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[2014] ZASCA 124
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President of the Republic of South Africa and Others v M & G Media Limited (998/2013) [2014] ZASCA 124; 2015 (1) SA 92 (SCA); [2014] 4 All SA 319 (SCA) (19 September 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No: 998/2013
In
the matter between:
THE
PRESIDENT OF THE REPUBLIC OF
SOUTH
AFRICA
...................................................................................................
FIRST
APPELLANT
THE
DEPUTY INFORMATION OFFICER:
OFFICE
OF THE
PRESIDENCY
...................................................................
SECOND
APPELLANT
THE
MINISTER IN THE
PRESIDENCY
........................................................
THIRD
APPELLANT
and
M
& G MEDIA
LIMITED
.............................................................................................
RESPONDENT
Neutral
citation:
President of the RSA v M &
G Media Ltd
(998/2013)
[2014] ZASCA 124
(19 September 2014).
Coram:
Navsa ADP, Brand, Ponnan, Mbha JJA
et
Mathopo AJA
Heard:
4 September 2014
Delivered:
19 September 2014
Summary:
Promotion of Access to Information Act 2 of 2000 (PAIA) –
exemption from disclosure of record claimed under sections
41(1)
(b)
(i)
and 44(1)
(a)
– ‘judicial peek’ at record under s 80 –
ex parte representations contemplated in s 80(3)
(a)
– what these entail.
ORDER
On
appeal from:
North Gauteng High Court,
Pretoria (Raulinga J sitting as court of first instance):
The
appeal is dismissed with costs, including the costs of three counsel.
JUDGMENT
Brand
JA
(Navsa ADP, Ponnan, Mbha JJA
et
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 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
(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 the Office of the Presidency is to be
made. The third respondent
is the Minister in the Presidency who is
the designated appeal officer to whom internal appeals against
adverse decisions by the
second appellant lies. For the sake of
brevity I shall refer to the three appellants jointly as ‘the
Presidency’.
[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 to the report. The second appellant refused the
request, citing s 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
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 & others v M & G Media (Ltd)
2011 (2) SA 1
(SCA).
[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 & others v M & G Media (Ltd)
2012 (2) SA 50
(CC) para 72, that court ordered, by a majority of
5 to 4 that:
‘
1
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
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 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 judgment
of the different courts – and
particularly the Constitutional Court.
Pertinent
provisions of PAIA
[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 Chapter 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 . . .
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
Chapter 4 of Part 2 of PAIA for refusing M & G’s
request.
They are those contained in s 41(1)
(b)(
i) and 44(1)
(a)
.
They state in relevant part:
’
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)
. . .
(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 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
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 Chapter 4 of Part 2] the
information officer of a public body must grant a request
for access
to a record of the body contemplated in sections . . . 41(1)
(b)
or . . . 44(1) . . . if—
(a)
the disclosure of the record would reveal evidence
of—
(i)
a substantial contravention of, or failure to comply with, the law;
or
(ii)
. . . ; and
(b)
the public interest in the disclosure of the
record clearly outweighs the harm contemplated in the provision in
question.’
[8]
In setting out the factual basis for its reliance on these two
grounds in its original answering papers, the deponents on behalf
of
the Presidency indicated that they were hamstrung in doing so by the
provisions of sections 25(3)
(b)
and 77(5)
(b)
of PAIA. Section 25(3)
(b)
must be read in the context with 25(3)
(a)
.
While the latter section obliges an information officer who refuses a
request for access to give ‘adequate reasons for the
refusal’,
this is qualified by s 25(3)
(b)
to the extent that these reasons may not rely on ‘any reference
to the content of the record’. Section 77(5)
(b)
contains a similar embargo against any reference to the content of
the record with regard to reasons provided for the dismissal
of an
internal appeal by the appeal authority, in this instance, the third
appellant.
[9]
Finally, with regard to the provisions of PAIA, there is s 80
which evolved into the keystone of the majority judgment
in the
Constitutional Court. It determines in relevant part:
‘
80(1)
Despite this Act and any other law, 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, and no
such record may be withheld from the court
on any grounds.
(2)
Any court contemplated in
subsection
(1)
may not disclose to any person, including the parties to the
proceedings concerned, other than the public or private body referred
to in
subsection
(1)
—
(a)
any record of a
public or private body which, on a request for access, may or must be
refused in terms of this Act; or
(b)
. . .
