbuli the applicant received a letter from Ms Naidoo, the state attorney in Durban, who stated that as she was taking instructions she could not meet the 28 March 2008 deadline. This letter was headlined by reference to the WCC case.

(24) The applicant immediately addressed a letter to Ms Naidoo pointing out the error in the heading. Ms Naidoo’s response was to query whether the request was lodged in compliance with PAIA and to ask for a copy of the original request.

(25) At that stage it seemed to the applicant that the Department was not making a genuine attempt to deal with the problem. This view was reinforced by a letter to the applicant from Ms T.M. Magoro dated 28 March 2008 in which she belatedly acknowledged receipt of the internal appeal and requested time ‘to verify whether the requested report does exist or not’.

(26) The applicant decided that the Deputy Minister’s undertaking was not serious and refused to grant the extension sought by the Department. The applicant conveyed this to the Department by letter on 28 March 2008.

Locus standi

[9] In the affidavits, the first respondent admits that the applicant has locus standi in terms of the Act. Wisely, in argument, the first respondent’s counsel did not persist with the argument in the heads of argument that the applicant does not have locus standi and made the necessary concession.

The Act does not apply because of the provisions of section 7

[10] Section 7 of the Act reads 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;

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

[11] The first respondent contends that the applicant is seeking the record for the purpose of civil proceedings in EN and Others v Government of the Republic of South Africa and Others 2007 (1) BCLR 84 (D). This contention is based on the bald allegation to that effect which the applicant denies. It is striking that the Minister does not explain what is meant by this and that the heads of argument do not shed light on the matter.

[12] It is difficult to understand how the applicant, which is not a party to the litigation, could use the MM report in the litigation. The applicant, in a letter dated 28 March 2008, pertinently denied that the request for the report was part of the litigation referred to. The first respondent did not dispute or refute that statement. The first respondent’s answering affidavit simply does not deal with it. The only issues to be decided in the litigation are the appeals against the merits of the judgment and the dismissal of the recusal application. The report is not relevant to either appeal which will be decided on the record. There are no discovery provisions which apply – see Unitas Hospital v Van Wyk & Another 2006 (4) 436 (SCA) para 43.

The first respondent has failed to show that section 7 applies and this defence cannot be upheld.

Section 78(1) of PAIA

[13] The first respondent contends that the applicant has not complied with section 78(1) of the Act in that it has not exhausted the internal appeal procedure provided for in sections 74 and 75 of the Act. The first respondent relies on the fact that no internal appeal was ever lodged with the Minister who is ‘the incumbent invested with the power to hear internal appeals in matters of this nature’.

[14] This contention is legally and factually unsound.

[15] The Department’s information officer is the National Commissioner. The relevant authority is the Minister. In terms of section 74 of the Act a requester may lodge an internal appeal against a decision of the information officer to refuse a request for access, with the relevant authority. In terms of section 77 of the Act the decision on the internal appeal is taken by the relevant authority, i.e. the Minister. The relevant provisions of section 75 of the Act, which govern the procedure for an internal appeal, read as follows:

‘(1) An internal appeal –

(a) must be lodged in the prescribed form –

(i) within 60 days;

(b) must be delivered or sent to the information officer of the public body concerned at his or her address, fax number or electronic mail address;

(2) …

(3) …

(4) As soon as reasonably possible, but in any event within 10 working days after receipt of an internal appeal in accordance with subsection (1), the information officer of the public body concerned must submit to the relevant authority –

(a) the internal appeal together with his or her reasons for the decision concerned; and;’

These provisions provide clearly for the requester to lodge the internal appeal by delivering or sending the notice of internal appeal to the information officer at his or her address, fax number or electronic mail address and that the information officer must, within 10 days after receipt of the internal appeal, submit to the relevant authority the internal appeal together with his or her reasons for the decision concerned.

