President of the RSA and Others v M & G Media Ltd

• Jurisdiction: South Africa
• Judge: Navsa ADP, Brand JA, Ponnan JA, Mbha JA and Mathopo AJA
• Judgment Date: 19 September 2014
• Citation: 2015 (1) SA 92 (SCA)
• Docket Number: 998/2013 [2014] ZASCA 124
• Hearing Date: 04 September 2014
• Counsel: MTK Moerane SC (with L Gcabashe) for the appellants. J Gauntlett SC (with F Ismail and F Pelser) for the respondent.
• Court: Supreme Court of Appeal

President of the RSA and Others v M & G Media Ltd
2015 (1) SA 92 (SCA)

2015 (1) SA p92

Citation	2015 (1) SA 92 (SCA)
Case No	998/2013; [2014] ZASCA 124
Court	Supreme Court of Appeal
Judge	Navsa ADP, Brand JA, Ponnan JA, Mbha JA and Mathopo AJA
Heard	September 4, 2014
Judgment	September 19, 2014
Counsel	MTK Moerane SC (with L Gcabashe) for the appellants.; J Gauntlett SC (with F Ismail and F Pelser) for the respondent.

Flynote : Sleutelwoorde F

Administrative law — Access to information — Access to information held by public body — Request — Refusal — Application to compel — Disclosure of record to court — 'Judicial peek' — Ambit — Ex parte representations to G court — Not aimed at introduction of new evidence — Promotion of Access to Information Act 2 of 2000, s 80(1) and 80(3)(a).

Headnote : Kopnota

Section 80 of the Promotion of Access to Information Act allows a court hearing an application to compel the disclosure of a document to examine the document in secret to determine whether the application should be granted. H This has become known as having a 'judicial peek' into the document. Section 80(3)(a) provides that the court may also 'receive representations ex parte'. The present case deals, inter alia, with the permissible ambit of such representations.

The facts were as follows: In June 2008 the respondent (M & G) applied for the disclosure, under the Promotion of Access to Information Act 2 of 2000, of I an observer report prepared by two judges sent to Zimbabwe by then President Mbeki to investigate the freeness and fairness of the 2002 Zimbabwean elections. The Presidency refused to release the report [*] and the

2015 (1) SA p93

ensuing case eventually made its way to the Constitutional Court, which A referred the matter back to the high court with an instruction that it take a 'judicial peek' at the contents of the report to determine whether the refusal of access was justified. The high court held that it was not and ordered the Presidency to hand over the report. During the course of the proceedings the high court rejected supplementary affidavits, proffered under s 80(3)(a) of PAIA, by former President Mbeki and President Zuma. The rejection was the basis of the present appeal. B

The SCA had its own judicial peek at the report and dismissed the appeal on the basis that there was nothing in it to support the grounds on which the Presidency had refused access to it. Nor was the Presidency's belated attempt to introduce additional evidence in the form of the Presidents' C affidavits acceptable: the ambit of s 80(3)(a) was limited to representations about the record and did not envisage the introduction of new evidence. In seeking to persuade the high court to refuse M & G's application on a basis that had nothing to do with the contents of the report, the Presidency was seeking to achieve the opposite of what the Constitutional Court had intended when it referred the matter, and this was an intolerable abuse of process. (Paragraphs [23] – [31] at 102E – 105I.) D

Cases Considered

Annotations

Case law

Minister for Provincial and Local Government v Unrecognised Traditional Leaders, Limpopo Province (Sekhukhuneland) 2005 (2) SA 110 (SCA) ([2005] 1 All SA 559): referred to E

President of the Republic of South Africa v M & G Media Ltd 2011 (2) SA 1 (SCA) (2011 (4) BCLR 363): discussed

President of the Republic of South Africa and Others v M & G Media Ltd 2012 (2) SA 50 (CC) ([2011] ZACC 32): discussed.

Statutes Considered

Statutes F

The Promotion of Access to Information Act 2 of 2000, s 80(1) and 80(3)(a): see Juta's Statutes of South Africa 2013/14 vol 5 at 1-251.

Case Information

MTK Moerane SC (with L Gcabashe) for the appellants.

J Gauntlett SC (with F Ismail and F Pelser) for the respondent. G

An appeal against a decision of the North Gauteng High Court, Pretoria (Raulinga J).

