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[2011] ZACC 32
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President of the Republic of South Africa and Others v M & G Media Ltd (CCT 03/11) [2011] ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC) (29 November 2011)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 03/11
[2011] ZACC 32
In the matter between:
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA
…...............................................................................
First
Applicant
DEPUTY INFORMATION OFFICER
…................................................
Second
Applicant
MINISTER IN THE PRESIDENCY
…......................................................
Third
Applicant
and
M & G MEDIA LIMITED
….............................................................................
Respondent
Heard on : 17 May 2011
Decided on : 29 November 2011
JUDGMENT
NGCOBO CJ (Froneman J, Mogoeng J, Mthiyane AJ and Yacoob J
concurring):
Introduction
Shortly before the 2002 presidential election in
Zimbabwe, former President Thabo Mbeki appointed two senior judges
to visit that
country. It is by now common cause that the two judges
were sent to assess the constitutional and legal issues relating to
that
election. Upon their return, the judges prepared a report and
submitted it to the President. The report has never been released
to
the public. M & G Media Limited (M & G), the publisher of a
weekly newspaper, the
Mail &
Guardian
, requested access to the
report pursuant to section 11 of the Promotion of Access to
Information Act (PAIA, or the Act).
1
The Presidency refused the request.
2
The
request was refused on two grounds: first, that disclosure of the
report would reveal information supplied in confidence by
or on
behalf of another state or international organisation, contrary to
section 41(1)(b)(i) of PAIA; 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.
In the ensuing litigation initiated by M & G
pursuant to section 78 of PAIA, the North Gauteng High Court,
Pretoria (High
Court) and, on appeal, the Supreme Court of Appeal
held that the refusal to grant access to the report was not
justified by either
section 41(1)(b)(i) or section 44(1)(a) of PAIA,
as claimed by the Presidency. The High Court ordered the President,
the Deputy
Information Officer and the Minister in the Presidency
(together, the state), who were the respondents in those
proceedings,
to make the report available, in its entirety, to M &
G.
3
This order, including an order for costs, was
upheld on appeal by the Supreme Court of Appeal.
4
With our leave previously granted,
5
the state is now appealing to this Court.
On
appeal to this Court, the state contended that both the Supreme
Court of Appeal and the High Court erred in finding that it
had 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(1)(b)(i) and 44(1)(a).
6
The state also argued that, in responding to the
application by M & G, its hands were tied. It argued that it
could not give
more information on its refusal to provide access to
the report without referring to the contents of the report that it
sought
to protect from disclosure, which would be in contravention
of the Act.
7
While the state admits that the report contains
some information that is not confidential, it nevertheless resists
the disclosure
of even the non-confidential portions on the basis
that they cannot reasonably be severed from those portions
containing confidential
information.
Issues for consideration
This
case raises two important issues: first, how the state discharges
the burden, under section 81(3) of PAIA, of establishing
that its
refusal to grant access to a record is justified; and second, the
circumstances under which a court may call for additional
evidence
in the form of the contested record under section 80.
8
These issues will be considered in this judgment
in the light of the constitutional right of access to information
held by the
state and the statutory framework that regulates
proceedings under PAIA.
The
constitutional right of access to information held by the state
The constitutional right of access to information is governed by
section 32 of the Constitution, which provides, in relevant
part:
“
(1)
Everyone has the right of access to—
(a) any information held by the
state”.
Section 11 of PAIA gives effect to this constitutional right, and
provides:
“
(1) A
requester must be given access to a record of a public body if—
(a) that requester complies with
all the procedural requirements in this Act relating to a request for
access to that record; and
(b) access to that record is not
refused in terms of any ground for refusal contemplated in Chapter 4
of this Part.
A request contemplated in
subsection (1) includes a request for access to a record containing
personal information about the requester.
A requester’s right of
access contemplated in subsection (1) is, subject to this Act, not
affected by—
(a) any reasons the requester
gives for requesting access; or
(b) the information officer’s
belief as to what the requester’s reasons are for requesting
access.”
In
Brümmer v
Minister for Social Development and Others
,
9
this Court explained the importance of the
constitutional right of access to information held by the state as
follows:
“
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’.
Apart from
this, access to information is fundamental to the realisation of the
rights guaranteed in the Bill of Rights. For example,
access to
information is crucial to the right to freedom of expression which
includes freedom of the press and other media and
freedom to receive
or impart information or ideas. . . . Access to information is
crucial to accurate reporting and thus to imparting
accurate
information to the public.”
10
(Citations
omitted.)
As is evident from its long title, PAIA was
enacted “[t]o give effect to the constitutional right of
access to any information
held by the State”. And the
formulation of section 11 casts the exercise of this right in
peremptory terms – the
requester “must” be given
access to the report so long as the request complies with the
procedures outlined in the
Act and the record requested is not
protected from disclosure by one of the exemptions set forth
therein.
11
Under our law, therefore, the disclosure of
information is the rule and exemption from disclosure is the
exception.
The
constitutional guarantee of the right of access to information held
by the state gives effect to “accountability, responsiveness

and openness” as founding values of our constitutional
democracy.
12
It is impossible to hold accountable a government
that operates in secrecy. The right of access to information is also
crucial
to the realisation of other rights in the Bill of Rights.
The right to receive or impart information or ideas,
13
for example, is dependent on it. In a democratic
society such as our own, the effective exercise of the right to
vote
14
also depends on the right of access to
information. For without access to information, the ability of
citizens to make responsible
political decisions and participate
meaningfully in public life is undermined.
But PAIA places limitations on the right of
access to information. It does this by exempting certain information
from disclosure.
PAIA recognises, in its Preamble, that there are
“reasonable and justifiable” limitations on the right of
access
to information, even in an open and democratic society.
15
Those limitations emerge from the exemptions to
disclosure contained in Chapter 4 of the Act. The purpose of Chapter
4 is to protect
from disclosure certain information that, if
disclosed, could cause material harm to, amongst other things: the
defence, security
and international relations of the Republic;
16
the economic interests and financial welfare of
the Republic and commercial activities of public bodies;
17
and the formulation of policy and taking of
decisions by public bodies in the exercise of powers or performance
of duties conferred
or imposed by law.
18
We
are not concerned, here, with the constitutionality of PAIA or the
limitation on the right of access to information contained
in
Chapter 4. What we are concerned with is the constitutional and
statutory framework within which claims for exemption from

disclosure must be considered and evaluated.
The statutory framework that regulates proceedings under PAIA
Court proceedings under PAIA are governed by sections 78 to 82.
Section 81 provides that proceedings under PAIA are civil
proceedings
and the rules of evidence applicable 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. Section 81
provides:
“
(1)
For the purposes of this Chapter proceedings on application in terms
of section 78 are civil proceedings.
(2) The rules of evidence
applicable in civil proceedings apply to proceedings on application
in terms of section 78.
(3) The burden of establishing
that—
(a) the refusal of a request for
access; or
(b) any decision taken in terms
of section 22, 26(1), 29(3), 54, 57(1) or 60, complies with the
provisions of this Act rests on
the party claiming that it so
complies.”
In
proceedings under PAIA, a court is not limited to reviewing the
decisions of the information officer or the officer who undertook

the internal appeal. It decides the claim of exemption from
disclosure afresh, engaging in a
de
novo
reconsideration of the merits.
19
The evidentiary burden borne by the state
pursuant to section 81(3) must be discharged, as in any civil
proceedings, on a balance
of probabilities.
The
imposition of the evidentiary burden of showing that a record is
exempt from disclosure on the holder of information is

understandable. To place the burden of showing that a record is not
exempt from disclosure on the requesting party would be manifestly

unfair and contrary to the spirit of PAIA read in the light of
section 32 of the Constitution. This is because the requester
of
information has no access to the contents of the record sought and
is therefore unable to establish that it is not exempt
from
disclosure under the Act. By contrast, the holder of information has
access to the contents of the record sought and is
able to establish
whether or not it is protected from disclosure under one or more of
the exemptions contained in Chapter 4.
Hence section 81(3) provides
that the evidentiary burden rests with the holder of information and
not with the requester.
Foreign jurisprudence on discharging the evidentiary burden
Before
formulating the standard to assess whether the state has properly
discharged its burden under section 81(3), it is desirable
to
consider foreign jurisprudence dealing with comparable legislation,
as we are encouraged to do by section 39(1)(c) of the
Constitution.
20
Foreign jurisprudence is of value because it
shows how courts in other jurisdictions have dealt with the issues
that confront
us in this matter. At the same time, it is important
to appreciate that foreign case law will not always provide a safe
guide
for the interpretation of our Constitution. When developing
our jurisprudence in matters that involve constitutional rights, as

the present case does, we must exercise particular caution in
referring to foreign jurisprudence.
The
United States has well-developed access to information
jurisprudence. Its Freedom of Information Act (FOIA) contains nine

exemptions to disclosure and, like PAIA, provides for
de
novo
judicial review of a government
agency’s reliance on an exemption to refuse access to a
government record.
21
As with judicial review of refusals under PAIA,
refusals made under FOIA place the burden to demonstrate to the
court that it
has properly relied on the exemption claimed on the
agency refusing the information request.
22
The agency claiming the exemption can discharge
its burden only by presenting the court with evidence that the
information withheld
falls within the exemption claimed, and such
evidence should not be controverted by either contrary evidence on
the record or
evidence of bad faith on the part of the agency.
23
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.
24
Affidavits must describe the justification for
nondisclosure with reasonably specific detail for the requester of
information
to be able to mount an effective case against the
agency’s claim for exemption.
25
In the United States, public policy favours
disclosure of information, and this requires that exemptions be
construed narrowly.
26
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 controvert an agency’s claims regarding the nature and
contents
of a record.
27
In
Hayden v National
Security Agency
,
28
the District of Columbia Circuit Court of Appeals
summarised the appropriate procedures to be used by trial courts in
determining
whether documents should be released. It said:
“
(1)
The trial court must make a De novo review of the agency’s
classification decision, with the burden on the agency to justify

nondisclosure. (2) In conducting this review, the court is to give
‘substantial weight’ to affidavits from the agency.
(3)
The court is to require the agency to create as full a public record
as possible, concerning the nature of the documents and
the
justification for nondisclosure. (4) If step (3) does not create a
sufficient basis for making a decision, the court may accept

