Publication: The Weekender Issued: Date: 2007-01-13 Reporter: Reporter:

Wheels of Justice Grind Exceedingly Slowly

 

Publication 

The Weekender

Date

2007-01-13

Web Link

www.bday.co.za

 

During the final weeks of last year, I took some time out to read the final clutch of Supreme Court of Appeal judgments for 2006. Strangely, some of them deal with problems of time or timing.

In one criminal matter, for example, the case of Reuben Heslop, who was convicted on three counts of culpable homicide in August 1996, it has taken nearly 10 years for the record of the trial to reach the appeal court.

Responsibility for sending a transcript to the appeal court lies with the relevant registrar ­ in this case, of the Johannesburg High Court. But when no record had arrived by March, the appeal court registrar wrote to her counterpart in Johannesburg asking for an explanation. “That was more than eight months ago," the appeal court writes. “Despite several reminders, this court's request has simply been ignored."

Finally this unacceptable behaviour has been taken up by the head of the appeal court with Justice Minister Brigitte Mabandla, who says she views the matter seriously and has appointed her director-general to investigate. Heslop's conviction has meanwhile been set aside as the appeal court found trial judge Lucy Mailula had committed a number of “fundamental misdirections on fact and on the law".

The decision that interested me the most, however, while not about time or timing, nevertheless has something in common with the Heslop matter: the bloody-mindedness ­ or perhaps plain ineptness ­ of officials. The case concerns retired SAA pilot Willem Claase who, in terms of his retirement package, is entitled to a certain number of free business-class tickets every year. In 2004, he tried to take up his free tickets and fly from New York back to Johannesburg. However, he says SAA officials treated him as though he were a standby passenger and would give him only one business- class ticket.

Claase wants to sue SAA for his treatment but before he can do this, he needs certain basic information. Fortunately for him, he is living in the age of the Promotion of Access to Information Act, so he should easily be able to get hold of the documents he needs. That, as it turns out, is far from the case: Claase's lengthy correspondence with SAA trying to get the documents necessary for the action he wants to bring shows how the airline has repeatedly fobbed him off.

Eventually Claase turned to the appeal court for help. Judge Peter Combrink wrote that court's judgment on the application for access to SAA's documents.

He said the Information Act that Claase had tried to use was supposed to help form a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information. It was also supposed to promote a society in which people would have “effective access to information to enable them to more fully exercise and protect all of their rights".

Against the background of these aims, it was unfortunate that the law “should result in pretrial litigation involving huge costs before the merits of the matter are aired in court".

But Claase is not alone in his problem. The aim of the legislation was to avoid litigation, rather than encourage it, said the judge, and yet Claase's case was the fourth (access to information matter) to have “required the attention of (the appeal court)" in the past 18 months. “The present appeal illustrates how a disregard of the aims of the act and the absence of common sense and reasonableness has resulted in this court having to deal with a matter which should never have required litigation."

Of course it's too early to know whether Claase will succeed with his lawsuit, but for now at least he has an order that SAA must give him the documents for which he has asked. More than that ­ the court has made a punitive costs order against SAA to show the court's displeasure at the way the airline has behaved in persistently refusing to make available the information required by Claase.

Perhaps the court's batch of decisions comes just in time to prompt a collective New Year's resolution for all public officials: do your duty; answer letters ­ and help rather than hinder people in exercising their rights.

We should be so lucky!

With acknowledgement to The Weekender.


*1       This doesn't sound familiar - it is familiar.

So far against DoD and after a formal PAIA request issued in January 2002 and after a High Court order in 2005, High Court appeal rejection in early 2006 and Supreme Court Appeal rejection in late 2006, I have received just 250 documents (half being my own correspondence with DoD) after DoD has admitted under oath (the deponent none less than the Secretary for Defence) that there are over 100 000 pages of documents falling within the scope of the court order and some 10 000 pages of documents falling in a scope reduced in order to simplify compliance by DoD and also reduce own costs @ R0,60 per page.

Now DoD are mouthing an appeal to the Constitutional Court.

Unless there is a very large pile of documents waiting on my attorney's desk on Monday, 15 January 2007 I think it's a clear case of contempt of court.