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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, PIETERMARITZBURG

 

                                                                                                             Case No: 7637/2020P

IN THE MATTER BETWEEN:

 

BONGINKOSI EVERT NTANZI                                                                      Applicant

 

and

 

MEMBER OF THE EXECUTIVE COUNCIL FOR

CO-OPERATIVE GOVERNANCE AND

TRADITIONAL AFFAIRS                                                                               First Respondent

           

SIBUSISO WYCLIFF MKHIZE                                                                      Second Respondent

 

THE PREMIER OF THE PROVINCE OF

KWAZULU-NATAL                                                                                           Third Respondent

                          

THE PROVINCIAL EXECUTIVE COMMIITTEE FOR

THE PROVINCE OF KWAZULU-NATAL                                                    Fourth Respondent

 

ABAQULUSI LOCAL MUNICIPALITY                                                        Fifth Respondent

ORDER

 

The following order is made:

1.         The application is dismissed.

2.         The applicant is to pay the costs of the first to fourth respondents, including those consequent upon the employment of senior counsel.

 

REASONS FOR JUDGMENT

                                                                                                                     

Masipa J:

Introduction

[1]        This was an urgent application in the form of a mandamus or an interdict, wherein the applicant sought the following relief:

‘2. That a rule nisi be issued calling upon the respondents to show cause at 9h30 on or before _________ day of _______ 2020 why an order in the following terms should not be granted:

2.1       That the First Respondent is directed, to forthwith upon service of this order, to provide a copy of a “final forensic report: KwaZulu-Natal Department of Coorperative Governance and Traditional Affairs forensic investigation of various allegations of alleged maladministration, fraud and corruption at the Abaqulusi Municipality” (‘the Report’) in terms of section 106(1)(b) of the Local Government: Municipal Systems Act No. 32 of 2000 to the applicant; alternatively that the First Respondent releases the report to the Fifth Respondent.

2.2         Cost of the application only in the event of the application being opposed and in such event costs to include the costs consequent upon the employment of senior counsel.

2.3         Further and/or alternative relief.

3.   The provision of paragraph 1 will operate as an interim interdict with immediate effect pending the finalisation of the application.

4.   Further and/or alternative relief.’

[2]        The requirements of a mandamus, being a mandatory interdict, which are similar to that of an interdict, are set out as follows:

‘Mandatory interdict. This is an order requiring a person to do some positive act to remedy a wrongful state of affairs for which he is responsible, or to do something which he ought to do if the complainant is to have his rights. . . .It has been said that a mandatory interdict can serve “to compel the performance of a specific statutory duty, and to remedy the effects of unlawful action already taken”. If the act to be performed must be carried out not by a private person but by a public official, the order is known as a mandamus. . . .’[1] (Footnotes omitted) 

Parties

[3]        The applicant is a municipal manager of the fifth respondent. The first respondent is a member of the Executive Council for Co-operative Governance and Traditional Affairs, Kwazulu-Natal, whose functions include amongst others establishing of processes and procedures to monitor municipalities in the province in managing their own affairs, monitoring the development of local government and assessing the support needed by municipalities to strengthen their capacity.[2]

[4]        The second respondent was appointed by the first respondent as a ministerial representative to carry out certain functions in terms of s 139(1)(b) of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’),[3] as outlined in a notice dated 21 February 2019 (‘the intervention notice’).

[5]        The third respondent is the Premier of Kwazulu-Natal who is cited in terms of s 125(1) of the Constitution. The fourth respondent is the Provincial Executive Committee for the province of KwaZulu-Natal cited in the proceedings as an interested party who may have a material interest in the matter. The fifth respondent is a local municipality established in terms of s 12 of the Local Government: Municipal Systems Act 32 of 2000 (‘the Systems Act’).

The facts

[6]        On 25 February 2020, representatives of the first respondent attended a council meeting at the fifth respondent’s premises wherein they advised that the first respondent had commissioned an investigation into the affairs of the fifth respondent in terms of s 106 the Systems Act. According to the applicant, the investigation team commenced onsite interviews on 13 May 2020, which interviews have long been concluded. Arising from the s 106 investigation, the investigation team is required to prepare an investigation report (‘the report’) outlining its findings and recommendations. The first respondent is the custodian of such report.

