On the application of a person applying for the position of municipal manager, the high court ordered the prospective employer to pay the costs of the application and to provide the applicant with:

  • reasons for not appointing him to the post;
  • the recommendations made to the Council as well as the recommended first, second and third candidates; and
  • his personal competency assessment scores.

Masingi v Greater Giyani Municipality (2679/2016) [2016] ZAGPPHC 1052 (22 December 2016) per NT Siwendu AJ.

Excerpts without footnotes

[1]   This application was launched in terms of Section 11 of the Promotion of Access to Information Act 2 of 2000 (“PAIA”).The applicant seeks an order compelling the respondent to provide it with the results of the interviews held in February 2015 in respect of the position of Municipal Manager.  He further seeks a disclosure of the results of scores or aggregate scores of all candidates interviewed,       including the recommendations made to the respondent following these interviews.  In addition to the Information above, the applicant requires that reasons, why he was “not appointable” following the interviews, are furnished to him.

. . . . .

[6]   The respondent opposed the application in an affidavit deposed to by its Acting Municipal Manager.  In the first instance, it raises a point in limine that the applicant has failed to comply with Sections 74, 75 and 78 of the Promotion of Access to Information Act in that he should have directed his letter to the Human Resources Department.  The respondent persisted with this view on the basis that to do so would have been compliance with practice.  He also in line with the papers contended that the applicant should have lodged an appeal against the decision to refuse access or taken in terms of Sections 22, 26(1) or 29(3).  The essence of this argument is that the applicant failed to exhaust his internal remedies envisaged in Section 74.  In this regard the respondent submits that Section 78(1) bars the applicant from commencing proceedings against the respondent, as the application is premature, it must be dismissed with costs.

. . . . .

[8]   The argument by the respondent was, with good reason rebuffed by the applicant.  It is evident from the letter dated 16 September that the applicant was provided with the outcome of the interview process but not with the information requested.

Section 25(1) of PAIA offers the respondent an opportunity to decide whether to grant the request for information and notify the applicant of its decision within 30 days of the request.

Furthermore, section 27 provides for a deemed refusal where the information sought is not provided within the prescribed period.

The provisions of PAIA are to be read to provide an applicant confronted with such a failure the right to take the next procedural step in a matter.  I am satisfied that there was a deemed failure to provide the information as provided in PAIA

[9]   The issue to be determined is whether the applicant has the right to and ought to be granted access to the information claimed.

[10]   Before dealing with the matter, it is necessary to mention that the court requested the parties to file supplementary heads within five (5) days of the hearing of the application.  The aim was to afford parties the opportunity to address the question whether the applicant was entitled to information relating to third parties and whether the provision of such information may breach the Protection of Personal Information Ad.  4 of 2013 (“POPl”).  The applicant availed himself of the request and filed its supplementary heads on 21 September 2016, but the respondent has failed to do so.

. . . . .

[13]   In the current case, the applicant has framed his case as that of a disclosure of information relating to the full results of interviews including scores or aggregate scoring obtained by the various candidates, the recommendations made by the selection panel to the municipal council, including reasons for his not being appointed.

[14]   In the Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA) at para 45, the court draws a distinction between the disclosure of reasons for a decision to select some candidates over others on the one hand and the disclosure of deliberations and votes of individual parties. In The Helen Suzman Foundation v Judicial Service Commission and others ( 2014) ZAWCHC 136, referring to the judgment in Transnet Limited v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA); quoting Baxter, “Administrative Law (1989) at 228 ,Le Grange J confirms that provision of information may not only help distil reasons for a decision where this has been made but:

“helps structure the exercise of the discretion -Thirdly – and probably a major reason for the reluctance to give reasons – rational criticism of a decision may only be made when the reasons for it are known.  This subjects the administration to public scrutiny and it also provides an important basis for appeal or review

[15]   There can be no doubt in my view that for decades, the right to be provided with reasons for decisions made in the exercise of a public function or power has been an integral part of our administrative law system subsequently entrenched by the Constitution.  The applicant is entitled to the reasons sought, namely why he was not appointed or appointable as he has framed it.  There is no justification for withholding these from him.  This, however, does not dispose of the matter as in the current case.  I am also required to determine the ambit or extent of transparency in respect of the information sought.  This aspect relates to the recommendations made by the selection panel to the council and the aggregate scores or scores of the various candidates.

. . . . .

[17]   The last aspect relates to the provision of interview results and the scores or aggregates of all candidates.  An assessment of the information sought must be made.  The Helen Suzman Foundation decision above highlights various cases reflecting differing approaches by the courts in the past as to the documents subject to disclosure, for example, in the Johannesburg City Council v The Administrator, Transvaal and Another (1) 1970 (2) SA 89 (7J at 91H-92A; Afrisun Mpumalanga (Pty) Ltd v Kunene NO and Others 1999 (2) SA 599 (7J and Comair Limited v The Minister of Public Entetprlses and Others NGHC Case No: 13034113 and In MEC for Roads and Public Works and in so far as PAIA, the Eastern Cape and Another v lntertrade Two (Pty) Ltd 2006 (5) SA 1 (SCA) .The Supreme Court of Appeal Eastern Cape and Another v lntertrade endorsed the principle that some documents on the grounds of privilege or relevance may not be subject to disclosure.

[18]   I discerned from the Eastern Cape and Another v lntertrade decision that the right to information is not an unlimited one and must be balanced with ‘ other rights, for example, the right to dignity and privacy.  In this regard, there may be instances where a limitation of the right to access information may be reasonable and justifiable.  The principles that have evolved are that disclosure and access must be weighed against; the nature of the proceedings, the level of candour required in the deliberations; the effect of the level of transparency in discouraging applicants; as well as potential impingement on the dignity and privacy of the applicants who applied with the expectation of confidentiality.

[19]   In so far as the applicant relies on PAIA, the rights are fettered by Chapter 4, Section 34 which provides for mandatory protection of privacy of the third party who is natural person states that

(1) Subject to subsection (2), the information offlcer of a public body must refuse a request for access to a record of the body if its disclosure would involve the unreasonable disclosure of personal information about a third party, including a deceased individual.

[20]   lnformation can be denied if the disclosure would involve unreasonable disclosure of personal information about a third party.  The refusal to provide information may also be justified in terms of Section 81(3) of PAIA.  Reference can also be sought at the decision in the Centre for Social Accountability v Secretary of Parliament and Others [201 1] 4 ALL SA 18 (ECG).

[21]   lnformation which may be refused with regards to personal information means information relating to medical history or personal opinions.  In my view, the ambit of medical information is wide enough to Include psychometric assessment scores if this was a component of the competency assessment.  The information relates to the protected inner aspects of personality affecting one’s privacy In my view, protection is not lost by virtue of having applied for a post in a public sector setting.  The disclosure of such information would not be unhelpful as it may not only lead to disputes about the validity or reliability of the testing but may be intrusive on the rights of the other candidates.  The reach of the application is wide enough to include private medical information.  The applicant is not entitled to competency based assessment scores and results.  Of other candidates other than his own.