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[2013] ZAGPPHC 35
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M & G Media Ltd v President of the Republic of South Africa and Others (1242/09) [2013] ZAGPPHC 35; [2013] 2 All SA 316 (GNP); 2013 (3) SA 591 (GNP) (14 February 2013)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NUMBER: 1242/09
DATE:14/02/2013
In
the matter between:
M
& G MEDIA
LIMITED
.............................................................................................
APPLICANT
and
PRESIDENT
OF THE REPUBLIC OF SOUTH
AFRICA
.....................................
First
Respondent
DEPUTY
INFORMATION OFFICER: OFFICE OF THE PRESIDENCY
…......
Second
Respondent
MINISTER
IN THE PRESIDENCY
….....................................................................
Third
Respondent
JUDGMENT
RAULINGA
J
Introduction
[1]The
Constitutional Court in its majority judgment of 29 November 2011,
ordered that this case be remitted to this court for it
to examine
the record in terms of the provisions of section 80 of the Promotion
of Access to information Act 2 of 2000(PAIA/the
Act) and to determine
the application under section 82 of the Act, in the light of the
Constitutional Court judgment- The President
of RSA v M&G Media
Limited 2012(3) SA 50(CC).
[2]
Subsequent to the Constitutional Court order M & G Media Limited
(M&G) brought this application before this court to
determine,
based on the evidence, including now by direction of the
Constitutional Court, whether the requested record which this
court
has examined, the respondents have discharged the statutory burden
imposed upon them by section 81(3) of PAIA to establish
that their
refusal of the request for access complied with the provisions of
PAIA. The merits of the exemptions claimed, as well
as the legality
of the refusal to disclose the record, still needed to be decided.
This court was further directed by the Constitutional
Court to deal
with procedural matters in terms of section 80(3) relevant to the
application of section 80, including receiving
representations,
conducting the hearing and potentially prohibiting the publication of
information in relation to the proceedings.
All matters that arose in
the course of the hearing required further attention.
[3]
Initially the applicant sought access (under PAIA) to a report to the
then President Thabo Mbeki by two senior judges to wit:
Justices
Khampepe and Moseneke, concerning constitutional and legal issues
related to the 2002 Presidential elections in Zimbabwe.
The second
respondent, and thereafter the third respondent (in an internal
appeal) refused the applicant access to the report.
[4]
As a consequence, M&G brought an application to the North Gauteng
High Court, Pretoria (this court) which ordered the respondent
to
make available the report in its entirety to the applicant. The order
was upheld by the Supreme Court of Appeal (“the
SCA").
This culminated in an appeal which was brought by the respondents to
the Constitutional Court and its subsequent order.
Factual
Matrix
[5]
On 17 June 2008, the applicant applied for access to the report. The
second respondent refused the request on 22 July 2008,
citing
sections 41(1) (b) and 44(1) (a) Of the Act as grounds of refusal.
Pursuant to the second respondent's refusal, on 22 September
2008,
the applicant lodged an internal appeal. The internal appeal was
dismissed by the third respondent on 13 November 2008 citing
toe same
grounds of refusal as those stated by the second respondent. This
resulted in the present application which has since
travelled a
'vicious' circle from the High Court, the SCA, the Constitutional
Court and now back to this court.
Judicial
Peek in terms of section 80(1) of PAIA
[6]
On 14 June 2012 when this matter was called, the court ordered the
respondents to produce the report to the court. Once the
report was
handed to the court in confidence, the court took a short adjournment
and took a judicial peek at the record. When the
court resumed,
parties were afforded an opportunity to address the court oh the
procedure to be followed pursuant to the judicial
peek. It transpired
during the parties' submissions that the respondents were in favour
of the ex parte representations procedure
in terms of section
80(3)(a) of PAIA whereas the applicant was in favour of the in camera
hearing in terms of section 80(3)(c).
Section 80(3) provides as
follows:
"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."
[7]
It is clear that the subsection creates three powers and gives
discretion to the court on which procedure to follow. Ex parte
representations and in camera review should only be used where
absolutely necessary, and such absolute necessity exists where:
(a)
the validity of the government's assertion of exemptions cannot be
beyond that contained in the public affidavits and in the
records
themselves, and
(b)
public disclosure of that information would compromise the secrecy
asserted - Arieff v United States Department of Navy[1983]
USCAD 362,
712F2d 1462, 1470(DE CIR 1983). In Ray V Turner
587 F 2d 1187
, 1195
(DCC1R 1978) the court holding that courts should use their
discretion to engage in, in camera reviewing where inspection
of the
record is necessary to make a responsible de novo determination on
the claims of exemptions.
[8]
Depending on the category of the record sought to be disclosed and
the nature of exemptions on which the state depends for
non-disclosure, the first port of entry should be the ex parte
procedure before one embarks on the in camera procedure. In my view,
the in camera procedure should be used sparingly. This is so because
the in camera procedure has more pitfalls than the ex parte
procedure. It is for that reason that in Hayden v National Security
Agency 608F 2d 1381(1978) the court was of the view that public
affidavits plus affidavits of National Security Agency submitted for
in camera review were sufficient to support determination,
without an
in camera inspection of documents.
[9]
I have already intimated above that section 80(3) of PAIA bestows
discretion on the court to determine which procedure to follow.
That
discretion must be exercised judiciously. The choice is in the
discretion of the court and not a prerogative of the parties.
Having
examined the two options, I chose to follow the ex parte
representations procedure. However, I made no order in terms of
section 80(3) (c).
Reasons
why no access to the report was granted to the applicant's legal
representatives at ex parte representations stage.