[16] On 7 November 2007 the ALP on behalf of the applicant lodged with the information officer (the National Commissioner) the request for access to the MM report under cover of a letter dated 10 November 2007. On 12 November 2007 and 13 November 2007 the Department acknowledged receipt of the request and on 13 November 2007 the Director: Management Secretariat in the office of the National Commissioner stated that she had forwarded the request to the Minister ‘as this matter lies in his or her authority’. On 11 December 2007, well within the prescribed period of 60 days, ALP on behalf of the applicant, sent to Mr Nkuli Lebogo, the Acting Head of Ministry, at his postal address, and e-mailed to the National Commissioner and the Director: Management Secretariat in the office of the National Commissioner the notice of internal appeal. The first respondent does not deny that this was done. The Minister simply denies that Mr Lebogo is an information officer. The Minister does not deny

that any of the people referred to received the notice of internal appeal and there is no affidavit by the National Commissioner or the Director: Management Secretariat to deny receipt of the notice of internal appeal or to explain what was done with the notice of internal appeal after it was received. Significantly the Minister does not say that the National Commissioner or his secretariat did not submit the internal appeal to him for decision. The manner in which the Department has dealt with this internal appeal is evasive and disingenuous.

[17] On the facts the applicant has established that it delivered the notice of internal appeal to the information officer as required. The first respondent has not shown what happened to the notice of internal appeal thereafter. This defence cannot be sustained.

Section 78(2)(a) of the PAIA

[18] The first respondent contends that the applicant has not complied with section 78(2)(a) of the Act in that it failed to bring this application within 30 days after the deemed dismissal of its internal appeal. It is common cause that the applicant did not do so and only launched this application on 11 April 2008, some 60 days after the lapse of the prescribed 30 day period.

[19] The relevant provisions of section 78(2)(a) read as follows –

‘(2) A requester –

(a) that has been unsuccessful in an internal appeal to the relevant authority of a public body;

may, by way of application, within 30 days apply to a court for appropriate relief in terms of section 82.’

[20] Section 82 has already been referred to. It does not expressly make provision for a court to condone late filing of an application for relief in terms of section 82.

[21] The Rules Board was supposed to make and implement rules of procedure inter alia for a court in respect of applications in terms of section 78. It is common cause that no such rules have been made.

[22] The applicant contends that notwithstanding the absence of an express provision empowering a court to condone the late application section 82 itself is so wide that it includes the power to condone a late application. The first respondent wisely does not persist in its argument to the contrary.

[23] Section 2(1) of the Act states that –

‘When interpreting a provision of this Act, every court must prefer any reasonable interpretation of the provision that is consistent with the objects of this Act over any alternative interpretation that is inconsistent with these objects’.

The objects of the Act are set out in section 9. The relevant provisions read as follows:

‘The objects of this Act are –

(a) to give effect to the constitutional right of access to –

(i) any information held by the State;

(b) to give effect to that right –

(i) subject to justifiable limitations, including, but not limited to, limitations aimed at the reasonable protection of privacy, commercial confidentiality and effective, efficient and good governance;

(c) to give effect to the constitutional obligations of the State of promoting a human rights culture and social justice, by including public bodies in the definition of “requester” allowing them, amongst others, to access information from private bodies upon compliance with the four requirements in this Act, including an additional obligation for certain public bodies in certain instances to act in the public interest;

(d) to establish voluntary and mandatory mechanisms or procedures to give effect to that right in a manner which enables persons to obtain access to records of public and private bodies as swiftly, inexpensively and effortlessly as reasonably possible; and

(e) generally, to promote transparency, accountability and effective governance of all public and private bodies by, including, but not limited to, empowering and educating everyone –

(i) …

(iii) to understand the functions and obligations of public bodies; and

(iii) to give effectively scrutinise and participate in, decision-making of public bodies that affects their rights.’

The overriding provision is section 32 of the Constitution the relevant part of which provides that –

‘(1) Everyone has the right of access to –

(a) any information held by the State; and

(b) any information that is held by another person and that is required for the exercise of protection of any rights.’

