Case Law[2022] ZAGPPHC 42South Africa
Mobile Telephone Networks (Pty) Ltd v Ngubeni (A12/2020) [2022] ZAGPPHC 42 (26 January 2022)
Headnotes
by MTN. The respondent completed a form C with annexure BN01. The annexure contains the following documents which were requested: service level agreement between MTN and Optical Mediaworx (PTY) Ltd, site register for Hallelujah Street, Nellmapius for the 6th of October 2016, Occurrence register for the 6 October 2016, incident report book for the 6 October 2016, incident report for the incident of the 6 October 2016, municipal authority to conduct groundworks and lastly the ICASA certificate to conduct groundworks for fiber cables. When completing form C, the respondent indicated that the right to be exercised or protected is that he wants to institute and investigate a possible claim for damages as a direct result of the incident that occurred on 6 October 2016. The reason why the respondent required access to the specified record was indicated as the same reason given on the first question of the right protected or to be exercised.
Judgment
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# South Africa: North Gauteng High Court, Pretoria
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## Mobile Telephone Networks (Pty) Ltd v Ngubeni (A12/2020) [2022] ZAGPPHC 42 (26 January 2022)
Mobile Telephone Networks (Pty) Ltd v Ngubeni (A12/2020) [2022] ZAGPPHC 42 (26 January 2022)
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sino date 26 January 2022
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(1)
Reportable: No.
(2)
Of interest to other Judges: No
(3)
Revised.
26
January 2022
Case
no: A12/2020
Court
a quo No: 37790/2017
In the matter
between:
Mobile
Telephone Networks (PTY) Ltd
Appellant
AND
Bob
Fanie Ngubeni
Respondent
The judgment is
uploaded on the case line by the Judge's secretary. It has also been
submitted electronically to the parties’ legal
representatives by
email. The date of this judgment is deemed to be 26 January 2022.
JUDGMENT
Munzhelele, J
(van der Westhuizen, J and Noko, AJ concurring)
Introduction
[1]
This is an appeal brought by
Mobile
Telephone Network (PTY) LTD ‘(MTN)’
against
the whole judgment of the North Gauteng High Court (MNGQIBISA–THUSI
J), which was granted in favour of the respondent, Mr
Ngobeni. The
Court
a
quo
found that the
respondent has made out a case under section 50(1) of the Promotion
of Access to Information Act 2 of 2000 (PAIA).
The appellant was
ordered to furnish the respondent with all the documents mentioned on
annexure BN01 within ten (10) days. The appellants
were also ordered
to pay costs. The appeal of this judgment is with the leave of the
court
a quo
.
[2]
MTN' is a private company that is in the business of a mobile network
operator and service
provider. It provides mobile telephony, data,
and related services and facilities to South African customers.
Background facts
[3]
On 6 October 2016, the respondent fell into a construction hole at
Halleluya Street,
Nellmapius, Mamelodi. The hole was not properly
cordoned off. The respondent sustained injuries as a result of this
incident. He
was then hospitalized to receive medical attention. He
was discharged from the hospital, on 22 November 2016 respondent and
thereafter
approached N.S Swan Attorneys for assistance to claim
compensation for the injuries suffered. The attorneys, through his
investigations,
found that the appellant was responsible for the
groundwork installing fibre- optic internet connections for the area.
On 13 December
2016, the respondent launched a formal request for
access to information held by MTN. The respondent
completed a form
C with annexure BN01. The annexure contains the
following documents which were requested: service level agreement
between MTN and
Optical Mediaworx (PTY) Ltd, site register for
Hallelujah Street, Nellmapius for the 6
th
of October 2016,
Occurrence register for the 6 October 2016, incident report book for
the 6 October 2016, incident report for the
incident of the 6 October
2016, municipal authority to conduct groundworks and lastly the ICASA
certificate to conduct groundworks
for fiber cables. When completing
form C, the respondent indicated that the right to be exercised or
protected is that he wants to
institute and investigate a possible
claim for damages as a direct result of the incident that occurred on
6 October 2016. The reason
why the respondent required access to the
specified record was indicated as the same reason given on the first
question of the right
protected or to be exercised.
[4]
When the respondent’s attorneys did not receive any answer to their
request within
30 days from the MTN, they applied to the Court
against such refusal of their request. They wanted the MTN to be
compelled by the
Court to allow the respondent to access the
information requested. The appellant opposed the application because
the request was
faxed to a wrong fax number and that the respondent
failed to direct the request to the information officer at MTN.
