President of the Republic of South Africa and Others v M & G Media Ltd

• Jurisdiction: South Africa
• Judge: Ngcobo CJ, Cameron J, Froneman J, Jafta J, Mogoeng J, Mthiyane AJ, Nkabinde J, Van der Westhuizen J and Yacoob J
• Judgment Date: 29 November 2011
• Docket Number: CCT 03/11 [2011] ZACC 32
• Hearing Date: 17 May 2011
• Counsel: MTK Moerane SC (with L Gcabashe) for the applicants. J Gauntlett SC (with F Ismail and F Pelser) for the respondent.
• Court: Constitutional Court

Ngcobo CJ (Froneman J, Mogoeng J, Mthiyane AJ and Yacoob J concurring): I

Introduction

[1] Shortly before the 2002 presidential election in Zimbabwe, former J President Thabo Mbeki appointed two senior judges to visit that

Ngcobo CJ (Froneman J, Mogoeng J, Mthiyane AJ and Yacoob J concurring)

country. It is by now common cause that the two judges were sent to A assess the constitutional and legal issues relating to that election. Upon their return, the judges prepared a report and submitted it to the President. The report has never been released to the public. M & G Media Ltd (M & G), the publisher of a weekly newspaper, the Mail & Guardian, requested access to the report pursuant to s 11 of the Promotion of Access to Information Act (PAIA, or the Act). [1] The B Presidency refused the request. [2]

[2] The request was refused on two grounds: first, that disclosure of the report would reveal information supplied in confidence by or on behalf C of another state or international organisation, contrary to s 41(1)(b)(i) of PAIA; and second, that the report had been prepared for the purpose of assisting the President to formulate executive policy on Zimbabwe, as contemplated in s 44(1)(a) of PAIA.

[3] In the ensuing litigation initiated by M & G pursuant to s 78 of PAIA, D the North Gauteng High Court, Pretoria (High Court), and, on appeal, the Supreme Court of Appeal held that the refusal to grant access to the report was not justified by either s 41(1)(b)(i) or s 44(1)(a) of PAIA, as claimed by the Presidency. The High Court ordered the President, the Deputy Information Officer and the Minister in the Presidency (together, E the State), who were the respondents in those proceedings, to make the report available, in its entirety, to M & G. [3] This order, including an order for costs, was upheld on appeal by the Supreme Court of Appeal. [4] With our leave previously granted, [5] the State is now appealing to this court.

[4] On appeal to this court, the State contended that both the Supreme F Court of Appeal and the High Court erred in finding that it had not discharged its statutory burden, imposed by s 81(3) of PAIA, of establishing that its refusal to grant access to the report was justified by either of the exemptions it claimed under ss 41(1)(b)(i) and 44(1)(a). [6] The State also argued that, in responding to the application by M & G, its hands were tied. It argued that it could not give more information on its G refusal to provide access to the report without referring to the contents of the report that it sought to protect from disclosure, which would be in

Ngcobo CJ (Froneman J, Mogoeng J, Mthiyane AJ and Yacoob J concurring)

A contravention of the Act. [7] While the State admits that the report contains some information that is not confidential, it nevertheless resists the disclosure of even the non-confidential portions on the basis that they cannot reasonably be severed from those portions containing confidential information.

Issues for consideration B

[5] This case raises two important issues: first, how the State discharges the burden, under s 81(3) of PAIA, of establishing that its refusal to grant access to a record is justified; and second, the circumstances under C which a court may call for additional evidence in the form of the contested record under s 80. [8] These issues will be considered in this judgment in the light of the constitutional right of access to information held by the State and the statutory framework that regulates proceedings under PAIA.

The constitutional right of access to information held by the State D

[6] The constitutional right of access to information is governed by s 32 of the Constitution, which provides, in relevant part:

'(1) Everyone has the right of access to —

(a)

E any information held by the state'.

[7] Section 11 of PAIA gives effect to this constitutional right, and provides:

'(1) A requester must be given access to a record of a public body if —

(a)

that requester complies with all the procedural requirements in this Act relating to a request for access to that record; and

(b)

F access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this Part.

(2) A request contemplated in subsection (1) includes a request for access to a record containing personal information about the requester.