[10]
After the court had made a ruling to utilise the ex parte
representations procedure, the applicant launched an application
to
the court to make the report available to it. The reason cited by the
applicant was that if the report was made available to
the applicant,
then it could make a meaningful submission to the court why the
report should be disclosed. In its submissions the
applicant relied
on section 34 of the Constitution Act 108 of 1996 ("the
Constitution"). - "everyone has a right
to have any dispute
that can be resolved by the application of the law decided in a fair
public hearing before a court or, where
appropriate, another
independent and impartial tribunal or forum".
It
is my respectful view that this section does not turn on this matter.
The applicant also relied on a dictum in S v Dzukuda and
others
2000(4) SA 1078 p 1100 para (37). In as far as fundamental rights are
concerned I agree with the applicant in its submissions.
However, I
do not think the dictum is applicable in the present scenario. If the
indulgence is rejected the principles of justice
will not be
invalidated, but instead they will still be protected.
[11]
The applicant tends to interpret section 80(2) of PAIA as conveying a
meaning that permits access to the report by the applicant's
legal
representatives during ex parte submissions. I do not agree with that
interpretation. A distinction exists between ex parte
representations
procedure and in camera hearing - See Hayden supra. A court exercises
a discretion of placing limitations upon
a litigant's ordinary rights
of untrammelled inspection of confidential documents, when satisfied
that there is a real danger that
if this is done an unlawfulness may
ensue - Crown Cork & Seal COIAC and Another v Rhem South Africa
(Pty) Ltd and Others 1980(3)
SA 1093W). In casu the inherent danger
is that if the report is made available to the lawyers of the
applicant at the stage of
ex parte representations, it may defeat the
purpose for which the application for disclosure has been launched.
The right of access
at that stage is limited by section 36 of the
Constitution.
[12]
he relevant part of section 80(2) reads as follows:
"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
).................................................... "
[13]
This subsection must be read together with Rule 4(2) to PAIA - the
court receiving the representations referred to in subrule
(1) shall
take the steps that it may deem appropriate to bring the
representations to the attention of the parties to the application".
One can postulate that this refers to the exchange of the parties' ex
parte representations. It can never be interpreted as referring
to
making the report available to the applicant's lawyers. The use of
the word "may" in section 80(2) of PAIA should
be
interpreted as meaning "shall'.
[14]
Therefore the subsection does not bestow discretion on the court - in
other words "the court may not disclose" meaning
"the
court shall not disclose to any person" including to the parties
to the proceedings concerned, other than "the
public or private
body" referred to in subsection (1) - The meaning of section
80(2) is therefore very dear. It excludes "any
person"
including the parties to the proceedings - and their lawyers of
course. However it excludes the public or private
body in whose
possession the record is, The logic is that the party who is already
in possession of the record, which is common
sense, would have read
the said record. There is therefore no need to deny such party access
to the record. The reason for non-access
at the stage of ex parte
representations is understandable - in terms of section 80(2) any
record of a public or private body which,
or a request for access,
may or must be refused in terms of this Act.
[15]
This was said in anticipation that the court may in the final stage
refuse access to the said record. Section 80(2) of PAIA
may not be
read to exclude the respondents' lawyers from those who must not have
access to the record. Instead it is an emphasis
on the applicant's
lawyers that they may not be able to make meaningful submissions, in
the same vein one is not in a position
to twist the arm of the law.
In the circumstances the report could not be made available to the
applicant's lawyers, which was
done without compromising the order of
the court made in terms of section 80(3) (a) in order to promote the
interests of justice
and fairness. It must be emphasised that in
doing so the court made that choice in the exercise of its
discretion.
The
implication of section 80 (3) (a) read with Rule 4 (1) (a) of PAIA.
[16]
I am minded to reiterate that after having had a judicial peek at the
record I invited the parties to file ex parte representations
in
terms of section 80(3) (a) read with Rule 4(1) (a) of PAIA. In line
with the audi alteram partem rule, once the ex parte submissions
were
made available to the court, the court in its discretion brought the
contents of these representations to the attention of
the opposing
parties. Once the ex parte representations were exchanged the parties
argued the matter based on the said representations.
It transpired
after the submissions were made that although the applicants ex parte
representations were in writing, they were
not made under oath and
therefore not in compliance with Rule 4(1) (a).
[17]
In view of this anomaly on 3 October 2012,1 directed a letter to both
parties in which I expressed my discomfort with the applicant's
omissions in that; while the respondents' ex parte representations
were made under oath, those of the applicant were not. I therefore
formed a view that the applicant did not comply with Rule 4(1) (a) to
PAIA and that the respondents have raised the issue of non-compliance
with Rule 4 (1) (a) in their supplementary heads. I then sought
responses to my letter of 3 October 2012.
[18]
In their response to my letter Counsel for the applicant contend that
Rule 4 (1) (a) expressly states that, 'where applicable,
representations in terms of section 80(3) (a) must be made under oath
and in writing'. In their view the requirement that representations
be made under oath is not applicable where the latter solely
constitute legal argument and where there are no factual assertions
requiring evidential proof. They also submit that in the present case
the position is that the applicant is not able to address
any factual
issues in its representations, because it has not been given access
in any form, or subject to any conditions, to the
report. They are of
the view that Rule 4 (1) (a) is in any event a rule, subject always
to the court's inherent jurisdiction. I
do not agree with this
averment.
[19]
On the other hand the respondents submit that there are two parts to
the provisions of Rule 4(1) (a). First, the representations
made must
be made under oath in writing. Second, where applicable, documentary
proof may be annexed to such representations. In
casu the
representations of the respondents were in the form of two affidavits
deposed to by current President of the Republic
of South Africa, Mr
Jacob Zuma and former President of the Republic of South Africa Mr
Thabo Mbeki. President Zuma included two
annexures constituting
documentary proof that supported the averments made in his affidavit.