classified affidavits In camera, or it may inspect the documents In
camera. This step is at the court’s discretion
. . . . (5)
The court should require release of reasonably segregable parts of
documents that do not fall within FOIA exemptions.”
29
(Citations
omitted.)
The Canadian equivalent of PAIA is the Access to
Information Act.
30
As with PAIA, the Access to Information Act
provides for a number of exemptions to disclosure, as well as
judicial review of a
refusal of access to information.
31
The Act stipulates that the burden of
establishing that a challenged refusal is authorised rests with the
government institution
refusing access.
32
Unlike in both the United States and South
Africa, where courts engage in a
de
novo
review of the lawfulness of the
refusal, Canadian courts limit their review to whether or not the
refusal was reasonable.
33
As in the United States, to establish proper
reliance upon a discretionary exemption from disclosure, the
government must provide
evidence that the record falls within the
description that is contemplated by the statutory exemption
invoked.
34
The government must provide actual direct
evidence of the confidential nature of the information at issue,
35
which must disclose a reasonable explanation for
exempting the record.
36
In Australia, requests for access to government
records are governed by the Freedom of Information Act 1982.
37
Australian courts have held that the test for
determining whether a refusal was justified is a reasonableness
test, and the state’s
burden is not discharged merely by
showing that the refusal was not irrational, absurd, or ridiculous.
38
Rather, it must go further to show that, in light
of the public interest, there were reasonable grounds for the
refusal. Even
where a government minister has certified refusal on
the grounds of public interest, the court must still ask itself
whether,
in the light of countervailing factors in the public
interest, there were reasonable grounds for the refusal.
39
It is
apparent from this comparative analysis of the standards applied by
courts in other jurisdictions with legislation comparable
to PAIA
that the state may discharge its evidentiary burden only when it has
shown that the record withheld falls within the
exemptions claimed.
Exemptions are construed narrowly, and neither the mere
ipse
dixit
of the information officer nor his or her recitation of
the words of the statute is sufficient to discharge the burden borne

by the state. Even in jurisdictions like Canada, where courts do not
engage in a
de novo
reconsideration of the merits of an
exemption claimed, the refusal of access to information held by the
state must be reasonable.
This is consistent with the importance
placed in the Constitution on the right of access to information, as
well as with the
scheme of PAIA, according to which disclosure is
the rule and exemptions from disclosure are the exception.
Discharging the burden under section 81(3)
In
order to discharge its burden under PAIA, the state must provide
evidence that the record in question falls within the description
of
the statutory exemption it seeks to claim. The proper approach to
the question whether the state has discharged its burden
under
section 81(3) of PAIA is therefore to ask whether the state has put
forward sufficient evidence for a court to conclude
that, on the
probabilities, the information withheld falls within the exemption
claimed.
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.
40
The affidavits for the state must provide
sufficient information to bring the record within the exemption
claimed. This recognises
that access to information held by the
state is important to promoting transparent and accountable
government, and people’s
enjoyment of their rights under the
Bill of Rights depends on such transparent and accountable
government.
41
Ultimately, the question whether the information put forward is
sufficient to place the record within the ambit of the exemption

claimed will be determined by the nature of the exemption. The
question is not whether the best evidence to justify refusal has

been provided, but whether the information provided is sufficient
for a court to conclude, on the probabilities, that the record
falls
within the exemption claimed. If it does, then the state has
discharged its burden under section 81(3). If it does not,
and the
state has not given any indication that it is unable to discharge
its burden because to do so would require it to reveal
the very
information for which protection from disclosure is sought, then the
state has only itself to blame.
In
this case, deponents to the affidavits on behalf of the state
claimed personal knowledge of the following facts: that the two

judges received information from representatives of the Zimbabwean
government in confidence; and that the report was commissioned
and
prepared for the purpose of assisting the President in the
formulation of policy and the taking of decisions pertaining to
the
situation in Zimbabwe. The assertions of personal knowledge of
specific facts, with which we are concerned here, must be

distinguished from the assertions of personal knowledge that
generally preface all affidavits and that merely relate to the
admissibility of affidavits as written evidence. In this case, the
affidavits proffered by the state included both the standard

assertions of personal knowledge in respect of the entirety of the
information contained within each affidavit, as well as specific

assertions of personal knowledge of certain facts separately
enumerated within the affidavits.
The
question here is not one of the admissibility of evidence, but of
the sufficiency of evidence. The deponents have asserted
personal
knowledge of the facts that the two judges received information from
representatives of the Zimbabwean government in
confidence and that
the report was commissioned for the purpose of assisting the
President in the formulation of policy relating
to the situation in
Zimbabwe. The question is therefore whether these claims of personal
knowledge are sufficient to place the
record within the exemptions
claimed.
Sufficiency
of claims of personal knowledge
The Supreme Court of Appeal held 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”.
42
I agree. 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 key
question is whether the deponent would, in the ordinary course of
his or her
duties or as a result of some other capacity described in
the affidavit, have had the opportunity to acquire the information

or knowledge alleged.
In
Barclays National
Bank Ltd v Love
,
43
the court, in the context of summary judgment,
held that “[a]lthough it is not necessary for the deponent to
state reasons
in the affidavit for his assertion that the facts are
within his own knowledge he should . . . at least give some
indication
of his office or capacity which would show an opportunity
to have acquired personal knowledge of the facts to which he
deposes.”
44
(Citation omitted.) The principle articulated in
Love
is
sound. It is about how knowledge, practically speaking, is acquired,
and how a deponent lays the foundation for alleging personal

knowledge of certain facts. It acknowledges that laying a foundation
for personal knowledge of a fact cannot practically require
a
deponent to produce a paper trail of every knowledge-building action
he or she has undertaken.
While
the principle that
Love
and its progeny articulate 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 insufficient
without an indication, at least from the context, of how that
knowledge was acquired.
The
opportunity to acquire knowledge may emerge from the 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 nature
of the deponent’s office may therefore provide evidence that
the deponent would, in the ordinary
course of his or her duties,
acquire personal knowledge of the information in question. In
addition to the standard operating
procedures of an office and the
post occupied by a deponent providing a basis for alleging personal
knowledge of certain facts,
circumstances specific to the particular
record at issue and the specific exemption claimed could support a
deponent’s
claim to personal knowledge.
Evidence
of exemption claimed
As
I have stated above,
45
the question whether the information put forward
is sufficient to place the record within the exemption claimed will
be determined
by the nature of the exemption. The question is not
whether the best evidence to justify refusal has been provided. If
the information
provided is sufficient for the court to conclude, on
the probabilities, that the record falls within the exemption
claimed, then
the state has discharged its burden under section
81(3).
In
terms of the assessment of whether the state has discharged its
burden under section 81(3), section 81(2) provides that the
rules of
evidence applicable in civil proceedings apply to proceedings under
PAIA. What must be emphasised, however, is that
proceedings under
PAIA differ from ordinary civil proceedings in certain key respects.
First, these disputes involve a constitutional
right of access to
information. Second, access to information disputes are generally
not purely private disputes – requesters
of information often
act in the public interest and the outcome of these disputes
therefore impacts the general health of our
democratic polity.
Third, parties to these disputes may be constrained by factors
beyond their control in presenting and challenging
evidence. And
finally, courts are empowered to call for additional evidence in the
form of the contested record.
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
Plascon-Evans
rule would
require that the application be decided on the factual allegations
made by the party refusing access to the record.
46
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
sections 25(3)(b) and 77(5)(b) of PAIA, which preclude “any

reference to the content of the record” in order to support a
claim of exemption.
Courts
should therefore approach these disputes mindful of both the
disadvantage at which requesters are placed in challenging
evidence
put forward by the holder of the record, and the restraints placed
on the party holding the information in terms of
how it may refer to
the contents of the record in justifying refusal of access. In the
light of these challenges in producing
and refuting evidence, courts
have been empowered by
section 80 to call for additional
evidence in the form of the contested record so that they may test
the validity of the exemptions
claimed.
The
issue that arises is the circumstances under which it is proper for
a court to exercise its discretion under section 80 to
call for
additional evidence in the form of the record. It is to that issue
that I now turn.
When may section 80 be invoked?
Section 80 provides, in relevant part:
“
(1)
Despite this Act and any other law, any court hearing an application,
or an appeal against a decision on that application, may
examine any
record of a public or private body to which this Act applies, and no
such record may be withheld from the court on
any grounds.
. . . .
(3) Any court contemplated in
subsection (1) may—
(a) receive representations
ex
parte
;
(b) conduct hearings in camera;
and
(c) prohibit the publication of
such information in relation to the proceedings as the court
determines, including information in
relation to the parties to the
proceedings and the contents of orders made by the court in the
proceedings.”
Section 80(1) was drafted as an override
provision that may be applied despite the other provisions of PAIA
and any other law.
As such, section 80 should be used sparingly. In
the United States, courts have emphasised that in camera review
should only
be undertaken “as a last resort” or only
“where absolutely necessary.”
47
There, courts resort to “judicial peek”
when the affidavits provided by the state are insufficient to enable
them
to responsibly engage in a
de novo
review of whether an exemption from disclosure
has been validly claimed. In those instances, courts will undertake
an in camera
review of the record in question in order to assist
them in determining whether the record falls within the exemption
claimed.
As the Court noted in
Hayden
:
“
in camera
review
is a ‘last resort’ to be used only when the affidavits
are insufficient for a responsible
de
novo
decision.”
48
(Citation omitted.)
Section 46 of the Canadian Access to Information
Act, which is strikingly similar to our section 80, gives a court
considering
an application under the Act the discretion to “examine
any record to which [the] Act applies that is under the control of
a
government institution” and further provides that “no
such record may be withheld from the Court on any grounds.”
49
The Canadian Federal Court of Appeal has held
that:
“
Parliament
enacted section 46 so that the Court would have the information and
material necessary to the fulfilment of its mandate
to ensure that
the discretion given to the administrative head has been exercised
within proper limits and on proper principles.”
50
What appears to inform the exercise of discretion
to resort to judicial peek in both the United States and Canada is
the duty
of a court to make a responsible decision.
51
Judicial peek facilitates the responsible
exercise of the judicial function where courts may be lacking the
material necessary
to responsibly determine whether the record falls
within the exemption claimed. Both in camera review in the United
States and
section 46 in Canada empower courts to call for
additional evidence to enable them to properly adjudicate disputes
concerning
access to information. As the Canadian Federal Court of
Appeal has held, the power to examine privileged records under
section
46 “goes beyond a mere inspecting power: it includes
the ability for the Courts to use privileged communications as
evidence
to decide the merits of the exemption claimed and the
legality of the refusal to disclose.”
52
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 due regard to the
constitutional right of access to information and the difficulties