Thirdly, the
appellant contended that the respondent did not show
sufficient cause why he required such records. The Court
a quo
on paragraph 14 of the judgment, found that although the respondent
used an incorrect fax number in its request, it is apparent that
the
letter did reach the MTN's offices. It cannot be said that the
respondent had not complied with the provisions of the Act. The
Court
a quo said on para 24, that considering the object of the PAIA
section 9, the respondent has shown sufficient cause that the
information requested is for the protection of a right, namely
delictual claim and as such the respondent has satisfied requirements
for access to the information requested.
Arguments by the
appellant
[5]
The appellant argued during the appeal hearing that the
jurisdictional requirement was
not met. They further argued that
sending the fax to the wrong fax number resulted in the MTN
information officer not receiving the
request and could not be able
to answer. They contend that the Court
a quo
having found that
the fax number was incorrect, the Court should have found that such
requirement was not met and then dismissed
the application. They also
argue that the respondent did not mention that such a request reached
the information officer's office
in their founding affidavit. They
further contend that there was no duty on the officer who might find
the faxed form C to take it
anywhere. They argue that the respondent
had an obligation to find whether the request reached the intended
place. The respondent
did not mention on the founding affidavit that
he made a follow up to ascertain whether the request reached the MTN
information officer.
[6]
The appellant further contends that the respondent must demonstrate
what right should
be protected, what information is required, and how
that information will assist in protecting the right. The
respondent's founding
affidavit and form C do not explain how the
information will assist in protecting the right. The respondent
wanted to institute a
delictual claim, and it was established that
the appellant was the one digging holes, and the question would be
why the respondent
would want such requested information when he
already knows the company's identity, that is responsible. The
appellant argues that
the respondent failed to lay the factual
foundation base to the usefulness of the information requested in
protecting his rights.
[7]
The respondent did not oppose the appeal.
The Law
[8]
The Constitution of South Africa guarantees the right of access to
all information held
by the private bodies in terms of section 32 of
the Constitution, which reads thus:
"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."
[9]
The parliament brought into existence the promulgation of the
Promotion of Access to
Information Act 2 of 2000 (PAIA) to give
effect to section 32 of the Constitution. The applicable provisions
of the PAIA that regulate
the requests for information from private
companies are sections 50 and section 53. Section 50(1) of PAIA sets
out the obligation
to provide access to information, subject to
specific jurisdictional requirements, and it reads as follows:
'(1) A requester must be given
access to any record of a private body if –
(a)
that record is required for the exercise or protection of any rights;
(b)
that person complies with the procedural requirements in this Act
relating to a request
for access to that record; and
(c)
access to that record is not refused in terms of any ground for
refusal contemplated
in Chapter 4 of this Part.'
Section
53 of PAIA provides as follows:
'(1)
A request for access to a record of a private body must be made in
the prescribed form to
the private body concerned at its address, fax
number or electronic mail address.
(2)
The form for a request for access prescribed for the purposes of
subsection (1) must
at least require the requester concerned –
(d)….. to identify the
right the requester is seeking to exercise or protect and provide an
explanation why the requested
record is required for the exercise or
protection of that right;.'
[10]
In terms of the above sections, the respondent is entitled to
information from MTN to exercise or protect
any of his rights.
Including the right to sue for delictual damages. See
Van Niekerk
v Pretoria City Council
1997 (3) SA 839
(T) at 844A-846G where
Cameron J held that:
‘
Rights in s
23 of the interim Constitution included all rights and not only
fundamental rights as set out in chap 3 of the interim
Constitution.' Section 23, which Cameron J referred to, is
similar to section 32 of the Constitution of South Africa.’
Discussion
[11]
It is a trite principle that a Court of appeal is not entitled to set
aside the decision of a court a
quo taken in the exercise of its
discretion merely because the Court of appeal would itself, on the
facts of the matter, would have
come to a different conclusion; it
may interfere only when it appears that the Court
a quo
had
not exercised its discretion judicially, or that it had been
influenced by wrong principles or misdirection on the facts, or
that
it had reached a decision which in the result could not reasonably
have been made by a court properly directing itself to all
the
relevant facts and principles. See
National Coalition for Gay and
Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1
(CC) at
14 A-E (par 11).
[12]
However, the case at hand, its decision is not taken in the exercise
of true discretion and that the
Court of Appeal is entitled to decide
the appeal based on its own view of the merits of the case. I do not
think the power to determine
the rights sought to be protected or
whether the respondent had complied with the procedural requirements
in the PAIA Act relating
to a request for access to that record is
discretionary in that sense. Such a determination is a judgment made
by a Court in the
light of all relevant considerations. It does not
involve a choice between permissible alternatives. Regarding this
appeal, the Court
of appeal can come to a different conclusion from
that reached by the Court
a
quo
on the merits
of the matter.
[13]
As a starting point, the appellant argued that the respondent did not
meet jurisdictional requirements.
