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[2010] ZASCA 177
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The President of the Republic of South Africa and Others v M & G Media Ltd (2011 (2) SA 1 (SCA) ; 2011 (4) BCLR 363 (SCA); [2011] 3 All SA 56 (SCA)) [2010] ZASCA 177; 570/2010 (14 December 2010)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 570/2010
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:
The President of RSA v M & G Media
(570/10) [2010]
ZASCA 177 (14 DECEMBER 2010)
Coram:
NUGENT, VAN HEERDEN, MAYA, CACHALIA JJA and BERTELSMANN AJA
Heard:
22
NOVEMBER 2010
Delivered: 14
DECEMBER 2010
Summary:
Promotion of Access to Information Act 2 of 2000
– access to
report made to the President – whether grounds shown for
refusing access.
_______________________________________________________________________
ORDER
_______________________________________________________________________
On appeal from: North Gauteng
High Court, Pretoria (Sapire AJ sitting as court of first instance).
The appeal is dismissed with
costs that include the costs of two counsel.
_______________________________________________________________________
JUDGMENT
_______________________________________________________________________
NUGENT JA (VAN HEERDEN, MAYA and
CACHALIA JJA and BERTELSMANN AJA concurring).
[1] Open and
transparent government and a free flow of information concerning the
affairs of the state is the lifeblood of democracy.
That is why the
Bill of Rights guarantees to everyone the right of access to ‘any
information that is held by the state’,
1
of which
Ngcobo J said the following in
Brümmer
v Minister for Social Development
:
2
‘
The
importance of this right ... in a country which is founded on values
of accountability, responsiveness and openness, cannot
be gainsaid.
To give effect to these founding values, the public must have access
to information held by the State. Indeed one
of the basic values and
principles governing public administration is transparency. And the
Constitution demands that transparency
‘must be fostered by
providing the public with timely, accessible and accurate
information.’’
[2] But few constitutional rights
are absolute. Generally they are capable of being limited within the
confines of s 36. The
right of access to information that is
held by the state has indeed been limited by the
Promotion of Access
to Information Act 2 of 2000
– which fulfils Parliament’s
constitutional obligation to enact national legislation to give
effect to the right. It
is the application of those limitations that
forms the subject of this appeal.
[3] The appeal concerns a report
that is in the possession of the President of the Republic. Two
senior judges prepared the report
after a visit to Zimbabwe shortly
before an election that was held in that country in 2002. They did so
at the request of the then
incumbent of the Presidency – former
President Mbeki. The report has never been released to the public at
large.
[4] M&G Media Limited (the
respondent) is the publisher of a weekly newspaper called the Mail
and Guardian (I will refer to
the respondent as M&G). It wants to
see the report but the President declines to disclose it. M&G and
the then editor of
its newspaper applied to the North Gauteng High
Court under the provisions of the Act for an order compelling him to
do so. Sapire
AJ granted the order and the President (and others
cited in the application) now appeals with the leave of that court.
[5] The Act creates a mechanism
for access to be had to recorded information – what the Act
calls a ‘record’ –
that is in the possession of a
public body
3
(and other
bodies in certain circumstances). The Act lays down various
formalities that need to be complied with. It is not disputed
that
they have all been met in this case.
[6] A request
for access to a record must be made to the ‘information
officer’ of the public body concerned.
4
If the request
is refused – in whole or in part
5
–
then
the applicant is entitled to an internal appeal against the refusal.
6
If the
internal appeal fails then the requesting party may apply to a court
under s 78(2) for ‘appropriate relief’.
[7] In this case the request by
M&G was considered and refused by Mr Trevor Fowler (the second
appellant). He was a deputy information
officer in the Presidency at
the time. He also deposed to the answering affidavit on behalf of all
the appellants. At the time
that he deposed he was the Acting
Director-General and Accounting Officer in the Presidency.
[8] Supporting affidavits were
filed by Mr Kgalema Motlanthe (the first appellant) – who was
the President of the Republic
at the time the answering affidavits
were filed – and by Ms Mantombazana Tshabalala-Msimang (the
third appellant –
since deceased) – who undertook the
internal appeal. At the time she deposed to her affidavit she was the
Minister in the
Presidency. An affidavit was also filed by Mr Frank
Chikane, who was the Director-General in the Presidency and its
information
officer at the material time.