I agree that these representations
are consistent with and in
compliance with the requirements of Rule 4(1) (a).
[20]
It is apposite to refer first to the provisions of section 80(3) (a);
"any court contemplated in subsection (1) may -
(a)
receive representations ex parte which representations must be in
terms of Rule 4(l)(a); must be made under oath in writing,
and
supported by documentary proof, where applicable.
In
my opinion the applicant misses a point when it lays emphasis on the
words 'where applicable' in the exclusion of the words 'made
under
oath in writing'. Made under oath in writing is a single
uninterrupted phrase - it expresses a single concept and not two,
"Where applicable" although it forms part of subrule (1)
(a) - it does not refer to 'made under oath in writing' but
to and
supported by documentary proof, where applicable. Simply put it means
where documentary proof is available. The oath made
in writing must
be supported thereby. "Where applicable" qualifies the
submissions of documentary proof if available.
The interpretation is
in line with a fundamental tenet of our Constitutional jurisprudence
that all have, whether statute, common
law, customary law or
regulation, must be read in a manner that is consistent with the
Constitution. This principle is not limited
to consistency with the
spirit, purport and object of the Bill of Rights as required by
section 39(2) it is an implied principle
of the Constitution as a
whole that a constitutional interpretation should always be preferred
to a non-constitutional interpretation.
This principle applies with
equal force to the interpretation of Rule 4(1) (a). - AAA Investments
(Pty) Ltd v Micro Finance Regulatory
Council and Another 2007(1) SA
343(CC) at 373 para (72), As Hefer JA observed in Fundstrust (Pty)
Ltd (in liquidation) v Van Deventer
1997(1) SA 710 at 726H -727A.
"But
judicial interpretation cannot be undertaken; as ShreinerJA observed
In Jaga v Donges NO and Another; Bhana v Donges NO
and Another
1950(4) SA 653(A) at 664H, by 'excessive peering at the language to
be interpreted without sufficient attention to
the contextual scene'.
The task of the interpreter is after all, to ascertain the meaning of
a word or expression in the particular
context of the statute in
which it appears- Loryan (Pty) Ltd v Solarsh Tea and Coffee (Pty) Ltd
1984(3) SA 834(w) at 846G. As a
rule every word or expression must be
given its ordinary meaning and in this regard lexial research is
useful and at times indispensible.......................
" It is
now settled law that when interpreting any statute the court is bound
to prefer any reasonable interpretation of legislation
that is
consistent with international law, over any alternative
interpretation that is inconsistent with international law.
[21]
One agrees with the respondents in their submission that Rule 4(1)
(a) simply defines the ex parte representations as such
that should
be in a form that enables a court to accept the evidentiary value of
the disposition taken. Section 80(1) read with
Rule 4(1) (a) is a
procedure that allows parties to make representations that can be
admitted in evidence. However, the submission
by the respondents that
the court in its discretion should refer to the applicant's
representations as additional heads of arguments
requires careful
consideration. There exists a two fold dilemma to this submission.
[22]
First, as was raised by the Constitutional Court in President of RSA
v M &.G Media Limited supra at 63 para [35] the facts
upon which
the exemption is justified will invariably be within the knowledge of
the holder of information. In these circumstances,
the requester may
have to resort to a bare denial of the facts alleged by the holder of
information justifying refusal of access.
A bare denial will normally
not be sufficient to raise a genuine dispute of fact, and the rule in
the Plascon-Evans Paints Ltd
v Van Riebeck Paints (Pty) Ltd 1984(3)$A
623(A) at 634G-635D would require that the application be decided on
the factual allegation
made by the party refusing access to the
record. Second, on the other hand, a holder of information who needs
to rely on the contents
of the record itself, in order to justify the
exemption claimed, will be prevented from doing so by the provisions
of ss 25 (3)(b)
and 77(5)(b) of PAIA, which preclude 'any reference
to the contents of the record' in order to support a claim of
exemption.
[23]
Confronted with this dilemma, one can still say that the applicant
was barred from submitting a short affidavit in support
of its case
in which it could merely state the difficulty it faces. However, it
can still be argued that the holder of the information
is at an
advantage because it has knowledge of the contents of the record
although it is prevented from referring to it. In the
light of these
challenges, in producing and refuting evidence, the court will rely
heavily on the power conferred to it by section
80 now that the
record has been made available to it. The evidence of the contents of
the contested record will be used to test
the validity of the
exemptions claimed.
[24]
In any event, Rule 4(1) (a) is always subject to the court's inherent
jurisdiction - 'the rules are meant for the court not
the court for
the rules'. In the circumstances, the Plascon Evans rule would apply.
The application will be decided on the factual
allegations made by
the respondents in their ex parte affidavits as well as the record
itself.
Respondents'
application in terms of Rule 6(5) of the Uniform Rules of Court
[25]
When the matter commenced on 13 June 2012 the respondents launched an
application in terms of Rule 6(5) of this court to have
the affidavit
of former President Thabo Mbeki received as further evidence in the
matter. The reasons provided by the respondents
for filing the
affidavit late are that:
(i)
Former President Thabo Mbeki has been busy with the tasks allocated
to him by the United Nations and the African Union.
(ii)
The information set out in the affidavit of the former President
constitutes exceptional circumstances in that the information
is
material and relevant to a just and equitable determination of the
dispute between the parties.
(iii)
The new evidence may augment the merits of exemptions claimed since
these need to be decided in the light of the report sought.