They were referring to the fact
that the respondent did not send the request to the MTN information
officer as required. They contend
that the fax number 011 912 3131
reflected on the letter dated 13 December 2016 and form C is
incorrect. The correct fax number is
011 912 3168. According to the
appellant's PAIA manual published on the website, form C should be
forwarded to the information officer
Rakesh Ishwardeen. The Court
a
quo
agreed with the appellant's argument that the fax number used
was incorrect. But, surprisingly, it went further to make a finding
that even though the fax was incorrect, the request by the respondent
reached the office of MTN. The question is whether such a finding
is
correct in law and in principle.
[14]
We find that there is no proper compliance with the procedural
requirement for notification in terms
of section 53 as the letter,
and Form C were sent to an incorrect fax number. Section 51 provides
that the head of a private body
must compile a manual containing the
postal and the street address, phone numbers and fax numbers and, if
available, the electronic
email address of the head of the body. This
information should be made available or accessible to the public so
that they can use
it. MTN had the said manual compiled, and the fax
number was reflected on it. There was no need for the respondent to
use an incorrect
fax number when the correct one was provided. If the
public can use any other fax number, this will make section 51 of the
PAIA superfluous.
[15]
The respondent’s request had to reach the office of the information
officer as the person dealing with
such on the MTN manual. When a fax
number has been mentioned or provided by the head of the private body
as being the fax number
at which the requested information will be
obtained the respondent had a duty to ensure that the fax number to
which his section
50 read with 53 of the PAIA ‘s request is sent to
a provided fax number. If the request was delivered to the provided
fax, then
the Court should be satisfied that that request will be
received.
[16]
Another issue is that no attempt had been made in the founding papers
by the respondent to inform the Court
if the request was received by
the information officer at MTN, seeing that a wrong fax number was
used. The respondent had to make
allegations on his founding
affidavit that would satisfy the Court from which the notice to
compel was sought that the letter and
the form C had reached the MTN
on a balance of probabilities and prove that the correct office
received the request. In
Ferreira v Premier, Free State and 0thers
2000 1 SA 241
(OFS) at 254BC VAN COLLER, J said: ‘It is the
practice of our courts that an applicant must, generally speaking,
make out a case
in his founding affidavit…’ The respondent
failed to adhere to this practice mentioned in the above case. It is
further
trite that an applicant must stand or fall by his/her
founding affidavit. See
Mashamaite and others v Mogalakwena Local
Municipality and others, Member of the Executive Council Coghsta,
Limpopo and another v
Kekana and others
[2017] ZASCA 43
;
[2017] 2
All SA 740
(SCA) at para 21.
[17]
The Court
a quo
made a conclusion to accept that there was
adequate proof regarding the delivery of the request without being
supported by evidence
to that effect. We find that a mere dispatch of
the request to the wrong fax number is not sufficient to conclude
that such request
reached the information officer. On this issue
alone, we agree with the appellant that the Court
a quo
misdirected itself and that in the absence of satisfactory
information, the Court
a quo
should have dismissed the
application to compel compliance with section 50 of the PAIA by the
respondent.
[18]
The second issue is whether the Court
a quo
found correctly
that the respondent was entitled to access the information he
requested from MTN. The appellant contends that the
respondent failed
to meet the test imposed by s 32 of the Constitution read with
section 50 and 53 of the PAIA, in that he did not
demonstrate how the
information in those documents was required for the exercise or
protection of any of his rights. The appellant
also submits that the
Court
a quo
erred in finding that the respondent proved the
requirements of section 50 and 53 of the PAIA. The appellant
contended further that
it was firstly, necessary for the respondent
to mention the right he wishes to exercise or protect, and secondly,
what the information
is, which is required, and thirdly, how that
information would assist him in exercising or protecting that right.
[19]
The respondent in his founding affidavit and the form C never
mentioned why or how the information he
requires, as mentioned on the
annexure 'BN01', will assist him in protecting the said right.
Information can only be required to
exercise or protect a right if it
will assist in the exercise or protection of the right. It follows
that, in order to make out a
case for access to information in terms
of s 53 of the PAIA, an applicant has to state what the right is that
he wishes to exercise
or protect, what the information is which is
required and how that information would assist him in exercising or
protecting that
right. The respondent failed to indicate on his
founding affidavit these requirements. In
Unitas Hospital v Van
Wyk & another
2006 ZASCA 34
2006 4 SA 436
(SCA), Brand JA
said:
'Generally
speaking, the question whether a particular record is "required"
for the exercise or protection of a particular
right is inextricably
bound up with the facts of that matter.