[7]        The applicant contended that the investigation in terms of s 106 was completed and that the first respondent is withholding the report from him and the fifth respondent for some obscure reason, hence his application compelling the first respondent to furnish him with such report.

[8]        Prior to the above events, on 4 July 2019, disciplinary proceedings were instituted against the applicant. Prior to initiating the disciplinary hearing, he was placed under precautionary suspension, which according to him was without any reason. No further steps took place and on 4 September 2019, Mr Dladla, a representative of the first respondent, unlawfully appointed Mr H Mahomed (‘Mr Mahomed’) as an acting municipal manager. On 5 September 2019, Mr Mahomed appointed NMK Forensic to investigate various allegations of irregularity by the applicant, who is the accounting officer.

[9]        The applicant contested the lawfulness of his suspension and the first respondent launched an urgent application on 6 February 2020 interdicting him from disobeying the suspension. On 11 March 2020, Seegobin J ruled that in terms of the intervention notice, Mr Dladla was not empowered to take any disciplinary steps against the applicant.

[10]      On 3 October 2019, Mr Dladla was replaced by the third respondent. On 27 January 2020, the applicant received notice of the disciplinary hearing setting out details of the chairperson and the evidence leader. Subsequent to that, the chairperson was changed and so was the evidence leader. The evidence leader at the time of the launching of this application was Mr GL Seethal (‘Mr Seethal’).

[11]      Effective 22 October 2020, numerous enquiries were made through Mr Seethal on whether the report was finalised. On 27 October 2020, Mr Seethal advised that he had not been provided with a copy of the report. According to the applicant, the first respondent’s representative advised Koen J in another matter that the report would be finalised by the end of June 2020. A request was made to the first respondent’s legal representative, Mr Siva Chetty, on 28 October 2020 for an update on the report. No response was received.

[12]      On 29 October 2020, the applicant appeared at the disciplinary hearing and advised the chairperson of the developments in respect of the report. Upon hearing submissions by the applicant’s representative and Mr Seethal, the chairperson made the following ruling:

‘(1)       That the disciplinary enquiry was adjourned to 19 November 2020;

(2)       That if it turns out by the aforesaid date that the section 106 report exonerates the applicant on the charges of misconduct and the charges will be withdrawn and the disciplinary enquiry expunged;

(3)          That if the section 106 report only exonerates the applicant in respect of several charges then those charges would be withdrawn and the disciplinary enquiry would proceed on the remaining charges;

(4)          That if the section 106 report does not exonerate the applicant on any charges and in fact outline further irregularities on his part. Seetal would determine whether he would add any further charges.’

[13]      Arising from the chairperson’s ruling, the applicant contended that it was of utmost importance and urgency that he be furnished with a copy of the report since his professional reputation; standing in the community and his livelihood were at stake.

[14]      The applicant submitted that on 30 October 2020, a newspaper article was published in a local newspaper called Bayede Newspaper, alleging that the report had been finalised and setting out some of the alleged findings. According to the applicant, it appeared from those findings that he had been exonerated of all charges of maladministration and/or fraud and/or corruption and/or financial misconduct levelled against him. This was raised with the speaker of the fifth respondent who, through the fifth respondent’s attorneys, Garlicke and Bousfield, addressed a letter to Mr Chetty on 2 November 2020, attaching a copy of the article and requesting the report.

[15]      On 2 November 2020, Garlicke and Bousfield addressed a letter to the editor of Bayede Newspaper requesting confirmation on the reliability of the allegations in the article that the report was available, further, how Bayede Newspaper obtained the report, and lastly, whether Bayede Newspaper was prepared to make a copy of the report available to the fifth respondent. Bayede Newspaper responded on 3 November 2020 advising that it was willing to produce a copy of the report but was not prepared to reveal how such report had been obtained. A copy was forwarded to Garlicke and Bousfield and upon the applicant perusing the report; he noted that it was titled, ‘Final forensic report; Kwazulu-Natal Department of Coorporative Governance and Traditional Affairs forensic investigations of various allegations of alleged maladministration, fraud and corruption at the Abaqulusi Municipality’.