the parties face in presenting and refuting evidence. It empowers
courts to independently review the record in order to assess
the
validity of the exemptions claimed, and provides legislative
recognition that, through no fault of their own, the parties
may be
constrained in their abilities to present and refute evidence.
The requester may be constrained by lack of access to the record
sought when attempting to challenge claims by the record holder
that
the record is exempt from disclosure. The hands of the body holding
the information may also be tied by the provisions of
sections
25(3)(b) and 77(5)(b) of PAIA, which preclude the record holder from
referring to the protected contents of the record
sought in
justifying its refusal. Both of these factors could result in the
court having insufficient information and material
necessary for it
to responsibly fulfil its duty to decide whether the exemption is
rightly claimed. In these circumstances, section
80 provides courts
with the power to use the record in question as additional evidence
to decide whether the exemption is lawfully
claimed.
Courts
should exercise their discretion to call for additional evidence in
the form of the contested record only where there is
the potential
for injustice as a result of the unique constraints placed upon the
parties in access to information disputes.
This injustice, as I have
pointed out above, may arise because either the requester or the
holder of information is prevented
by factors beyond its control
from presenting the evidence necessary to make its case.
53
As a
discretionary power afforded to the courts to prevent injustice, the
standard for assessing whether a court should properly
invoke
section 80 in a given case is whether it would be in the interests
of justice for it to do so.
It is
neither necessary nor desirable to detail all of the circumstances
under which a court may conclude that it would be in
the interests
of justice for it to exercise its discretion and invoke the
provisions of section 80. It will generally be in the
interests of
justice to invoke section 80 where there is doubt, emerging from the
unique limitations parties in access to information
disputes face in
presenting and refuting evidence, as to whether an exemption is
rightly claimed. This may be the case where,
through no fault of the
state, the evidence put forth by it is insufficient to allow the
court to responsibly determine whether
the exemptions claimed are
valid, or where the validity of the exemptions claimed cannot
responsibly be evaluated without reference
to the information sought
to be protected.
It may also be in the interests of justice to
invoke section 80 where the probabilities are evenly balanced.
Ordinarily, where
the probabilities are evenly balanced, the rules
of civil procedure would require a court to find against the holder
of information
as the bearer of the burden of proof. Where, however,
a court is faced with a record that it acknowledges may or may not
be protected,
in whole or in part, from disclosure, and the doubt as
to the validity of the exemptions claimed can be explained in terms
of
the limitations placed upon the parties in access to information
disputes in presenting and refuting evidence, it would be in the

interests 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.
54
This
is not to say that section 80 should be invoked wherever there is
doubt as to the validity of the exemptions claimed. A court
may have
sufficient evidence to responsibly decide, on the probabilities,
that a record likely is or is not protected. Where
section 80 is of
critical importance is in cases where, because of the limitations
the parties face in producing and refuting
evidence relating to the
specific contents of a record, the court has insufficient evidence
to responsibly come to a conclusion
on the probabilities. Where
there is doubt as to the validity of the exemptions claimed, and it
is clear from the affidavits
put forth by the parties that they are
constrained in their ability, within the framework of PAIA, to lead
evidence that may
assist the court in responsibly determining the
matter on the probabilities, section 80 should be invoked so that
the court has
the evidence it needs to responsibly discharge its
duty.
The
Supreme Court of Appeal was correct in holding that a court should
not use its powers under section 80 as a “substitute
for the
public body laying a proper basis for its refusal.”
55
It also cautioned that a court “should be
hesitant to become a party to secrecy”, because the trust that
the public
places in courts extends from their functioning openly
and always giving reasons for their decisions.
56
By
using its powers under section 80 to call for additional evidence in
the form of the record, the court is neither supplementing
the
state’s case nor making out a case for the requester. The
object of the exercise is to prevent courts from being forced
into
the role of mere spectators in an adversarial process that, because
of the nature of access to information claims, may not
produce the
factual record necessary for courts to execute their judicial
function responsibly. It may be necessary for a court,
in
responsibly carrying out its duty to make a finding on the
probabilities, to take on the inquisitorial role that is open to
it
under section 80. Where a court determines that it is in the
interests of justice for it to invoke section 80, it does so
in the
public interest, for the public has an interest in information held
by the state that is not exempt from disclosure being
released, and
the public likewise has an interest in information that Parliament
determined should not be released, under Chapter
4 of PAIA, properly
being protected from disclosure.
57
Other
factors that could be relevant to courts in deciding whether it is
in the interests of justice to invoke section 80 include
the
potential to resolve material disputes of fact that relate to
whether the record falls within the exemption claimed, and
whether a
record that is protected may contain portions that do not fall
within the exemption claimed and that can be reasonably
severed. I
am mindful of the fact that the requester will often not be in a
position to refute the allegations made by the state
by virtue of
the fact that the requester does not have access to the contents of
the record sought. A court may also consider
it to be in the
interests of justice to invoke section 80 in order to test the
accuracy of the state’s representations
and thereby restore
some degree of adversariness in the proceedings.
58
The
role of section 80 in our constitutional democracy must be stressed.
Its very purpose is to test the argument for non-disclosure
by using
the record in question to decide the merits of the exemption claimed
and the legality of the refusal to disclose the
record. In this
sense, it facilitates, rather than obstructs, access to information.
The very existence of the court’s
power to examine the record
should, in itself, deter frivolous claims of exemptions. If courts
are hesitant to use this powerful
tool to examine the record
independently in order to assess the validity of claims to
exemptions, this may very well undermine
the constitutional right of
access to information. Quite apart from this, judicial access to the
record in cases of this kind
is a common feature of other open
democracies with well-developed and robust access to information
jurisprudence.
59
In my
view, the power of courts to examine the contested record under
section 80 in access to information disputes is vital to
the
vindication of the right of access to information. Properly
exercised, the power to examine the record will not undermine
public
trust in our courts. It is a fundamentally important instrument
given to courts to assess claims of exemption independently
and thus
protect the constitutional right of access to information.
The
next question to consider is whether, in the circumstances of this
case, the provisions of section 80 should have been invoked,
and, if
so, whether this Court or the High Court should examine the report.
Should the provisions of section 80 have been invoked?
The Supreme Court of Appeal observed: “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.”
60
In the light of the doubt expressed by the
Supreme Court of Appeal as to the validity of the exemptions
claimed, as well as its
finding that the evidence proffered by the
state was unacceptable to justify the exemptions it sought, it would
have been in
the interests of justice for section 80 to have been
invoked. This is because: (a) 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 claim to exemptions;
(b) M
& G was not in a position to effectively challenge the evidence
of the state, in particular with regard to the contents
of the
report and the personal knowledge the deponents asserted of the
mandate of the judges who undertook the mission; and (c)
there was
the question of severability of the report, as the state admitted
that portions of it did not contain confidential
information.
The
allegation that the state’s hands were tied
In his affidavit before the High Court, the
Deputy Information Officer in the Presidency alleged difficulty in
responding to certain
of the averments made by M & G in its
founding affidavit, citing sections 25(3)(b) and 77(5)(b) of PAIA
and pointing out
that “[i]f the contents of the report are
disclosed in the course of traversing the said averments it would
defeat the
very reasons for its non-disclosure.”
61
After describing how the judges, in executing
their mandate, “held confidential discussions with various
representatives
of the Republic of Zimbabwe and were supplied
information in confidence by or on behalf of that State”, he
proceeded to
explain that he could not give further detail as to how
this was reflected in the contents of the report, again citing to
sections
25(3)(b) and 77(5)(b).
In
its application for leave to appeal to the Supreme Court of Appeal,
the state persisted in claiming that its hands were tied
by sections
25(3)(b) and 77(5)(b) of PAIA in meeting its statutory burden. It
argued that the High Court erred in finding that
it had not
discharged its statutory burden, because “providing further
particularity would, contrary to the provisions
of sections 25(3)(b)
and 77(5)(b) of PAIA, disclose the very information that the
statutory exemptions sought to protect from
disclosure.” In
this Court, the state advanced, as one of its grounds of appeal, the
fact that there was no clarity on
the evidence that the state could
and should produce, in the light of sections 25(3)(b) and 77(5)(b),
and urged us to provide
clarity on this issue.
In
response to this Court’s directions dated 4 August 2011,
62
M & G argued that section 80 should only be
invoked in “extraordinary circumstances.” It submitted
that extraordinary
circumstances can arise where the state is unable
to discharge its burden of proof due to no fault on its part. It
submitted
that this will be the case where the state alleges that
the record is so secret that its contents can only be dealt with in
general
terms that are unlikely to discharge its burden. I agree
with M & G’s submission that section 80 may properly be
invoked
where the record is so secret that its contents can only be
dealt with in such general terms on the papers as are insufficient

to discharge the burden of proof. But, without conceding that the
information it put forth was in fact insufficient to discharge
its
burden, this is precisely the claim that was made by the state in
this case.
Furthermore,
neither the Deputy Information Officer nor the Minister in the
Presidency was personally involved in the events preceding
the
mission of the two judges to Zimbabwe. Their reliance on the
exemptions provided in sections 41(1)(b)(i) and 44(1)(a) of
PAIA
had, perforce, to be based on their assessment of the contents of
the report, itself. Apart from this, the exemptions claimed
are, in
my view, not so inherently improbable or implausible as to be
rejected as necessarily untrue. It is not in dispute that
the two
judges went to Zimbabwe at the instance of the President. It seems
more likely than not that they would have spoken to
Zimbabwean state
officials in the course of their mission and advised the President
as to their findings. Although it does not
necessarily follow that
their meetings with Zimbabwean officials took place on a
confidential basis, or that their reporting
back to the President
was for the purpose of the formulation of policy, I do not think
these possibilities can necessarily be
excluded.
In these circumstances, the allegation by the state that it was
hamstrung by the provisions of sections 25(3)(b) and 77(5)(b)
from
presenting further evidence in support of its claim to the
exemptions asserted does not appear to me to be implausible.