With regard to the right of access to records of public bodies section 11 of the Act provides that –

’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 records; and

(b) access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this Part.

(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 requesting access; or

(b) the information officer’s belief as to what the requester’s reasons are for requesting access.’

[24] In terms of section 82 the court may make ‘any order that is just and equitable’. In Commissioner for Inland Revenue v Ocean Manufacturing Ltd [1990] ZASCA 66; 1990 (3) SA 610 (A) at 618H-I the court said –

‘Any is a word of wide and unqualified generality. It may be restricted by the subject matter or the context, but prima facie it is unlimited’. (Per Innes CJ in R v Hugo 1926 AD 260 at 271.) ‘In its natural and ordinary sense, any – unless restricted by the context – is an indefinite term which includes all of the things to which it relates’. (Per Innes JA in Hayne & Co v Kaffrarian Steam Mill Co Ltd 1914 AD 363 at 371.)’

The meaning of the word is not restricted in any way by the context in which it is used in section 82. It clearly includes an order condoning a late application if it is just and equitable. In my view it will be just and equitable if good cause is shown.

[25] The applicant was clearly intent on obtaining a copy of the MM report. It made a request for the report in accordance with section 18 of the Act and when that was deemed to be refused, immediately lodged a notice of internal appeal in accordance with sections 74 and 75 of the Act which was also deemed to be refused. The applicant was reluctant to institute legal proceedings as it believed that the matter could still be resolved amicably as set out previously and eventually only did so when it appeared that the report would not be forthcoming.

[26] The applicant has shown good cause for condonation. The applicant has explained why it did not institute these proceedings timeously or for the period of 60 days thereafter and it is clear that there is no valid objection to the first respondent furnishing the report.

The Minister does not have the report

[27] The first respondent seems to suggest that the Department of Correctional Services is not and never has been in possession of the MM report and therefore cannot be ordered to furnish the report to the applicant. This is based on the Minister’s affidavit in which he repeatedly says that the report was never handed to him and that he is not and never has been in possession of the report and the affidavit of Ms Magoro in which she says that she was unable to establish the whereabouts of the report despite reasonable steps to find it.

[28] The denial that the Minister personally has or ever had the MM report in his possession is made for the first time in the first respondent’s answering affidavit deposed to on 11 June 2008. The applicant has been seeking the report since December 2006 and has in its correspondence with the Minister and his Department consistently referred to the fact that the Judicial Inspectorate handed to the Minister the MM report in December 2006. There is no proof that the Department does not have the MM report in its possession.

[29] The first respondent contends that relief cannot be granted because there is a dispute of fact as to whether the Minister has ever had the MM report in his possession and whether the Department has or ever had the MM report in its possession. On the first issue the Minister, who is the main deponent to the first respondent’s answering affidavit, repeatedly stated in the affidavit that the MM report was never handed to him as alleged in the applicant’s founding affidavit and that he does not have, nor has he ever had, in his possession the MM report. On the second issue Thukame Marry Magoro, the Department’s Acting Deputy Information Officer states that the applicant’s request for access to the MM report and the notice of internal appeal were brought to her notice in March 2008 and that she unsuccessfully made enquiries about the whereabouts of the report. She says that when she failed to locate the report she wrote the letter to the applicant requesting an extension of time ‘to ascertain whether or not the requested report was in existence’. The letter has already been referred to.

[30] This is an application for final relief. Such relief can be granted only in the circumstances outlined by the court in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634D-635B. In the present case the first respondent has not asked that any of the applicant’s deponents be called for

cross-examination. However the applicant relies on the statement in Plascon-Evans at 635B-C:

‘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’.

See also Associated South African Bakeries (Pty) Ltd v Onyx & Verenigte Bäckereien (Pty) Ltd en Andere 1982 (3) SA 893 (A) at 933G-934A.