(3)
Any court contemplated in
subsection
(1)
may—
(a)
receive
representations ex parte;
(b)
conduct hearings in
camera; and
(c)
prohibit the
publication of such information in relation to the proceedings as the
court determines, including information in relation
to the parties to
the proceedings and the contents of orders made by the court in the
proceedings.’
Evidence
relied upon by the Presidency during the first round of litigation
[10]
The evidence relied upon by the Presidency during the first round of
litigation was embodied in three affidavits – one
by each of
second and third appellants and one by Reverend Frank Chikane, who
served as Director-General in the Presidency at the
time when the
report had been commissioned by then President Mbeki and also when it
`was subsequently submitted by the two judges.
The second appellant
was not there at the time. He only took up his position in 2004. All
three affidavits consisted largely of
a recital of the wording of
sections 41(1)
(b)
(i) and 44(1)
(a),
followed by the
ipse
dixit
of these officials that the report is covered by the stated
provisions. With regard to s 41(1)(
b
)(i) the second and
third appellants asserted personal knowledge of the fact that the two
judges received information from the representatives
of the
Zimbabwean Government in confidence. Apropos the purpose for which
the report was obtained – which was a relevant
consideration in
the application of s 44(1)
(a)
– second appellant
said (at 155):
‘
The
President at the time, Mr Mbeki, appointed the Justices primarily to
assess the constitutional and legal issues that arose prior
to the
2002 Presidential elections in Zimbabwe and report to him . . .
A related purpose of the mission which arose
once
the President had sight of the report
was that he was able to utilise the report to assist him in the
formulation of policy and taking of decisions in the exercise of
his
powers or the performance of his duties . . .’ (Emphasis
added.)
Reasoning
of the courts in the previous round of litigation
[11]
The critical question therefore turned on whether these claims of
personal knowledge by the deponents on behalf of the Presidency
were
sufficient to place the record within the ambit of the exemptions
claimed. The high court held that they were not. None of
the
deponents, so the court held, were privy to the appointment of the
two judges. Hence these deponents could not of their own
knowledge
describe the judges’ mandate or their terms of reference. Nor
could they, on their own account, testify as to what
took place in
Zimbabwe and as to how, from whom and on what basis the information
reflected in the report had been obtained. On
appeal this court
agreed with the high court that no proper evidential basis had been
established by the Presidency for refusing
access to the report. On
behalf of this court Nugent JA held that not one of the three
deponents on behalf of the Presidency could
have any direct knowledge
of facts which were essential for the grounds upon which the refusal
relied. ‘It might be’,
so Nugent JA concluded (in para 33
of his judgment), ‘that the report contains information that
was received in confidence
and it might be that it was obtained or
prepared for a purpose contemplated by s 44, but that has not
been established by
acceptable evidence’.
[12]
In writing for the majority in the Constitutional Court Ngcobo CJ
also concluded that the evidence put forward by the Presidency
in its
answering papers was insufficient to discharge the onus resting on it
in terms of s 81(3), to establish that the report
fell within
the scope of the exemptions claimed. But, so he held, that was not
the end of the matter, because proceedings under
PAIA differ from
ordinary civil proceedings in several respects (see paras 33-35). One
of these differences most pertinent for
present purposes, so the
Chief Justice said, is that parties to disputes under PAIA may be
constrained by factors beyond their
control in presenting and
challenging evidence. From the requestors’ perspective, the
facts upon which the exemption is justified,
will be exclusively
within the knowledge of the holder of the information. In consequence
they may have to resort to bare denials
of facts relied upon by the
holder as justifying refusal of access. On the other hand, holders of
information may be compelled
to rely on the contents of the record
itself to justify the exemption. But they will be precluded from
doing so by the provisions
of ss 25(3)
(b)
and 77(5)
(b)
of
PAIA. The second feature distinguishing PAIA disputes from ordinary
civil proceedings, which is pertinent in this case, so the
Chief
Justice continued, is that courts are afforded the discretion to call
for additional evidence in the form of the contested
record itself
and have, what is referred to in the parlance of American
jurisprudence, ‘a judicial peek’ at its contents.