[9] The
Constitution – and consequently the legislation that it has
spawned – signals a decided rejection of past odious
laws,
policies and practices. In
Shabalala
v Attorney-General of Transvaal
7
Mahomed DP
expressed that trenchantly in relation to the Interim Constitution
(it applies as much to the present Constitution) when
he called it a
‘radical and decisive break from that part of the past which is
unacceptable’. He went on to say:
‘
There
is a stark and dramatic contrast between the past in which South
Africans were trapped and the future on which the Constitution
is
premised. The past was pervaded by inequality, authoritarianism and
repression. The aspiration of the future is based on what
is
“justifiable in an open and democratic society based on freedom
and equality”. It is premised on a legal culture
of
accountability and transparency. The relevant provisions of the
Constitution must therefore be interpreted so as to give effect
to
the purposes sought to be advanced by their enactment’.
[10] Etienne
Mureinik
8
captured the
essence of the Bill of Rights
9
when he
described it as a ‘bridge from a culture of authority …
to a culture of justification’ – what he
called ‘a
culture in which every exercise of power is expected to be
justified.’ The Bill of Rights, he continued
10
‘
is
a compendium of values empowering citizens affected by laws or
decisions to demand justification. If it is ineffective in requiring
governors to account to people governed by their decisions, the
remainder of the Constitution is unlikely to be very successful.
The
point of the Bill of Rights is consequently to spearhead the effort
to bring about a culture of justification. That idea offers
both a
standard against which to evaluate [the Bill of Rights] and a
resource with which to resolve the interpretive questions
that it
raises’.
[11] The
‘culture of justification’ referred to by Mureinik
permeates the Act. No more than a request for information
that is
held by a public body obliges the information officer to produce it
unless he or she can justify withholding it. And if
he or she refuses
a request then ‘adequate reasons for the refusal’ must be
stated (with a reference to the provisions
of the Act that are relied
upon to refuse the request).
11
And in court
proceedings under s 78(2) proof that a record has been requested
and declined is enough to oblige the public body
to justify its
refusal.
12
[12] The
proceedings that are contemplated by s 78(2) are not a review of
or an appeal from the decision of the information
officer or the
internal appeal. They are original proceedings for the enforcement of
the right that the requester has under s 11(1)
to be given
access to a record in the absence of grounds for refusing it. The
proceedings must be commenced on application. They
are ‘civil
proceedings’ to which ‘the rules of evidence applicable
in civil proceedings’ apply.
13
I think that
that latter provision contemplates that the civil rules of evidence
apply as much to the manner in which evidence is
received as it does
to the admissibility of evidence.
[13] The
approach to evidence in application proceedings is well known and
need not be repeated in full.
14
A court will
not weigh the veracity of the evidence on the papers alone.
Generally, but with exceptions,
15
a court must
rely for its decision upon the facts that are alleged by the
respondent, together with those alleged by the applicant
that he or
she cannot dispute. Where an application cannot properly be decided
in that way rule 6(5)(g) confers a wide discretion
on a court to hear
oral evidence.
[14] In cases
of this kind the public body bears the burden of proving that secrecy
is justified,
16
but the
general rules that I have referred to apply as much in such cases.
17
That burden of
proof nonetheless casts an evidential burden on the public body to
allege sufficient facts that will justify the
refusal. The burden of
proof in its true sense will come into play if the veracity of the
evidence is required to be tested –
in which case it is for the
public body to satisfy a court that its evidence is probably true.
[15] While the
ordinary rules apply generally to applications under s 78(2)
there are nonetheless some aspects of such proceedings
that call for
special mention. The first is that true disputes of fact will seldom
arise because the material facts will generally
be within the
peculiar knowledge of the public body. If an application for
information is not to be thwarted by that inequality
of arms I think
that a court must scrutinise the affidavits put up by the public body
with particular care and, in the exercise
of its wide discretion that
I referred to earlier,
18
it should not
hesitate to allow cross-examination of witnesses who have deposed to
affidavits if their veracity is called into doubt.
