AmaBhungane has won a punitive cost order against the Department of Defence (DoD) in an access to information battle that has spanned over four years.
AmaBhungane submitted a Promotion of Access to Information Act (PAIA) request for records of all private landings at the Waterkloof airforce base for the 24 months preceding the infamous April 2013 incident where the Gupta family landed an airliner bearing their wedding guests from India.
Two weeks after the incident, in May 2013, amaBhungane submitted a formal request to the DoD, but it took four years of correspondence and litigation before the department conceded they had no grounds to refuse.
The DoD capitulated on the merits just days before the case was due to be argued on May 10 this year, but offered no reasons for the about-face after years of maintaining the documents could not be released.
AmaBhungane continued with the application for punitive costs, given that the DoD behavior was unjustified and had used up our time and money. The judge agreed.
In awarding the costs order, Judge Tati Makgoka of the high court in Pretoria described the DoD’s delays and failures to respond as “unpardonable’” and “unconscionable”.
Makgoka said the objectives of PAIA should be borne in mind: “Among those, is to afford the public a simple and inexpensive mechanism of obtaining information held by public bodies. Clearly, that objective has been frustrated in this case.”
Setting out the four-year history of amaBhungane’s efforts to engage with the DoD, the judge wrote: “The objectives of PAIA should be borne in mind. Among those, is to afford the public a simple and inexpensive mechanism of obtaining information held by public bodies. Clearly, that objective has been frustrated in this case.”
Makgoka noted that amaBhungane had been quick off the mark following the Waterkloof landing, requesting documents related to the landing of the Gupta and any other private aircraft at the base.
The requested information included aircraft registration details, passenger lists, authorisations, correspondence regarding these landings, dates of arrivals and departures, and flight plans.
Makgoka wrote: “The request, it must be borne in mind, was made approximately thirteen days after the landing of the Gupta chartered airline at the Waterkloof Airforce Base. That matter, a very controversial one indeed, had generated considerable public interest – the
landing itself, and how government, in particular the Ministry of Defence, responded to it.
“Therefore, when the information was sought at that time, the controversy generated by it was still very much in the public space. Now, four years later, as Mr Budlender, counsel for the applicants put it, 'the delay means that the information has lost a considerable amount of currency'.”
Makgoka lambasted the department for its tardiness. “I gain a distinct view that
the respondents were unresponsive at best, and obstructionist, at worst. I accept that
some latitude should be given to state departments given the obvious and inevitable
bureaucratic bottle-necks. Having said that, a delay of eight months to simply acknowledge a simple request is unpardonable.
"A delay of more than eighteen months before a decision is made, is unconscionable. To aggravate matters, the [DoD] without any explanation, conceded to the applicants' relief on the eve of the hearing…
“Given all the above considerations, and in particular the conduct of the respondents, and the fact that the applicants conduct investigative journalism, which is pivotal to a vibrant democracy, a punitive costs order is warranted.”
The DoD has asked for time to declassify the documents to be provided, and it remains to be seen what it will deliver.
In the meantime, amaBhungane regards this as a victory important both for journalistic purposes and to strengthen transparency and accountability in the defence sector, and curbing unnecessary litigation in PAIA matters.
AmaBhungane was represented by advocates Steven Budlender and Mabasa Sibanda instructed by Webber Wentzel.
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