[13]
As to when courts should exercise their discretion in favour of
resorting to a judicial peek into the contested record, Ngcobo
CJ
held (in para 44) that it should be reserved for the situation where
an injustice may result from the unique constraints placed
upon the
parties in PAIA disputes: where, for instance, the holder of the
information had failed to discharge its burden under
s 81(3),
but indicated that it was prevented from doing so by the provisions
of PAIA, the courts should generally invoke s 80
(para 46). Or
where the probabilities are evenly balanced and the doubt as to the
validity of the exemptions claimed can be explained
in terms of the
limitations placed on the parties to adduce evidence (para 47).
[14]
In concluding that the provisions of s 80 should have been
invoked by the high court in the circumstances of this case,
Ngcobo
CJ was primarily swayed by three considerations (paras 54-66). First,
the conclusion of the SCA that the refusal of access
to the report
might have been justified, but since this had not been established by
acceptable evidence, disclosure of the report
was inevitable.
Secondly, that the Presidency had alleged in its answering papers
that its hands were tied by sections 25(3)
(b)
and 77(5)
(b)
of PAIA in presenting evidence in support of its claim to exemptions.
Thirdly, that even if refusal of access to the report as
a whole was
justified, s 28 of PAIA provides for disclosure of information
that is not protected and that can reasonably be
severed from the
protected part. Although the Presidency asserted that the report was
not severable, M & G was placed at a
disadvantage in challenging
this assertion as it did not have access to the report. In
consequence, the assertion of non-severability
could not be decided
without having regard to the content of the report.
[15]
In his minority judgment Cameron J also held that the Presidency had
failed to justify its refusal of access to the report
under PAIA.
Where he differed from the majority, however, was that in his view
the Presidency had failed to provide a plausible
basis for a plea
that PAIA made it impossible to provide adequate reasons for its
refusal (para 79). As to why he was not persuaded
by the ‘hands
tied’ plea of the Presidency, Cameron J inter alia said (in
para 113-119):
‘
[113]
. . . There may be circumstances where a plea of this nature will
raise credible issues requiring the court to consider whether
it
should itself, under the powers the statute vests in it, examine the
record in camera and without the parties' presence. That
is not the
case here. The plea fails to meet even a baseline standard to warrant
further probing.
[114]
First, there are substantial reasons for approaching [second
appellant’s] invocation of the “hands-tied”
argument with reserve. There was no mention of it when the request
was refused. It appears to have been added as an afterthought
when
the opposing affidavits were drafted. . . .
[115]
There is a second reason for not being swayed by the “hands-tied”
plea. It is the Presidency's failure to explain
why evidence that
seems to have been readily available was not produced.
[116]
The person who mandated the judges to go to Zimbabwe was
then-President Mbeki. President Motlanthe, who held office when
M
& G
went to court in January 2009, supplied an affidavit.
President Zuma, who held office when the Presidency applied to appeal
to
this court in January 2011, supplied an affidavit. So there was no
inhibition against presidential deposition. Neither former President
Motlanthe nor President Zuma could cast light on the judges' mission.
President Mbeki could, but there was no affidavit from him.
So the
question is—why did President Mbeki not testify? Was he asked
or not asked? If asked, did he refuse? Or if not asked,
why?
[117]
Perhaps even more telling was the absence of evidence from the two
judges. They, like former President Mbeki, are living and
seemingly
available. Why did they not testify? Were they asked? If not, why? A
simple affidavit from any of them may have put a
quick end to the
issues.
[118]
. . .
[119]
The evidence the Presidency failed to present from the former
President who commissioned the report, and the judges who wrote
it,
need not have referred to the contents of the report. It could have
recounted quite simply whether one of the reasons the judges
were
sent to Zimbabwe was to assist in policy formulation, or whether the
disclosure of their report would reveal information supplied
in
confidence by the State of Zimbabwe.’
Proceedings
before Raulinga J
[16]
This brings me to the proceedings before Raulinga J. These were set
down for hearing on 14 June 2012, which is about six months
after the
remittal by the Constitutional Court. On 13 June 2012, the night
before the hearing, the Presidency applied, in terms
of Rule 6(5) of
the Uniform Rules of Court, for an affidavit of President Mbeki to be
received in further evidence. The declared
purpose for introducing
the affidavit was to support an attempt by the Presidency to persuade
the high court – contrary to
the clear directions of the
Constitutional Court – not to resort to a judicial peek into
the contents of the report under
s 80 after all. In order to
achieve this purpose, the affidavit clearly tried to plug some of the
holes in the case of the
Presidency that were pointed out in the
judgments of the courts in the previous round of litigation and
particularly in the minority
judgment of Cameron J in the
Constitutional Court. In the event, so counsel for the Presidency
told us, the rule 6(5) application
was, however, abandoned in the
face of the ‘strong view’ expressed by Raulinga J that
the Constitutional Court had
directed him to take a judicial peek at
the report and that he consequently proposed to do so.
