15 December 2010

SAHA Welcomes Supreme Court of Appeal Judgment

On 14 December a unanimous judgment was delivered by Judge Nugent in the Supreme Court of Appeal. This was an appeal brought by the Presidency against a judgment in M & G Limited v the President and Others [2010] ZAGPHC 43 that had been heard by Judge Sapire in the North Gauteng High Court. In that judgment, Sapire had ordered the release of the Khampepe-Moseneke report held by the Presidency, which had been prepared after two Justices had been in Zimbabwe at the bequest of the then-President to allegedly observe and assess the constitutional and legal challenges there. In an informative and well-reasoned judgment, Nugent today dismissed the appeal and so too called for the release of the report to the Mail & Guardian.

The judgment is noteworthy not only because within it judicial notice was taken of the political travails in Zimbabwe, but also because of the significant way it has reaffirmed the importance of the Promotion of Access to Information Act 2 of 2000 (PAIA) and highlighted the current inadequacies in its implementation by public bodies. Nugent powerfully observed that during Apartheid, public officials were given excessive powers with no mechanisms for accountability. Acts such as PAIA were created specifically to turn away from that dark past and build our current government within a culture of justification.

In terms of the law, it has restated the imperative on public bodies to properly justify refusals to a request. As Nugent stated: "[t]he Act requires a court to be satisfied that secrecy is justified and that calls for a proper evidential basis to justify the secrecy." Information Officers can not, as they so often do, merely use ‘perfunctory conclusions' rather than a sound reason to refuse a request. As the FOIP team have so often experienced in practice, the Information Officer in this case merely referred to discretionary refusal grounds under PAIA while making no attempt to support those refusals with evidence. As Nugent himself stated, Information Officers need to properly apply their minds to a refusal instead of adopting a ‘belts and braces' approach.

The judgment notes that not only do PAIA cases require public bodies to follow normal rules of evidence but that the nature of PAIA requests, and the fact that the refuser is usually holding peculiar knowledge about the content of the information in question, means affidavits supporting refusal of access need to be more closely scrutinised than would otherwise be usual.

The judgment also fleshed out the scope of sections 44 and 41(1)(b) of the Act, similar to as had been done in the court below. As Nugent correctly stated: it is not the job of Information Officers to draw inferences, this is the task of a court. Information Officers need to base their decisions on fact and reflect this decision-making clearly for the requester.

It is PAIA's ten year anniversay in 2010 and yet public bodies still fail to properly train their Information Officers to correctly engage with the Act. The judgment marks a reiteration by the courts on the value of information; both for what it means for empowering individuals, but also for how it progresses our government away from the previous legacy of secrecy.

Download the judgment

For further accounts of the difficulties surrounding the implementation of PAIA as experienced by FOIP, please see the SAHA publication Paper Wars: access to information in South Africa, edited by Kate Allan.