[26]
The applicant contends that the receipt of the affidavit as further
evidence is unjustified on the basis that the respondents
are
attempting to circumvent a proper application for admission of the
affidavit. The applicant further submits that the purpose
of the
representations ex parte is to make legal submissions on the basis of
the report itself, and it can certainly not be presented
as an
opportunity to tender further factual evidence in support of the
grounds of refusal raised by the state.
[27]
The relevant part of Uniform Rule 6(5) of this court provides that
"the court may in its discretion permit the filing
of further
affidavits". However, there are requirements which must be met
for the filing of further affidavits. The filing
of further
affidavits is an indulgence and a basis must be laid for such an
indulgence to be granted. There is a well established
principle that
there were normally three sets of affidavits in motion proceedings:
the founding affidavit, answering affidavit
and replying affidavit.
It is only in exceptional circumstances where a fourth set of
affidavit can be received. In the absence
of an explanation why the
information included in the fourth set of affidavits could not have
been included in the answering affidavit
the indulgence must be
dismissed - Kasiyamhuru v Minister of Home Affairs and Others 1999(1)
SA 643 WLD. The discretion referred
to in Rule 6(5) (e) must be
exercised judiciously. As was observed by the court in James Brown &
Hammer (Pty) Ltd v Simmons
N.O. 1963(4) SA 656(A) at 660 D-H that "It
is in the interest of the administration of justice that the well
known and well
established general rules regarding the number of sets
and the proper sequence of affidavits in motion proceedings should
ordinarily
be observed. That is not to say that those general rules
must always be rigidly applied, some flexibility, controlled by the
presiding
Judge exercising his discretion in relation to the facts of
the case before him must necessarily also be permitted. Where, as in
the present case, an affidavit is tendered in motion proceedings both
late and out of its ordinary sequence, the party tendering
it is
seeking, not a right, but an indulgence from the court, he must both
advance his explanation of why the affidavit is out
of time and
satisfy the court that, although the affidavit is late it should,
having regard to all the circumstances of the case,
nevertheless be
received............... " The nature of the proceedings and the
importance of the case may play a role to
avoid miscarriage of
justice. The court in the exercise of its discretion must safeguard
that severe prejudice does not occur to
the other party.
Considerations of justice and fairness are of vital importance when
the court is concerned with the interpretation
of procedural rules.
[28]
New evidence on appeal may be admitted in terms of section 22(a) of
the Supreme Court Act 59 of 1959. "A court of appeal
should
exercise this power sparingly and only if the further evidence is
reliable, weighty and material - presumably to be believed.
In
addition, there must be an acceptable explanation for the fact that
the evidence was not adduced in the trial court" -
Bertelsmann
AJA for the majority in Dornell Properties 282 CC v Renasa Ins Co Ltd
NNO 2011(1) SA 70 SCA quoting with approval from
the judgment of
Wessels CJ in Colman v Dumba
1933 AD 141
at 162.
[29]
Our courts have refused to admit new evidence on appeal where there
is no reasonably sufficient explanation for the failure
to tender the
evidence earlier in the proceedings, emphasising that the admission
of new evidence during an appeal hearing is likely
to be permitted
even more rarely - President of the RSA v Quagliani & Two similar
cases 2009(2) SA 466(CC).
[30]
It is crucial to note that in their affidavit filed in support of the
application for receipt of further evidence, the respondent
only
refer to the present application and not to the initial application
and the appeals thereto. They submit that the information
set out in
the affidavit of former President Thabo Mbeki constitutes exceptional
circumstances in that the information is material
and relevant to a
just and equitable determination of the dispute between the parties,
On the reason why the affidavit was filed
late they say that the
former President Mbeki was busy with the tasks allocated to him by
the United Nations and the African Union.
The reason that this
evidence was not tendered at an earlier stage is essentially that the
request for the record was directed
to the information officer, They
also contend that the evidence itself is factual and in all
circumstances of this case, no real
prejudice will be suffered by the
applicant should this evidence be received by this court, That this
evidence provides some of
the answers that have been raised at prior
hearings with regard to the purpose of the Justices' mission to
Zimbabwe and in this
respect it enlightens the court on material
issues.
[15]
The respondents fail to give a reasonably sufficient explanation why
the evidence was not tendered at an earlier stage. They
also do not
give details of when former President Mbeki was performing United
Nations and African Union duties. There is no explanation
of the real
prejudice that will not be suffered by the applicant which may not
amount to injustice and unfairness. The respondents
merely state bold
statements without substance.
[16]
While one accepts that this court sits as a court of first instance
in proceedings in terms of section 80(3), in the same vein
one cannot
be oblivious of the fact that this matter has travelled a 'vicious'
circle. It started in the High Court with an appeal
in the SCA and
finally to the Constitutional Court on another appeal and back to
this court. It therefore begs the question why
the affidavit of
former President Mbeki was not produced at the initial stage and in
particular during appeal proceedings in the
SCA and the
Constitutional Court. Moreover, both the High Court and the SCA
raised the issue of insufficient evidence to justify
the exemptions
claimed. The respondents nevertheless concede that the new evidence
was filed late and that it could have been tendered
at an earlier
stage. It is also common cause that the hands of the applicant are
tied by the fact that the record was not made
available to them and
as a consequence they cannot refer to its contents. In that regard
the applicant is less equipped than the
respondents. If the affidavit
is received as new evidence the applicant will suffer real prejudice.
Only the most exceptional circumstances
could justify the admission
of the supplementary material sought to be tendered. Such
circumstances simply do not exist.
[33]
In their application in terms of Rule 6(5) the respondents annexed
only the affidavit of former President Mbeki, hence In my
discussion
above, I only referred to his affidavit. The affidavit of President
Zuma was annexed without any explanatory affidavit
by the attorney of
the respondents. It does not seem to form part of the application.