The applicant contends that in the light of all the circumstances, particularly the correspondence between the ALP and the applicant and the Minister, the Deputy Minister and the Department, the Minister’s denial should be rejected on the papers and that the evidence of Ms Magoro should also be rejected. The applicant also relies on the failure of the Department to comply with section 28 of the Act which governs records that cannot be found or do not exist. In the alternative, and only if the court does not reject this evidence, the applicant requests that the Minister and Deputy Minister and Ms Magoro be called for cross-examination. These matters will now be considered.

[31] In considering the applicant’s argument that the denial of the Minister and the evidence of Ms Magoro be rejected it is necessary to take the following into account –

(1) the Minister’s and the Department’s failure to dispute the statements in the letters from the ALP to the Minister and the Department that the MM report was handed to the Minister by the Judge Inspector in December 2006. In this regard, the following statement in McWilliams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA 1 (A) at 10E-H is apposite:

‘I accept that “quiescence is not necessarily acquiescence” (see Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A) at 422) and that a party’s failure to reply to a letter asserting the existence of an obligation owed by such party to the writer does not always justify an inference that the assertion was accepted as the truth. But in general, when according to ordinary commercial practice and human expectation firm repudiation of such an assertion would be the norm if it was not accepted as correct, such party’s silence and inaction, unless satisfactorily explained, may be taken to constitute an admission by him of the truth of the assertion, or at least will be an important factor telling against him in the assessment of the probabilities and in the final determination of the dispute. And an adverse inference will the more readily be drawn when the unchallenged assertion had been preceded by correspondence or negotiations between the parties relative to the subject-matter of the assertion. (See Benefit Cycle Works v Atmore 1927 TPD 524 at 530-532; Seedat v Tucker’s Shoe Co 1952 (3) SA 513 (T) at 517-8; Poort Sugar Planters (Pty) Ltd v Umfolozi Co-operative Sugar Planters Ltd 1960 (1) SA 531 (D) at 541; and Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A) at 642A-G.)’

(2) In answer to the Minister’s denial that he received the MM report and his statement that it is not and never had been in possession the applicant annexed to its replying affidavit a letter from Gideon Morris: Judicial Inspectorate of Prisons to the ALP dated 16 November 2008 which reads as follows:

‘Re: TREATMENT ACTION CAMPAIGN/MINISTER OF CORRECTIONAL SERVICES & JUDICIAL INSPECTORATE OF PRISONS (TPD HIGH COURT – CASE NO. 18379/08)

We refer to the aforementioned matter and confirm having been served with notice of your intended application to the High Court.

The Judicial Inspectorate of Prisons does not intend opposing the application and on 11 April 2008 the writer telephonically confirmed same with your Amelia Vukeya.

We further confirm that we transmitted, by e-mail, a copy of Judge Erasmus’s report on “MM’s” death to the Chief Director, Legal Services, Department of Correctional Services, Dr Mbuli on the same date. The e-mailed copy was confirmed by Judge Erasmus as a true copy of that submitted to the Ministry.’

Mr Morris has not made an affidavit to confirm the contents of this letter and its contents are clearly hearsay. But that does not mean that they cannot have evidential value. In terms of section 3(1)(c) of the Law of Evidence Amendment Act, 45 of 1988, the court may admit the evidence in the interests of justice – see Hewan v Kourie NO and Another 1993 (3) SA 233 (T) at 239B-H; Skilya Property Investments (Pty) Ltd v Lloyds of London 2002 (3) SA 765 (T) at 800F-802B. Consideration of the various factors referred to in section 3(1)(c) of Act 45 of 1998 reveals the following:

(i) The nature of the proceedings – this is an opposed application in which the applicant seeks final relief. Usually there will be no opportunity to test the reliability of the witnesses but this may occur in appropriate circumstances.