[16]      On 4 November 2020, Garlicke and Bousfield addressed a letter to Mr Chetty and requested confirmation that the report was final. Further, that the report which was provided by the newspaper was the one that the first respondent was in possession of. Should the report from the newspaper not be a true reflection of the investigation report, the attorneys asked for information on the status of the report. The first respondent was placed on terms to release the report to the fifth respondent by no later than 10h00 on 5 November 2020. No report was ever furnished by the first respondent and the letter was not responded to.

[17]      At his disciplinary hearing, the applicant was charged with 11 counts of misconduct. Similar charges formed part of the allegations that were investigated by the investigators in the report produced by Bayede Newspaper. The applicant contended that the report found that there was no basis for any of the charges. If the report was authentic, then the applicant contended that the MEC, being the first respondent, had had it since September 2020, and believed that the MEC was delaying the release of the report for reasons unknown to him.

Submissions

[18]      The applicant averred in his affidavit that he was advised by his legal representatives that because he was seeking a mandamus compelling the first respondent to furnish the report, the requirements for an interdict might not be applicable. However, in the event such advice was wrong, he dealt with the requirements of an interdict starting firstly with the prima facie right followed by irreparable harm, the balance of convenience and the absence of an alternative remedy.

[19]      According to the applicant, s 32 of the Constitution entitled him to access information held by the State, in that if the report was finalised and available, there was no cogent and justifiable reason for withholding the publication. He contended that he had a right to know what was contained in the report. If the report made adverse findings against any official or employee of the fifth respondent including him, necessary steps to safeguard the interests of the fifth respondent and those of ratepayers would have to be taken urgently. If the report exonerated him, the first respondent would need to be petitioned urgently with the view of releasing him from his precautionary suspension.

[20]      In respect of irreparable harm, the applicant contended that the matter was urgent. The return date for his disciplinary hearing was 19 November 2020, which was looming and as was apparent from the ruling by the chairperson of the disciplinary hearing, the further conduct of the disciplinary hearing hinged on the contents of the report. As such, he would suffer irreparable harm if the report were not furnished.

[21]      The applicant submitted that the balance of convenience favoured him as the prejudice, which he would suffer if the report were not disclosed, far outweighed the prejudice that the first respondent would suffer if it were disclosed. The applicant contended that in launching this application, the provisions of s 11 of the Promotion of Access to Information Act 2 of 2000 (‘PAIA’) should ordinarily have been used, however, he could not use the procedure as there was insufficient time to follow the said procedure in light of the disciplinary hearing date.

[22]      The applicant submitted that the delivery of the report to him was not subject to the exclusions in s 44(1) of PAIA as he required the report to protect his interests. It was not in his interest or that of the public at large to be precluded by the first respondent from performing his statutory duties for no lawful reason. This was because he was exonerated from the allegations of misconduct in the report which was furnished to him by the newspaper. It was further contended by the applicant that the report did not fall within the exclusion envisaged in s 12 of PAIA. He had tried his best to avoid unnecessary litigation by corresponding with the first respondent. However, given the clear harm, he was left with no option but to approach the court for relief.

[23]      The first to fourth respondents (‘the respondents’) opposed the application on four grounds, the first being lack of urgency. In this regard, it was contended that according to the applicant, the report was expected to be finalised by the end of June 2020, however, the applicant did nothing during the period from July to September 2020 to enquire about the report. On 29 October 2020, the applicant attended his disciplinary enquiry without taking any steps to procure a copy of the report. Notably, the respondents denied that it had been submitted in open court that the report would be finalised and available by no later than the end of June 2020.

[24]      The respondents submitted that the applicant’s contention that the matter was urgent was based on the fact that the report was required for his disciplinary hearing, which was set to resume on 19 November 2020. It was submitted that the urgency upon which the applicant relied was self-created and that on that ground alone, the application ought to have been struck off from the roll for lack of urgency. The respondents also denied that it was of outmost importance and urgency that the applicant be furnished with a copy of the report.

[25]      As regards the nature of the application and the relief sought, being a mandamus, it was contended that this relief is available to aggrieved persons where the statutory body fails to perform its duty, and that the applicant had not made out a case to show that the respondents failed to comply with any statutory duty. Accordingly, the applicant had not satisfied the requirement for a mandamus and it was again submitted that on this ground the application stood to be dismissed.