[16] Secondly, it can be expected
that an information officer, or other officials of a public body,
will most often not have direct
knowledge of facts that are material
to justifying secrecy, and will necessarily be reliant upon documents
and other hearsay sources.
Section 3
of the
Law of Evidence Amendment
Act 45 of 1988
gives a court a wide discretion to admit hearsay
evidence and liberal use of that section is quite capable of
overcoming difficulties
that might be encountered by a public body in
that regard.
[17] The founding affidavit in
this case contains a host of media and other reports concerning the
political travails that have
afflicted Zimbabwe over many years. In
the answering affidavits the appellants objected to that evidence on
the basis that it was
hearsay. It seems to me that the material was
tendered only to demonstrate the wide public interest in and concern
for events that
were alleged to have occurred in that country at the
time the report was prepared and for that purpose it is not hearsay
at all.
But in any event the travails of that unfortunate country,
and their consequences for South Africa, are so notorious that we
would
be myopic not to accord them judicial notice.
[18] The
feature of this case that strikes me most forcefully is the gulf
between the observations that I referred to earlier in
this judgment
and the affidavits that have been filed by the appellants in
purported justification of secrecy. At another time
courts were
regularly confronted with laws that precluded them from going behind
conclusions and opinions formed by public officials.
For example, at
one time the Minister of Justice was entitled to prohibit a person
from being in a specified area ‘whenever
the Minister is
satisfied’ that the person was promoting feelings of hostility
between different sections of the inhabitants
of the country (
Sachs
v Minister of Justice; Diamond v Minister of Justice
19
).
Emergency regulations permitted arrest and detention if ‘in the
opinion of [a police officer]’ that was necessary
for the
maintenance of public order etc (
Minister
of Law and Order v Dempsey
20
).
Deportation could be ordered if a government functionary was
‘satisfied’ that the person concerned was dangerous
to
peace, order, good government etc. (
Winter
v Administrator-in-Executive Committee
21
).
There are many other examples. As Corbett J observed in
South
African Defence and Aid Fund v Minister of Justice
,
22
they were all
instances in which
‘
the
statute itself has entrusted to the repository of the power the sole
and exclusive function of determining whether in its opinion
the
pre-requisite fact, or state of affairs, existed prior to the
exercise of the power’.
[19] The affidavits that have
been filed by the appellants are reminiscent of affidavits that were
customarily filed in cases of
that kind. In the main they assert
conclusions that have been reached by the deponents, with no
evidential basis to support them,
in the apparent expectation that
their conclusions put an end to the matter. That is not how things
work under the Act. The Act
requires a court to be satisfied that
secrecy is justified and that calls for a proper evidential basis to
justify the secrecy.
[20] There is another striking
feature of this case. There are three people who have direct
knowledge of the mandate that was given
to the judges – Mr
Mbeki and the two judges – and two people who have direct
knowledge of how that mandate was executed
– the two judges
themselves. Theirs would naturally have been the best evidence on
those issues but it has not been forthcoming,
without explanation.
Indeed, there is no suggestion that such evidence has even been
sought. Moreover, one might justifiably expect
in high matters of
state that there would be contemporary documentation of some kind
recording at least the mandate upon which
the judges embarked. Once
more there is no evidence of that kind and no explanation for its
absence. What the appellants’
case amounts to is little more
than rote recitation of the relevant sections and bald assertions
that the report falls within their
terms. That is not the ‘stark
and dramatic contrast’ with the past that was referred to by
Mahomed DP. Nor does it
reflect the ‘culture of justification’
that was referred to by Mureinik and which is imbedded in the Act.
[21] There are
three grounds upon which the appellants seek to justify the secrecy
of the report. The first can be disposed of briefly.
The Act excludes
from its ambit a record ‘of the Cabinet and its committees’.
23
That was not
the basis upon which access was initially refused by Mr Fowler and Ms
Tshabalala-Msimang. Both say that while at first
they were under the
impression that the Act applied to a record of the President they
were subsequently advised, and accept the
advice, that the Act does
not apply to a record that is held by the President because he is the
head of the cabinet. That contention
was wisely not pressed in
argument before us. The President is not the cabinet. Moreover, there
is no suggestion that the report
ever served before the cabinet.