(ii) The nature of the evidence – the letter contains statements which bear directly on the key issue of whether the Department is in possession of the MM report. The letter states unambiguously that the report was submitted to the Ministry and that on 11 April 2008 the second respondent transmitted by e- mail a copy of that report to the Chief Director, Legal Services, Department of Correctional Services, Dr Mbuli. The letter therefore confirms that both respondents are in possession of the MM report. The effect of the letter is to contradict the first respondent’s evidence (the Minister’s evidence confirmed by Reuben Mbuli) that on 26 March 2008, when Mr Mbuli spoke to Gideon Morris, Morris informed him that the Judicial Inspectorate did not have a copy of the signed report but is in possession of a draft report which is computer generated. Mr Mbuli deposed to his affidavit on 11 June 2008 after the Judicial Inspectorate’s letter and he is silent about receiving the report by e-mail.

(iii) The purpose of tendering the evidence – the applicant tenders the evidence on the key issue, to demonstrate that the first respondent received the report and that its denial of that fact is not true.

(iv) The probative value of the evidence - the letter supports the applicant’s evidence that the second respondent handed the MM report to the Minister and that the Department is in possession of the report. It is objective evidence from an independent third party which shows that the first respondent’s counter evidence is untrue. There was no objection to the letter being attached to the replying affidavit. The first respondent did not apply to strike out the evidence or to file a supplementary affidavit to counter the evidence and did not show that it was unreliable. Significantly, the letter was written by Morris on behalf of the Judicial Inspectorate at a time when the applicant and the second respondent did not know that the first respondent would deny receiving the MM report or having it in its possession.

(v) The reason why the evidence is not given by the person making the statement – there is no explanation for this. It is fair to infer that the applicant considered this to be unnecessary in view of all the other evidence in the affidavits. The statements in the letter are consistent with the first respondent’s failure to deny receiving the report prior to filing its answering affidavit.

(vi) Prejudice to the first respondent if the statements are admitted – the first respondent will not have an opportunity to dispute these statements. However, if the first respondent seriously contends that the contents are untrue the first respondent should have applied to strike out the letter or sought leave to file a further affidavit to show that it was untrue. The first respondent obviously could have obtained an affidavit from Morris to show that he was mistaken or to explain what he said in the letter. Having done none of these things the first respondent cannot complain if the court accepts the statements at face value.

(vii) Other relevant factors – the overwhelming probability is that the statements are factually accurate. They were made by an independent third party with no interest in the proceedings or knowledge of the fact that the first respondent would deny receipt and possession of the MM report. They were simply made to show that the second respondent has sent by e-mail to the Department a true copy of the report already submitted. These statements are consistent with the Department’s failure to deny receipt of the report at any stage before the answering affidavit.

In the light of all these circumstances it is found that the second respondent’s letter is admissible in the interests of justice to prove the facts set out therein.

(3) The failure to call the information officer, the National Commissioner, to establish the material and essential facts that the Department had not received or was not in possession of the MM report and the failure to call Ms Jacobus, its Deputy Minister, to deny that she said what was alleged in the founding affidavit, justifies an inference adverse to the first respondent that they could not establish these facts – see Webranchek v L K Jacobs & Co Ltd 1948 (4) SA 671 (A) at 681-682; Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd 1979 (1) SA 621 (A) at 624. This is not a case where it can be said that the first respondent need not call all the witnesses at its disposal and

was satisfied that it had tendered sufficient evidence and therefore no adverse inference was justified – see Rand Cold Storage & Supply Co Ltd v Alligianes 1968 (2) SA 122 (T) at 124A-G. The National Commissioner, as the Department’s information officer, was the Department’s primary witness

and should have been called to explain why the Department did not respond to the request for the report and to say that the

Department had never received the report and despite reasonable steps had been unable to establish its whereabouts. The Deputy Minister was the obvious witness to call to deny that she said anything to indicate that the Department was in possession of the report.

(4) The presumption of regularity, omnia praesamuntur rite esse acta. In terms of section 90(3) of the Correctional Services Act the Judicial Inspector was required to hand his report to the Minister. See The South African Law of Evidence Zeffert, Paizes, St Q Skeen at 195-196.

