27 January 2017

The Media and Accessing Information – An Intern Reflects

Recently it was reported by City Press that they were in possession of documents that revealed wasteful and fruitless expenditure incurred by Dudu Myeni, the chairperson of South African Airways. It is not clear how these documents were obtained by City Press, but journalists hardly ever do reveal their sources. While there are many ways in which journalists can access information for purposes of dissemination to the public, one way journalists do sometimes obtain records that go on to shape national debate, is through use of the Promotion of Access to Information, 2000 (PAIA). As informers, journalists utilise PAIA to ensure that both private and public bodies are held to account.

SAHA’s FOIP intern reflects on a few cases that provide insight into how the South African media has utilised PAIA as a tool to access information:

Public interest

In Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others, the Supreme Court of Appeal dismissed an argument by the MEC for Local Government and Traditional Affairs in the Eastern Cape that section 46 of PAIA (the so-called "public interest override" provision) can never be applied with respect to any report, commissioned in terms of section 106 of the Municipal Systems Act, 2000, if a decision had not been taken on what remedial action should be taken in response to the content of the report. This specific matter related to a PAIA request made by Avusa Publishing, the publisher of The Herald and the Weekend Post newspapers, requesting a copy of the so-called "Kabuso report". The Kabuso report was the outcome of investigations into maladministration in the Nelson Mandela Bay Metropolitan Municipality. The High Court had held that while section 44 of PAIA did apply in the circumstances, and access may ordinarily be denied in such cirumstances, the report should never the less be discloused in the public interest, in terms of section 46 of PAIA.

The Supreme Court of Appeal, in dismissing the MEC's argument, held that section 44 of PAIA protects precisely the interest that the MEC was arguing should be protected through an exclusion from the application of section 46 of PAIA (that is, when information in a requested record has been obtained for the purpose of making a decision on the exercise of government power, and the decision had not yet been taken). The court found that, as section 46 acts as an override, even if section 44 applies, the interest that is protected in section 44 cannot then also act as an exclusion from the application of section 46. Such an exclusion would defeat the careful structure of the Act, that is: protecting rights and other interests, but requiring release of information despite those rights and interests, in circumstances where there is a strong public interest in that information.

Judicial peak

In President of the Republic of South Africa and others v M & G Media Limited  the Mail & Guardian newspaper submitted a PAIA request for a report on the 2002 Zimbabwean presidential election, drafted by two South African judges. Access to the report was refused by the Presidency. In refusing access, the Presidency relied on a number of grounds in PAIA for exemption from access. When the matter came before the Constitutional Court, the court held that, in order for the state to discharge its burden of proof it had to put forward sufficient evidence to show, on a balance of probabilities, that the information refused fell within the exemptions claimed. The court found that, if the state can show that it is prevented from presenting sufficient evidence to discharge this burden, and if it is in the interest of justice to do so, a court should perform a so-called "judicial peak". Judicial peak involves the court looking at the information requested in order to determine for itself whether the information does fall within the exemption claimed. In this instance the High Court was required to perform a judicial peak; the High Court ultimated determined that the information in the report did not fall within the exemptions claimed by the Presidency.

The Brümmer time-frame

In Brümmer v Minister for Social Development and others section 78(2) of PAIA was challenged. Section 78(2) of PAIA allows for certain decisions on PAIA requests to be challenged through a court of law. At the time however section 78(2) only allowed for application to court if the application was brought within 30 days of delivery of the decision being challenged. Mr Brümmer, a journalist, had submitted a PAIA request to the Department of Social Development, the request was refused. His internal appeal, to the Minister of Social Development, against the decision of the department was also unsuccessful. He wished to challenge the Minister's decision in court, but his application was brought outside the 30 day time-frame provided for, at the time, in section 78(2) of PAIA. Mr Brümmer therefore challenged the constitutionality of the 30 day limit. Ultimately the Constitutional Court confirmed the High Court order declaring the provision, in section 78(2), of only 30 days for the brining of a court application unconstitutional, as it unreasonably limited the right of access to court and the right to access information. Parliament has since extended the period in section 78(2) to 180 days - a period now known amongst access to information practioners as "the Brümmer time-frame".

Courts are clearly responding favourably to journalists’ use of PAIA, this strengthens journalists’ confidence in using PAIA as a tool and empowers them to effectively assume the crucial role of disseminating information of public interest.