- The matter concerns good governance and the public duty of parastatals - The Botswana Gazette - WUC did not contravene or exceed the power which authorised the making of the decision - Justice Motumise
High court Judge, Omphemetse Motumise has declined to direct Water Utilities Corporation (WUC) to release a report on the decline in water inflows at Gaborone Dam.
A local weekly publication The Botswana Gazette had approached the High Court to compel WUC to avail a Report to the newspaper which the corporation commissioned on the Gaborone Dam level. The publication had argued that it was illegal for the public entity to refuse to avail the report as per its request and indicated that the decision was reviewable.
Justice Motumise said the review application brought in terms of Order 61, as well as Order 70 of the High Court Rules in which the main question in issue is whether WUC is required under section 17 of the Water Utilities Act, of the Laws of Botswana to provide a copy of a report to the applicant (The Botswana Gazette), which it had commissioned in respect of reduced water inflows into Gaborone Dam.
He said the decision under review is contained in a letter by WUC dated 17 June 2017, written in response to a demand of a copy of the report by the applicant on 31 May 2017. He stated that the WUC Act empowers the Corporation to engage in research and or publish the results thereof. The results of the research are the property of the corporation.
According to the judge, the corporation has not determined to release any such information or results of the search to client or any third party. He stated that the impugned decision is not reviewable at common law because it was neither irrational nor unreasonable.
“It is additionally not reviewable on grounds of illegality because WUC did not contravene or exceed the power which authorised the making of the decision. In this particular case, if the Court found that WUC failed to exercise its powers, it could not substitute its decision by directing that the report be availed,” the judge said, adding that the constitutional review is premised on two grounds.
“First, it is argued that by virtue of the doctrine of constitutional avoidance it would be unnecessary to apply the constitution if the matter is resolved on other grounds. Secondly, freedom of expression under section 12 of the Constitution is not absolute but is subject to limitations.
“The section does not expressly or indirectly confer any freedom of information which the applicant can invoke in its demand for the report. By the same reasoning, the international treaties cited by the applicant on freedom of information are not binding or enforceable unless they have been introduced into our domestic law,” the judge said.
He explained that in casu, the proper interpretation of the section is that it confers a privilege, authority, or discretion on WUC to publish the results of any research or records as it may determine. The section, he said, is therefore permissive and not directive, meaning that the decision whether or not to publish is discretionary.
He added “that being the case, the applicant is wrong in contending that it is entitled to the report because section 17 mandates it. Water Utilities commissioned the study and the resulting report was intended for its benefit and to aid in its operations, hence the decision was taken not to publish the report.”
The Botswana Gazette avers in its argument that the matter concerns good governance and the public duty of parastatals to be open and transparent to the public and members of the media, who aim to inform and sensitise the public.
It further says that the refusal to provide the report is reviewable on grounds of illegality, unreasonableness, irrationality and alternatively, that the decision is contrary to sections 12 and 18 of the Constitution of Botswana.
The WUC opposed the review. They submitted that the decision not to provide the report, which is the property of the corporation, is not impeachable for any reason at all because the report was not intended for public consumption.
Justice Motumise stated that sometime in 2014 the country experienced unusually dry spells which caused a reduction in the water levels in the nine dams. The dams in the southern part of the country inclusive of the Gaborone Dam were severely affected and recorded the lowest water levels during the said period which led to water rationing to the public.
“On or about 19 January 2014, the Sunday Standard Newspaper published an article titled "THE RICH BLOCKING WATER FLOW IN GABORONE DAM" in which it reported that the University of Botswana and WUC had commissioned a study which had allegedly revealed that there were 200 illegal dams blocking the flow of water into Gaborone Dam, resulting in reduced water levels and the rationing of water by WUC.
“Respondent is quoted confirming the existence of the report and the dams in question; and saying that the report could not be shared with the public because it was not intended to be shared when it was commissioned. On the other hand, WUC denied responsibility for issuing permits to people to build dams as its only mandate was to ensure that water reached its consumers,” the judge said in his ruling.
Motumise stated that the article blamed the low water levels on the "illegal dams" whereas WUC said that it was due to the dry spells at the time. He further added in his judgement that the applicant (The Botswana Gazette) contends that the refusal to produce the report was unreasonable because there was information of illegal activity occurring that impacted the water levels which served a large population and the nation.
“Thus no reasonable authority could have refused to publish the report in question. Further, WUC did not furnish any reasons for its decision. It is averred that the impugned decision was irrational because there could be no rational public objective to be met by refusing to produce the report.
“The applicant complains that WUC conducted no enquiry beyond reading the applicant's letter, nor did it hold any meeting to consider the request to avail the report. The decision was unreasonable for the further reason that WUC ignored all the relevant factors including its public policy role”, the judge said.
He said the illegality is based on the alleged breach of section 17 of the Act which the applicant construes as entitling it to receive the report by virtue of the obligation by WUC to publish the report.
According to the judge, the constitutional right to receive the report is founded on section 12 of the Constitution which protects the fundamental right to freedom of expression; a right that includes the dissemination of ideas and information.
“In that regard, WUC, which is wholly owned by the Government of Botswana is required to ensure that there is access to information, such as the report. To that extent, the applicant has assembled an impressive array of international treaties, instruments, conventions and case law on the right to information in a bid to sustain the claim that they apply in Botswana. They should be interpreted as conferring the right of freedom of information on the applicant.”
WUC argued that the application is frivolous and vexatious and constitutes an abuse of process because it has been superseded by events and has become a futile exercise.