Therefore, to the extent that the state was hampered by its
statutorily imposed inability to refer or rely on the contents of

the report, the potential prejudice to the state was that it could
not provide more specific evidence to justify the exemptions
it
claimed. This, in my view, is sufficient to trigger the provisions
of section 80.
Where
the validity of the claim of exemption cannot be responsibly
evaluated without the aid of information beyond that contained
in
the affidavits and the record before the court, and the body
refusing access to the record pleads that it cannot provide
additional evidence to support its claim to exemption without
referring to protected contents in the record and thereby
contravening
the Act, it is proper for a court to resort to the
provisions of section 80.
Inability of M & G to challenge the evidence
Both
the Deputy Information Officer and the Minister in the Presidency
concluded, based on their reading of the report, that it
contained
information given to the judges in confidence by Zimbabwean
officials and that it was produced for the purpose of assisting
the
President in formulating policy. Insofar as the Deputy Information
Officer and Minister put forth evidence that was based
on their
reading of the report itself,
M & G was severely constrained
in its ability to directly challenge their evidence. This is because
M & G could not challenge
the reading of a report it had never
seen.
The
Director-General in the Presidency submitted an affidavit in support
of the decisions by the Deputy Information Officer and
the Minister
to refuse access to the report, and asserted personal knowledge of
the judges’ mandate. It does not seem improbable
that the
Director-General in the Presidency would have had personal knowledge
of the judges’ mandate, based on his position
as a senior
official in the Presidency at the time that the Zimbabwe mission was
planned and the judges were instructed. However,
because the
Director-General did not provide precise detail in his affidavit as
to how his post afforded him the opportunity
to have acquired
personal knowledge of the judges’ mandate, M & G was
constrained in challenging his assertions relating
to the purpose
and conditions of the mission.
Given
the constraints M & G faced in challenging the affidavit
evidence put forth by the state, both in relation to state

officials’ reading of the report to which M & G did not
have access, and in relation to the personal knowledge state

officials asserted as to the judges’ mandate, it would have
been in the interests of justice for the High Court to invoke

section 80.
Severability
Section 28 of PAIA requires that any information
in a record that is not protected and that can reasonably be severed
from the
protected parts of the record be severed and disclosed.
63
There is no discretion to withhold information
that is not protected. The unprotected material must be disclosed
“despite
any other provision” of PAIA, unless it “cannot
reasonably be severed” from the protected portions.
The
state admitted that portions of the report contain information that
is not confidential. However, deponents to the affidavits
provided
on behalf of the state assert personal knowledge, based on their
each having read the report in question, that the report
is not
severable. It does not appear from the record whether, at any stage
prior to litigation, the state considered the release
of these
portions of the report. Non-severability was asserted for the first
time in the High Court. M & G was placed at
a disadvantage in
challenging this assertion, as it did not have access to the report.
In these circumstances, the allegation
of non-severability could not
be decided without having regard to the report.
In
all the circumstances, this is a case in which the High Court should
have invoked the provisions of section 80. It therefore
erred in not
doing so. It remains to be considered whether this matter should be
remitted to the High Court for it to apply the
provisions of section
80.
Disposal of the case
I
have concluded that the High Court should have invoked the
provisions of section 80. However, the merits of the exemptions
claimed, as well as the legality of the refusal to disclose the
report, still need to be decided. These must now be decided in
the
light of the contents of the report sought. In addition, section
80(3) deals with procedural matters relevant to the application
of
section 80, including receiving representations,
64
conducting the hearing,
65
and potentially prohibiting the publication of
information in relation to the proceedings.
66
All these matters require further consideration
and further issues may arise in the course of the hearing that may
require further
attention. These issues must be considered by the
High Court in the first instance.
M &
G has argued that remittal will necessarily entail wasted costs when
“the matter will in all likelihood end up before
this Court
for final determination again.” It is not necessary to
speculate on whether the matter will return to this Court,
or even
to the Supreme Court of Appeal for that matter. Suffice it to say,
we have articulated the applicable legal principles
and there is no
reason to believe that these principles will not be properly applied
by the High Court if the matter is remitted.
Nor can we say, at this
stage, whether the Supreme Court of Appeal or this Court will grant
leave to appeal were the matter to
appear before us again.
In
all the circumstances, the just and equitable order to make is to
remit the matter to the High Court to enable it to examine
the
report pursuant to the provisions of section 80 and thereafter to
decide the merits of the exemptions claimed and the lawfulness
of
the refusal to disclose the record.
Costs
It is
just and equitable to order no costs in the High Court, the Supreme
Court of Appeal and this Court.
Order
The
following order is made:
The
appeal succeeds.
The
orders of the High Court and the Supreme Court of Appeal are set
aside.
This
case is remitted to the North Gauteng High Court, Pretoria, for
that Court to examine the record in terms of the provisions
of
section 80
of the
Promotion of Access to Information Act 2 of 2000
and to determine the application under
section 82
of the
Promotion
of Access to Information Act in
the light of this judgment.
There
is no order as to costs.
YACOOB J:
I
have read the judgments of Ngcobo CJ and Cameron J and concur in
the conclusion reached by Ngcobo CJ. I also agree with all
the
reasoning in that judgment except that related to when a court
should have recourse to the information sought. I accept
though
that the appropriate standard to be employed in exercising the
discretion is the interests of justice.
67
The application of that standard drives me however to a conclusion
that, in my view, is more invasive of the state power of
secrecy. I
have followed the debate about the circumstances in which the
interests of justice would require a court seized
with an
application concerning an exemption claimed in response to a
request for a document with considerable interest and
sometimes
with some perplexity.
After
careful consideration, I have concluded that it would ordinarily be
impossible for me, or for any other judge, to come
to any
conclusion about an order that should be made in terms of
section
82
of PAIA
68
without having regard to the contents of the
document or record concerned, and without carefully analysing it in
relation to
the claims made by both parties. I cannot understand
how it is possible to perform the judicial function of making a
section 82
order without examining the document, if that document
is available to the court. I cannot associate myself with an
approach
that suggests that judges, by having recourse to the
documents, somehow become entangled into or associated with state
secrecy.
It
is a reality that some things must be secret. More importantly,
however, secrecy must be subjected to the tightest control.
The
judicial duty that secrecy should be as limited as possible is one
that is vital to the success of our democratic order.
We cannot
ignore this. We must do our judicial duty, however unpleasant it
might be.
In
my view, therefore, unless there are circumstances in which a
judicial officer is completely satisfied that it is possible
to
make an appropriate order without recourse to the document (and I
cannot now conceive of a situation of this kind), or unless
the
document is for some legitimate reason not available, the record
must be carefully examined.
FRONEMAN J:
I
concur in the judgment of Ngcobo CJ, except to the following
extent: in my view, the interests of justice only calls for
additional
evidence in the form of a record in circumstances where
either of the parties is constrained in presenting evidence in
relation
to the dispute or where severability under
section 28
of
PAIA is at issue, as in this case. To the extent that paragraphs
[45] to [47], [49] and [51] of the judgment go beyond that,
I
consider that to be unnecessary for deciding this matter
.
CAMERON J (Jafta J, Nkabinde J and Van der Westhuizen J concurring):
What
should a court do when government fails to justify a refusal to
release information it holds to the public? That is the
question
before us. The Khampepe/Moseneke report on the 2002 Zimbabwe
presidential election is at stake. The
Mail & Guardian
newspaper (M&G) asked for it, and the Presidency said No. Both
the High Court
69
and the Supreme Court of Appeal
70
found the refusal unjustified under the
Promotion of Access to
Information Act (PAIA
).
71
That statute was enacted mainly to give effect to the
constitutional right of access to information held by the state.
72
It puts the burden on the refuser to establish statutory
justification for refusing access.
73
The High Court and the Supreme Court of Appeal accordingly ordered
the Presidency to release the report.
In
my respectful view, those orders were correct, and this Court’s
decision to set aside the decisions of the High Court
and Supreme
Court of Appeal, and to remit the parties’ dispute for
re-adjudication, is wrong. In my view, the present
application
should succeed because the Presidency failed to justify its refusal
of the record under PAIA, and further failed
to provide a plausible
basis for a plea that the statute made it impossible for it to
provide adequate reasons for its refusal.
More generally, in my
view the provisions that permit secret judicial examination of a
disputed record should be invoked only
where government has laid a
plausible foundation for a plea that its hands are tied, or where
government has laid a basis for
claiming an exemption, but a court
considers that doubt exists about its validity. Secret judicial
examination should, in other
words, be used to amplify access.
In
explaining my conclusion, I first set out my reasons for finding
the Presidency’s evidence grievously lacking. Then
I consider
the outcome proposed in the judgment of Ngcobo CJ.
Evidence
No
one disputes that then-President Mbeki sent two judges, Justice
Khampepe
74
and Justice Moseneke, to Zimbabwe to report to him on
constitutional and legal issues relating to the 2002 presidential

election. The mission was cleared with then-Chief Justice
Chaskalson, but its precise terms, and how the judges fulfilled it,

have never been disclosed.
We
know this: the official in the Presidency statutorily charged with
dealing with PAIA requests, the deputy information officer,
75
Mr Trevor Fowler, gave two grounds for refusing the M&G’s
request. First, he said he had “thoroughly examined
the
contents of the report” and was of the view that disclosure
“will reveal information supplied in confidence
by or on
behalf of another state or an international organisation.”
This explanation merely recounted the wording of
section
41(1)(b)(i).
76
anc" HREF="#sdfootnote76sym">
76
Second, he stated that PAIA entitled him to refuse a request “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.” This likewise
recounted the wording of
section 44(1)(a).
77
anc" HREF="#sdfootnote77sym">
77
He recorded that he refused the request “in terms of
sections
41(1)(b)(i)
and
44
(1)(a)”.
PAIA
requires an information officer who refuses a request to “state
adequate reasons for the refusal, including the provisions
of this
Act relied upon”.
78
This means that a decision-maker must give adequate reasons in
addition to stating the statute’s provisions on which
he or
she relies. Mr Fowler did not do so. He merely recited the
provisions of the statute.
Mr
Fowler made no reference in his reasons to the provisions of the
statute that prohibit a decision-maker from making any reference
to
the content of the record when giving reasons for a refusal.
79
The
newspaper took this refusal on internal appeal. The statutory
appeal authority within the Presidency was then-Minister
Tshabalala-Msimang. Her response to the request echoed that of Mr
Fowler. She said she was “also of the view that the

disclosure of the contents of the said report would reveal
information envisaged in section 41(1)(b)” and further that

the request could be refused in terms of section 44(1)(a) of PAIA,
whose provisions her letter also set out. As a result, she
said,
she had “no option” but to refuse the appeal.
Minister
Tshabalala-Msimang’s reasons, like those of Mr Fowler, merely
recited the provisions of the statute. They failed
to provide
adequate reasons in addition to stating the provisions of the
statute relied on. She, too, made no reference to
any difficulty in
stating her reasons arising from the statute’s provisions
precluding any reference to the content of
the record when giving
reasons for a refusal.
80
In
response, the M&G went to court.
81
The basis of its challenge is important. Its founding papers
specify three grounds on which the newspaper maintained that the