[17]
Thereupon Raulinga J ordered the Presidency to make the report
available to him to facilitate the judicial peek directed by
the
Constitutional Court. He then examined the report and made the
following rulings:
(a)
By virtue of s 80(2), the report would not be made available to
the legal representatives of M & G;
(b)
The parties were invited to submit ex parte representations as
contemplated by s 80 (3)
(a)
; and
(c)
There would not be an in camera hearing under s 80(3)
(b)
.
[18]
The Presidency then proceeded to file the affidavit by President
Mbeki, which was the subject matter of its abandoned application
under Rule 6(5), as part of its representations in terms of
s 80(3)
(a)
. In addition, it also filed an affidavit by
the current President, Jacob Zuma, deposed to on 17 July 2012. What
president Mbeki
said in his affidavit was essentially that:
(a)
As Head of State he appointed the two judges to go to Zimbabwe in
order to observe and report to him on the legal and constitutional
challenges that had arisen in the period leading up to the 2002
presidential elections in that country. He had asked Chief Justice
Chaskalson to release them from their judicial functions and he
acceded to the request.
(b)
His reason for sending the two judges to Zimbabwe was primarily to
assist him to enhance his ability to execute his functions
as
President and, in particular to have facts at his disposal for
purposes of formulating appropriate policy driven intervention
in
Zimbabwe.
(c)
He had made arrangements with President Robert Mugabe of Zimbabwe for
‘these two envoys’ to be received by his Government.
He
also requested that they be given full access to whatever information
they sought and persons they wanted to meet, including
Government
ministers and officials. This the Government of Zimbabwe did. ‘It
is commonly understood’ so President Mbeki
said, ‘that
communications to Presidential envoys are of necessity confidential
in nature, no matter how innocuous.’
(d)
On the return of the two judges they met with President Mbeki and
later gave him their report which forms the subject matter
of these
proceedings. ‘I regard that report to be confidential. It
continues to inform South African mediation efforts in
Zimbabwe.’
[19]
In his affidavit President Zuma inter alia:
(a)
Emphasised the mediation roles that he and his predecessors played
and continued to play in Zimbabwe as facilitators appointed
by the
Southern African Development Community (SADC).
(b)
Referred to the statement by his predecessor that he, President
Mbeki, appointed the two judges to gather information which
would
assist him in formulating appropriate policy driven interventions in
Zimbabwe.
(c)
Stated that the report by the two judges continued to be relevant to
his policy driven interventions and that the SADC facilitation
process was ongoing and critical to Zimbabwe as it moved towards and
election based on the terms and requirements of the Global
Political
Agreement, which was entered into by the three political parties in
Zimbabwe on 15 September 2008.
(d)
Explained that conflict resolution and peace-making by South Africa
is a sensitive area; that premature and piecemeal disclosure
of
information of a confidential nature, as in the case of the report
under consideration, could seriously impact on the efforts
that are
made in Zimbabwe and that these consequences would negatively impact
on Zimbabwe, South Africa and the SADC region.
[20]
For some or other reason it apparently escaped Raulinga J that the
Presidency had abandoned its application to have the affidavit
by
President Mbeki admitted in terms of rule 6(5). In consequence he
proceeded to consider that application and eventually dismissed
it as
unsustainable. On appeal before us the Presidency contended that this
constituted a misdirection in that the court a quo’s
focus on
the rule 6(5) application had resulted in its failure to consider
whether the affidavit by President Mbeki and the one
by President
Zuma should be admitted as representations under s 80(3)
(a)
of PAIA. But I find this criticism unjustified. To me it is
apparent that, after refusing the rule 6(5) application, the
court a
quo indeed considered admitting these affidavits into evidence under
s 80(3)
(a)
, but refused to do so. Its reasons for this
refusal – which are admittedly somewhat tersely formulated –
were that
(para 35):
‘
Section
80 . . . does not open the floodgates for one party to sneak in new
evidence through the back door. A court should not use
its powers
under section 80 as a substitute for the public body laying a proper
basis for its refusal . . .’
