South Africa: Free State High Court, Bloemfontein

FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA

Case No. : 3862/2013

In the matter between:-

KAALE MOSHE CC …..........................................................................................................Applicant

and

HEAD OF THE DEPARTMENT: FS GOVERNMENT:

DEPARTMENT OF EDUCATION …............................................................................1^st Respondent

TIKWANA COMPREHENSIVE SCHOOL ….............................................................2^nd Respondent

HEARD ON: 8 MAY 2014

JUDGMENT BY: KRUGER, J

DELIVERED ON: 15 MAY 2014

[1] The only outstanding issue in this matter is costs.  In the notice of motion the applicant sought reasons as to why it was unsuccessful to secure a tender relating to work at the premises of the second respondent, the Tikwana Comprehensive School in Tikwana, Hoopstad.  After receipt of the notice of motion written reasons were provided by the first respondent, who opposes the present application only on the basis of the costs order sought against it.  The first respondent says that the applicant never approached the first respondent for reasons before launching the present application.  The first respondent says the applicant approached the incorrect person about the matter.

[2] The history of the relationship between the applicant and the first respondent relating to the tender can be set out as follows:

2.1 October/November 2011: applicant is appointed to execute the tender relating to the redesigning and upgrading of technical workshops at the second respondent school.

2.2 January 2012: Applicant commenced work on the R7,5 million tender.

2.3 January 2012: After working for a week, first respondent stopped all work by means of a written instruction.  Applicant complied with this instruction.

2.4 March/April 2012: New Contractor, Twighlight Construction started executing contract, and has completed the work.

2.5 Applicant’s attorney, Mr Kruger, approached Mr Barnard of the first respondent and asked the reasons for the discharge of the applicant.  Barnard refused to provide reasons.  The deponent to the answering affidavit, Mr Malope, says he is the information officer of the Department of Education.  Barnard, who was approached by attorney Kruger, is the Senior Education Specialist at the Department of Education.  Barnard is not an information officer.  Mr Malope refers to section 18 of the Promotion of Access to Information Act 2 of 2000 and says the procedure which the applicant had to follow is set out in section 18, which the applicant did not do.  The first respondent says that Barnard told Kruger that he did not have authority or power to provide written reasons.  Mr Molope says had the applicant followed the proper procedure when it sought the information, same would have been given to him.  The applicant’s case is that Barnard refused to give the information, and made it clear that the applicant would require a court order to get same.  According to applicant, it was never Barnard’s view that he was the wrong person, and that he refused for that reason.

2.5.1   8 January 2013: Telefax from applicant’s attorney, addressed to Tikwana Comprehensive School, attention Mr Mphatshe.  The penultimate paragraph of the letter reads:

“We kindly request copies of any minutes of meetings, as well as documentation pertaining to this tender, which might still be in the possession for the school. We would also like to request that a consultation be scheduled between your principal and writer hereof, on a date and time which will suit you.” 

No response was received to this request.

2.5.2 25 January 2013: Telefax from applicant’s attorney to the Department of Education, Bloemfontein, attention Mr Barnard.  The telefax refers to the appointment letter of Kaale Moshe, and in the telefax the applicant’s attorney requests a copy of this letter, as well as any relevant documentation in connection therewith.  No response was received to this request.

2.5.3 3 June 2913: Telefax from applicant’s attorney to the Department of Education, Bloemfontein, attention Mr Barnard.  The telefax confirms that Mr Barnard refused to provide applicant’s attorneys with documents relating to the contract, stating that the applicant would have to obtain a court order if it wanted the documents.  No response was received to this request.

2.5.4 27 September 2013:  Notice of motion issued.

2.5.5 18 November 2013: Reasons provided by first respondent.

2.5.6 13 February 2014: Answering affidavit filed.

[3] First respondent says the applicant should have requested the information from Mr Malope, not from Barnard, and then the information would have been provided.

[4] The applicant seeks condonation for “any perceived non-compliance with section 5 of the Promotion of Administrative Justice Act 3 of 2000”.  The first respondent’s case is that the applicant’s request failed to comply with the procedural requirements of section 18 of the Promotion of Access to Information Act 2 of 2000.  The applicant says that the first respondent’s reliance on Act 2 of 2000 is misplaced because, as the notice of motion indicates, applicant relied on Act 3 of 2000.  The first respondent does not allege non-compliance with section 5 of Act 3 of 2000.

[5] The statutory framework:

5.1 Act 2 of 2000: Promotion of Access to Information Act.

This Act makes provision for obtaining information held by the state.  Section 18 provides that the request must be in the prescribed form, directed to the information officer.  The first respondent relies on Act 2 of 2000, and contends that applicant did not comply with section 18 because applicant did not request the information from the information officer, but from Barnard, and that first respondent was therefore not obliged to respond.

5.2 Act 3 of 2000: Promotion of Administrative Justice Act.