Presidency’s refusal was without merit. First, the M&G
said, “the state is required to justify any claims to

secrecy”, since “unwarranted and unjustified claims to
secrecy undermine the very foundations upon which South
Africa’s
constitutional democracy is built”. Second, the newspaper
said the public have an interest in ensuring
that government’s
grounds for refusing access to a document are “legitimate,
transparent and justifiable under
the Constitution”.
The
third reason is significant to the evidence the Presidency
presented in response. The M&G stated that Mr Fowler’s

and Minister Tshabalala-Msimang’s grounds for refusal
“constitute unjustified bald assertions” which are

“manifestly without any substance or merit”.
So
the terrain was clearly marked. In the face of the M&G’s
characterisation of the Presidency’s stance, the
task the
statute set the Presidency was to show that its refusal complied
with PAIA. Far from doing so, the Presidency’s
affidavits
resorted to the same approach Mr Fowler and Minister
Tshabalala-Msimang took earlier. They largely incanted the

provisions of the statute.
In
his deposition, Mr Fowler alleged that the two judges were
appointed “as something in the nature of envoys” of
the
President to assess “the constitutional and legal challenges”
in Zimbabwe, and to report back to him directly
and in confidence.
He also stated that the President “wanted legal experts to
advise him on [Zimbabwe’s] constitutional
matters, and
appointed the two Justices to undertake this diplomatic mission”.
He stated that “the Justices were
received in Zimbabwe and
granted interviews in their capacity as envoys of the President of
South Africa”, and that all
who were party to these talks
thought they were confidential and in furtherance of diplomatic
relations.
He
gave no ground for these assertions. Nor did he appear to have any.
On the contrary, his affidavit indicated that he had
assumed his
duties in the Presidency only in 2004 – two years after the
judges’ mission.
The
newspaper’s founding affidavit claimed, no doubt
provocatively, that it “understood” that the report
detailed “material irregularities apparent in the electoral
process, and the failure of Zimbabwe’s legal system
to permit
a valid challenge to the results of the election.” The
affidavit also claimed that the report “reportedly
reflects a
number of factors that rendered the election not free and fair”.
It repeats this assertion a number of times.
Mr Fowler did not deal
directly with it. Instead, he stated that the newspaper’s
averments “call for a disclosure
of the contents of the
report”, which would defeat the Presidency’s reasons
for non-disclosure and which the statute
prohibits. Here he invoked
the provisions of the statute requiring the exclusion of the
contents of a record from the reasons
for its refusal.
Mr
Fowler also invoked these provisions in responding to the
newspaper’s assertion that the statute had introduced a
culture of justification and accountability, which required a
public body to justify properly any limitation. His response
alluded to the provisions requiring that a requester be informed of
a decision,
82
and again referred to the provisions requiring the decision-maker
to provide adequate reasons, to exclude from them any reference
to
the content of the record, and to inform the requester of the right
to take further steps.
83
Mr
Fowler’s affidavit added one revealing detail. He said that
when the M&G requested the report in 2008, then-President
Mbeki
had been asked by the contesting parties in Zimbabwe to help find a
solution to their political challenges, and had been
appointed as a
facilitator by the Southern African Development Community and the
African Union. It was crucial to this role,
Mr Fowler said, that
former President Mbeki “be and be seen as impartial”.
Disclosure of the report, Mr Fowler
added, would be “detrimental
to peace in Zimbabwe”. He did not explain how a report by two
judges about an election
six years earlier could be seen to affect
Mr Mbeki’s impartiality in 2008, or be detrimental to peace
in Zimbabwe. More
importantly, he nowhere invoked the statute’s
provision that permits refusal of a request if the disclosure could
reasonably
be expected to cause prejudice to South Africa’s
international relations.
84
Then-Minister
Tshabalala-Msimang also deposed to an affidavit. Hers, though much
shorter, followed the form and substance of
Mr Fowler’s. She,
too, said that disclosing parts of the report was not possible
“without undermining the very
reasons for not disclosing it”.
She recorded her view that the provision of PAIA that requires
disclosure in the public
interest
85
was not applicable, and further that “the harm that would
result if the report was disclosed clearly outweighed any benefit

in disclosing it”.
Significantly,
she echoed the fear Mr Fowler signalled about events current in
2008-2009.
86
She said that “the delicacy of the situation in Zimbabwe”
and the “important facilitating roles” played
there by
former President Mbeki and his successor would mean that disclosure
“would probably have a serious debilitating
effect”.
Her refusal of the M&G’s appeal did not seek to place
reliance in refusing the request on prejudice
to South Africa’s
international relations.
Neither
Mr Fowler nor Minister Tshabalala-Msimang claimed to have any
direct personal knowledge about the judges’ mission
or its
terms. This gave especial importance to the third affidavit filed
in opposition to the M&G’s application.
This was from
Reverend Frank Chikane. At the time of his affidavit, March 2009,
he was Secretary of the Cabinet, and had been
Director-General of
the Presidency, and its statutory information officer, until the
end of October 2008. Since he indicated
that he had served in the
Presidency from President Mandela’s time, there was no
dispute that he held high administrative
office there at the time
of the judges’ mission.
There
was much contention during argument before us about the value of
Mr Chikane’s evidence. His affidavit was short, and
terse. He said that he had “personal knowledge” of
aspects
of the mission. These were that the judges were appointed
“as special envoys”; that they were appointed on the

grounds of their skill and position “to assess the
constitutional and legal matters” in the Zimbabwean
elections;
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”; and that on their return they were
“expected
to report directly and in confidence to the
President”.
Mr
Chikane described the judges’ visit to Zimbabwe as a
“diplomatic mission”, and said that their exchanges

“included interactions with representatives of the government
of Zimbabwe” who spoke to them in confidence.
Although
he had served in the Presidency for many years, Mr Chikane gave no
indication of how or from what he gained personal
knowledge of the
matters in issue. He gave no details as to any personal involvement
in commissioning the judges or in arranging
their mission or of
taking part in meetings, if any, during which the mission was
arranged. Nor did he suggest that he had
any first-hand knowledge
of how or on what terms the judges were received in Zimbabwe or who
they met.
The
Presidency appears to have abandoned in this Court, as it did in
argument before the Supreme Court of Appeal,
87
the suggestion it had persistently maintained, that the two judges
were “envoys” or that they were on a “diplomatic

mission” to Zimbabwe. Rightly so. It would be surprising to
find judges performing so plainly an executive function.
88
In his submissions in this Court, counsel for the Presidency
conceded that the judges’ status as “envoys”
was
irrelevant.
The
grounds pressed before us were that the disclosure of the report
would reveal information “supplied in confidence
by or on
behalf of another state” under section 41(1)(b)(i), and that
it was prepared “for the purpose of assisting
to formulate a
policy” under section 44(1)(a).
Information
“supplied in confidence by or on behalf of another state or
international organisation”
The
difficulty with the “confidential state information”
ground is that there was no evidence at all to support
it. Aside
from the assertions by Mr Fowler and Minister Tshabalala-Msimang,
which echoed the statute’s wording, that
disclosure would
reveal information supplied in confidence by or on behalf of
another state, there was no evidence to indicate,
even in general
terms, who had supplied the information on behalf of the Zimbabwean
government. And there was no direct evidence
about whom the judges
had met with in Zimbabwe.
Besides,
counsel for the Presidency rightly conceded that the judges must
also have talked to persons who did not supply confidential
state
information to them. PAIA makes it obligatory for a public body to
disclose every part of a record that does not contain
information
that may or must be refused, and can reasonably be severed from the
parts that do.
89
Why could the confidential state information not be redacted from
the report? Mr Fowler and Minister Tshabalala-Msimang did
not say.
And why could those portions of the report that did not contain
confidential state information not be released? Again,
they did not
say.
Policy
formulation and claims of personal knowledge
Two
difficulties beset the policy formulation ground. First was its
decidedly curious presentation in the evidence. Mr Fowler’s

affidavit said at two points that the report was used for
policy-formulation only
after
the Presidency had received
it.
90
There is good authority
91
that to fall under PAIA’s policy-formulation exemption the
statute requires that a report must have been obtained for
the
specific purpose of policy formulation. In other words, that must
have been its object from the start. The exemption does
not cover a
report, obtained for other purposes, that is later roped in to help
with policy formulation. During argument counsel
for the Presidency
conceded, rightly, that this is correct. Hence, if Mr Fowler’s
account is accurate, the policy-formulation
ground cannot apply.
92
But
the Court is in any event left to grapple with the opaque effect of
Mr Chikane’s claim that he had “personal
knowledge”
about the purpose of the judges’ mission. And this was the
Presidency’s second problem, for Mr
Chikane’s assertion
that he had “personal knowledge” that the report was
commissioned for policy-formulation
is not evidence that it was.
As
the Supreme Court of Appeal pointed out,
93
one can gain personal knowledge of an event in three very different
ways: by experiencing it directly; by receiving a report
that it
happened (which is hearsay); or by deducing from other signs that
it took place. Mr Chikane does not tell us in which
of these ways
he acquired personal knowledge. This leaves a court unable to
perform its most elementary function, which is
to assess the
quality, strength and reliability of his knowledge in determining
whether the fact to which he deposes is true.
The mere assertion
that he has personal knowledge gives no help in that duty. It
follows that his assertion is without value
as evidence of the fact
in issue.
And
it is futile to urge, as counsel for the Presidency did, that it is
overwhelmingly likely that Mr Chikane, as administrative
head of
the Presidency, had personal knowledge of the judges’
mission. This is because a court cannot find that an event
happened
just because it is probable that a witness knew it happened. The
court must know why and how the witness claims to
have personal
knowledge of it, so that it can itself assess the probity and
reliability of the witness’s knowledge of
the event.
So
in the case of every assertion to personal knowledge the court has
to ask: why does the witness say he knows it? Evidence
is not
constituted by a probability that a witness is able to provide it.
The witness must provide the evidence. The assertion
of personal
knowledge about it is not evidence of it.
94
There
is a further point. It is no more nor less probable that Mr Chikane
knew of the purpose of this particular mission than
that he knew of
anything else that happened during the time he worked in the
Presidency. And he cannot have known everything
that happened
there.
95
Hence it is impossible for the Court to determine whether Mr
Chikane knew the nature of the judges’ mission unless he
says
why he claims knowledge of it.
It
has long been established in money disputes that a witness who
claims personal knowledge of a cause of action in summary
judgment
proceedings must “either set out the circumstances from which
the Court would be justified in coming to the
conclusion that the
facts are within his knowledge, or it must appear from the nature
of his evidence that the facts are within
his knowledge.”
96
It seems evident, though it may be necessary to state, that these
are not ordinary commercial proceedings, but a determination