(5) Apart from failing to call the obvious witnesses to establish that the Minister and the Department never received the MM report and were not in possession of the report the Minister’s attempts to establish these facts are singularly unconvincing. The Minister does not explain why he did not pertinently deny the allegations in the letters he received on 5 February 2007 and 13 March 2007 that the report had been handed to him. He also does not explain what happened in his office between 5 February 2007 and March 2008 when legal proceedings were threatened. He says that when the letters dated 5 February 2007 and 13 March 2007 were brought to his attention he instructed Ms Mqobi, the then Head of Ministerial Services in the Department to investigate the matter after telling her he did not have the report. He says he did not hear of the matter again until March 2008. On his own version the Minister did not follow up his instruction to establish what Ms Mqobi found out and did not bother to reply to the two letters. It is inconceivable that if the Minister knew in February/March 2007 that he had not received the report that he would not have placed this on record. It is also inconceivable that Ms Mqobi would not promptly carry out the Minister’s instructions, investigate the whereabouts of the report and convey her findings to the Minister. Ms Mqobi simply confirms the Minister’s affidavit. She furnishes no detail about any of the relevant matters. Ms Magoro’s evidence about her inability to establish the whereabouts of the report is equally unconvincing. Section 23 of the Act contains detailed provisions relating to records that cannot be found or do not exist:

‘(1) If –

(a) all reasonable steps have been taken to find the record requested; and

(b) there are reasonable grounds for believing that the record –

(i) is in the public body’s possession but cannot be found; or

(ii) does not exist,

The information officer of a public body must, by way of affidavit or affirmation, notify the requester that it is not possible to give access to that record.

(2) The affidavit or affirmation referred to in subsection (1) must give a full account of all steps taken to find the record in question or to determine whether the record exists, as the case may be, including all communications with every person who conducted the search on behalf of the information officer.’

Ms Magoro who is the acting deputy information officer says two things about her attempts to find the report –

‘5. Upon receipt of the said request I made enquiries about the whereabouts of the report referred to in paragraph 4 above.

6. I thereafter called an urgent meeting with the Director of Legal Services and the Promotion of Access to Information Act (PAIA) unit to establish the whereabouts of the requested report.’

This search, if it can be called that, clearly falls far short of what is required and the affidavit does not satisfy the requirements of section There is no other affidavit to show that the report does not exist or cannot be found.

In the light of all these considerations the Minister’s denial that he received the report and any suggestion that the report was not received by the Department and is not in the Department’s possession cannot be accepted. It is so far-fetched and untenable that it must be rejected.

Disclosure of the report would involve disclosure of personal information

[32] The first respondent now contends that giving the applicant access to the MM report would be in conflict with section 34(1) of the Act (it would involve the unreasonable disclosure of personal information

about MM) or section 14 of the National Health Act 61 of 2003 (all information concerning a user in a health establishment is

confidential). The applicant contends that the first respondent’s reliance on these provisions is misplaced. I agree. There is no merit in this objection.

[33] While it is correct that the information officer must refuse access to a record of a public body if its disclosure would involve the unreasonable disclosure of personal information about a third party, including a deceased individual, the first respondent has not shown that by handing over the report there would be an unreasonable disclosure of personal information. This is pure speculation. Nor does the first respondent’s contention take into account the provisions of section 28(1) of the Act which provides that –

‘(1) If a request for access is made to a record of a public body containing information which may or must be refused in terms of any provision of Chapter 4 of this part, every part of the record which –

(a) does not contain; and

(b) can reasonably be severed from any part that contains, any such information, must, despite any provision of this Act, be disclosed.’

It is obvious that the name of the individual concerned, if it appears in the report, could be blacked out so that he or she could not be identified.

[34] While it is correct that section 14(1) of the National Health Act does state that all information concerning a user in a health establishment is confidential it is clear that the provisions of that Act regarding users are subject to PAIA (see section 13) and that the court may order such disclosure (see section 14(2)(b)).

