Brief Summary

Access to Information — Promotion of Access to Information Act 2 of 2000 — Application for access to confidential report — Applicants sought access to a report prepared by judges sent to Zimbabwe by the President — Initial request denied by Deputy Information Officer on grounds of confidentiality and policy formulation — Internal appeal unsuccessful — Applicants applied to court for relief under Section 78 of PAIA — Court held that the Respondents failed to provide sufficient evidence to justify refusal of access; the report should be disclosed as the grounds for refusal were unsubstantiated.

Comprehensive Summary

Summary of Judgment

Introduction

This was an application brought in terms of section 78 of the Promotion of Access to Information Act 2 of 2000 (PAIA) for appropriate relief contemplated in section 82 of PAIA, following an unsuccessful internal appeal against the refusal of access to a record held by a public body. The proceedings concerned the judicial determination of whether the refusal of access to a specific report complied with PAIA, and what remedial order would be “just and equitable” if it did not.

The first applicant was M & G Media Limited. The second applicant, Ferrial Haffajee, initially joined the proceedings but, at the outset of the hearing, indicated through counsel that she no longer sought relief and effectively withdrew from the matter. The respondents were the President of the Republic of South Africa (first respondent), the Deputy Information Officer, Office of the Presidency (second respondent), and the Minister in the Presidency (third respondent). The Open Democracy Advice Centre (ODAC) sought admission as amicus curiae.

As to procedure, it was common cause that the applicant had complied with PAIA’s procedural requirements: it had made an access request for the relevant record, had been refused, and had pursued the internal appeal procedures available under PAIA, which appeal was unsuccessful. The matter then proceeded to court under section 78. The court deferred ODAC’s application to be admitted as amicus curiae until after argument; ultimately, after hearing the proposed amicus’ submissions, the court made no order on the amicus application because the submissions did not add anything “new, relevant, and pertinent,” and the respondents opposed admission.

The general subject matter of the dispute was the public right of access to information under PAIA, specifically access to a report compiled by two sitting judges who had been dispatched to Zimbabwe in 2002 to investigate and report to the President. The report, described in the final order as the Khampepe–Moseneke Report, had not been publicly disclosed.

Material Facts

In 2002, the then President Thabo Mbeki, having obtained the concurrence or permission of the then Chief Justice, dispatched two sitting judges to Zimbabwe to conduct an investigation and report back to him. The papers did not provide a precise statement of their terms of reference, and the affidavits were not clear as to the exact mission. The respondents’ deponent, Trevor George Fowler, described the judges as being appointed as “something in the nature of envoys” to assess “constitutional and legal challenges” in Zimbabwe and to report to the President “directly and in confidence.”

It was not disputed that the judges produced a written report to the President and that this report was a record in the possession of the first respondent for PAIA purposes. It was also not disputed that the report’s contents had never been publicly disclosed.

The applicant sought access to this report by submitting a PAIA request to the second respondent. On 28 July 2008, the Deputy Information Officer (Fowler) refused access. The refusal was based on the view that disclosure would reveal information supplied in confidence by or on behalf of another state or an international organisation, and that PAIA entitled refusal because the record contained an opinion/advice/report/recommendation obtained or prepared to assist in formulating policy or taking a decision in the exercise of a power or performance of a duty conferred by law. The refusal letter relied on sections 41(1)(b)(i) and 44(1)(a) of PAIA and drew attention to the internal appeal mechanisms.

The applicant exercised its internal appeal rights, but the appeal was unsuccessful and the refusal was upheld. The applicant then launched the present application under section 78 for relief under section 82.

Certain factual matters were treated by the court as common cause or otherwise not genuinely disputed for purposes of deciding the application, including that the report was produced for the President and remained in the Office of the President and that the applicant had exhausted internal remedies. By contrast, the court considered that essential facts required to justify refusal—such as the precise basis on which information in the report was allegedly supplied “in confidence” by or on behalf of a foreign state or international organisation, or that the report was obtained/prepared for the purpose contemplated in section 44(1)(a)—were not established by admissible, first-hand evidence.

In their answering affidavits, the respondents additionally contended (though not in the original refusal or internal appeal decision) that the record was excluded from PAIA by section 12(a) as a Cabinet record. The court treated that as factually incorrect on the evidence because the report was made directly to the President and had not been incorporated into Cabinet records, and the respondents’ own Cabinet-member deponent did not state that it was a Cabinet document. The court also observed that this ground was raised late, in reply, and could not be sustained.

