THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

REPORTABLE
Case no: 864/2011

In the matter between:
M QOBOSHIYANE NO

First Appellant
STANLEY KHANYILE NO

Second Appellant
DEPARTMENT OF LOCAL GOVERNMENT
AND TRADITIONAL AFFAIRS, EASTERN CAPE   Third Appellant
and
AVUSA PUBLISHING EASTERN
CAPE (PTY) LTD

First Respondent
NELSON MANDELA BAY METROPOLITAN
MUNICIPALITY

Second Respondent
JOHN GRAHAM RICHARDS

Third Respondent

Neutral citation: Qoboshiyane NO v Avusa Publishing Eastern Cape
(Pty) Ltd (864/2011) [2012] 166 ZASCA
(21 November 2012)
Coram:
MTHIYANE DP, BOSIELO, LEACH et WALLIS JJA et
PLASKET AJA.
Heard:
14 November 2012
Delivered: 21 November 2012
Summary: Promotion of Access to Information Act 2 of 2000 (PAIA) –
report obtained by MEC into maladministration in a municipality in terms

of s 106(1)(b) of the Local Government: Municipal Systems Act 32 of
2000 – request for access by newspaper group – refusal – ss 44 and 46 of
(PAIA) – report delivered in terms of order of high court – peremption of
appeal – mootness – s 21A(1) of Supreme Court Act 59 of 1959.

ORDER

On appeal from: Eastern Cape High Court, Port Elizabeth (Dukada AJ
sitting as court of first instance):
The appeal is dismissed with costs

JUDGMENT

WALLIS JA (MTHIYANE DP, BOSIELO, LEACH JJA et PLASKET
AJA concurring)
[1] In August 2009 the MEC responsible for the Department of Local
Government and Traditional Affairs in the Eastern Cape appointed
Kabuso CC to investigate concerns of maladministration in relation to the
affairs of the Nelson Mandela Bay Metropolitan Municipality. The MEC
was acting in terms of s 106(1)(b) of the Local Government: Municipal
Systems Act 32 of 2000 (the Systems Act). Kabuso CC’s report (the
Kabuso report) was handed to the MEC in February 2010. In November
2010 Avusa Publishing Eastern Cape (Pty) Ltd (Avusa), the first
respondent, which publishes The Herald and the Weekend Post
newspapers in the Eastern Cape, sought access to the Kabuso report in
terms of the provisions of the Promotion of Access to Information Act 2
of 2000 (PAIA). The refusal of that request, initially by the information
officer and on appeal by Mr Qoboshiyane, the first appellant and the
present incumbent of the post of MEC for Local Government and

Traditional Affairs in the Eastern Cape, led Avusa to commence
proceedings in terms of ss 78 and 82 of PAIA to obtain access to the
report.

[2] The application was granted by Dukada AJ on the basis that, whilst
the MEC had shown grounds for not disclosing the report in terms of s 44
of PAIA, it was nonetheless subject to mandatory disclosure in the public
interest under s 46 of PAIA. He ordered that the report be disclosed
within five days. Such disclosure was duly made at a public ceremony at
which the MEC handed the report to a representative of the newspaper.
At the handing over the MEC made a public statement that although he
disagreed with the judgment he would deliver a copy of the report and its
annexures as ordered by the court. Eight days later an application for
leave to appeal was lodged. Some two months later the judge granted
leave to appeal to this court on the basis that there were no decided cases
on the application of s 46 of PAIA and that the concept of disclosure in
the public interest was important and likely to arise again in other cases in
the future. He did not address the fact that the report had already been
disclosed.

[3] In their heads of argument the parties addressed questions of
mootness. However, they overlooked the prior question whether the
appellant’s unequivocal compliance with the terms of the court’s order
perempted the appeal. Where, after judgment, a party unequivocally
conveys an intention to be bound by the judgment any right of appeal is
abandoned. The principle can be traced back to the judgment of this court
in Dabner v South African Railways & Harbours,1 where Innes CJ said:

1 Dabner v South African Railways & Harbours 1920 AD 583 at 594.

‘The rule with regard to peremption is well settled, and has been enunciated on
several occasions by this Court. If the conduct of an unsuccessful litigant is such as to
point indubitably and necessarily to the conclusion that he does not intend to attack
the judgment, then he is held to have acquiesced in it. But the conduct relied upon
must be unequivocal and must be inconsistent with any intention to appeal. And the
onus of establishing that position is upon the party alleging it. In doubtful cases
acquiescence, like waiver, must be held non-proven.’