Declaratory orders

[35] Section 32 of the Constitution provides that everyone has the right of access to any information held by the state. One of the objects of PAIA is to give effect to this constitutional right of access. Another of the objects is to give effect to the constitutional

obligations of the state of promoting a human rights culture and social justice. A further object is to enable persons to obtain

access to records of public bodies as swiftly, inexpensively and effortlessly as reasonably possible. Generally the object of PAIA is to promote transparency, accountability and effective governance of all public bodies. Section 2 of the Act requires that when interpreting a provision of the Act every court must prefer a reasonable interpretation consistent with the objects of the Act over any alternative interpretation inconsistent with these objects. Section 11 of PAIA emphasises that a public body must give access to a requester if the request complies with the procedural requirements of the Act and access is not refused in terms of any ground for refusal in Chapter 4. The section also expressly states that the requester’s right of access is not affected by the requester’s reasons for requesting accessing or the information officer’s belief as to what the requester’s reasons are for requesting access. Section 14 of the Act provides that a public body must compile a manual relating to access to public records and section 17 provides for a public body to designate persons as deputy information officers to render the public body as accessible as reasonably possible for requests for its records. Section 19 requires information officers of public bodies to assist requesters to comply with section 18. Section 20 requires the information officer of a public body to transfer the request to the public body in possession of the record if the record is not in the possession of that information officer’s public body.

[36] The papers in this case demonstrate a complete disregard by the Minister and his department of the provisions of the Constitution and PAIA which require that records be made available. There is no indication in the first respondent’s papers that the

Department complied with its obligations under PAIA at any stage. The information officer allowed both the request and the internal

appeal to go by default and did not consider it necessary to provide the applicant or the court with any reasons for doing so. Only after proceedings were instituted did the Minister and the Department attempt to justify the failure to hand over the report

and then on spurious grounds. It is disturbing that the first respondent has relied on technical points which have no merit and

instead of complying with its constitutional obligations has waged a war of attrition in the court. This is not what is expected of a government Minister and a state department. In my view their conduct is not only inconsistent with the Constitution and PAIA but is reprehensible. It forces the applicant to litigate at considerable expense and is a waste of public funds.

[37] Notwithstanding these views, the court should not grant the declaratory relief sought by the applicant. Once the court grants access to the report the applicant has achieved what it set out to achieve and declaratory relief is unnecessary.

[38] The applicant is therefore entitled to access to the MM report and to an order in terms of prayer 2 of the notice of motion. It is obvious that the first respondent has the report and has the report under its control. It will also be just and equitable if the second respondent is also authorised to provide the applicant with a copy of the report.

Costs

[39] The applicant has achieved substantial success in the application and is entitled to costs. The applicant is also entitled to the costs of two counsel and, in view of the circumstances set out in this judgment, an order that the costs be on the scale as between attorney and own client.

Order

[40] I The applicant’s failure to bring this application within the period prescribed by section 78(2) of PAIA is condoned;

II The first respondent is ordered to furnish the applicant with unedited hard and electronic copies of the report of the Judicial Inspectorate of Prisons on its investigation into the death of an inmate at Westville Correctional Centre requested by the applicant on 29 August 2006;

III The second respondent is authorised to furnish the applicant with the aforementioned report;

IV The first respondent is ordered to pay the costs of the application, including the costs consequent upon the employment of two counsel on the scale as between attorney and own client.

_______________________

B.R. SOUTHWOOD

JUDGE OF THE HIGH COURT

CASE NO: 18379/2008

HEARD ON: 11 December 2008

FOR THE APPLICANT: ADV. D.I. BERGER SC

ADV. L. SISILANA

INSTRUCTED BY: Aids Law Project

FOR THE FIRST RESPONDENT: ADV. M.T. MOERANE SC

ADV. T.V. NORMAN

INSTRUCTED BY: Mr. B.M. Mthimunye of the State Attorney

DATE OF JUDGMENT: 30 January 2009