[26]      It was further submitted that the relief sought by the applicant was not competent and that the report annexed to the founding affidavit was unlawfully released by the media under circumstances unknown to the respondents. The report was not yet in its final form as it had not been considered and approved by the first respondent. According to the respondents, the final report did not exist; therefore, the relief sought by the applicant was not competent since if an order was granted, it could not be enforced. It was also submitted that the alternative relief sought by the applicant on behalf of the fifth respondent was not permissible and that the application should fail.

[27]      The respondents contended that the relief sought by the applicant was final and that as such; the court had to be satisfied that he had a clear right, that he would suffer irreparable harm and that there was no alternative remedy. The respondents submitted that the applicant failed to meet the requirements of the relief sought.

[28]      It was contended that the applicant had not established a clear right and that the reliance on the prima facie right was misconceived. As regards irreparable harm, the respondents contended that the applicant’s allegation that he would suffer irreparable harm if the report was not supplied to him was without any substance and it was contended that the applicant was capable of preventing any harm to himself by applying for an adjournment of his disciplinary enquiry on 19 November 2020. The applicant provided no indication why the matter could not be adjourned.

[29]      It was contended further, that the applicant had several alternative remedies available to him, which included pursuing remedies in terms of PAIA, alternatively, applying for an adjournment of the disciplinary enquiry until such time as he was placed in possession of the report. A third alternative was to apply, as he had threatened to, for a stay in his disciplinary enquiry until such time as the report was available. Mr Dickson SC, on behalf of the first to fourth respondents, denied that there was any mala fide on the part of the first respondent in not providing the applicant with the report.

[30]      The respondents denied that a significant number of charges formed part of the allegations that were investigated and contended that the applicant would be entitled only to those portions of the report that related to him. In this regard, it was contended that the applicant was aware of the process to be followed upon the report being supplied to the first respondent. This process was set out as being that the report is initially considered by the Municipal Investigation Unit (‘the investigation unit’) within the first respondent’s department to ensure that the allegations have been properly investigated, and where necessary, returned to the investigators for further investigation. Once the investigation unit is satisfied with the report, it is submitted to the first respondent for consideration and should he so decide, he may return the report for further investigation. The first respondent also has the discretion to refer the findings of the investigation unit to the person implicated in the report for their comments and representations before approving the report for submission to the fifth respondent’s council.

[31]      It was submitted that it is also the first respondent’s prerogative not to approve the report at all. The report only becomes a final report once the first respondent has considered and satisfied himself that the investigation has properly fulfilled the mandate. This has not yet occurred.

[32]      Upon receiving the report, the fifth respondent’s council is required to deliberate on it before it is approved and the recommendations contained therein implemented. The first to fourth respondents contended that the applicant elected to attach to his founding affidavit, a copy of the report which was unlawfully procured. By doing so, he elevated an unlawfully obtained report to a public document, which was regrettable since the document implicated third parties who had not been given opportunity to make representations to the first respondent regarding alleged misconduct.

[33]      Accordingly, the respondents stated that it would request the court to direct that the report be removed from the court papers to avoid any further publication. However, when the matter was argued this request was not made. It is assumed that the respondents abandoned such a request.

[34]      On the issue of the applicant’s access to the report, the first respondent contended that the provisions of PAIA were applicable and that there was no legal justification for the applicant not to have pursued his remedies under this Act. Attention was drawn to the provisions of s 34 of PAIA, which sets out the circumstances under which a request for access to information may be refused for the protection of privacy of a third party. It was disputed that the applicant had no choice but to approach this court for relief. Accordingly, it was submitted that the application should be struck off the roll for lack of urgency with costs or alternatively that it be dismissed with costs.