That judgment has been consistently followed in this court.2

[4] The facts here are simple. The MEC was ordered to disclose a copy
of the report to Avusa within five days of the court’s order. He did so. He
did not indicate any reservation of rights or any intention to appeal at that
time. The application for leave to appeal was delivered later. There was
only one thing that the MEC had to do in terms of the court’s order and
he did it without reservation. His conduct was unequivocal and
inconsistent with an intention thereafter to challenge the judgment on its
merits. The appeal was perempted and must be dismissed. In those
circumstances it is strictly unnecessary for the court to reach the question
of mootness. However, as it leads to the same result I will briefly deal
with it.

[5] The disclosure of the report means that any judgment or order by
this court will have no practical effect or result as between the parties. In
the circumstances this court may dismiss the appeal on that ground
alone.3 The court has a discretion in that regard and there are a number of
cases where, notwithstanding the mootness of the issue as between the

2 Standard Bank v Estate van Rhyn 1925 AD 266 at 268; Gentiruco AG v Firestone SA (Pty) Ltd 1972
(1) SA 589 (A) at 600A–D; Natal Rugby Union v Gould 1999 (1) SA 432 (SCA) ([1998] 4 All SA 258)
at 443F-G; Samancor Group Pension Fund v Samancor Chrome & others 2010 (4) SA 540 (SCA) para
25.
3 Section 21A(1) of the Supreme Court Act 59 of 1959.

parties to the litigation, it has dealt with the merits of an appeal.4 With
those cases must be contrasted a number where the court has refused to
deal with the merits.5 The broad distinction between the two classes is
that in the former a discrete legal issue of public importance arose that
would affect matters in the future and on which the adjudication of this
court was required, whilst in the latter no such issue arose. In exercising
its discretion the court is always mindful of the wise words of Innes CJ in
Geldenhuys & Neethling v Beuthin6 that:
'After all, Courts of Law exist for the settlement of concrete controversies and actual
infringements of rights, not to pronounce upon abstract questions, or to advise upon
differing contentions, however important.'

[6] The present case raises issues under the Constitution, because
PAIA was enacted to give effect to the constitutional guarantee of the
right of access to information.7  There is no provision governing the
business of the Constitutional Court similar to s 21A(1) of the Supreme
Court Act. However, the court has itself developed jurisprudence around
the issue of mootness that largely parallels that of this court under
s 21A(1). Thus in National Coalition for Gay & Lesbian Equality &
others v Minister of Home Affairs & others8 it was said:
‘A case is moot and therefore not justiciable if it no longer presents an existing or live
controversy which should exist if the Court is to avoid giving advisory opinions on
abstract propositions of law.’

4 Natal Rugby Union v Gould supra at 441I-445B; Sea Melody Enterprises SA v Bulktrans (Europe) Corporation
2002 (4) SA 273 (SCA) para 4 and Executive Officer, Financial Services Board v Dynamic Wealth Ltd & others
2012 (1) SA 453 (SCA) paras 43 and 44.
5 See for example Port Elizabeth Municipality v Smit 2002 (4) SA 241 (SCA) para 7; Rand Water
Board v Rotek Industries (Pty) Ltd 2003 (4) SA 58 (SCA) para 18; Radio Pretoria v Chairman,
Independent Communications Authority of South Africa & another 2005 (1) SA 47 (SCA) paras 40-41
and Minister of Trade and Industry v Klein NO [2009] 4 All SA 328 (SCA) paras 16-17.
6 Geldenhuys & Neethling v Beuthin 1918 AD 426 at 441.
7 Section 32 of the Constitution.
8 National Coalition for Gay & Lesbian Equality & others v Minister of Home Affairs & others 2000
(2) SA 1 (CC) at footnote 18.

Although that is the basic principle, the Constitutional Court has held
that, where it is in the interests of justice to do so, it has a discretion to
consider and determine matters even if they have become moot.9 There is
little if any discernible difference between the approach of the
Constitutional Court and that of this court.10

[7] The starting point of the enquiry is therefore to identify the issue
that the MEC says should be determined, notwithstanding the admitted
mootness of this appeal. The reason he gave for withholding the report
was that his predecessor initiated a process under s 106(1)(b) of the
Systems Act that resulted in the production of the Kabuso report. He said
that this process was still incomplete because he had not yet decided what
to do in relation to the report’s contents. He engaged with the
municipality, but that engagement was not complete. The municipality
had not decided whether it would take steps pursuant to the report.
Depending on its decision, he said he would have to decide whether to
exercise his powers to intervene in the affairs of the municipality in terms
of s 139(1)(a) of the Constitution. He accordingly claimed that the
process was incomplete.