'
In this matter, the respondent did not make any effort to
substantiate the request made on form C, and no sound reason has
been
given for such requested documents. Streicher JA in
Cape
Metropolitan Council v Metro Inspection Services (Western Cape) CC
2001 (3) SA 1013
(SCA) para 28 said that:
'Information can only be required
for the exercise or protection of a right if it will be of assistance
in the exercise of protection
of the right. It follows that, in order
to make out a case for access to information . . . an applicant has
to state what the right
is that he wishes to exercise or protect,
what the information is which is required and how that information
would assist him in
exercising or protecting that right.'
[20]
The Court
a quo
found that the respondent has shown sufficient
cause that the information requested is to protect a right, namely
delictual claim.
And that such decision was influenced by taking into
consideration the objectives of the PAIA section. The Court
a quo
ignored the fact that the respondent should have provided reasons for
how such requested information would assist in exercising or
protecting that right. Form C was completed, but the respondent only
indicated the right he wanted to protect or exercise. As mentioned
earlier, he did not explain why or how the requested records are
required for the exercise or protection of the right. The
respondent's
answer in trying to explain why the required information
will assist in protecting his right he just wrote the following words
'kindly
see 1 supra'. On the paragraph that he was referring to it
was just written the following words ‘institute and investigation
of
a possible claim for damages due to the incident on 6 October
2016’. These answers are not sufficient or proper to the question
of how. He failed to tell the Court how each of those records would
assist him.
[21]
The appellant submits that the respondent has not made out a case
under s 50(1) for the records. We agree
with the argument by the
appellant that the respondent failed to give reasons how the records
will assist him. The appellant says
that the right asserted to seek
compensation in delict for personal injury is not in dispute, but
there are no stated reasons on
how the records could 'assist in
protecting such right. The appellant submits that the request does
not match the right asserted.
Even during the hearing of the matter
when the respondent was asked how Optical Mediaworx (PTY) LTD service
level agreement will
assist his delictual claim. The respondent was
unable to answer the questions of the Court. He also failed to
mention the same on
his founding affidavit and the form C.
[22]
The respondent had the onus to prove that he met the requirements of
s 50(1)(a) and 53. In this regard,
the respondent needed only to put
up facts that prima facie establish that he has a right to access the
record to exercise or protect
his right to sue MTN. And further proof
of how those records requested will assist in exercising and
protecting such right' See
Claase v Information Officer South
African Airways Pty Ltd
2007 (5) SA 469
(SCA). The respondent
failed to prove how such records will assist him in exercising the
right to claim a delictual claim. He already
had the information
through his investigations that enabled him to sue the MTN. The
respondent should know that section 32 of the
Constitution and
section 50 of the PAIA are not there for just taking; procedural
requirements need to be complied with before the
right is exercised.
The information requested could be available for him through
discovery as well. Even on this point alone, the
respondent cannot
succeed on his application.
[23]
The leading case on s 50 of the PAIA is
Unitas Hospital v Van Wyk
& another
[2006] ZASCA 34
;
2006 4 SA 436
(SCA). In that matter, the
respondent's husband died while he was a hospital patient. She
contended that the nursing staff's negligence
brought about his death
and that she had an action for damages suffered through his death.
She applied under the PAIA for access
to a report to institute that
action. The Court held that:
‘
the report
was general and not one relating specifically to treatment received
by her husband. It was held that 'it can be accepted
with confidence
that Mrs Van Wyk did not require the Naudé report to formulate her
claim to institute an action.' She did not require
it for the
exercise or protection of any right. Mrs van Wyk did not specifically
state that she required the Naudé report to exercise
any right in
her founding papers. Without access to the report, she said that her
right to claim damages from Unitas would be affected
('aangetas
word'). She did not elaborate on what benefit she thought she could
derive from the report's contents. Her application
was denied.’
[24]
PAIA provides a valuable tool where the pre-trial discovery of a
particular document or documents is
required for the exercise or
protection of any rights, but the tool must be used carefully with
due regard to the facts of each case
and the rights of both sides.
Resort to it should be the exception rather than the rule. In that
way, the rights of the defendant,
who by definition is a private body
entitled to reasonable protection of privacy and commercial
confidentiality, who before the enactment
of PAIA might not have been
able to exercise or protect rights properly or adequately, will both
be secured. See
Unitas Hospital v Van Wyk & another
[2006] ZASCA 34
;
2006 4
SA 436
(SCA).
For the above
reasons, therefore, the appeal should succeed.
Order
[25]
The following order is made:
1.
The appeal is upheld with costs including costs
of the counsel.
2.
The order of the Court
a
quo
is set aside and substituted by the
following order: 'the application is dismissed with costs, including
the costs of the counsel.'
M.
Munzhelele
Judge
of the High Court Pretoria
Heard on: 20 October
2021
Delivered on: 26
January 2022
Appearance:
For the
Appellant:
Adv T.K Manyage
Instructed by:
Ledwaba Mazwai attorneys
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