Even in the event that President Zuma's affidavit
was properly filed,
it wouldn't meet the muster of the procedural rules, In the first
place it was filed late and there is no satisfactorily
explanation
why it was filed late.
[34]
Just as it is the case with former President Mbeki's affidavit, there
is no reasonably sufficient explanation, based on allegations
which
may be true, why the evidence of President Zuma was not led at the
hearing of the initial application. The affidavit of President
Zuma
cannot be said to reflect a prima facie likelihood of the truth of
the evidence, since he has no personal knowledge of the
facts he
attested to. Although it can be accepted that the evidence is
materially relevant to the outcome of the trial, same is
plagued by
the fact that the President bears no personal knowledge to the
events. Non-fulfilment of any of these requirements is
ordinarily
fatal to the application, It is incumbent upon this court to mention
that it is aware of the serious consequences which
may ensue to the
state of refusal to permit the evidence of both former President
Mbeki and the current President Zuma to be received,
but the due
administration of justice would be greatly prejudiced if such
permission were lightly granted - See Rex v Carr 1949(2)
SA 693(A).
[35]
Section 80 does not spell out the circumstances under which the power
to examine the record may be exercised. It is a discretionary
power
that must be exercised judiciously with regard to the constitutional
right of access to information and the difficulties
the parties face
in presenting and producing evidence. It does not "open the
floodgates" for one party to snick 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". using its powers under section 80 to call for
additional evidence...... the state is neither supplementing
the
state case nor making out a case for the requester" - President
of the Republic of South Africa and others v M&G Media
Ltd supra
at 68 - paras 49-50. Based on the reasoning above the two affidavits
cannot be admitted into evidence.
The
three previous judgments in this matter.
[36]
Despite the fact that this is a de novo hearing of the application in
terms of section 80 of PAIA, in the light of the report
which was
made available to this court, the original decision of the High Court
and the decision of the SCA are relevant. I say
this in the full
understanding that the two judgments were overturned by the majority
judgment in the Constitutional Court. Also
critical to this argument
is that in my view the contents of the report now in my possession
resonate with the reasoning in the
original High Court case, the SCA
decision and the minority judgment in the constitutional case.
[37]
However on deciding the merits of the exemptions claimed this court
does not only rely on the evidence which was presented
before the
previous courts. The emphasis has now shifted to the report placed
before the court. This court has the advantage of
being acquainted
with the contents of the record.
[38]
Court proceedings under PAIA are governed by sections 78-82. Section
81 provides that proceedings under PAIA are civil proceedings
and the
rules of evidence in civil proceedings apply. The burden of
establishing that the refusal of access to information is justified
under the provisions of PAIA rests on the state or any other party
refusing access.
[39]
In the original application before Sapire J, the respondents raised
three defences to wit: that the record is excluded from
the ambit of
PAIA in terms of section 12(a) of that Act, because it is a record of
cabinet. This contention was rejected on the
basis that it Is
factually incorrect in that the two justices had to report directly
to the President and not to the cabinet.
[40]
The originally cited grounds of refusal of access were couched in
terms of sections 41(1) (b) (1) and 44(1) (a) of PAIA. Under
section
41(1) (b) (i) of PAIA the respondents contended that the report is
excluded from the provisions of PAIA because it contained
information
"supplied in confidence by or on behalf of another state or
international organisation". This argument was
rejected because
of lack of evidence that the record contains information obtained in
confidence, This is so because the affidavits
on which respondents
rely contain no allegations made by persons who have relevant
personal first hand knowledge,
[41]
Section 41(1) (b) (i) clothes the information officer with discretion
to refuse a request for access. This ground was dismissed
on the
basis that no reasons established by evidence were identified. Only
the Justices themselves or the persons from whom information
was
received can testify as to whether it was supplied in confidence by
or on behalf of another state or organisation. The Justices
were
investigating "constitutional and legal matters". These are
not obviously or necessarily of confidential nature.
Further, the
respondents made it quite clear in their affidavits that information
in the report was not obtained exclusively from
the Zimbabwean
Government or its representatives. I can confirm that the report
reflects the names of other organisations or institutions.
[42]
The ground for refusal in terms of section 44(l)(a) of PAIA is that
the report was "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". Mr Fowler in his affidavit upon which the respondents
relied, said "that the President at the time,
Mr Mbeki,
appointed the Justices, inter alia, primarily to access the
constitutional and legal issues that arose prior to the 2002
Presidential elections in Zimbabwe and report to him in his capacity
as President and Head of State". This submission was
not
sustained on the ground that the mission of the Justices was not to
obtain material upon which the President could formulate
policy.
Basically, the contention was rejected because the report was not
initially commissioned in order to enable the then President
to
formulate policy. According to Mr Fowler in his affidavit the
President found the report useful in the formulation of policy
only
after he had obtained same. This was not his initial intention.
Sapire J then concluded that as a consequence the respondents
failed
to discharge the onus placed on them to establish their fabrication
for non-disclosure.
[43]
We know by now that the SCA upheld the decision of Sapire J in the
High Court. There is no need to repeat the reasons made
by the SCA in
reaching its conclusions, save to say that the SCA discounted the
evidence of the respondents (appellants in the
appeal case) on the
basis that their deponents in their affidavits made rote recitations
of the relevant sections and bald assertions
that the report falls
within their terms. As for Mr Fowler he is said to have adopted a
'belt and braces' approach. The SCA rejected
Rev Chikane's evidence
because he did not give any detail of how the information was
obtained, and further that the court was not
concerned with
probabilities. According to Nugent JA, there are three people who had
direct knowledge of the mandate that was given
to the justices -
Former President Mbeki and the two Justices. The SCA therefore
dismissed the appeal on the ground that the respondents
failed to
give reasons for the exemptions raised in terms of sections
41(l)(b)(i) and 44(l)(a) and that the respondents did not
exercise a
discretion.