[22] Some provisions of the Act
make secrecy mandatory and others make it discretionary. The sections
with which we are concerned
are both discretionary. Section 41(1)(b)
permits access to a record to be refused if its disclosure
‘
would
reveal information supplied in confidence by or on behalf of another
state or an international organisation.’
Section 44 allows access to a
record to be refused
‘
if
the record contains an opinion, advice, report or recommendation
obtained or prepared … or an account of a consultation,
discussion or deliberation that has occurred … 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.’
[23] I have pointed out that the
present proceedings are neither a review nor an appeal. But the reply
that Mr Fowler gave to the
request, and the outcome of the internal
appeal, are nonetheless instructive when considering the affidavits
as a whole.
[24] Mr Fowler was required by
s 25(3)(a) to ‘state adequate reasons for the refusal,
including the provisions of the
Act relied on’. The ‘reasons’
that he furnished to M&G were couched as follows:
‘
I
have thoroughly examined the contents of the report and I am of the
view that the disclosure of the contents thereof will reveal
information supplied in confidence by or on behalf of another state
or an international organisation.
Further, the PAIA
entitles me to refuse a request for access to a record of the body if
the 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.
Consequently, access
to the record that you have requested is hereby refused in terms of
sections 41(1)(b)(i) and 44(1)(a) of the
PAIA.’
[25] The first troubling feature
of that reply is that Mr Fowler purports to have concluded that the
report contained information
that had been given by either ‘another
state’ or by ‘an international organisation’. An
‘international
organisation’ is defined in the Act to
mean ‘an international organisation (a) of states or (b)
established by the
governments of states’. Purely as a matter
of logic it is difficult to see how he could genuinely have concluded
that the
report contained information that had been given by either
the one or by the other. Information is capable of being provided by
one entity to the exclusion of the other, or of being provided by
both, but it could not have been provided by the one or the other
in
the alternative (assuming that such information was given at all).
[26] Moreover, it is difficult to
see how the report could possibly have contained information given by
an ‘international
organisation’. There is not the
slightest suggestion in the affidavits that the judges were tasked to
have dealings with
such an organisation or that they received
information from such an organisation. In response to our queries
counsel for the appellants
suggested that Mr Fowler had adopted a
‘belt and braces’ approach. An honest information officer
who fulfils his or
her duty to establish the true facts – which
are not capable of occurring in the alternative – and then to
apply the
provisions of the Act will have no need for ‘belt and
braces’. ‘Belt and braces’ are called for only
where
the information officer is determined to refuse access on any
account, whatever the true facts.
[27] As for s 44 Mr Fowler
said no more than that the section ‘entitles me’ to
refuse access if the record fell
within its terms. It is difficult to
see why he thought that section to be relevant in the absence of a
factual finding that the
report fell within its terms.
[28] But if a record falls within
the terms of either of those sections then the information officer
has a discretion to allow or
to refuse access. There is no indication
in the reply of Mr Fowler that he exercised a discretion at all.
[29] The reasons given by Ms
Tshabalala-Msimang for refusing the internal appeal are no less
troubling. She said no more than the
following:
‘
After
considering your client’s appeal record including the contents
of the requested report, I am also of the view that the
disclosure of
the contents of the said report would reveal information envisaged in
Section 41(1)(b) of the [Act].
I am, further, of
the view that the [Act] entitles the Deputy Information Officer to
refuse a request for access to a record of
the Presidency, if the
said 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. This is in terms of Section
44(1)(a) of the PAIA.
As a result of the
aforesaid, I consequently have no option but to refuse your Appeal to
access the Khampepe-Moseneke Report.’
[30] Once more those are not
reasons but perfunctory conclusions. Once more s 44 is called in
aid only because the section
‘entitles’ an information
officer to refuse access in the specified circumstances and not
because those circumstances
were found to exist. And once more it is
clear that no discretion was exercised. Indeed, the statement by Ms
Tshabalala-Msimang
that she had ‘no option’ but to refuse
the appeal stands in stark contrast to the allegation in her
affidavit that
she exercised a discretion. Once more one is left with
the impression that the report was refused oblivious to the demands
of the
Act.