[35]      The fifth respondent’s case was that the first to fourth respondents were obliged to release the report in terms of s 41 of the Constitution. The section reads as follows:

‘41   Principles of co-operative government and inter-governmental relations

(1)  All spheres of government and all organs of state within each sphere must-

(a) preserve the peace, national unity and the indivisibility of the Republic;

(b) secure the well-being of the people of the Republic;

(c) provide effective, transparent, accountable and coherent government for the Republic as a whole;

(d) be loyal to the Constitution, the Republic and its people;

(e) respect the constitutional status, institutions, powers and functions of government   in the other spheres;

(f) not assume any power or function except those conferred on them in terms of the Constitution;

(g) exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere; and

(h) co-operate with one another in mutual trust and good faith by-

                        (i) fostering friendly relations;

(ii) assisting and supporting one another;

(iii) informing one another of, and consulting one another on, matters of common interest;

(iv) co-ordinating their actions and legislation with one another;

(v) adhering to agreed procedures; and

(vi) avoiding legal proceedings against one another.’

[36]      It was submitted by Mr Schaup for the fifth respondent, that government departments have to co-operate with each other on matters of common interest, and that because of the obligation to co-operate with each other the report had to be released. Reference was made to s 195 of the Constitution, which provides as follows:

‘195   Basic values and principles governing public administration

(1)  Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:

(a) A high standard of professional ethics must be promoted and maintained.

(b) Efficient, economic and effective use of resources must be promoted.

(c) Public administration must be development-oriented.

(d) Services must be provided impartially, fairly, equitably and without bias.

(e) People’s needs must be responded to, and the public must be encouraged to participate in policy-making.

(f)  Public administration must be accountable.

(g) Transparency must be fostered by providing the public with timely, accessible and accurate information.

(h) Good human-resource management and career-development practices, to maximise human potential, must be cultivated.

(i) Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation.’

[37]      It was contended by the fifth respondent that the first respondent was trying to stifle the report and that this was not transparent governance. The provisions of PAIA do not apply to the fifth respondent, being the State. As regards the s 106 application, the fifth respondent stated that it was known that there was a report on the investigation and that such report was annexed to the applicant’s application papers.

[38]      The provisions of s 106(4)(b) set out what is to be done once the report is available. The MEC, being the first respondent in this instance, is required to table the report within 90 days from the date of request of the investigation. Similar to the applicant, the fifth respondent stated that the date when the investigation was commissioned is unknown. However, since the first to fourth respondents stated before Koen J during June 2020 that the report should be ready by the end of June 2020 and the report attached to the applicant’s papers is dated September 2020, it was submitted that the 90-day period had expired.

[39]      It was contended by the fifth respondent that s 106 of the Act refers to the tabling of a report. It was contended that there was no evidence by the first respondent to say that the report was not final, and in applying the Plascon Evans rule, it must be accepted that the report was indeed final. According to Mr Schaup, the person designated to issue the report is the one who could say whether the report was final or not. The procedure set out by the respondents (which procedure was mentioned earlier in this judgment) was not as is prescribed by s 106 and there was nothing to say where such procedure emanated from.

[40]      The fifth respondent contended that it appeared that the respondents did not understand the provisions of s 106. The report should have been tabled in the provincial legislature and then shared with the fifth respondent. The respondents have not complied with the law and the applicant was calling upon them to do so. Based on good governance, the report had to be provided to the fifth respondent.

Analysis

Access to information
[41]      Section 32 of the Constitution provides as follows:

‘32   Access to information

(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 or protection of any rights.

(2)  National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.’

[42]      The section entitles everyone to information held by the State. It subjects organs of State to a system of openness and fair dealing with the public.[4] The inclusion of a separate right of access to information reflects the ideal of transparency in government, which was lacking in the previous government dispensation.[5]

[43]      Item 23(2) of Schedule 6 to the Constitution reads as follows:

‘Until the legislation envisaged in sections 32 (2) and 33 (3) of the new Constitution is enacted-

(a)         section 32 (1) must be regarded to read as follows:

“(1) Every person has the right of access to all information held by the state or any of its organs in any sphere of government in so far as that information is required for the exercise or protection of any of their rights.”. . . .’

