Case Summary and Outcome

The Supreme Court held that under the South African Bill of Rights and the Promotion of Access to Information Act of 2000, conclusory affidavits provided by the President to justify the secrecy of a report on the 2002 Zimbabwe elections prepared by two judges for President Mbeki were insufficient to justify non-disclosure. In a reference to suggested judicial discretion to review records that a public body asserts should not be disclosed, the Court warned that the public trust in a court, gleaned from the court’s openness and judicial reasoning, would be jeopardized should the court become party to the secrecy.

This case analysis was contributed by Right2Info.org.

Facts

M&G Media Limited, the publisher of a weekly newspaper, requested the disclosure of a report on the 2002 Zimbabwe elections prepared by two judges at the request of then President Mbeki. The President refused to release the report. In its information request, M&G relied on the constitutional right to “any information . . . held by the state” as promulgated and limited by the Promotion of Access to Information Act of 2000 (PAIA). The President asserted three grounds based on PAIA to defend the report’s secrecy: (1) the exclusion of Cabinet and committee records from PAIA disclosure obligations; (2) Section 41(1)(b) permitting discretionary non-disclosure of information “supplied in confidence by or on behalf of another state or an international organization”; and (3) Section 44 permitting discretionary non-disclosure of records containing “an opinion, advice, report or recommendation obtained or prepared . . . for the purpose of” legally required policy formulation or decision-taking. On the first judicial ruling, the North Gauteng High Court ordered the release of the report. The President appealed.

Decision Overview

The Supreme Court upheld the lower court’s order requiring the report’s release. The Court positioned South Africa’s freedom of information law within the “legal culture of accountability and transparency,” and South Africa’s Bill of Rights and freedom of information law as representative of a “‘culture of justification.’” [para. 10-11] The public body must provide adequate justification for non-disclosure and not conclusory, perfunctory and dismissive statements, as had been provided in the instant case. [para. 13, 19, 21]

Recognizing the inequality of information between the public body and the information requestor, the Court “must scrutinize the affidavits put up by the public body with particular care” and “not hesitate to allow cross-examination of witnesses . . . if their veracity is called into doubt”. [para. 15] The Court contests the President’s failure to present “direct knowledge”—here held by Mr. Mbeki and the judges who do not provide affidavits. [para. 20] Further, “proper grounds” must be laid to justify the indirect knowledge of the witness, to judge the validity and the weight of the assertions presented. [para. 37-38] The Supreme Court found that the affidavits supplied by the government “assert conclusions . . . with no evidential basis to support them, in the apparent expectation that their conclusions put an end to the matter. The Act requires a court to be satisfied that secrecy is justified and that calls for a proper evidential basis to justify the secrecy”. [para. 19]

The Court rejected the evidentiary basis presented in support of each of the President’s specific justifications, outlined above. First, no evidence had been presented that the President is the Cabinet or that the report was before the Cabinet. [para. 21] Second, no or insufficient evidence was presented that the public body exercised the discretion required under Section 41(1)(b); that a state or an international organization supplied the information requested; that any such information was supplied in confidence; or that certain information not supplied by a state or international organization could not be severed and released. [para. 22-26, 40-49] Lastly, no or insufficient evidence was presented that the public body exercised the discretion required under Section 44; and that the purpose of the report’s preparation satisfied Section 44 requirements. [para. 27-34] In a reference to the judicial discretion to review records that a public body asserts should not be disclosed, the Court warned that the public trust in a court, gleaned from the court’s openness and judicial reasoning, is jeopardized by “becom[ing] a party to secrecy”. [para. 52]