[31] I have said that a court
must scrupulously examine the grounds upon which secrecy is claimed,
particularly because the facts
that purport to found a claim of
secrecy will generally be within the peculiar knowledge of the public
body concerned, if the rights
of a requester are not to be thwarted.
Those perfunctory and dismissive responses to the request do not
inspire confidence that
the appellant’s case will improve on
the affidavits and indeed it does not.
[32] Section
44 defines a record that falls within its terms by reference to the
purpose for which it was obtained or prepared.
I need not deal in
this judgment with the proper construction to be placed on the
section
24
because the
evidence does not bring the report within its terms no matter how
widely the section is construed.
[33] In his affidavit Mr Fowler
alleges on numerous occasions that
‘
the
report was obtained and prepared for the purpose of informing the
President, and assisting in the formulation of policy and
the taking
of decisions in the exercise of his power or performance of his duty
as Head of State and the National Executive’
.
He furnishes no evidential basis
for those assertions but he does reveal a startling explanation for
his conclusion. After explaining
the ‘mission’ upon which
the judges were allegedly sent (I return to that later) he states the
following:
‘
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 in the aforementioned
capacities in relation to the Zimbabwe situation…’
And yet later:
‘
Taking
into account the contents of the report
it
would have been of assistance in formulating policy
and
taking decisions of the nature referred to in section 44(1)(a),
concerning, inter alia, the political situation in Zimbabwe,
and the
President’s and South Africa’s position and role in that
regard.
It
is reasonably conceivable that the report was of assistance.
’
(In each case the emphasis is
mine.)
[34] The
section does not render a report subject to secrecy if it is
‘reasonably conceivable’ that it has been of assistance
in formulating policy etc. It does not even render it subject to
secrecy if it ‘would have been of assistance’. Nor
even
if the President ‘was able to utilise the report to assist
him.’ It is subject to secrecy only if it was obtained
or
prepared for that purpose. And it is only in the world that exists
beyond the looking glass that the purpose for which a report
was
obtained or prepared is capable of ‘[arising] once the [reader]
had sight of the report’. As Jafta AJA said in
Minister
for Provincial and Local Government v Unrecognised Traditional
Leaders, Limpopo Province (Sekhukhuneland):
25
‘
In
the context under discussion [the word ‘obtain’] must
mean procuring information for any of the purposes referred
to in the
subsection.’
[35] Counsel for the appellants
submitted that those allegations by Mr Fowler were erroneous and
should be ignored. I cannot see
why allegations that have been made
with deliberation under oath should simply be ignored. That the
reasoning is absurd does not
demonstrate that the allegations were
made erroneously – it demonstrates only that the reasoning is
absurd.
[36] Abandoning reliance upon Mr
Fowler counsel for the appellant referred us to the affidavit of Mr
Chikane, who said that he had
‘personal knowledge’
‘
that
the Justices were appointed on the grounds of their skill and
position; and that their report was commissioned by the President
and
prepared for the purpose of assisting him with the formulation of
policy and the taking of decisions pertaining to the situation
in
Zimbabwe, including the impact or possible impact of the Zimbabwean
situation on South Africa.’
Counsel submitted that the
assertion by Mr Chikane that he had ‘personal knowledge’
of the matter was a sufficient evidential
basis to establish the
truth of the assertion.
[37] Knowledge
of the occurrence of an event might come to a person in one of three
ways. It might come to him or her through directly
experiencing the
occurrence of the event. Or the occurrence might be reported to him
or her by someone else. Or he or she might
deduce that the event has
occurred by inference from other facts. If knowledge of the
occurrence of the event has come to a witness
from direct observation
then his or her evidence is admissible to prove that it occurred. If
that knowledge was acquired from someone
else then a proper basis
must be laid for admitting it as hearsay and enabling its weight to
be evaluated. And if the knowledge
was acquired only by inference
then that is not evidential material at all: it is for a court to
draw the inference itself upon
proof of primary facts.