involving the constitutional right of access to government-held
information.
The
Supreme Court of Appeal was thus correct that Mr Chikane’s
statement was not evidence at all, but was “no more
than bald
assertion.”
97
That Court was in my view also correct to remark on the entire
absence of persuasive evidence from the Presidency’s
depositions. The Court rightly noted that the Presidency’s
case amounts to “little more than rote recitation of
the
relevant sections and bald assertions that the report falls within
their terms.”
98
The witnesses offered not reasons, but “perfunctory
conclusions”.
99
This, the Court said, provided a stark contrast with the culture of
accountability and transparency that our constitutional
era
promised.
100
Indeed, the Supreme Court of Appeal likened the approach in the
affidavits of the Presidency’s witnesses to that under

apartheid, where government officials exercising wide powers were
able simply to assert that they had fulfilled the requirements
of
the statute, without offering any evidential basis for this.
101
The “hands-tied” plea
What
are we to make of Mr Fowler’s complaint that he was hamstrung
by the statute’s provisions
102
that preclude reference to the contents of the disputed record in
providing reasons for its refusal? There may be circumstances
where
a plea of this nature will raise credible issues requiring the
court to consider whether it should itself, under the
powers the
statute vests in it, examine the record in camera and without the
parties’ presence. That is not the case
here. The plea fails
to meet even a baseline standard to warrant further probing.
First,
there are substantial reasons for approaching Mr Fowler’s
invocation of the “hands-tied” argument with
reserve.
There was no mention of it when the request was refused. It appears
to have been added as an after-thought when the
opposing affidavits
were drafted. And his reliance on the argument must be seen in the
light of the affidavits’ most
prominent feature – their
formulaic incantation of the statute’s provisions. That
diminishes its plausibility.
There
is a second reason for not being swayed by the “hands-tied”
plea. It is the Presidency’s failure to
explain why evidence
that seems to have been readily available was not produced.
The
person who mandated the judges to go to Zimbabwe was then-President
Mbeki. President Motlanthe, who held office when the
M&G went
to court in January 2009, supplied an affidavit. President Zuma,
who held office when the Presidency applied to
appeal to this Court
in January 2011, supplied an affidavit. So there was no inhibition
against presidential deposition. Neither
former President Motlanthe
nor President Zuma could cast light on the judges’ mission.
President Mbeki could, but there
was no affidavit from him. So the
question is – why did President Mbeki not testify? Was he
asked or not asked? If asked,
did he refuse? Or if not asked, why?
Perhaps
even more telling was the absence of evidence from the two judges.
They, like former President Mbeki, are living and
seemingly
available. Why did they not testify? Were they asked? If not, why?
A simple affidavit from any of them may have put
a quick end to the
issues.
These
questions necessarily raise a further difficulty. Would the
evidence of the judges and former President Mbeki have supported

the grounds of exemption the Presidency claimed? That testimony
from none of them was proffered raises unavoidable questions
about
what they might have said if asked. This bears on the plausibility
of the “hands-tied” argument. The Presidency’s

hands were not tied. It could have obtained direct evidence from
any one of the three people most intimately involved in the

mission. It failed to do so. More even, it failed to explain why.
The
evidence the Presidency failed to present from the former President
who commissioned the report, and the judges who wrote
it, need not
have referred to the contents of the report. It could have
recounted quite simply whether one of the reasons the
judges were
sent to Zimbabwe was to assist in policy formulation, or whether
the disclosure of their report would reveal information
supplied in
confidence by the state of Zimbabwe.
The
“hands-tied” argument must at least be plausibly raised
before the Court considers what it should do in response.
That was
not done here. I should explain that this is not to demand that the
state in providing adequate reasons for refusing
a request for
information must produce “the best evidence”. It is
simply to point out the patent holes in the evidence
the Presidency
did put forward, to point out that these holes were not explained,
and to conclude that this precludes plausible
invocation of the
“hands-tied” argument.
What
we are left with is thus a set of depositions that plainly failed
to satisfy the test the statute prescribes, namely to
discharge the
burden of establishing that the refusal of the report was
justified. In these circumstances, the order granted
by the High
Court, and confirmed by the Supreme Court of Appeal, was equally
plainly right. It should be confirmed and the
appeal dismissed with
costs.
It
follows from this conclusion that the question does not arise
whether the Presidency should have severed any part of the
report
in accordance with the statute’s injunctions.
103
Nor does the question arise as to what this Court should do when
there is uncertainty about how the matter should be decided.
Its
outcome is in my view quite clear. The newspaper’s
application should succeed.
Secret
judicial examination of the disputed record
It
is nevertheless necessary to consider the course proposed in the
judgment of Ngcobo CJ. The judgment affirms the ambit and

importance of the right of access to information;
104
notes that disclosure is the rule and exemption is the exception;
105
observes that in comparable foreign jurisdictions, the state must
show that the record is covered by the exemption claimed;
106
requires government to produce evidence to show that, on the
probabilities, the information falls within the exemption;
107
and disclaims recitation of statutory language and
ipse dixit
formulaism
108
– but nevertheless decides on remittal so that the High Court
can invoke section 80 of the statute. In my respectful
view this is
wrong.
Section
80 permits a court in all circumstances to examine the disputed
record itself, but the examination must be secret and
the parties
excluded.
109
This provision can indeed, as Ngcobo CJ states, be employed to test
claims of secrecy and to facilitate, rather than obstruct,
access
to information.
110
But its provisions should be invoked with care. The M&G urged
that judicial examination of the disputed record (a “judicial

peek”)
111
should be resorted to only in exceptional circumstances. I agree.
There are two reasons for this conclusion.
First,
a cautious approach to section 80 accords with the structure of the
statute. The Constitution creates an entitlement
to information
held by government, which the statute has limited under the Bill of
Rights. The structure of PAIA is to stipulate
the process required
to claim access, and to enumerate the instances where it may be
refused. The statute creates an over-riding
judicial power to
examine the record, but goes on to provide explicitly that the
burden of establishing that an exemption is
properly invoked lies
on the party claiming it. If the object of the statute were to
create a novel form of proceeding in access
disputes, and invest
courts with inquisitorial powers for ready use in disputes, its
provisions would not have included so
plain an imposition of the
burden on the holder of information.
Both
the onus and the judicial examination provisions must be given
effect, but within their appropriate fields of application.

Judicial examination should not be a substitute for requiring
government to discharge its burden of showing that the statute’s

exemptions applied. Still less should it be invoked to avoid an
order of disclosure when government has failed to establish
its
case under the statute.
The
provision should in my view be invoked only when government
plausibly asserts the hands-tied argument or a ground of exemption,

but doubt exists whether the exemption is rightly claimed.
112
The provision should, in other words, be used to amplify access,
and not to occlude it. It should only be a last resort.
113
It should not be used to help government make its case when it has
failed to discharge the burden the statute rightly places
on it.
114
Second,
the very provisions of section 80 make it plain that the power it
confers should be of rare recourse. The provision
makes the court a
party to the secrecy claimed, and prohibits it from disclosing the
disputed record to any person, “including
the parties to the
proceedings concerned”. In effect, two fundamental principles
of the administration of justice are
here upended: first, the
adversary nature of the parties’ dispute, in which the court
is a disinterested arbiter, is
suspended; and, second, the
indispensable attribute of the administration of justice, its
openness, is shrouded. These are
consequences that we should be
reluctant to countenance too readily.
Secret
in camera examination of disputed records requires courts to lay
aside the foundations of their precious-won authority.
As the
United States Circuit Court of Appeals for the District of Columbia
has stated, a “denial of confrontation creates
suspicion of
unfairness and is inconsistent with our traditions.”
115
The blunt risk is that the parties’ dispute will be decided
on the basis of a court’s secret conclusions from a
secret
process.
116
That may sometimes be necessary. The power the statute creates is
for cases of necessity. But the risks inherent in resorting
to
secret judicial examination are so grave that it should be avoided
if at all possible. The Supreme Court of Appeal rightly
said of
this:
“
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.”
117
Nor
should the public ever fear that courts may assist in suppressing
information to which the Constitution says they are entitled.
To
give secret judicial examination of disputed records a central
place in deciding claims to exemption, instead of enforcing
the
burden government rightly bears to justify withholding information,
is in my view a grave error.
The
statute itself provides for the outcome where the refuser fails to
justify refusal of the record. It is that the record
be released.
Conclusion
In
these circumstances the Court should not hesitate to let the
Constitution and the statute take effect. The report should
be
released.
For
the Applicants: Advocate MTK Moerane SC and Advocate L Gcabashe,
instructed by the State Attorney.
For
the Respondent: Advocate J Gauntlett SC, Advocate F Ismail and
Advocate F Pelser, instructed by Webber Wenzel Attorneys.
1
Act
2 of 2000. For the text of section 11, see [7] below.
2
The
request was initially refused by the Deputy Information Officer in
the Presidency, Mr Trevor Fowler. The request was subsequently

