11 June 2010

M & G sees success in the High Court

The North Gauteng High Court, Pretoria has just handed down a pertinent judgment in favour of the Mail & Guardian in M & G and Another v The President and Others, which could be influential in the fight for effective implementation of the Promotion of Access to Information Act (PAIA) in South Africa. It is also of particular interest to SAHA, as SAHA is currently also involved in a legal dispute with the Presidency over documents arising from the conflict in Zimbabwe. SAHA has served papers in our case in pursuit of copies of the report, or similar information, which arose from the tour of several SANDF Generals who were commissioned by the then President, Thabo Mbeki, to go intervene and investigate in violence that was occurring during the Zimbabwe elections period. The Presidency has denied the existence of any such documents.

In the M & G case, which was heard before Sapire AJ, the Mail & Guardian were requesting access to the 2002 report that arose from the investigation of two South African Justices as ‘envoy' in Zimbabwe. The Presidency refused to reveal these records, even on internal appeal. The refusal to the records was not on a basis of the non-existence of the record as in the SAHA case, but rather on two ‘discretionary' sections of refusal contained in PAIA. Essentially, these two sections say that a public body may refuse access if the release would reveal evidence supplied in confidence or if the documents were obtained or prepared for the purpose of formulating a policy.

Sapire AJ rejected both of these arguments, largely on the basis that insufficient evidence had been placed before the Court to show that the discretion had been properly exercised. This is an important legal development, because these discretionary grounds of refusal on the basis of national security have traditionally been over-used, especially by the Presidency. Sapire AJ has therefore given flesh and meaning to these sections which corresponds to the transparent aims of PAIA. SAHA has noticed a tendency of Information Officers to apply these discretionary sections with little proper thought; the point remains that PAIA made the sections discretionary because it hoped that Information Officers would apply their minds properly to the case - on the basis of evidence and not just opinion - while always wavering to the side of openness, rather than secrecy.

While it is likely that the Presidency will try and appeal this ruling, it still remains an important evolution in PAIA litigation. As civil society continues to push the boundaries of PAIA, South Africa is finally starting to build up a body of law that moves our government closer toward transparent decision-making.