[21]
As to the contents of the record which was revealed by the judicial
peek, the court a quo were at pains not to disclose anything
that may
compromise a potential appeal. Yet, he inter alia, said
‘
The
terms of reference of [the Judicial Mission] were to observe and to
report to the President of South Africa on whether in the
period
before, during and shortly after the elections:
(i)
the Constitution, electoral laws, and other laws of Zimbabwe relevant
to the elections (‘the legislative framework’)
could
ensure credible or substantially free and fair elections, and
(ii)
the elections had been conducted in substantial compliance with the
legislative framework.
[59]
The contents of the report do not support the first ground that the
disclosure of the report would reveal information supplied
in
confidence by or on behalf of another state or international
organisation, contrary to section 41(1)
(b)
(i) of PAIA. There
is also no indication that the report was prepared for the purpose of
assisting the President to formulate executive
policy on Zimbabwe, as
contemplated in section 44(1)
(a)
of PAIA. The terms of
reference above are opposite to this conclusion. It can be mentioned
at this stage that the report gives
a balanced overview of the events
prior to, during and shortly after the elections. In fact the report
criticises and gives credit
to the parties concerned where it is
necessary.
.
. .
[62]
. . . I can now reveal what the report reflects. This can never
reasonably be construed as information supplied in confidence
by or
on behalf of another state. In my view most of the information is
public knowledge. The report itself does not reveal that
it was
intended to be kept secret. Further, information provided by
individuals who happen to be members of the public service
cannot be
said to be information supplied by or on behalf of another state.
Moreover, the information was supplied also by persons
who do not
qualify as members of another state, Information was also supplied by
independent lawyers.
.
. .
And
under the heading ‘The Section 46 of PAIA override’ (in
para 67):
‘
Without
disclosing the details of the contents of the report I can reveal
that the report potentially discloses evidence of a substantial
contravention of, or failure to comply with the law. . . . I am of
the view that the public interest supersedes the harm that may
ensue
should the report be released.’
Issues
on appeal
[22]
Pruned down to its essentials, the Presidency’s case on appeal
amounted to this:
(a)
The court a quo should have admitted the two affidavits by President
Mbeki and President Zuma as representations under s 80(3).
(b)
In the light of these affidavits, read with the contents of the
report itself, the refusal of access to the report was justified
in
terms of s 41(1)
(b)
(i)
and 44(1)
(a)
of PAIA. Conversely stated, the Presidency did not contend on appeal
that the court a quo’s rendition of the contents of
the report
in its judgment was inaccurate or unfair. Nor did it contend that the
court a quo erred in finding that the content
of the report in itself
did not justify any reliance on either s 41(1)
(b)
(i)
and 44(1)
(a)
.
Ultimately, the Presidency’s argument on appeal thus revolved
around its proposition that the two affidavits which it sought
to
introduce, should have been admitted in evidence. To that proposition
I now turn.
[23]
To start with, I believe it can be accepted with confidence that, as
a matter of principle, the representations contemplated
in s 80(3)
(a)
must be directed at the contents of the record that the court had
ascertained through taking a judicial peek. After all, s 80(3)
is addressed to ‘the court contemplated in subsection (1)’,
which is the court that has decided to examine the record.
The
purpose of s 80(3) 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.
[24]
Thus understood, I believe there are various reasons why the
affidavit by President Mbeki falls outside the ambit of what
s 80(3)
(a)
is aimed at. First of all, this affidavit was initially the subject
of an application under rule 6(5) which was in turn designed
to
persuade the court a quo not to take a judicial peek at the contents
of the report. As I see it, the Presidency thereby gave
away its
strategy which was to introduce new evidence through the backdoor
that should have been introduced in its answering papers.
The fact
that the Presidency thereafter abandoned its application under rule
6(5) and then sought to reintroduce the same affidavit
under
s 80(3)
(a)
,
is of no consequence. The contents of the affidavit remained the same
and so did the purpose for which it was sought to be introduced.
