Makhado Municipality’s efforts to avoid disclosing information about questionable real estate transactions suffered a setback at the Limpopo High Court in Thohoyandou on Friday morning when its appeal against an earlier judgment was struck out.
The municipality had appealed a decision of the lower court ordering it to disclose all documents relating to the transactions.
The High Court of Louis Trichardt ruled in September 2020 in the Zoutnet CC case against the Municipality of Makhado.
I am the owner of Zoutnet CC, the publisher of the Limpopo Mirror and Zoutpansberger newspapers. Magistrate Vanessa Grundling ordered the municipality to grant the publishing company access to documents that had been requested as part of a request for promotion of access to information (PAIA) that I have filed.
The first PAIA application was sent to the municipality almost a year earlier, in October 2019. The documents requested related to the sale of a public park in Louis Trichardt, Limpopo.
The park was divided into two sites, which were put up for sale by public tender. Bids were not awarded to the highest bidders, however. Part of the property was indeed sold to the lowest bidder. The other section was sold to a bidder who bid R450,000 less than the highest bidder.
The municipality would have received R850,000 more for the two erven if it had accepted the higher bids.
At the time, the municipality refused to release specific information about the transaction to the media.
Requesting information about who the winning bidders were took weeks. But even then the correct names of the companies were not provided. The municipality also refused to give reasons why the highest bids had not been accepted.
PAIA (not to) rescue
The initial request for PAIA served on the municipality was completely ignored despite the law stipulating that such requests must be answered within 30 days.
As the owner of Zoutnet, I then filed an appeal in December 2019 because I interpreted the lack of response as a refusal.
This appeal against the alleged refusal was also ignored by the municipality.
Documents were then served on the municipality in March 2020 stating that the court would be asked to rule on the matter. This was also ignored by the municipality.
The case then made its way to the Louis Trichardt Criminal Court where it was set for hearing on April 12, 2020. It was not contested by the municipality and a default judgment was expected.
But in April that year, the country went into a hard lockdown and all cases were reported.
When the case was put back on the list, the municipality suddenly woke up and decided to oppose the lawsuit. It argued, inter alia, that the complainant had never provided the reasons why the information was requested and also that responding to such requests would be a waste of valuable staff time. The municipality further argued that the winning bidders should have been notified of the request and should have consented to the information being made available.
In her September 2020 decision, Magistrate Grundling dismissed the municipality’s arguments and pointed out that a person seeking information from a public body, such as the municipality, does not need to prove that a right is sought. or must be protected. The municipality is required to make the information available as part of the PAIA. The municipality was ordered to make the information available within 15 days and to pay the costs.
But rather than comply, the municipality filed a notice of appeal against the judgment a week later. In its notice of appeal, the municipality argued that the first applicant (Zoutnet CC) had no standing because the owner of the company had not indicated on the form that he represented a business. editing. The municipality persisted in arguing that the successful bidders should have been contacted to obtain their consent. He also felt that the request for the information was a waste of taxpayers’ money because ”
The case then dragged on for several months, with the municipality’s legal representatives appearing to be in no hurry to request a hearing. In January 2021, the municipality’s attorneys, Wisani Baloyi Incorporated, stepped down as attorneys of record. In a letter attached to this notice, it appears that the law firm and the municipality could not agree on an increase in the fees billed for the work carried out. On January 29, 2021, Dabishi Nthambeleni Inc was appointed as the new attorney of record.
Even after a new legal team was appointed, the case dragged on for more than a year without much action. After much pressure from the newspaper’s legal team, a hearing date in the High Court has been set for June 10, 2022.
Let’s settle (but secrets remain)
Just before the appeal hearing could begin on Friday morning, Makhado municipality lawyer Romeo Nthambeleni tried to broker a settlement. His client was prepared to make part of the requested documents available, but on the condition that it remain confidential and that the details would not be made public. Zoutnet’s attorney, Dr. Suwil Rudolph, respectfully declined this rather bizarre offer.
The case then ran into another problem. When judges Frans Kgomo and Thogomelani Tshidada entered, they complained that the documentation was not in order. It is the responsibility of the party bringing the case to court (in this case the municipality) to properly classify, index and paginate the documents.
Judge Kgomo described it as a complete and chaotic mess. He and Judge Tshidada criticized lawyer Nthambeleni for his lack of rigor and said it violated court rules. Because of this chaotic situation, the case had to be struck out.
Nthambeleni blamed the situation on the correspondent he used in Thohoyandou, the lawyers of PBN Mawila.
The judges explained that the case has now returned to the stage where the magistrates’ court issued a decision. This decision is binding and if the municipality still considers that it is not fair, it must file a new appeal and restart the process. This time, however, Judge Kgomo said the process could be expedited. The municipality was also ordered to pay the party-to-party costs.
Due to the importance of the case, the South African National Editors Forum (SANEF) and Media Monitoring Africa (MMA) became involved and applied to be admitted as amicus curiae (friends of the court). In the founding affidavit, SANEF and MMA describe themselves as “non-profit organizations dedicated to ensuring that the rights to freedom of expression, access to information and a strong and independent press are realized in South Africa”.
In their brief, SANEF and MMA emphasize the importance of transparency in government institutions. “(T)he appeal to the Court relates to a particular request for PAIA addressed to a particular municipality. But the result of this appeal has a much broader meaning. As the defendants have already stated in their main arguments: the Commission on Human Rights released a report that found that municipalities are more non-compliant with PAIA than any other sphere of government. The appellant is one of the non-compliant municipalities,” the affidavit reads.
The case having been struck out of the list, the request of SANEF and MMA to be admitted as amicus curiae was not accepted.
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