[44]
The dicta of the SCA above on the discharge of evidentiary burden was
supported by the majority judgment of the Constitutional
Court in
President of RSA v M&G Media supra page 57 para 18- Ngcobo G
writing for the majority observed, "the state may
not rely on
affidavits that are conclusory, merely repeat the language of the
statute, or are founded upon sweeping and vague claims.
Affidavits
must subscribe the justification for non-disclosure with reasonably
specific detail for the requester of information
to be able to mount
an effective case against the agency's claim for exemption. In the
United States, public policy favours disclosure
of information and
this requires that exemptions be construed narrowly. In addition,
courts consider the burden borne by the government
refusing access to
information with an awareness that the requesting plaintiff is at a
distinct disadvantage in attempting to controvent
an agency's claims
regarding the nature and contents of the record".
[45]
Unlike in Hayden v National Security Agency supra, where the court
resorted to an in camera review, this court followed the
ex parte
representations procedure. In both the United States and South Africa
courts engage in a de novo review of the lawfulness
of the refusal,
whereas the Canadian courts limit their review to whether or not the
refusal was reasonable. In my view the test
to establish de novo
lawfulness of the refusal is more stringent than the reasonableness.
[46]
The Constitutional Court also agreed with the SCA that a deponent's
assertion that information is within his or her personal
knowledge is
of little value without some indication at least from the context, of
how that knowledge was acquired. An indication
of how the alleged
knowledge was acquired is necessary to determine the weight, if any,
to be attached to the evidence set out
in the affidavit - The
President of RSA v M&G Media Ltd supra at 61 para 28. The court
qualified this dictum by stating that
"the opportunity to
acquire knowledge may emerge from duties of the deponent and the
office he or she occupies, as well as
the seniority of the deponent
within the office and his or her prior experience with similar
activities or procedures within the
office” - The President of
RSA v M&G Media supra page 62 para 31.
[47]
Paramount to the above dicta, the court emphasised that while the
principle in Barclays National Bank Ltd v Love 1975(2) SA
514(D) and
its progeny applies generally in civil proceedings, the principle
must be applied with caution in access to information
cases. What
must be borne in mind is that access to information disputes are
concerned with a constitutional right. In addition,
the scheme of
PAIA is such that information must be disclosed unless it is exempt
from disclosure under one or more narrowly construed
exemptions. And
what is more the holder of information bears the onus of establishing
that the refusal of access to the record
is justified under PAIA. The
say so of a deponent that he or she has personal knowledge of the
facts that put the record within
one or more exemptions is not
sufficient without an indication, at least from the context, of how
that knowledge was acquired -
The President of RSA v M&G Media
supra page 62 para 30.
[48]
The Constitutional Court was alive to the challenges faced by both
the appellants and the respondents in the appeal case. The
state
alleged that its hands were tied by the provisions of sections
25(3)(b) and 77(5) (b) in presenting evidence in support of
its
claims to exemptions, whereas M&G was not in a position to
effectively challenge the evidence of the state, in particular
with
regards to the contents of the report and the personal knowledge the
deponents asserted of the mandate of the judges who undertook
the
mission, and there was the question of severability of the report, as
the state admitted that portions of it did not contain
confidential
information.
[49]
I have already intimated above that the disclosure of the record is
supported by the minority judgment of the CC which upheld
the
decisions of the High Court and the SCA. The reasons of Cameron J in
support of the order he made appear elsewhere in the judgment.
It is
not necessary to repeat same in this judgment.
The
exemptions claimed under sections 41(1) (b) (i) and 44(1) fa) of
PAIA.
[50]
The high water-mark of this case is rooted in two exemptions claimed
by the respondents under sections 41(l)(b)(i) and 44(l)(a)
of PAIA.
The respondents contend 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(l)(b)(i)
of PAIA and second, that the report had been prepared
for the purpose
of assisting the President to formulate executive policy on Zimbabwe
as contemplated in section 44(1) (a) of PAIA.
The applicant argues
that the state has not discharged its statutory burden imposed by
section 81(3) of PAIA of establishing that
its refusal to grant
access to the report was justified by either of the exemptions it
claimed under sections 41(l)(b)(i) and 44(1)
(a). Both parties argue
that their hands are tied. The respondents allege that it was
hamstrung by provisions of sections 25(3)(b)
and 77(5)(b) from
presenting further evidence in support of their claim to the
exemptions. As a consequence they cannot refer to
the contents of the
report. On the other hand, the applicant argues that since it has no
access to the report it cannot challenge
the evidence of the state,
in particular with regard to the contents of the mandate of the
judges who undertook the mission and
also in respect of the
severability of the report. However, the state admits that the report
contains some information that is
not confidential. The issues of
public interest and. potential harm are also raised. All these issues
will be decided in the light
of the contents of the report.
[20]
The evidence of the Deputy Information Officer and the Minister in
the Presidency can be discounted on the basis that they
were not
personally involved in the events preceding the mission of the two
justices to Zimbabwe. The testimony of the Director
General can be
excluded on the ground that he did not provide details in his
affidavit as to how his position in the Presidency
afforded him the
opportunity to have acquired personal knowledge of the judges'
mandate. Rev Chikane, as Director -General must
have had personal
knowledge of such events as the Director General in the Presidency.