The
other side of the coin is that the affidavit could never have been
aimed at the purpose contemplated by s 80(3)
(a)
,
namely, to deal with the contents of a record to which the court
already had access. That again is the inevitable conclusion from
the
fact that the affidavit was deposed to at a time when the Presidency
was still seeking to persuade the court not to take a
judicial peek
at all. In addition, it is also clear from the text of the affidavit
itself that it was prepared without any heed
to the contents of the
report at all.
[25]
However, I believe the most telling reasons why the affidavit by
President Mbeki was rightly disallowed, derive from the facts
of this
case itself. As I have said earlier, the affidavit is a clear attempt
to plug the holes in the Presidency’s case
that were
underscored in the previous judgments, particularly the minority
judgment of Cameron J in the Constitutional Court. Paradoxically,
though, in doing so the Presidency destroyed the very basis on which
the majority of the Constitutional Court afforded it another
opportunity to exclude access to the report by M & G. As we know
the majority did so on the assumption that the Presidency
was
hamstrung in motivating its refusal of access by the provisions of
s 25(3)
(d)
and 77(5)
(d)
of PAIA. One thing that the affidavit of President Mbeki shows,
however, is that Cameron J rightly suspected that the Presidency’s
failure to make out a case had nothing to do with being hamstrung at
all. But there is more. At the time when the Presidency sought
to
file this affidavit, it knew what was in the report. By inevitable
inference it must therefore have realised that the lifeline
which the
majority of the Constitutional Court had thrown it, could not save
its case from drowning, since the contents of the
report did not
support the grounds of refusal upon which it relied. What it then
tried was to head off the consequence of a judicial
peek by tendering
evidence which should have been adduced at the outset during the
first round of litigation. It clearly did so
in the hope that this
would persuade the court to refuse M & G’s application
on a basis which had nothing to do
with the contents of the report.
The Presidency therefore attempted to use the referral back to the
high court for a purpose which
was the exact opposite of what the
Constitutional Court had in mind. In my view this conduct amounts to
an abuse of process which
cannot be tolerated.
[26]
As to the affidavit of President Zuma, I agree with the court a quo’s
reasoning that this affidavit could not support
the Presidency’s
refusal of access to the report based on s 41(1)
(b)
(i)
and 44(1)
(a)
.
President Zuma simply did not say that he had personal knowledge of
the facts on which these grounds sought to rely. Insofar as
President
Zuma referred to the potential impact of the disclosure of the report
on relations with Zimbabwe, it must be borne in
mind that the
Presidency never sought to rely on s 41(1)
(a)
(iii)
of PAIA which justifies refusal of access to a record on the basis
that it could ‘cause prejudice to the international
relations
of the Republic’. But I think the affidavit of President Zuma
could potentially be relevant for the purpose of
considering the
public interest override in s 46. For that purpose the affidavit
should, strictly speaking, have been admitted.
Yet this override
could only come into consideration once it has been established that
the Presidency was entitled to refuse the
access to the report on the
grounds upon which it relied. Hence it was only in that event that
the Presidency could have been prejudiced
by the consequences of the
court a quo’s refusal to allow this affidavit.
[27]
As I have said, the Presidency did not argue that the contents of the
report by itself could justify the refusal of the access
sought by M
& G. On the invitation of counsel on both sides, we also took a
judicial peek into the report. In that light, I
am satisfied that an
argument to the effect that the contents of the report supports the
case of the Presidency, could not be sustained.
Since this might
still not be the end of the matter, I shall refrain from disclosing
the contents of the report. But I believe
the court a quo gave a fair
summary of that content in its judgment and I did not understand the
Presidency to argue otherwise.
Suffice it therefore to say that I
agree with the court a quo’s conclusion, ie that there is
nothing in the report that supports
the grounds upon which the
Presidency refused the access sought by M & G. In this light the
public interest override in s 46
of PAIA does not even come into
play. The appeal cannot succeed.
[28]
Nonetheless, for the sake of completeness, I may add that even if the
affidavit by President Mbeki were to be allowed, it would
not, in my
view, be enough to satisfy the onus that rests on the Presidency to
justify its refusal of access to the report. As
to the reliance on
s 41(1)
(b)
(i) President Mbeki simply started out from the
petitio principii
that the two judges were diplomatic envoys,
and that, because this is so, ‘it is commonly understood that
communications provided
to these presidential envoys are of necessity
confidential in nature, no matter how innocuous’. To this he
added that, in
any event, he regarded the report as confidential.