26
[38] A court is not bound to
accept the ipse dixit of a witness that his or her evidence is
admissible. Particularly in cases of
this kind, in which information
is within the peculiar knowledge of the public body, proper grounds
need to be demonstrated for
the admissibility of the evidence. Merely
to allege that that information is within the ‘personal
knowledge’ of a deponent
is of little value without some
indication, at least from the context, of how that knowledge was
acquired so as to establish that
the information is admissible, and
if it is hearsay, to enable its weight to be evaluated. In this case
there is no indication
that the facts to which Mr Chikane purports to
attest came to his knowledge directly and no other basis for its
admission has been
laid. Indeed, the statement of Mr Chikane that I
have referred to is not evidence at all: it is no more than bald
assertion.
[39] It was submitted by counsel
for the appellants that it is probable that Mr Chikane had direct
knowledge of the purpose for
which the appointment was made by reason
of the office that he held at the time. We are not concerned with
probability. But in
any event I see no reason to assume that the
Director-General in the Presidency is privy to everything that the
President does.
The bald assertion by Mr Chikane might just as easily
be founded upon the same reasoning that led Mr Fowler to make his
similar
assertion. Indeed, if Mr Chikane had direct knowledge of the
purpose for which the judges were commissioned it is inconceivable
that he would not have told Mr Fowler, who would not then have needed
to resort to absurd reasoning.
[40] But the main thrust of the
objection to the production of the report was directed to s 41(1)(b)
of the Act – which
allows a public body to refuse access to
‘information supplied in confidence by or on behalf of another
state or an international
organisation.’ I have pointed out
that in this case there is no suggestion – not even by bald
assertion – that
the judges met with or received information
from an ‘international organisation’. The assertion is
that they received
such information from the government of Zimbabwe.
[41] On several occasions all the
deponents allege that the mandate of the judges was to ‘assess
and report on the constitutional
and legal challenges’ that had
arisen in the period leading up to the election. Precisely what
‘constitutional and
legal challenges’ were required to be
assessed has not been disclosed but I will accept for present
purposes that that was
indeed their mandate.
[42] Assessing ‘constitutional
and legal challenges’ pertaining to another state does not
entail that information is
necessarily acquired from that state, nor
that information that might be acquired is necessarily supplied in
confidence. No doubt
it was to fill those gaps that the appellants
turned to what I consider to be no more than a contrivance so as to
bring the report
within the terms of the section.
[43] The case
that the appellants advanced to justify the secrecy of the report
rests on three legs (though they were not necessarily
advanced in
this order). First, the appellants sought to cast the judges in the
role of diplomats (they called them ‘envoys’
27
)
who embarked upon a diplomatic mission (I return to that later). Then
they described the nature of diplomacy, pointing out that
it is
‘generally accepted’ in diplomacy that information is
exchanged in confidence. And finally it was asserted –
as if
that were fact – that the judges were indeed received and dealt
with in Zimbabwe as diplomats.
[44] On that last leg it was
asserted, variously, that the judges were ‘received in Zimbabwe
and granted interviews in their
capacity as envoys of the President’
and that ‘all parties shared the understanding that the
meetings and discussions
arranged for and by the envoys were
confidential in nature’; that they ‘held confidential
discussions with various
representatives of the Republic of Zimbabwe
and were supplied information in confidence on behalf of the state’;
that the
judges ‘were received and hosted as special envoys by
the Government of Zimbabwe’ on the ‘understanding that
any communications between the representatives of the Government of
Zimbabwe and the [judges] was in confidence’; that the
government of Zimbabwe ‘facilitated the necessary exchanges
required for purposes of the diplomatic mission’ which
included
‘interactions with representatives of the government of
Zimbabwe and other officials who communicated their views
to the two
[judges] in confidence’.
[45] Even then, the appellants do
not assert that the judges received information only from the
government, but say that they received
information from the
government ‘amongst others’. Where a record contains
partly information that may or must be refused
and partly other
information, then the public body is obliged by s 28(1) to
provide access to the latter if the former can
reasonably be severed.
In this case there is no more than a bland assertion that severance
of one from the other is not reasonably
possible, without explanation
for why that is so, and without even an indication of the source and
nature of the unprotected information.
