Auditor-general not constitutionally obliged to publish municipal reports: high court

Auditor-general Tsakani Maluleke is not compelled to publish management reports regarding the state of the municipalities.

The Pretoria high court recently dismissed an application by Sakeliga seeking access to the management reports.  

The non-profit organisation applied to the court for an order instructing Maluleke to release the management reports of 154 municipalities.  

Management reports are meant for executives and accounting officers of the government and public institutions to highlight risks identified during audits that require attention.  

Sakeliga filed an application in terms of the Promotion of Access to Information Act (PAIA) seeking documents relating to municipal finances extending over seven years. 

The AG refused access on various grounds when it emerged the NPO was seeking disclosure of the reports.  

The AG was of the view that section 44 of PAIA entitled the institution to refuse access to the reports on the basis that they contained opinions, advice, reports or recommendations obtained or prepared in the performance of a duty conferred by law as opposed to the publicly available audit reports.  

The AG held the view that the publicly available audit provided sufficient information for Sakeliga's purposes. The AG held that the disclosure of the reports might frustrate the deliberative process between it and the municipalities by inhibiting candid discussions of the issues identified in the reports.

Sakeliga sought an order that the AG's failure to make her reports public, including the management reports, is unlawful and inconsistent with the constitution. It also sought an order that the AG's reports, including management reports, in future be made public.  

Sakeliga said in its court application some municipalities were at a point of collapse.  

“I daresay that dysfunction in local government has a particularly severe and direct impact on the public, and more specifically on the poor who do not have resources to fend for themselves.  

“The importance of a properly functioning local government cannot be over-emphasised. It is therefore laudable that Sakeliga has taken it upon itself to attempt to get to the bottom of the dysfunction in local government structures,” said judge Jan Swanepoel.  

The judge said the central question was to establish the AG’s constitutional obligation in respect of the publication of reports. 

Swanepoel accepted the AG’s version regarding the difference between management and audit reports in content and purpose.  

“I am bound, in motion proceedings to determine the matter on the facts put forward by the applicant where they are not contested, together with the facts put forward by the respondent.  

“I must accept the respondent's version where it conflicts with the applicant's version unless it is so clearly untenable that it can be rejected. That is not the case in this instance. 

“Given the fact that I have found that the application in terms of PAIA is premature and that the AG was not constitutionally obliged to publish the management reports the application must fail,” said Swanepoel. 

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