However, this is mired by the submission
on behalf of the respondents
that the two justices had to report personally to the former
President Mbeki who was of the view that
a report made directly to
him would assist him and the national executive to take policy
decisions on how best to support and strengthen
the quest for
political and economic stability in Zimbabwe and in the
region..................... this therefore removes Rev Chikane
from
the picture as the person who bears persona! knowledge to the
Zimbabwean mission. Even if one were to assume that he bears
personal
knowledge to the facts, in the absence of the evidence of Former
President Mbeki the respondents' case remains mystified.
Once Sapire
J, decided that there was insufficient evidence to support the
withholding of the record by the respondents, the writing
was on the
wall for more evidence to be presented to justify the exemptions
claimed. The affidavits of Former President Mbeki and
the current
President ought to have been fifed on appeal in the Supreme Court of
Appeal and later to the Constitutional Court.
I say this against the
backdrop that the respondents' hands are tied by sections 25(3) (b)
and 77(5) (b). Despite these constrains
based on the contents of the
report I do not see how section 80 can support the cause of the
respondents for non-disclosure.
[52]
In my view, and it is supported by the contents of the report /there
are three people who have direct knowledge of the mandate
that was
given to the judges - Former President Mbeki and the two Justices.
Questions have been raised why the two justices did
not depose to
affidavits. I do not wish to act as pontiff for Justices Khampepe and
Moseneke, I think they accepted to act as envoys
of the former
President in good faith as a call to national duty. Their acceptance
to act as envoys must not be seen as succumbing
to an agreement to a
traduction of the division of powers. This must be assessed against
the background that the then late Chief
Justice Arthur Chaskalson,
himself a proponent of the separation of powers, had sanctioned the
appointment of the two Justices
as envoys on a mission in Zimbabwe.
To date we do not know why their affidavits were not filed, which
omission cannot be blamed
on them.
[53]
I disallowed the filing of the affidavits of former President Mbeki
and President Zuma on the principle that they were only
filed more
than three years after the hearing of the first application by this
court. The respondents had an opportunity to file
these affidavits
during the appeal hearing in the SCA and in the Constitutional Court.
[54]
The Constitutional Court was at pains to emphasise in its majority
judgment that when acting in terms of section 80 of PAIA,
courts are
empowered to call for additional evidence in the form of the
contested record. - President of RSA v M&G Media supra
at page 62
para 33 and at 63 para 37.................... ."it is proper for
a court to exercise its discretion under section
80 to call for
additional evidence in the form of the record" And at 65 para
44.................... "call for additional
evidence in the form
of the contested record"................... and at 66 para 47
"..................... it would be
in the interest of justice
for the court to invoke section 80 in order to responsibly decide the
merits on the basis of the additional
evidence provided by the
record". This is an indication that evidence allunde can only be
called upon under exceptional circumstances.
The only exceptional
circumstance in this case is that parties are constrained by the
provisions of sections 25 (3) (b) and 77(5).
These constrains have
been alleviated by the invocation of section 80 of PAIA. If this
section does not assist the respondents
then it is the end of the
story,
[55]
Counsel for the State during their oral argument in the
Constitutional Court conceded that the mere statement by an
information
officer that a record falls within the exemptions claimed
is insufficient, without more to discharge the state's burden under
section
82(3). The Constitutional Court itself in its majority
judgment emphasised that the recitation of the statutory language of
the
exemptions claimed is not sufficient for the state to show that
the record in question falls within the exemptions claimed. Nor
are
mere ipse dixit affidavits proffered by the state - President of RSA
v M81G Media supra at 60 para 24. I am aware of the guidelines
offered by the Constitutional Court in its judgment at 61- 62 paras
28, 29, 30, 31, 32 and 33. I deem these guidelines to be referring
to
section 80 of PAIA and how it should be invoked. The emphasis is
still on the record and if the contents of the record prove
otherwise
then the applicant must succeed.
[56]
I am satisfied that enough has been said about the reliance on the
exemptions in terms of sections 4(1) (b) (i) and 44(1) (a).
I find
that on a balance of probabilities the state has failed to discharge
the burden placed on it under section 81(3) of PAIA.
The
outcome of the judicial peek:
[57]
It is instructive to mention that in my evaluation of the outcome of
the judicial peek, I may not disclose those material aspects
of the
contents of the report which may compromise any possible appeal
process to the superior courts, My hands are tied thereby.
[58]
I can however disclose that on the 12 February 2002 former President
Thabo Mbeki appointed a Judicial Observer Mission ("Jom")
to the Zimbabwe Presidential elections composed of Justices Moseneke
and Khampepe. The terms of reference of Jom 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 any 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
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 (l)(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(l)(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. It will therefore be disingenuous for any
party to decry
any lack of transparency.
[60]
Citing with approval the formulation of section 11 of PAIA, the
Constitutional Court in Brummer v Minister for Social Development
and
others, 2009(6) SA 323(CC) remarked as follows: "the importance
of this right......................... in a country which
is founded
on values of accountability, responsiveness and openness, cannot be
gain said 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'.
[61]
It is common cause that the applicant complied with all procedural
requirements pertaining to the request for information in
possession
of the state. This includes up to the appeal stage within the
Presidency. Under our laws, the disclosure of information
is the rule
and exemption from disclosure is the exception. The default position
in respect of access to information held by the
state is that of
disclosure.
[62]
As already stated, the state relies on the provisions of section
4(l)(b)(i) and section 44(l)(a)(i) of PAIA in withholding
the report.
As correctly submitted by the applicant, it is common cause on the
papers that the report contains the findings of
the two Justices
regarding the conduct of the Zimbabwean elections, such as whether
the legal requirements for the elections were
met.
I
can now confirm that this is 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.