refused, on internal appeal, by the Minister in the Presidency, the
late Dr Mantombazana Edmie Tshabalala-Msimang.
3
M
& G Limited and Another v President of the Republic of South
Africa and Others
[2010] ZAGPPHC 43; Case No 1242/09, 4 June
2010, unreported, at 13.
4
President
of the Republic of South Africa v M & G Media
Ltd
2011 (2) SA 1
(SCA);
2011 (4) BCLR 363
(SCA) (SCA Judgment) at para 55.
5
This
Court granted the application for leave to appeal by way of an order
dated 1 February 2011.
6
For
the full text of section 81, see [13] below.
7
In
making this argument, the state drew attention to sections 25(3)(b)
and 77(5)(b) of PAIA, which stipulate that the
officers
refusing the request (in terms of section 25) and upholding the
refusal on appeal (in terms of section 77) must “exclude,
from
such reasons, any reference to the content of the record”
.
The constitutionality of these provisions is not in issue here and I
express no opinion on their constitutionality. See [56]-[60]
below.
8
Section
80 empowers courts considering applications brought under PAIA to
conduct an in camera review of the record in question.
See [38]
below.
9
[2009]
ZACC 21
;
2009 (6) SA 323
(CC);
2009 (11) BCLR 1075
(CC).
10
Id
at paras 62-3.
11
See
[7] above.
12
See
section 1(d) of the Constitution.
13
See
section 16(1)(b) of the Constitution.
14
See
section 19(3)(a) of the Constitution.
15
See
Preamble to PAIA.
16
Section
41 of PAIA.
17
Section
42 of PAIA.
18
Section
44(1)(a) of PAIA.
19
See
Transnet Ltd and Another v SA Metal Machinery Co (Pty) Ltd
2006 (6) SA 285
(SCA) at paras 24-6.
20
Section
39(1)(c) provides that courts “may consider foreign law”
when interpreting the Bill of Rights. In this case,
it is
appropriate for this Court to make reference to foreign law in
considering the proper application of PAIA because of the
direct
effect our interpretation of PAIA has on the scope of the right of
access to information articulated in section 32 of
the Constitution.
21
See
U.S.C. § 552 (FOIA) at (a)(4)(B) (
de novo
review by
court) and (b) (exemptions).
22
See
U.S.C. § 552 at (a)(4)(B) (burden is on the agency to sustain
its action).
23
See
Hunt v Central Intelligence Agency
[1992] USCA10 1355
;
981 F 2d 1116
, 1119 (9th
Cir 1992);
Stein v Department of Justice and Federal Bureau of
Investigation
662 F 2d 1245
, 1253 (7th Cir 1981).
24
See
Times Journal Co v Department of Air Force
793 F Supp 1, 3 (D
DC 1991);
Santos v Drug Enforcement Agency, Office of Information
and Privacy
357 F Supp 2d 33
, 37 (D DC 2004);
Doyle v Federal
Bureau of Investigation
[1983] USCA9 2073
;
722 F 2d 554
, 555 (9
th
Cir
1983); and
Yeager v Drug Enforcement Administration
[1982] USCADC 189
;
678 F 2d
315
, 320 (DC Cir 1982).
25
See
National Treasury Employees Union v United States Customs Service
602 F Supp 469, 472 (D DC 1984).
26
See
State of North Dakota ex rel Olson v Andrus
[1978] USCA8 424
;
581 F 2d 177
, 179
(8th Cir 1978).
27
Ollestad
v Kelley
573 F 2d 1109
, 1110 (9th Cir 1978).
28
608
F 2d 1381
(DC Cir 1979).
29
Id
at 1384. For guidelines articulated by the District of Columbia
Circuit Court of Appeal in respect of a court’s exercise
of
discretion to conduct in camera inspection of documents, see Error:
Reference source not found below.
30
R.S.C.,
1985, c. A-1 (Access to Information Act).
31
See
section 41 of the Access to Information Act.
32
See
section 48 of the Access to Information Act.
33
Section
45 of the Access to Information Act provides that applications for
court review of refusals shall be heard and determined
in summary
proceedings and section 50 deals with court orders where reasonable
grounds for refusal are not found.
34
Canada
(Information Commissioner)
v Canada (Prime Minister)
[1993]
1 FC 427
(FCA) at 439.
35
Canada
(Information Commissioner) v Atlantic Canada Opportunities Agency
[1999] 250 NR 314
;
177 FTR 159
at para 3.
36
Wyeth-Ayerst
Canada Inc v Canada (Attorney General)
[2003] FCA 257
;
305 NR
317
at para 21.
37
Act
3 of 1982. The Australian Freedom of Information Act provides for
two levels of review once an information request has been
refused by
a government agency. The requesting party can lodge a request for
review by the Information Commissioner (IC), and
if the IC upholds
the refusal then the requesting party can appeal the IC’s
decision to the Administrative Appeals Tribunal.
See Parts VII
(Review by Information Commissioner) and VIIA (Review by the
Tribunal). At both levels, the refusing agency bears
the burden of
showing that its refusal was justified. See sections 55D (Procedure
in IC Review—onus) and 61 (Onus).
38
See
McKinnon v Secretary, Department of Treasury
[2006] HCA 45
;
228 CLR 423
at
428 (per Gleeson CJ and Kirby J), 445 (per Hayne J) and 468 (per
Callinan and Haydon JJ).
39
Id.
40
When
questioned during oral argument, counsel for the state 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
81(3).
41
See
[8] above.
42
SCA
Judgment above n 4 at para 38.
43
1975
(2) SA 514
(D).
44
Id
at 516A-B. The approach taken by the Court in
Love
was
affirmed by the Appellate Division in
Maharaj v Barclays National
Bank Ltd
1976 (1) SA 418
(A) at 424A-D, and is still applied in
assessing whether a deponent can reasonably depose to the facts with
regard to which he
claims to have personal knowledge. See, for
example,
FirstRand Bank Limited v Johannes Jacobus Meyer and
Another
[2011] ZAECPEHC 8; Case No 3483/10, 17 March 2011,
unreported, at para 14.
45
See
[25] above.
46
See
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634G-635D.
47
See
Arieff v United States Department of Navy
712 F 2d 1462
, 1470-1 (DC Cir 1983) (holding that
ex parte
and
in camera review should only be used where absolutely necessary, and
such absolute necessity exists where: “(1) the
validity of the
government’s assertion of exemption cannot be evaluated
without information beyond that contained in the
public affidavits
and in the records themselves, and (2) public disclosure of that
information would compromise the secrecy asserted”).
48
Above
n 28 at 1387. See also
Ray v Turner
587 F 2d 1187
, 1195 (DC
Cir 1978) (holding that courts should use their discretion to engage
in in camera review where inspection of the record
is necessary to
make a responsible
de novo
determination on the claims of
exemption) and 1212 (finding that in camera review is appropriate
where there is a dispute of fact
as to the nature or contents of the
documents sought);
Navasky v Central Intelligence Agency
499
F Supp 269, 272 (SDNY 1980) (holding that in camera review “is
essential to responsible de novo determination”
where the
evidence put forth by the state “is insufficient to allow the
court to determine whether its nature is such as
to justify
nondisclosure under the claimed exemption”); and
Lawyers
Committee for Human Rights v Immigration and Naturalization Service
721 F Supp 552, 566 (SDNY 1989) (holding that “
in camera
review is necessary when the validity of the government assertion of
exemptions cannot realistically be evaluated without information

other than that contained in the affidavits”), citing
Arieff
above n 47. In
Currie v Internal Revenue Service
[1983] USCA11 494
;
704 F 2d
523
, 531 (11th Cir 1983), the Eleventh Circuit Court of Appeals
noted that the burden placed on courts by in camera review is less

onerous where, as in the present matter, “the disputed
documents are relatively brief, few in number, and where there are

few claimed exemptions.”
49
See
Section 46 of the Canadian Access to Information Act above n 30.
50
Rubin
v Canada (Canada Mortgage and Housing Corp)
[1989] 1 FC 265
(FCA) at 276.
51
Similarly,
in South Africa, courts are required under section 82 of PAIA to
make an order that is just and equitable.
52
Canada
(Minister of Environment) v Canada (Information Commissioner)
[2000]
FC Case No A-761-99 (FCA), judgment delivered from the bench, 6
April 2000, at 6.
53
See
[34]-[35] and [43] above.
54
See
Ray v Turner
above
n 48 at 1195 (noting that in camera review of a record is preferable
to a ruling against the state merely because the evidence
on
affidavit places the case in doubt or evenly balanced).
55
SCA
Judgment above n 4 at para 52.
56
Id.
57
See
[11] above.
58
Compare
Ray v Turner
above n 48 at 1212 (finding that “an in
camera inspection increases the ‘adversariness’ of the
proceeding—or
at least provides a minimal substitute for true
‘adversariness’—by allowing the court to test the
accuracy
of the agency’s representations”).
59
See
[39]-[41] above.
60
SCA
Judgment above n 4 at para 53.
61
Sections
25(3)(b) and 77(5)(b) of PAIA provide that, in furnishing reasons
for refusing access to a record, the officers refusing
the request
(in terms of section 25) and upholding the refusal on appeal (in
terms of section 77) must “exclude, from such
reasons, any
reference to the content of the record”. The Supreme Court of
Appeal correctly held that this restriction
“must have been
intended to apply as much when the public body seeks to justify its
refusal in court proceedings.”
See SCA Judgment above n 4 at
para 50.
62
On
4 August 2011, this Court directed the parties to lodge written
argument considering, amongst other things: (a) the proper
approach,
in the light of section 80, when a court is faced with uncertainty
as to whether a record falls within the exemptions
claimed; (b) the
standard that a court should apply in deciding whether to invoke
section 80; (c) the relevance of a dispute
of fact as to the
severability of the record in applying such standard; and (d)
whether this Court should remit the matter to
the High Court for
reconsideration in the light of the legal principles that this Court
may announce for the first time in this
judgment.
63
Section
28(1) provides:
“
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—
does not contain; and
can reasonably be severed from any part that contains,
any such information must, despite any other provision
of this Act, be disclosed.”
64
Section
80(3)(a).
65
Section
80(3)(b).
66
Section
80(3)(c).
67
Judgment
of Ngcobo CJ at [45].
68
The
Promotion of Access to Information Act 2 of 2000
.
69
M
& G Limited and Another v President of the Republic of South
Africa and Others
[2010] ZAGPPHC 43; Case No 1242/09, 4 June
2010, unreported.
70
President
of the Republic of South Africa and Others v M & G Media Ltd
2011 (2) SA 1
(SCA);
2011 (4) BCLR 363
(SCA)
.
71
Act
2 of 2000.
72
Section
32 of the Bill of Rights is set out in [6] above.
73
Section
11(1) of PAIA provides that, in the absence of a
statutorily-sanctioned ground for refusal, a requester “must”

be given access to a record of a public body, provided the statute’s
procedural requirements have been met. Section 81(3)
provides that
the burden of establishing that a refusal of a request for access
complies with the Act “rests on the party
claiming that it so
complies.”
74
Then
Judge of the South Gauteng High Court, Johannesburg.
75
The
effect of PAIA’s definitions is that a public body’s
information officer is its chief executive officer or equivalent,

and the national department’s information officer is its
Director-General, head, executive director or equivalent. Section

