Case Summary and Outcome

The Supreme Court of Appeal of South Africa held that the Promotion of Access to Information Act 2 of 2000 did not support the government’s refusal to grant access to a report made by two senior judges concerning the 2002 Zimbabwe elections because the information could not considered as confidential under section 41(1)(b)(i) of the Act and that the government failed to establish that the report would be used for the purpose of assisting to formulate a policy under section 44(1)(a). 

Facts

In 2002, the then-President of South Africa, Thabo Mbeki, appointed two senior judges to investigate and prepare a report on the 2002 Zimbabwean national elections. In 2008, the Mail and Guardian Media newspaper (M & G) requested the government to release the report pursuant to the Promotion of Access to Information Act of 2000 (PAIA). The government denied the application, stating that the report was prepared for policy formulation and that it contained confidential information provided by foreign state officials. It invoked sections 41(1)(b)(i) and 44(1)(a) of the PAIA as grounds of refusal.

Under section 41(1)(b)(i), the government may refuse access to a record that “would reveal information supplied in confidence by or on behalf of another state or an international organi[z]ation.”  Section44(1)(a) also permits refusal when the requested record contains “an opinion, advice, report or recommendation obtained or prepared . . . for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law.”

M & G sought an order from the North Gauteng High Court to compel the government in furnishing the report. The High Court concluded in favor of M & G.  It held that the government did not provide viable factual basis to support its grounds of refusal.  The government then appealed to the Supreme Court of Appeal and was again ordered to make the report available. See President of South Africa v. M & G Media Ltd., 2011 (2) SA 1 (SCA). Subsequently, the government appealed to the Constitutional Court of South African. The Court decided that the North Gauteng High Court, pursuant to section 80 of the PAIA, had the power to examine the contents of the report in order to determine if the government had to make the report available. See President of South Africa v. M & G Media Ltd.,  2012 (2) SA 50 (CC). It remitted the case to the High Court for further determination. The High Court resolved that the contents of the report did not support the grounds of refusal asserted by the government.

The present case concerns the government’s second appeal to the Supreme Court of Appeal of South Africa.

Decision Overview

Justice Fritz Brand delivered the opinion of the Supreme Court of Appeal.

The first issue before the Court was whether the High Court erred in not admitting the government’s affidavits in opposing the judicial examination of the report under section 80 of PAIA.  This section empowers “any court hearing an application, or an appeal against a decision on that application, may examine any record of a public or private body to which this Act applies . . .”  Pursuant to subsection 80(3)(a), the court may receive ex parte representations in determining whether the record at issue should be released.

The government contended that the affidavits of former President Mbeki and his successor, Jacob Zuma should have been admitted by the Hight Court.  The affidavits highlighted the government’s previous position that communications contained in the report were confidential in nature and were prepared to assist the president’s policy-making decisions. 

The Court upheld the High Court’s decision in not admitting the affidavits. It held that the representation contemplated under subsection 80(3)(a) must be directed specifically at the contents of the record at issue that the court had examined; the purpose of this subsection “is therefore not to afford an opportunity to any of the parties to adduce new evidence, extraneous to the record, which should have been introduced as part of its original case.” [para. 23]  The Court stated that both the subject and contents of Mbeki’s affidavit concerned only the government’s repeated opposition against the judicial examination of the report and lacked any evidence directly related to its contents. As to the affidavit of President Zuma, the Court agreed with the High Court’s refusal to admit.  It held that the affidavit failed to support the government’s refusal to provide access to the report because the President did not state his personal knowledge of the facts contained in the report.  The Court, however, was of the opinion that the President’s public interest reasoning as a ground of refusal under section 46 of PAIA could have made his affidavit admitted before the Hight Court.  But since the government did not initially establish its refusal upon this section, the affidavit remained inadmissible.  

The second issue for the Court was whether the government’s refusal to furnish the report was justified, even if its affidavits were to be admitted.  It first ruled that the information contained in the report could not be considered confidential under section 41(1)(b)(i).  According to the Court, the section does not protect all information conveyed by diplomats; it is instead “confined to communications conveyed in confidence on behalf of a foreign state.” [para. 29] The Court determined that the two senior judges appointed to prepare the report were not diplomatic envoys instead, they were to be focused on matters of the law. The Court also found that the report contained additional information from private individuals and organizations, rendering the report as non-confidential. 

With regard to the government’s ground of refusal contemplated under section 44(1)(a), the Court sided with the Hight Court’s reasoning that the government failed to produce sufficient evidence as to show that the report prepared by the judges would assist the president in formulating policy decisions . 

Based on the foregoing analysis, the Court dismissed the government’s appeal and concluded that its grounds of refusal under PAIA to provide access to the report were unfounded.