Order

The appeal is dismissed with costs, including the costs of three counsel. H

Judgment

Brand JA (Navsa ADP, Ponnan JA, Mbha JA and Mathopo AJA concurring):

[1] The litigation in this matter has been ongoing for more than five years. It stems from a request by the respondent pursuant to the provisions of the Promotion of Access to Information Act 2 of I 2000 (PAIA) for information under the control of the three appellants, who are all part of the Presidency. The respondent is M & G Media Ltd

2015 (1) SA p94

Brand JA (Navsa ADP, Ponnan JA, Mbha JA and Mathopo AJA concurring)

A (M & G). It publishes information on matters of public interest, including news and commentary on political issues, in a newspaper, the Mail & Guardian, as well as on its online website. The first appellant is the President of this country, cited in his official capacity. The second appellant is the designated officer to whom requests for information in B the Office of the Presidency are to be made. The third appellant is the Minister in the Presidency who is the designated appeal officer to whom internal appeals against adverse decisions by the second appellant lie. For the sake of brevity I shall refer to the three appellants jointly as 'the Presidency'.

C [2] The information concerned is contained in a report under the control of the Presidency. It was prepared by two senior judges, Justice Khampepe and Justice Moseneke, after their visit to Zimbabwe shortly before the presidential elections that were held in that country in 2002. They did so at the behest of the then President. The report was never released to the general public. On 7 June 2008 M & G applied for access D to the report. The second appellant refused the request, citing ss 41(1)(b)(i) and 44(1)(a) of PAIA as his grounds for refusal. M & G thereupon lodged an internal appeal against the refusal to the third appellant. She dismissed the appeal, essentially on the same grounds as those relied upon by the second appellant. That triggered the present E litigation. The high court ordered the Presidency to make the report available to M & G. On appeal to this court, that order was upheld in a judgment which has since been reported as President of the Republic of South Africa v M & G Media Ltd 2011 (2) SA 1 (SCA) (2011 (4) BCLR 363).

F [3] A further appeal by the Presidency to the Constitutional Court met with greater success. In a judgment since reported as President of the Republic of South Africa and Others v M & G Media Ltd 2012 (2) SA 50 (CC) ([2011] ZACC 32) that court ordered, by a majority of five to four, that (para 72):

'1.

G The appeal succeeds.

2.

The orders of the High Court and the Supreme Court of Appeal are set aside.

3.

The case is remitted to the North Gauteng High Court, Pretoria, for that court to examine the record [ie the report] in terms of the provisions of s 80 of [PAIA] and determine the application under s 82 of [PAIA] in the light of this judgment.

4.

H There is no order as to costs.'

[4] Upon its return to the high court the matter came before Raulinga J who examined the contents of the report as contemplated in s 80 of PAIA and then ordered the Presidency to make it available to M & G. The I present appeal against that order is with the leave of the court a quo. The issues that evolved before Raulinga J and again arose on appeal before us will be better understood against the background of (a) the pertinent provisions of PAIA; (b) the evidence relied upon by the Presidency in the previous round of litigation to justify its refusal of access to the report; and (c) the reasoning that appears from the judgments of the different J courts — and particularly the Constitutional Court.

2015 (1) SA p95

Brand JA (Navsa ADP, Ponnan JA, Mbha JA and Mathopo AJA concurring)

Pertinent provisions of PAIA A

[5] The provisions of PAIA that are pertinent for present purposes start with s 11, which stipulates that requesters for information under the control of a public body (in contrast with a private body) are entitled as of right to the information sought, provided that the procedural requirements are met. Refusal is only permitted on grounds contemplated by B ch 4 of part 2 of PAIA. Since it is common cause that the procedural requirements were met in this case, M & G does not have to justify its request for access to the report. The onus rests on the Presidency to justify its refusal. This is borne out by s 81(3) of PAIA which explicitly provides that:

'The burden of establishing that a refusal of a request for access . . . C complies with the provision of this Act rests on the party claiming that it so complies.'

[6] From the outset the Presidency relied on two grounds contemplated in ch 4 of part 2 of PAIA for refusing M & G's request. They are those contained in ss 41(1)(b)(i) and 44(1)(a). They state in relevant part: D

'41 Defence, security and international relations of Republic

(1) The information officer of a public body may refuse a request for access to a record of the body if its disclosure —

(a)

. . . E

(b)

would reveal information —

(i)

supplied in confidence by or on behalf of another state or an international organisation . . . .'

And:

'44 Operations of public bodies

(1) . . . (T)he information officer of a public body may refuse a F request for access to a record of the body —

(a)

if the record contains —

(i)

an opinion, advice, report or recommendation obtained or prepared . . .

(ii)

. . .

for the purpose of assisting to formulate a policy or take a decision in G the exercise of a power or performance of a duty conferred or imposed by law.'

[7] Closely related to these grounds of refusal is the public-interest override in s 46 of PAIA, which provides under the heading 'Mandatory disclosure in public interest':

'Despite any other provision of this Chapter [ie ch 4 of part 2]...