[8] Insofar as disclosure of the report under PAIA was concerned the
MEC said:
‘… the disclosure of the entire Kabuso report, together with all its annexures, at this
stage, is inappropriate and would inevitably tend to undermine the process
commenced by my predecessor and which is still underway.’

9 See Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) para 11;
MEC for Education, KwaZulu Natal & others v Pillay 2008 (1) SA 474 (CC) para 32; Mohamed &
another v President of the Republic of South Africa and others 2001 (3) SA 893 (CC) para 70; Pheko &
others v Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC) para 32.
10 Clear Enterprises (Pty) Ltd v SARS [2011] ZASCA 164 paras 17 to 20.

He went on to indicate that this did not rule out the disclosure of the
report in due course ‘once I have taken relevant decisions’. However, at
the time it was asked for, and for the reasons he had given, he claimed to
be entitled to withhold it in terms of ss 44(1)(a) and (b) of PAIA. He went
on to submit that the disclosure of the report was not ‘at present’ in the
public interest. He does not appear to have addressed his mind to s 46 of
PAIA.

[9] Section 46 is headed ‘Mandatory disclosure in public interest’ and
provides that:
‘Despite any other provision of this Chapter, the information officer of a public body
must grant a request for access to a record of the body contemplated in section 34(1),
36(1), 37(1)(a) or (b), 38(a) or (b), 39(1)(a) or (b), 40, 41(1)(a) or (b), 42(1) or (3),
43(1) or (2), 44(1) or (2) or 45, if—
(a)
the disclosure of the record would reveal evidence of—
(i)
a substantial contravention of, or failure to comply with, the law; or
(ii)
an imminent and serious public safety or environmental risk; and
(b)
the public interest in the disclosure of the record clearly outweighs the harm
contemplated in the provision in question.’

[10] The final stage in an information officer’s consideration of a
request for access to a record, if circumstances exist that would otherwise
justify refusing access, must be to consider whether nonetheless the
record must be disclosed under s 46. The section provides that the
information officer is obliged11 to disclose the record where two
conditions are met. The first is that disclosure of the record would reveal
evidence of a substantial contravention of, or failure to comply with, the
law.12 The MEC accepted that this condition was met. The second

11 The word is ‘must’.
12 There is a second possibility that it would reveal evidence of ‘an imminent and serious public safety
or environmental risk’ a matter not relevant for present purposes.

condition is that the public interest in the disclosure clearly outweighs the
harm contemplated in the provision under which the record could
otherwise be withheld. The section applies where the record could
otherwise legitimately be withheld for one of the reasons set out in PAIA
and, as the heading makes clear, disclosure is mandatory where the
conditions set out in the section are satisfied. If the information officer
does not provide access the court will order him or her to do so. That is
what happened here.

[11] The point of principle that the MEC claimed arose in this case was
that the obligation on the information officer to make this mandatory
disclosure is subject to a limitation, where there is an ongoing
investigation under s 106 of the Systems Act and disclosure of a record
would tend to undermine that process or hamper its proper completion. It
was submitted that it is better that MEC’s should be permitted to
complete the process, and decide what they are going to do about the
matters raised in a report furnished after an investigation under
s 106(1)(b) of the Systems Act, before being obliged to disclose the
contents of such reports. On that footing it was submitted that the public
interest override in s 46 of PAIA is subject to a limitation that, after some
debate, can be formulated in the following terms:
‘Where an MEC has called for an investigation and report under s 106 of the Systems
Act, the information officer must withhold the report until such time as the MEC has
taken a decision on the steps to be taken in respect of the contents of the report and no
information officer (and by extension no court on appeal to it) is entitled in terms of
s 46 to order disclosure of that report in the public interest.’