[46] But more important for
present purposes, there is no evidential basis at all for the
purported assertions of fact that I have
referred to. Not Mr Fowler
nor Ms Tshabalala-Msimang nor Mr Chikane accompanied the judges on
their visit to Zimbabwe and none
purports to have direct knowledge of
how the judges went about their business or of the information that
they received. Nor has
a basis been laid for establishing those
purported facts upon hearsay evidence. On the face of it those
assertions seem simply
to have been constructed and they can be
summarily discounted.
[47] We are left with assertions
that the judges were despatched on a diplomatic mission – from
which we are evidently expected
to infer – at best for the
appellants – that they received information from the government
of Zimbabwe and received
that information on conditions of diplomatic
protocol.
[48] At first the appellants cast
the judges in the role of diplomats rather tentatively. Mr Fowler
described them initially as
no more than ‘something in the
nature of envoys’ but the appellants became emboldened as the
affidavits unfolded. Later
it was said that the judges were on a
‘diplomatic mission’; yet later that they were ‘special
envoys’ to
the President; and finally that they were ‘in
essence the embodiment of the President’.
[49] Diplomacy
is an executive and not a judicial function. I would need clear and
substantiated evidence to persuade me that judges
would assume that
role, or that it would be approved by the Chief Justice (who is
alleged to have approved their mission). While
judges might from time
to time perform functions that are not strictly judicial Chaskalson P
pointed out in
SA
Association of Personal Injury Lawyers v Heath
28
that ‘there
are limits to what is permissible’. He went on to say:
‘
Certain
functions are so far removed from the judicial function that to
permit Judges to perform them would blur the separation
that must be
maintained between the Judiciary and other branches of government.
For instance, under our system a judicial officer
could not be a
member of a legislature or cabinet, or a functionary in government,
such as the commissioner of police. These functions
are not
“appropriate to the central mission of the Judiciary”.
They are functions central to the mission of the Legislature
and
Executive and must be performed by members of those branches of
government.’
[50] Once more an evidential
basis for the assertions is entirely absent. Neither Mr Fowler nor Mr
Chikane (and also not Ms Tshabalala-Msimang)
has direct knowledge of
how the judges went about their business, whom they met, what they
discussed, and on what terms their discussions
took place. No basis
is even laid for advancing hearsay evidence to that effect. Of
course, it is possible that they have gleaned
those facts from the
report itself, but as Mr Fowler was at pains to point out, s 25(3)
requires an information officer to
exclude from his or her reasons
for refusing a request ‘any reference to the content of the
record’, and I think that
must have been intended to apply as
much when the public body seeks to justify its refusal in court
proceedings. Indeed, the approach
that was taken at least by Mr
Fowler seems to me to be rather unfortunate. On the one hand he
purports to rely upon the contents
of the report to reach at least
some of his conclusions, while on the other hand he tells M&G and
this court that he is prohibited
by law from revealing the content of
the report. I have pointed out that if facts are to be established by
inference then it is
for the court – and not the witness –
to draw those inferences. The role of a witness or witnesses is only
to place
the primary facts before the court to enable the inference
to be drawn. No such primary facts have been established in this
case.
[51] Counsel for the appellants
ultimately found himself obliged to abandon even the assertions that
the judges went about their
business as diplomats, with all that
diplomacy entails. He said candidly that the most that could truly be
found on the affidavits
was that the judges were received in Zimbabwe
with the courtesies that are ordinarily accorded to diplomats. I have
little doubt
that judges who visit another country on official
business will usually be accorded courtesies of that kind but none of
the further
assertions that are made by the appellants necessarily
follows from that fact.
[52] There is one further aspect
of the procedures that are provided for in the Act that I ought to
mention. Section 80(1) permits
a court to take what counsel for M&G
described as a ‘judicial peek’ at the record that is in
issue. A court that
does that is prohibited from disclosing to any
person, including the requester, ‘any record … which on
a request for
access, may or must be refused’. Courts earn the
trust of the public by conducting their business openly and with
reasons
for their decisions. I think a court should be hesitant to
become a party to secrecy with its potential to dissipate that
accumulated
store of trust. There will no doubt be cases where a
court might properly make use of those powers but they are no
substitute for
the public body laying a proper basis for its refusal.
