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.  

			(2)	…

			(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 (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 (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