Legal Issues

The central questions were whether the respondents had lawfully refused access to the report under PAIA and, if not, what relief should follow. The dispute was primarily the application of law to fact, with an important evidentiary component as to whether the respondents had placed sufficient admissible material before the court to discharge PAIA’s burden provisions.

More specifically, the court was required to determine whether the refusal was justified under section 41(1)(b)(i) (disclosure would reveal information supplied in confidence by or on behalf of another state or an international organisation) and/or section 44(1)(a) (a discretionary refusal ground concerning opinions/advice/reports/recommendations obtained/prepared for assisting formulation of policy or taking a decision in the exercise of powers/duties conferred by law). It also had to consider and reject or uphold the late-raised contention that the report was excluded from PAIA under section 12(a) as a Cabinet record.

A further issue concerned the nature of proceedings under section 78. The respondents contended the proceedings were “in the nature of a review,” while the court had to characterise the proceedings in terms of PAIA’s structure and the court’s function.

Finally, the matter required the court to assess whether the respondents had discharged the burden of proof placed on a party refusing access by section 81 of PAIA, and whether the discretion inherent in the refusal provisions had been properly supported by reasons established through evidence.

Court’s Reasoning

The court began by situating PAIA in its constitutional and statutory context, referring to the PAIA preamble and its stated purpose of giving effect to the constitutional right of access to information held by the state, while recognising that limitations may be reasonable and justifiable. Against that backdrop, the court emphasised PAIA’s procedural structure: the applicant had exhausted internal remedies and was properly before the court in terms of section 78, and the court had remedial power under section 82 to grant orders that are “just and equitable.”

A central strand of the reasoning concerned evidence and the statutory burden. The court relied on section 81 of PAIA, which provides (for purposes of the relevant chapter) that section 78 applications are civil proceedings, that the rules of evidence applicable in civil proceedings apply, and that the burden of establishing that a refusal complies with PAIA lies on the party claiming compliance. In that setting, the court scrutinised the respondents’ affidavits and found them materially deficient because the deponents did not indicate personal knowledge of key matters and could not, of their own knowledge, describe the judges’ mandate, the mission’s purpose, or how and from whom information in the report was obtained.

The respondents argued that the senior governmental positions of the deponents should be treated as sufficient to accept their statements and that hearsay principles did not apply to them. The court rejected that approach, holding that it was not possible to accept their evidence on crucial matters where they lacked personal knowledge. The court also noted that where the deponents addressed the applicability of the statutory refusal provisions, they largely recited statutory wording without providing factual support drawn from the report’s contents to justify the exercise of the discretion to refuse access.

On the late contention that the report was excluded under section 12(a) as a Cabinet record, the court found that the contention was not supported factually. The report was made directly to the President and remained in the Office of the President; there was no evidence it became part of Cabinet records. The court rejected an attempted reliance on the constitutional definition of Cabinet that includes the President, reasoning that the President alone is not “the Cabinet.”

Turning to the originally invoked refusal grounds, the court analysed section 41(1)(b)(i) as a discretionary refusal provision. The court reasoned that the use of “may” indicates a discretion that must be exercised in favour of disclosure unless reasons for refusal are stated and established by evidence. Applying this to the record, the court found that the respondents had not produced evidence showing that the report contained information obtained “in confidence,” nor that it was supplied by or on behalf of another state or international organisation. The court stated that, to justify refusal on this basis, evidence would have been necessary from the judges themselves (or persons from whom information was received) identifying that information on a specified topic had been obtained from a specified person under confidentiality. The court further noted that the mandate described—investigating “constitutional and legal matters”—was not obviously or necessarily confidential, and that the respondents did not distinguish which parts of the report, if any, would fall within section 41(1)(b)(i), particularly because the respondents acknowledged the report was not based exclusively on information obtained from the Zimbabwean government or its representatives.

The court then considered section 44(1)(a), also treated as a discretionary ground, requiring that the report be “obtained or prepared” for the purpose of assisting in the formulation of policy or the taking of a decision in the exercise of lawful powers/duties. The court examined the respondents’ own description of the mission. Fowler’s affidavit indicated that the judges were appointed “primarily to assess the constitutional and legal issues” prior to the 2002 Zimbabwe presidential election, and only that once the President had sight of the report did a “related purpose” arise whereby the President could utilise it to assist him in formulating policy and taking decisions. The court treated this as decisive against the section 44(1)(a) justification: on the respondents’ version, the report was not commissioned for policy formulation; it became useful for that purpose only after it had been received. Accordingly, the statutory purpose requirement was not satisfied.