17(1) requires every public body to designate as many deputy
information officers “as are necessary to render the public

body as accessible as reasonably possible for requesters of its
records.”
76
Section
41(1) provides:
“
The information officer of a
public body may refuse a request for access to a record of the body
if its disclosure—
(a) could reasonably be expected to cause prejudice to—
(i) the defence of the Republic;
(ii) the security of the Republic; or
(iii) subject to subsection (3), the international
relations of the Republic; or
(b) would reveal information—
(i) supplied in confidence by or on behalf of another
state or an international organisation;
(ii) supplied by or on behalf of the Republic to
another state or an international organisation in terms of an
arrangement or
international agreement, contemplated in section 231
of the Constitution, with that state or organisation which requires
the
information to be held in confidence; or
(iii) required to be held in confidence by an
international agreement or customary international law contemplated
in section 231
or 232, respectively, of the Constitution.”
77
Section
44(1)(a) provides:
“
. . . the information officer
of a public body may refuse a request for access to a record of the
body—
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, including, but not limited to,
minutes of a meeting,
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”.
78
Section
25(3)(a).
79
Section
25(3)(b) provides that an information officer who refuses access
must exclude from the reasons stated “any reference
to the
content of the record”. Section 77(5)(b) is the parallel
provision for internal appeals.
80
Section
77(5)(b) provides that a decision-maker on an internal appeal who
refuses access must exclude from the reasons stated
“any
reference to the content of the record”.
81
Section
78(1) of PAIA provides:
“
A requester or third party
referred to in section 74 may only apply to a court for appropriate
relief in terms of section 82 after
that requester or third party
has exhausted the internal appeal procedure against a decision of
the information officer of a
public body provided for in section
74.”
82
Mr
Fowler mentioned section 56(1)(b), which requires a head of a
private body to whom a request is made to notify the requester
of
the decision. The parallel provision for public bodies is section
25(1)(b).
83
Section
25(3)(a), (b) and (c).
84
See
section 41(1)(a)(iii) above n 8.
85
Section
46 of PAIA provides:
“
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
34(1), 36(1), 37(1)(a) or (b), 38(a) or (b), 39(1)(a) or (b), 40,
41(1)(a) or (b), 42(1)
or (3), 43(1) or (2), 44(1) or (2) or 45, if—
(a) the disclosure of the record would reveal evidence
of—
(i) a substantial contravention of, or failure to
comply with, the law; or
(ii) 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.”
86
The
M&G formally asked for the report on 17 June 2008. Mr Fowler
refused it on 22 July 2008 when President Mbeki still held
office.
The appeal was dismissed on 13 November 2008 by which time President
Mbeki was no longer in office. The litigation challenge
was lodged
on 13 January 2009. The opposing affidavits of the officials in the
Presidency were dated 18-19 March 2009.
87
President
of the Republic of South Africa and Others v M & G Media Ltd
2011 (2) SA 1
(SCA);
2011 (4) BCLR 363
(SCA) at para 51.
88
For
this reason, the Supreme Court of Appeal rightly noted that it would
require clear and substantiated evidence to establish
that the
judges assumed a diplomatic role. Id at para 49.
89
Section
28 of PAIA is headed “Severability” and provides:
“
(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.
(2) If a request for access to—
(a) a part of a record is granted; and
(b) the other part of the record is refused,
as contemplated in subsection (1), the provisions of
section 25(2) apply to paragraph (a) of this subsection and the
provisions
of section 25(3) apply to paragraph (b) of this
subsection.”
90
Mr
Fowler said that President Mbeki “was able to utilise the
report to assist him in the formulation of policy” and
that
this purpose “arose once the President had sight of the
report”. Seemingly underscoring that this sequence was
not a
slip, Mr Fowler’s affidavit later repeated that the report was
obtained to inform President Mbeki about issues in
Zimbabwe –
“and later after receiving the report, to assist in the
formulation of policies”.
91
Minister
for Provincial and Local Government v Unrecognised Traditional
Leaders, Limpopo Province (Sekhukhuneland)
2005 (2) SA 110
(SCA)
at paras 16-7.
92
President
of the Republic of South Africa and Others v M & G Media Ltd
2011 (2) SA 1
(SCA);
2011 (4) BCLR 363
(SCA) at para 34 where the
Supreme Court of Appeal said this of Mr Fowler’s evidence on
this aspect:
“
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’.”
93
Id
at para 37.
94
A
witness’s claim that he has personal knowledge that the sun
shone in Pretoria on a specific day is not evidence that it
did. It
is evidence only that he claims personal knowledge that it did. It
would be evidence of sunshine on that day only if
he explains that
he was himself in Pretoria and saw the sun shining; or that he was
told that the sun was shining; or that he
inferred from
meteorological records (or other oblique facts) that the sun was
shining. That Pretoria is the witness’s
normal place of
residence, and that he was therefore “probably” there on
the specified day takes the matter no further.
Nor does the fact
that the sun is known to shine on many days a year in Pretoria, and
that it therefore “probably”
shines on any particular
day, since it may have rained. The question is whether the sun shone
on the particular day in issue
and on this the claim to personal
knowledge is by itself worthless. All this is elementary, but in
view of the argument urged
on us, necessary to state.
95
President
of the Republic of South Africa and Others v M & G Media Ltd
2011 (2) SA 1
(SCA);
2011 (4) BCLR 363
(SCA) at para 39 where Nugent
JA noted that there is “no reason to assume that the
Director-General in the Presidency is
privy to everything the
President does.”
96
Raphael
& Co v Standard Produce Co (Pty) Ltd
1951 (4) SA 244
(C) at
245E. See also
Shackleton Credit Management (Pty) Ltd v Microzone
Trading 88 CC and Another
2010 (5) SA 112
(KZP) at paras 7-8 and
FirstRand Bank Ltd v Beyer
2011 (1) SA 196
(GNP) at paras 8,
9 and 12.
97
President
of the Republic of South Africa and Others v M & G Media Ltd
2011 (2) SA 1
(SCA);
2011 (4) BCLR 363
(SCA) at para 38.
98
Id
at para 20.
99
Id
at para 30.
100
Id
at paras 9-11.
101
Id
at paras 18-9.
102
Section
25(3)(b) and section 77(5)(b).
103
Section
28(1) provides:
“
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.”
104
See
[8] above.
105
See
[9] above.
106
See
[20] above.
107
See
id.
108
See
[24] above.
109
Section
80 provides:
“
(1) Despite this Act and any
other law, any court hearing an application, or an appeal against a
decision on that application,
may examine any record of a public or
private body to which this Act applies, and no such record may be
withheld from the court
on any grounds.
(2) Any court contemplated in subsection (1) may not
disclose to any person, including the parties to the proceedings
concerned,
other than the public or private body referred to in
subsection (1)—
(a) any record of a public or private body which, on a
request for access, may or must be refused in terms of this Act; or
(b) if the information officer of a public body, or the
relevant authority of that body on internal appeal, in refusing to
grant
access to a record in terms of section 39(3) or 41(4), refuses
to confirm or deny the existence or non-existence of the record,
any
information as to whether the record exists.
(3) Any court contemplated in subsection (1) may—
(a) receive representations ex parte;
(b) conduct hearings in camera; and
(c)
prohibit the publication of such information in relation to the
proceedings as the court determines, including information
in
relation to the parties to the proceedings and the contents of
orders made by the court in the proceedings.”
110
See
[51] and [53] above.
111
The
judgment of the Supreme Court of Appeal ascribes responsibility for
this label to counsel for the M&G.
President of the Republic
of South Africa and Others v M & G Media Ltd
2011 (2) SA 1
(SCA);
2011 (4) BCLR 363
(SCA) at para 52.
112
Compare
Weissman v Central Intelligence Agency
[1977] USCADC 179
;
565 F 2d 692
, 698 (DC
Cir 1977) where a first-instance court had found that the respondent
agency had established grounds for exemption, but
the citizen
claimant asserted that the court was obliged to conduct an in camera
examination before sustaining the claim to exemption.
The Circuit
Court of Appeals for the District of Columbia affirmed the decision
that the exemption had been established, taking
the opportunity to
warn against over-ready resort to judicial examination of the
disputed record: “Where it is clear from
the record that an
agency has not exempted whole documents merely because they
contained some exempt material, it is unnecessary
and often unwise
for a court to undertake such an examination.” (Footnote
omitted.)
113
See
Phillippi v Central Intelligence Agency
546 F 2d 1009
, 1013
(DC Cir 1976) where the Circuit Court of Appeal for the District of
Columbia emphasised that courts should not resort to
judicial
examination of the disputed record until they have created as
complete a public record as possible.
Weissman
(at 697) went
further, to say that courts should only engage in judicial
examination of the disputed record as a “last
resort”.
114
The
power to conduct de novo review of classification decisions
contested in litigation under the Freedom of Information Act was

vested in the federal courts of the United States by an amendment to
U.S.C. § 552 enacted in 1974. “National Security
and the
Public’s Right to Know: A New Role for the Courts under the
Freedom of Information Act” (1974-1975) 123
University of
Pennsylvania Law Review
1438, 1447.
115
Weissman
v Central Intelligence Agency
[1977] USCADC 179
;
565 F 2d 692
, 697 (DC Cir 1977).
116
See
generally Askin “Secret Justice and the Adversary Process”
(1991) 18
Hastings Constitutional Law Quarterly
745.
117
President
of the Republic of South Africa and Others v M & G Media Ltd
2011 (2) SA 1
(SCA);
2011 (4) BCLR 363
(SCA) at para 52.