[44]      As was argued by Mr Potgieter SC, counsel for the applicant, the right of access to information finds its origin in s 32 of the Constitution. The enactment of PAIA means that the Constitution is not capable of serving as an independent legal basis or cause of action for the enforcement of the right of access to information, unless the constitutional validity of the provisions of PAIA is challenged.[6] Claims for the enforcement of this right must be based on PAIA in accordance with the principles of constitutional subsidiarity.[7] The principle of subsidiarity precludes an applicant from having direct recourse to s 32 of the Constitution. Where legislation has been enacted to give effect to a right, in order to give effect to that right, a litigant should rely on that legislation, alternatively, challenge that legislation as being inconsistent with the Constitution.[8]

[45]      It is common cause that the respondents in this matter are public bodies or perform public functions. Accordingly, the provisions of PAIA are applicable to them. It is apparent from the argument advanced by Mr Potgieter that the applicant’s case was based on the provisions of s 32 of the Constitution. Reliance on this section was however incorrect. The applicant’s recourse, as was argued by Mr Dickson, was to invoke his rights as provided for in PAIA. It is common cause that the applicant did not follow the provisions of PAIA in an attempt to enforce his rights. Instead, the applicant elected to invoke the provisions of s 32 of the Constitution when this was not available to him, as he was not challenging the constitutionality of PAIA.

[46]      According to Mr Dickson, the relief sought by the applicant was not competent as the report was not ripe for production. Consequently, even if the production of the report was not excluded in accordance with s 44, it could not be produced. It was argued that in any event the applicant was not entitled to the report. In terms of s 46 of PAIA, the court could only consider whether the report could be furnished once a request was made and refused.[9] Since there was no request by the applicant in terms of PAIA, it is unnecessary to consider whether exclusions in terms of s 44 applied.   

 

[47]      Mr Schaup argued that the provisions of PAIA do not apply to the State and that the relationship between the respondents as organs of State are regulated by ss 41 and 195 of the Constitution, which require public administration to be accountable, and that transparency be fostered by providing the public with timely, accessible and accurate information. While the issue of co-operative governance may require that the fifth respondent be furnished with the report, necessary procedures and protocols must be followed to achieve this purpose. The process, which the applicant used, cannot be relied upon as a means to secure the report on behalf of the fifth respondent.

 

The investigation report

[48]      It is common cause that the report, which the applicant sought, arises from an investigation initiated by the first respondent in terms of s 106 of the Systems Act. Section 106 of the Systems Act is headed ‘Non-performance and maladministration’ and provides as follows:

‘(1)  If an MEC has reason to believe that a municipality in the province cannot or does not fulfil a statutory obligation binding on that municipality or that maladministration, fraud, corruption or any other serious malpractice has occurred or is occurring in a municipality in the province, the MEC must-

(a)   by written notice to the municipality, request the municipal council or municipal manager to provide the MEC with information required in the notice; or

(b)   if the MEC considers it necessary, designate a person or persons to investigate the matter.

(2)  In the absence of applicable provincial legislation, the provisions of sections 2, 3, 4, 5 and 6 of the Commissions Act, 1947 (Act 8 of 1947), and the regulations made in terms of that Act apply, with the necessary changes as the context may require, to an investigation in terms of subsection (1) (b).

(3)  (a)  An MEC issuing a notice in terms of subsection (1) (a) or designating a person to conduct an investigation in terms of subsection (1) (b), must within 14 days submit a written statement to the National Council of Provinces motivating the action.

(b)  A copy of the statement contemplated in paragraph (a) must simultaneously be forwarded to the Minister and to the Minister of Finance.

(4)  (a)  The Minister may request the MEC to investigate maladministration, fraud, corruption or any other serious malpractice which, in the opinion of the Minister, has occurred or is occurring in a municipality in the province.

(b)  The MEC must table a report detailing the outcome of the investigation in the relevant provincial legislature within 90 days from the date on which the Minister requested the investigation and must simultaneously send a copy of such report to the Minister, the Minister of Finance and the National Council of Provinces.

(5)  (a)  Where an MEC fails to conduct an investigation within 90 days, notwithstanding a request from the Minister in terms of subsection (4) (a), the Minister may in terms of this section conduct such investigation.

(b)  The Minister must send a report detailing the outcome of the investigation referred to in paragraph (a) to the President.’

[49]      According to the respondents, the reason the report could not be provided to the applicant was that it was not a final report. One of the contentions was that the first respondent must sign the report, coupled with it being tabled before the provincial legislature would render it with the status of being a final report. The fifth respondent disputed this.