[53] In my view no evidential
basis has been established by the appellants for refusing access to
the report. It might be 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. What the affidavits perhaps
establish by inference is that
the judges were commissioned to report
on ‘constitutional and legal issues’ pertaining to the
election. By itself that
does not bring the report within the terms
of the sections that were relied upon.
[54] There is no need to relate
the findings of the court below in full. It is sufficient to say that
it found that no evidential
basis had been laid for the refusal. For
the reasons I have given its conclusion cannot be faulted. If the
Constitution and the
Act are indeed a bridge to a culture of
justification it seems to me that for the appellants in this case it
has been a bridge
too far.
[55] The appeal is dismissed with
costs that include the costs of two counsel.
_________________
R W NUGENT
JUDGE OF APPEAL
APPEARANCES:
For
appellant: M T K Moerane SC
L
Gcabashe
Instructed
by:
The
State Attorney, Pretoria
The
State Attorney, Bloemfontein
For
respondent: J J Gauntlett SC
F
Ismail
F
B Pelser
Instructed
by:
Webber
Wentzel, Johannesburg
Honey
Attorneys, Bloemfontein
1
Section
32(1)(a): ‘Everyone has the right of access to any information
that is held by the state…’. Section
31(1)(b) confers a
right of access to information held by other persons in certain
circumstances but that is not relevant for
present purposes.
2
2009
(6) SA 323
(CC) para 62.
3
Section
1 defines a ‘public body’ to mean
‘
(a)
any department of state or administration in the national or
provincial sphere of government or any municipality in the local
sphere of government; or
(b) any other
functionary or institution when –
(i) exercising a
power or performing a duty in terms of the Constitution or a
provincial Constitution; or
(ii) exercising a
public power or performing a public function in terms of any
legislation.’
4
Section
18(1).
5
In
certain circumstances part of the record may be severed from the
rest under s 28, which provides as follows:
‘
(1)
If a request for access is made to a record of a public body
containing information which may or must be refused in terms
of any
provision of Chapter 4 of this Part, every part of the record which
–
(a) does not
contain; and
(b)
can reasonably be severed from any part that contains, any such
information must, despite any other provision of this Act,
be
disclosed’.
6
Sections
74-78.
7
[1995] ZACC 12
;
1996
(1) SA 725
(CC) para 26.
8
Etienne
Mureinik ‘A Bridge to Where? Introducing the Interim Bill of
Rights’
1994 (10)
SALJ
31.
9
Once
more with reference to the Interim Constitution.
10
Page
32.
11
Section
25(3)(a).
12
Section
81(3)(a): ‘The burden of establishing that…the refusal
of a request for access…complies with the provisions
of this
Act rests on the party claiming that it so applies’.
13
Sections
81(1) and (2).
14
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
634I-635C.
15
.
Plascon-Evans,
above, at 635C: ‘For example, where the allegations or
denials of the respondent are so far-fetched or clearly untenable
that the Court is justified in rejecting them merely on the papers’.
16
Section
81(3).
17
Ngqumba
v Staatspresident
1988 (4) SA 224 (A).
18
Room
Hire Co. (Pty) Ltd v Jeppe Street Mansions
(Pty) Ltd
1949 (3) SA
1155
(T) at 1163;
Plascon Evans
, above, at 635A-B.
19
1934
AD 11.
20
1988
(3) SA 19
(A).
21
1973
(1) SA 873
(A).
22
1967
(1) SA 31
(C) at 35A-B.
23
Section
12(a).
24
Cf.
Philip Coppel
Information Rights
(2004) pp. 591-595.
25
2005
(2) SA 110
(SCA) para 17.
26
Cf
Die Dros (Pty) Ltd v Telefon Beverages CC
2003 (4) SA 207
(C)
para 28.
27
Shorter
Oxford Dictionary: ‘A public minister sent by one sovereign or
government to another for the transaction of diplomatic
business.
Now,
esp.
a minister plenipotentiary, ranking below an
ambassador
,
and above a ‘charge d’affaires’.
28
[2000] ZACC 22
;
2001
(1) SA 883
(CC) para 35.