In this respect, the application is also founded on hearsay and the unconfirmed Sunday Standard article, Justice Motumise said, adding that for that reason, the issue before the Court is abstract or mute which the Court cannot entertain.
A local weekly publication The Botswana Gazette had approached the High Court to compel WUC to avail a Report to the newspaper which the corporation commissioned on the Gaborone Dam level. The publication had argued that it was illegal for the public entity to refuse to avail the report as per its request and indicated that the decision was reviewable.
Justice Motumise said the review application brought in terms of Order 61, as well as Order 70 of the High Court Rules in which the main question in issue is whether WUC is required under section 17 of the Water Utilities Act, of the Laws of Botswana to provide a copy of a report to the applicant (The Botswana Gazette), which it had commissioned in respect of reduced water inflows into Gaborone Dam.
He said the decision under review is contained in a letter by WUC dated 17 June 2017, written in response to a demand of a copy of the report by the applicant on 31 May 2017. He stated that the WUC Act empowers the Corporation to engage in research and or publish the results thereof. The results of the research are the property of the corporation.
According to the judge, the corporation has not determined to release any such information or results of the search to client or any third party. He stated that the impugned decision is not reviewable at common law because it was neither irrational nor unreasonable.
“It is additionally not reviewable on grounds of illegality because WUC did not contravene or exceed the power which authorised the making of the decision. In this particular case, if the Court found that WUC failed to exercise its powers, it could not substitute its decision by directing that the report be availed,” the judge said, adding that the constitutional review is premised on two grounds.
“First, it is argued that by virtue of the doctrine of constitutional avoidance it would be unnecessary to apply the constitution if the matter is resolved on other grounds. Secondly, freedom of expression under section 12 of the Constitution is not absolute but is subject to limitations.
“The section does not expressly or indirectly confer any freedom of information which the applicant can invoke in its demand for the report. By the same reasoning, the international treaties cited by the applicant on freedom of information are not binding or enforceable unless they have been introduced into our domestic law,” the judge said.
He explained that in casu, the proper interpretation of the section is that it confers a privilege, authority, or discretion on WUC to publish the results of any research or records as it may determine. The section, he said, is therefore permissive and not directive, meaning that the decision whether or not to publish is discretionary.
He added “that being the case, the applicant is wrong in contending that it is entitled to the report because section 17 mandates it. Water Utilities commissioned the study and the resulting report was intended for its benefit and to aid in its operations, hence the decision was taken not to publish the report.”
The Botswana Gazette avers in its argument that the matter concerns good governance and the public duty of parastatals to be open and transparent to the public and members of the media, who aim to inform and sensitise the public.
It further says that the refusal to provide the report is reviewable on grounds of illegality, unreasonableness, irrationality and alternatively, that the decision is contrary to sections 12 and 18 of the Constitution of Botswana.
The WUC opposed the review. They submitted that the decision not to provide the report, which is the property of the corporation, is not impeachable for any reason at all because the report was not intended for public consumption.
Justice Motumise stated that sometime in 2014 the country experienced unusually dry spells which caused a reduction in the water levels in the nine dams. The dams in the southern part of the country inclusive of the Gaborone Dam were severely affected and recorded the lowest water levels during the said period which led to water rationing to the public.
“On or about 19 January 2014, the Sunday Standard Newspaper published an article titled "THE RICH BLOCKING WATER FLOW IN GABORONE DAM" in which it reported that the University of Botswana and WUC had commissioned a study which had allegedly revealed that there were 200 illegal dams blocking the flow of water into Gaborone Dam, resulting in reduced water levels and the rationing of water by WUC.
“Respondent is quoted confirming the existence of the report and the dams in question; and saying that the report could not be shared with the public because it was not intended to be shared when it was commissioned. On the other hand, WUC denied responsibility for issuing permits to people to build dams as its only mandate was to ensure that water reached its consumers,” the judge said in his ruling.
Motumise stated that the article blamed the low water levels on the "illegal dams" whereas WUC said that it was due to the dry spells at the time. He further added in his judgement that the applicant (The Botswana Gazette) contends that the refusal to produce the report was unreasonable because there was information of illegal activity occurring that impacted the water levels which served a large population and the nation.
“Thus no reasonable authority could have refused to publish the report in question. Further, WUC did not furnish any reasons for its decision. It is averred that the impugned decision was irrational because there could be no rational public objective to be met by refusing to produce the report.
“The applicant complains that WUC conducted no enquiry beyond reading the applicant's letter, nor did it hold any meeting to consider the request to avail the report. The decision was unreasonable for the further reason that WUC ignored all the relevant factors including its public policy role”, the judge said.
He said the illegality is based on the alleged breach of section 17 of the Act which the applicant construes as entitling it to receive the report by virtue of the obligation by WUC to publish the report.
According to the judge, the constitutional right to receive the report is founded on section 12 of the Constitution which protects the fundamental right to freedom of expression; a right that includes the dissemination of ideas and information.
“In that regard, WUC, which is wholly owned by the Government of Botswana is required to ensure that there is access to information, such as the report. To that extent, the applicant has assembled an impressive array of international treaties, instruments, conventions and case law on the right to information in a bid to sustain the claim that they apply in Botswana. They should be interpreted as conferring the right of freedom of information on the applicant.”
WUC argued that the application is frivolous and vexatious and constitutes an abuse of process because it has been superseded by events and has become a futile exercise.
In this respect, the application is also founded on hearsay and the unconfirmed Sunday Standard article, Justice Motumise said, adding that for that reason, the issue before the Court is abstract or mute which the Court cannot entertain.