 

[50]      In cases where there is provincial legislation pertaining to commissions of enquiry, such legislation applies to investigations, including those initiated under s 106 of the Systems Act.[10] In the absence of such provincial legislation, the provisions of s 2 of the Commissions Act 8 of 1947 and regulations made in terms of that Act are applicable with necessary changes. In Umlambo Trading v Manase,[11] Nicholson J held that the Systems Act envisaged that where provincial legislation is promulgated, it would apply fully to such investigations. KwaZulu-Natal promulgated its own Commissions Act[12] (‘the KZN Act’). Consequently, investigations initiated in terms of s 106 of the Systems Act must conform to the provisions of the KZN Act.

 

[51]      In Umlambo,[13] the court had to decide whether s 106(1)(b) of the Systems Act required the establishment of a commission in relation to the KZN Act. It was held that a reading of both these Acts required the establishment of a commission. This was confirmed on appeal.[14] In this matter, I was not called upon to decide on the validity or otherwise of the investigation. Consequently, I do not focus on the issue. I refer to the KZN Act solely to determine that this Act provides for the approach adopted by the first respondent since that approach is not in accordance with the s 106 of the Systems Act set out earlier.

[52]      Section 8 of the KZN Act deals with the report of the commission. As stated earlier, such a report would include a report issued following a s 106 investigation in the KZN province. In terms of s 8, the report is to be provided to the Premier. Where the commission is not unanimous in its decision, such must be stated in the report. Any person who releases the report to the public shall be guilty of a criminal offence and may be liable on conviction to a fine or imprisonment. Similar to the requirement for the MEC to table the s 106 report before Parliament, the Premier is required in terms of the KZN Act to submit the report of the commission to the provincial legislature through the speaker for tabling and referral to the portfolio committee for consideration. The portfolio committee must consider the report and consider whether to provide a formal comment to the Premier. Whether a report is provided within 21 days or not, the Premier shall release the report to the public.

[53]      In terms of the KZN Act, there is no provision for the process relied on by the first to fourth respondents. The contention that the report is not final cannot be correct. As Mr Schaup argued, the first respondent failed to provide any authority for the procedure set out in the answering affidavit. A reading of s 106 of the Systems Act and s 8 of the KZN Act supports the applicant’s version that the report, which is in any event headed final report, is indeed final. What the applicant ought to have done was to follow the procedure set out in PAIA to obtain a copy of the report through the correct procedure.  

[54]      As regards the issue of urgency, the applicant accepted that the investigation was initiated in accordance with the provisions of s 106 of the Systems Act. That being the case, he would have been aware of the procedure set out therein. Secondly, if the applicant’s version was to be accepted, then he ought to have commenced requesting the report in July 2020, as according to him, a statement had been made in court that the report would be finalised by end of June 2020. However, he did nothing about this, even attending the first sitting of his disciplinary hearing on 29 October 2020. Mr Dickson argued that the publication of the report had no bearing on the disciplinary enquiry. Given the attitude adopted by the chairperson of the disciplinary hearing, this argument cannot be correct. It is only when the applicant learnt that the report may be in his favour that he saw the need to obtain it. Even if this is the case, nothing excuses him from not following the procedure as set out in PAIA.

The Interdict

[55]      The test for an interim interdict is set out in National Treasury & others v Opposition to Urban Tolling Alliance & others (Road Freight Association as applicant for leave to intervene)[15] (OUTA) para 41:

‘The test requires that an applicant that claims an interim interdict must establish (a) a prima facie right even if it is open to some doubt; (b) a reasonable apprehension of irreparable and imminent harm to the right if an interdict is not granted; (c) the balance of convenience must favour the grant of the interdict and (d) the applicant must have no other remedy.’ (Footnote omitted).

[56]      Relying on OUTA, Mr Dickson submitted that any order compelling the first respondent to provide the report before it is complete would be an unwarranted interference with the legislative powers of the provincial government.[16] While I agree with the submission, regard must be had to the correct procedure to be followed for the release of the report, being that set out in the KZN Act and not the procedure contended by the first respondent. 