(3) A requester's right of access contemplated in subsection (1) is, subject to this Act, not affected by —

(a)

G any reasons the requester gives for requesting access; or

(b)

the information officer's belief as to what the requester's reasons are for requesting access.'

[8] In Brümmer v Minister for Social Development and Others, [9] this court H explained the importance of the constitutional right of access to information held by the State as follows:

Ngcobo CJ (Froneman J, Mogoeng J, Mthiyane AJ and Yacoob J concurring)

'The importance of this right . . . in a country which is founded on A values of accountability, responsiveness and openness, cannot be gainsaid. To give effect to these founding values, the public must have access to information held by the State. Indeed one of the basic values and principles governing public administration is transparency. And the Constitution demands that transparency ''must be fostered by providing the public with timely, accessible and accurate information''. B

Apart from this, access to information is fundamental to the realisation of the rights guaranteed in the Bill of Rights. For example, access to information is crucial to the right to freedom of expression which includes freedom of the press and other media and freedom to receive or impart information or ideas. . . . Access to information is crucial to C accurate reporting and thus to imparting accurate information to the public.' [10] [Citations omitted.]

[9] As is evident from its long title, PAIA was enacted '(t)o give effect to the constitutional right of access to any information held by the State'. And the formulation of s 11 casts the exercise of this right in peremptory D terms — the requester 'must' be given access to the report so long as the request complies with the procedures outlined in the Act and the record requested is not protected from disclosure by one of the exemptions set forth therein. [11] Under our law, therefore, the disclosure of information is the rule and exemption from disclosure is the exception. E

[10] The constitutional guarantee of the right of access to information held by the State gives effect to 'accountability, responsiveness and openness' as founding values of our constitutional democracy. [12] It is impossible to hold accountable a government that operates in secrecy. The right of access to information is also crucial to the realisation of F other rights in the Bill of Rights. The right to receive or impart information or ideas, [13] for example, is dependent on it. In a democratic society such as our own, the effective exercise of the right to vote [14] also depends on the right of access to information. For without access to information, the ability of citizens to make responsible political decisions and participate meaningfully in public life is undermined. G

[11] But PAIA places limitations on the right of access to information. It does this by exempting certain information from disclosure. PAIA recognises, in its preamble, that there are 'reasonable and justifiable' limitations on the right of access to information, even in an open and democratic society. [15] Those limitations emerge from the exemptions to H disclosure contained in Ch 4 of the Act. The purpose of Ch 4 is to protect from disclosure certain information that, if disclosed, could cause material harm to, amongst other things: the defence, security and

Ngcobo CJ (Froneman J, Mogoeng J, Mthiyane AJ and Yacoob J concurring)

A international relations of the Republic; [16] the economic interests and financial welfare of the Republic and commercial activities of public bodies; [17] and the formulation of policy and taking of decisions by public bodies in the exercise of powers or performance of duties conferred or imposed by law. [18]

B [12] We are not concerned, here, with the constitutionality of PAIA or the limitation on the right of access to information contained in Ch 4. What we are concerned with is the constitutional and statutory framework within which claims for exemption from disclosure must be considered and evaluated.

The statutory framework that regulates proceedings under PAIA C

[13] Court proceedings under PAIA are governed by ss 78 – 82. Section 81 provides that proceedings under PAIA are civil proceedings and the rules of evidence applicable in civil proceedings apply. The burden of establishing that the refusal of access to information is justified under the D provisions of PAIA rests on the State or any other party refusing access. Section 81 provides:

'(1) For the purposes of this Chapter proceedings on application in terms of section 78 are civil proceedings.

E (2) The rules of evidence applicable in civil proceedings apply to proceedings on application in terms of section 78.

(3)

The burden of establishing that —

(a)

the refusal of a request for access; or

(b)

any decision taken in terms of section 22, 26(1), 29(3), 54, 57(1) or 60, F

complies with the provisions of this Act rests on the party claiming that it so complies.'

[14] In proceedings under PAIA, a court is not limited to reviewing the decisions of the information officer or the officer who undertook the G internal appeal. It decides the claim of exemption from disclosure afresh, engaging in a de novo reconsideration of the merits. [19] The evidentiary burden borne by the State pursuant to s 81(3) must be discharged, as in any...