[63]
The dicta in the case of Kuijer v EU Council (No 2) [2002] 1 WLR1941
(ct of 1st Inst EC) is relevant to this application. The
court held
that the report did not qualify under the relevant international
relations exemption, stating that:
"
The mere fact that certain documents contain information or negative
statements about the political situation, or the protection
of human
rights, in a third country does not necessarily mean that access to
them may be denied on the basis that there is a risk
that public
interest may be undermined. That fact, in itself and in the abstract,
is not sufficient basis for refusing a request
for access. Rather,
refusal of access to the reports in question must be founded on an
analysis of factors specific to the contents
or context of each
report from which it can be concluded that, because of certain
specific circumstances, disclosure of such a
document would pose a
danger to a particular public interest. As regards their contents,
the reports at issue do not concern directly
or primarily the
relations of the European Union with the countries concerned. They
contain an analysis of the political situation
and of the position as
regards the protection of human rights in general in each of those
countries and also refer to the ratification
of international
treaties concerning human rights. They also contain more specific
information on the protection of human rights
the possibility of
internal migration to escape.
[62]
As already stated, the state relies on the provisions of section
4(l)(b)(i) and section 44(l)(a)(i) of PAIA in withholding
the report.
As correctly submitted by the applicant, it is common cause on the
papers that the report contains the findings of
the two Justices
regarding the conduct of the Zimbabwean elections, such as whether
the legal requirements for the elections were
met.
I
can now confirm that this is 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.
[63]
The dicta in the case of Kuijer v EU Council (No 2)
[2002] 1 WLR 1941
(ct of 1st Inst EC) is relevant to this application, The court held
that the report did not qualify under the relevant international
relations exemption, stating that:
"
The mere fact that certain documents contain information or negative
statements about the political situation, or the protection
of human
rights, in a third country does not necessarily mean that access to
them may be denied on the basis that there is a risk
that public
interest may be undermined, That fact, in itself and in the abstract,
is not sufficient basis for refusing a request
for access. Rather,
refusal of access to the reports in question must be founded on an
analysts of factors specific to the contents
or context of each
report from which it can be concluded that, because of certain
specific circumstances, disclosure of such a
document would pose a
danger to a particular public interest As regards their contents, the
reports at issue do not concern directly
or primarily the relations
of the European Union with the countries concerned. They contain an
analysis of the political situation
and of the position as regards
the protection of human rights in genera! in each of those countries
and also refer to the ratification
of international treaties
concerning human rights. They also contain more specific Information
on the protection of human rights
the possibility of internal
migration to escape persecution, the return of nationals to their
country of origin and the economic
and social situation”.
[64]
The applicant also argues correctly that the state concession that
the use of the report in policy assistance was a "
related
purpose which arose later once the President had sight of the
report'. This means that the jurisdictional requirement that
the
report was obtained or prepared for policy assistance is not met. The
report reveals that Jom had to ensure credible or substantially
free
and fair elections and that the elections were conducted in
substantial compliance with the legislative framework. The report
in
my possession also deals with issues pertaining to human rights. The
respondents have therefore failed to establish a proper
basis for
these grounds.
The
Section 46 of PAIA override
[65]
The applicant submits that the requirements of section 46 of PAIA are
mandatory where access to a report is denied under, for
example,
section 41(l)(b)(i) or 44(l)(a). The respondents are of the view that
the section 46 override must be considered with
particular reference
to the court's question " whether the progress made through the
Global Political Agreement (GPA) process
in Zimbabwe will impact on
the release or otherwise of the report, Has the facilitation progress
made so far In Zimbabwe not overtaken
public interest or the harm
contemplated in section 46 of PAIA" In my view the argument on
the GPA has since become academic
in view of the fact that the
affidavit of President Zuma has been excluded from evidence. However,
the role that the President
of the Republic of South Africa plays
through the GPA cannot be underestimated because it is vital to the
economic and political
stability within the region.
[66]
The relevant provision of section 46 of PAIA records as follows:
"Despite
any other provision of this chapter, the information officer of a
public body must grant a request for access to a
record of the body
contemplated in section.......................... 41(l)(b)(i). or
44(1) (a) If-
(a)
the disclosure of the record would reveal evidence of-
(!)
a substantial contravention of a failure to comply with, the law; or
(ii)
an Imminent and serious public safety or environmental risk; and
(b)
the public interest in the disclosure of the record clearly outweighs
the harm contemplated in the provision in question".
[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. The
question pertaining to the GPA has been rendered moot and
it is not
necessary to consider it, I am of the view that the public interest
supersedes the harm that may ensue should the report
be released.
Severability
[68]
It is the contention of the respondents that the report cannot be
severed or redacted. This contention is not borne out by
the contents
of the report. The report is divided into sections and paragraphs. It
is therefore possible that parts of the report
can be redacted. This
issue too, has become moot because I have already dismissed the other
grounds for non-disclosure.
Conclusion
[69]
In the circumstances I make the following order:
(1)
The refusal by the respondents for access to the report is set aside.
(2)
The respondents are ordered to make a copy of the report available to
the applicant within ten days of this order.
(3)
In the event that the respondents note an appeal to this judgement,
the report shall remain embargoed until finalisation of
the appeal
process.
(4) The respondents are ordered to pay
costs occasioned by the appearance of two Counsel.
TJ RAULINGA
JUDGE
OF THE HIGH COURT NORTH GAUTENG HIGH COURT
FOR
THE APPLICANT: Adv D Gauntlett SC Adv f Snykers SC Adv Ismail
INSTRUCTED
BY: Webber Wentzel
FOR
THE RESPONDENT: Adv MTK Moerane SC Adv Gcabashe
INSTRUCTED
BY: State Attorney
HEARD
ON: 14-15/06/12 & 06-07/08/12
DATE
OF JUDGMENT: 14 February 2013