[57]      Unlike an interim interdict, a final interdict involves the final determination of the rights of the parties.[17] A final interdict is granted to secure a permanent cessation of an unlawful cause or conduct or state of affairs. I agree with Mr Dickson that the relief sought by the applicant, although couched in the form of a rule nisi, was final in nature. The applicant sought an order that the first respondent be ordered to furnish the report. The applicant’s intention was to provide the report to the chairperson of his disciplinary hearing, who had indicated that he would use it to decide on the further conduct of the disciplinary hearing. Therefore, if the order sought by the applicant is made, there would be no purpose for the parties to return to court. 

[58]      In Lipschitz v Wattrus NO[18] at 673C-D, it was said:

‘A mandatory order such as that sought in prayer (2) is a form of interdict and can only be granted if all the requisites for an interdict have been established. One of these is a clear right, which means that the alleged facts, if accepted, must establish “a legal right” vesting in the applicant. No “legal right” has been shown to exist that obliges the respondent “to give due and proper consideration” as contemplated by the relief claimed.’

[59]      In Kaputuaza & another v Executive Committee of the Administration for the Hereros & others,[19] the court held at 317D-E:

‘In my view the relief claimed under prayer (a) (i) of the amended notice of motion is clearly for a mandatory interdict. For such an order all the requirements of an interdict have to be established and the Court will have to decide, inter alia, whether the applicants have established a “clear right” (Lipschitz v Wattrus NO 1980 (1) SA 662 (T) at 673C - D).’

[60]      There are three requirements that must be met for the granting of a final interdict. The first is a clear right. The applicant must show the right he seeks to protect on a balance of probabilities. While the right to access to information is conferred by the Constitution, such right is not absolute and is regulated by the provisions of PAIA. PAIA sets out the procedure to be followed in order for a person to access information held either by a public or private body. Section 44 of PAIA provides for instances when the request for information held by a public body may be refused. A party may be able to show the existence of a clear right after compliance with the procedure set out in PAIA. There having been no compliance, the applicant did  not succeeded in proving this.

[61]      The second requirement of a final interdict is an act of interference. This relates to the interference with such right or injury actually committed or reasonably apprehended.[20] While the first respondent’s conduct in failing or refusing to furnish the report was misdirected or wrong, the applicant was not able to prove that his injury or interference was attributable to the first respondent. I say this because the applicant failed to comply with the provisions of the Systems Act, which were enacted to assist and allow him to exercise his right of access to information.

[62]      The third requirement is the absence of other satisfactory remedies available to the applicant. There must be no adequate redress in some form of ordinary relief. The applicant had an alternative remedy since he could have followed the procedure set out in PAIA, alternatively, attended the disciplinary hearing and applied for the adjournment of the matter. In light of the reliance placed by the chairperson on the report as is evident from his ruling, it is improbable that such an application would have been refused. I am therefore satisfied that the applicant failed to make out a case for the relief sought.

Costs

[63]      On the issue of costs, Messrs Potgieter and Dickson were ad idem that the unsuccessful party should bear the costs. In addition to this, should the first to fourth respondents be successful in their defence, Mr Dickson sought costs of two counsel as he was assisted by Mr van Lingen.  While I am of the view that the matter justified the appointment of senior counsel, I do not find justification on the merits to warrant the employment of two counsel. I am however of the view that the costs of the application should follow the results.

Order

[64]      It was for these reasons that the following order was made:

1.         The application is dismissed.

2.         The applicant is to pay the costs of the first to fourth respondents, including those consequent upon the employment of senior counsel.

 

Masipa J

 

 

 

 

 

 

 

 

 

Details of the Hearing

Date of Hearing:                                        17 November 2020             

Date of Judgment (Order):                        19 November 2020

 

Reasons for Judgment:                              3 December 2020

 

 

Representation

 

Counsel for applicant:                                  Mr A E Potgieter SC     

 

Instructed by:                                               Stowell and Co Inc.

 

Counsel for first to fourth respondents:      Mr A J Dickson SC

                                                                    With Mr A van Lingen

Instructed by:                                              Siva Chetty and Company

 

Counsel for fifth respondent:                     Mr D Schaup

Instructed by:                                             Garlicke and Bousfield Inc            

 

           

 

                                               

 

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