[12] There is no warrant in the language of s 46, as construed in the
light of PAIA as a whole and the broader context provided by the
Constitution, for this limitation upon the obligations of the information

officer. I will assume in favour of the MEC, without deciding, the matter
being in dispute, that these considerations may provide a justification for
refusing access to a record under ss 44(1)(a) or (b) of PAIA. However,
s 46 expressly operates after it has been decided that a record may
legitimately be withheld under inter alia ss 44(1)(a) and (b). These
provisions are part of chapter 4 of PAIA, which deals with the grounds
upon which it is permissible to refuse access to a record. Some of those
grounds are expressed as mandatory (‘must’) and some are discretionary
(‘may’). Section 33(1), which commences the chapter, sets out these two
categories and adds that the power to refuse access in each of them is
exercisable ‘unless the provisions of s 46 apply’. That section contains an
obligation to make disclosure where the specified criteria are met.
Disclosure is not optional or discretionary. There is an obligation to
permit access.

[13] The structure of chapter 4 of PAIA is a careful balance between the
constitutional right of access to information in s 32(1) of the Constitution
and the protection from disclosure of information in certain defined
circumstances. Those circumstances are in turn divided into two
categories – those where access to a record must be refused and those
where access may be refused. Finally, in all situations where access must
or may be refused,13 there is an obligation to afford access where the
record contains certain types of evidence and the public interest in
disclosure outweighs the harm that will follow from disclosure.

[14] Counsel could not refer us to anything in either the language or the
context of PAIA that would justify the suggested restriction on the

13 There is an exception in relation to certain records of the South African Revenue Services. Access to
those records must be refused under s 35(1) and s 46 does not provide for a public interest override in
relation to such refusal.

language of s 46. When examples were put to him in argument, in order
to test the validity of the suggested construction, he repeatedly sought to
justify it by reference to ‘the facts of this case’. All that did was to
highlight the point that the exercise that an information officer must
undertake under s 46 is a careful balancing, on the facts of the particular
case, of the harm that would accrue from permitting disclosure of the
record and the public interest in its disclosure. In other words the enquiry
in every case is a fact-sensitive one, the outcome of which will vary from
case to case depending on the particular facts. Assuming, as I have done
for the purposes of this argument, that the grounds advanced by the MEC
constituted grounds upon which he was entitled (‘may’) to refuse access,
there was nonetheless an obligation on him to weigh the harm that would
arise from disclosure against the public interest in disclosure. It does not
appear from the record that he undertook that exercise. In any event the
judge held that the public interest in disclosure outweighed the harm that
would be caused thereby and ordered him to provide access to the Kabuso
report. In another case the position may have been different.

[15] Once that conclusion is reached it follows that there is no point of
general importance in this case. The attempt to formulate a legal principle
is in truth nothing more than a repetition of the arguments before the
judge that the public interest in disclosure should not outweigh the harm
that would be occasioned by disclosure in this particular case. The high
court decided that issue on the facts before it and held that the MEC was
obliged to disclose the Kabuso report in terms of s 46 of PAIA. As he had
not done so, the high court ordered him to do so. He complied with that
order. Whether the judge was right in his conclusion – and I do not
suggest that he was not right – will not affect the situation in any way. A

decision that he was wrong would have no practical effect or result.
Accordingly the appeal is dismissed with costs.

M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellants:
R G Buchanan SC (with him G Ngcangisa)
Instructed by:
The State Attorney,
Port Elizabeth and Bloemfontein.

For first respondent:
J Brickhill

Instructed by:
Cheadle
Thompson
and
Haysom
Inc,
Johannesburg;
Webbers, Bloemfontein.
Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:   The Registrar, Supreme Court of Appeal

Date:  21 November 2012

Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

Qoboshiyane NO v Avusa Publishing Eastern Cape (Pty) Ltd

The SCA today dismissed an appeal by the MEC for Local
Government and Traditional Affairs in the Eastern Cape against an order
that he make available to The Herald newspaper the Kabuso report into
maladministration in the Nelson Mandela Metropolitan Municipality. The
high court had ordered the MEC to make the report available because the
public interest in its contents, which contained evidence of
maladministration,
outweighed
the
interest
in
preserving
its
confidentiality while the MEC decided what steps to take in the light of
its contents. The MEC complied with the court order within 5 days but
thereafter sought leave to appeal the court order.
In dismissing the appeal the SCA held that as the MEC had
complied with the court order to provide access to the report, without
expressing any reservations and on an unqualified basis, he had
acquiesced in the judgment and thereby lost the right to appeal.
Furthermore the appeal raised no legal issue of substance, but was merely
an attempt to reargue the case on its facts. No order having a practical
effect would result from the appeal because the report had been disclosed.
Accordingly the appeal fell to be dismissed as moot.