With regard to the proposition that the two judges were diplomatic
envoys, Cameron
J said the following (in para 101):
‘
The
Presidency appears to have abandoned in this court, as it did in
argument before the Supreme Court of Appeal, the suggestion
that it
had persistently maintained, that the two judges were “envoys”
or that they were on a “diplomatic mission”
to Zimbabwe.
Rightly so. It would be surprising to find judges performing so
plainly an executive function. For this reason the
Supreme Court of
Appeal rightly noted that it would require clear and substantiated
evidence to establish that the judges assumed
a diplomatic role.’
[29]
In the face of this clear exposition the bald, unmotivated acceptance
of the unlikely proposition that the judges were envoys,
borders on
the cynical. In any event, it appears from those parts of the record
which are reflected in the judgment of the court
a quo that the two
judges were not on a diplomatic mission but were deputed to focus on
matters of law. In this way the further
unmotivated statement that
communications to envoys are ‘of necessity confidential’,
loses the
petition principii
,
to wit, that the judges were envoys, on which it depends. What is
more, s 41(1)
(b)(
i)
is far narrower in ambit than what the statement by President Mbeki
presupposes. The section does not include ‘all information
conveyed to envoys’. It is confined to communications conveyed
in confidence on behalf of a foreign state. The report itself
reflects that its contents were gathered from many sources, including
private individuals and organisations, without any indication
as to
what information came from whom. The fact that the President regarded
the report as confidential, is not a ground for exemption.
This is
particularly so where the contents of the report itself does not
indicate that the two judges were told that their report
would be
regarded as confidential.
[30]
With regard to the ground of refusal contemplated in s 44(1)
(a)
,
President Mbeki again largely incants the exact wording of the
section without any factual motivation as to why he thought that
a
report by two judges on matters of law would assist him in taking
policy decisions. Especially at a time when the Presidency
knew that
the court a quo had looked at the contents of the report, it would be
reasonable to expect some reference to that content
in motivating
what otherwise consists of no more than mere incantation. In
addition, I have alluded to the testimony of the second
appellant in
his original affidavit, to the effect that it was decided to use the
report for policy formulation only after the
Presidency had received
it. During the previous round of litigation both this court (in para
34 of its judgment) and Cameron J
(in para 105), pointed out that
this statement took the report outside the ambit of s 44(1)
(a)
,
because the section requires that the report be obtained or prepared
for the purpose of formulating policy (see also
Minister
for Provincial and Local Government v Unrecognised Traditional
Leaders, Limpopo Province (Sekhukhune Land)
2005
(2) SA 110
(SCA) in para 16-17). In this light, so Cameron J recorded
(in para 105), counsel for the Presidency conceded in the
Constitutional
Court that if the second appellant’s account is
accurate, the policy formulation ground cannot be sustained. Yet,
despite
all this, President Mbeki does not say that the second
appellant was mistaken when he made that express statement. Despite
the
Presidency’s patent efforts to plug the holes in its case
identified by Cameron J, it therefore left this important one
unplugged.
[31]
In the end it appears to me that, after all is said and done and when
the matter is shorn of the intricacies which the Presidency
sought to
introduce in the second round of litigation, the position simply
boils down to this:
(a)
The majority of the Constitutional Court agreed with the minority
that the Presidency had not made out a case for its refusal
to grant
access.
(b)
For the reasons appearing from its judgment, the majority decided,
however, not to grant M & G’s application for access,
but
to remit the matter to the high court for final decision after the
court had taken a judicial peek at the contents of the record.
(c)
The high court did exactly that and thereafter arrived at the
conclusion that there is nothing in the contents of the record
which
would justify the refusal of access.
(d)
For my part, after having also had a judicial peek, I am not
persuaded that the high court was mistaken in arriving at that
conclusion.
[32]
For these reasons the appeal is dismissed with costs, including the
costs of three counsel.
________________
F
D J BRAND
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant: M T K Moerane SC; L Gcabashe
Instructed by:
The State Attorney,
Pretoria
c/o
The State Attorney, Bloemfontein
For
the Respondent: J J Gauntlett SC; F Ismail; F B Pelser
Instructed by:
Webber Wentzel
Attorneys, Johannesburg
c/o Honey Attorneys,
Bloemfontein