As to the characterisation of section 78 proceedings, the court rejected the respondents’ contention that the matter should be approached simply as a review. It concluded that the section 78 procedure is sui generis, requiring the court to assess, from the facts placed before it, whether the record should be disclosed, with PAIA placing the onus on the party refusing access. On that approach, given the inadequacy of the respondents’ evidential foundation and the failure to establish the statutory grounds, the court found that the refusal had not been justified and that the applicant was entitled to relief.

Outcome and Relief

The court granted relief under section 82 of PAIA. It set aside the refusal of access by the information officer and the confirmation of that refusal on internal appeal. It ordered the respondents (or those in possession of the record) to afford access to the applicant to the report identified as the Khampepe–Moseneke Report and to supply the applicant with a copy within seven days of the order.

The respondents were ordered to pay the applicant’s costs, including the costs occasioned by the employment of two counsel, jointly and severally, the one paying the others to be absolved. No separate costs issue arose from the second applicant’s withdrawal, and the court made no order on the amicus application.

Cases Cited

No prior judicial decisions were cited in the text of the judgment provided.

Legislation Cited

Promotion of Access to Information Act 2 of 2000, including sections 12(a), 22, 26(1), 29(3), 41(1)(b)(i), 44(1)(a), 54, 57(1), 60, 74, 75(2), 78, 81, and 82.

Constitution of the Republic of South Africa, 1996, including sections 8, 32(1)(a), 32(1)(b), 32(2), 36.

Rules of Court Cited

No specific numbered rules of court were cited. The judgment referred generally to the rules of evidence applicable in civil proceedings as applying to section 78 applications, consistent with section 81 of PAIA.

Held

The court held that the respondents failed to discharge the statutory onus under PAIA to justify refusal of access to the report. The evidential material relied upon by the respondents was insufficient because the affidavits did not establish, through admissible first-hand facts, that the report contained information supplied in confidence by or on behalf of another state or international organisation as required for section 41(1)(b)(i), nor that the report was obtained or prepared for the purpose of assisting policy formulation or decision-making as required for section 44(1)(a). The late contention that the report was a Cabinet record excluded under section 12(a) was rejected as unsupported on the evidence.

The refusal decision and internal appeal confirmation were set aside, and access to the report was ordered to be provided within seven days, with costs (including two counsel) awarded against the respondents.

LEGAL PRINCIPLES

PAIA is to be construed and applied against its constitutional purpose of fostering a culture of transparency and accountability, while recognising that access may be limited only within PAIA’s specified grounds and subject to reasonable and justifiable limitations.

An application under section 78 of PAIA is sui generis in nature. The court’s function is to assess, on the facts placed before it, whether access should be granted or refused under PAIA, rather than treating the matter solely as an orthodox review in which deference might be afforded without requiring a full evidential foundation for refusal.

In section 78 proceedings, section 81 of PAIA confirms that the proceedings are civil proceedings, that the ordinary rules of evidence apply, and that the burden of proof rests on the party asserting that a refusal complies with PAIA. Senior governmental status does not displace the requirement that crucial facts be established by persons with appropriate personal knowledge, nor does it permit mere repetition of statutory language in place of evidentiary substantiation.

The refusal grounds in sections 41(1)(b)(i) and 44(1)(a) are discretionary (“may refuse”). The discretion must be exercised on stated reasons supported by evidence, and the party refusing access must demonstrate that the statutory requirements for the discretion to arise are met. In particular, section 41(1)(b)(i) requires proof that disclosure would reveal information supplied in confidence by or on behalf of another state or international organisation, while section 44(1)(a) requires that the record was obtained or prepared for the purpose of assisting policy formulation or decision-making in the exercise of lawful powers or duties; a record that becomes useful for policy only after it is produced does not, on the reasoning in this judgment, necessarily satisfy the statutory purpose requirement.

Where refusal is not justified on the evidence and within the statute, the court may grant just and equitable relief under section 82, including setting aside the refusal and ordering the public body to provide access within a specified time, together with an appropriate order as to costs.

M & G Limited and Another v President of the Republic of South Africa and Others (1242/09) [2010] ZAGPPHC 43 (4 June 2010)