The Mail & Guardian‘s victory in its bid to force the government to publicise a report on the 2002 Zimbabwe elections is not only a victory for transparency, but comes at a time when there is large focus on new legislation that may hamper public access to information, in the form of the Protection of Information Bill.
In 2002, former president Thabo Mbeki commissioned Judges Dikgang Moseneke and Sisi Khampepe to compile a report containing their conclusions about the fairness of Zimbabwe’s presidential election that year.
The report has since been kept from the media.
The M&G used the provisions of the Promotion of Access to Information Act (PAIA) to get a copy of the report, while the Presidency argued that because the report was a record of Cabinet, it was excluded from the ambit of the Act in terms of Section 12(a).
It also claimed it was justified in withholding the judicial report, since not doing so would reveal confidential exchanges between the governments of South Africa and Zimbabwe (a limitation contained in Section 41 of the Act).
The M&G reasoned that because South Africa was one of the countries that deemed the elections free and fair based on the report, it would be in the public interest to see why, as the 2002 election was widely criticised for being marred by allegations of vote-rigging, intimidation, violence and fraud.
A ruling at the North Gauteng High Court in June this year by Acting Judge S Sapire was in favour of the M&G. The case was then taken on appeal by the Presidency.
Last week Judge Nugent, in the Supreme Court of Appeal (SCA), dismissed the Presidency’s appeal. In his judgement he detailed that the “travails of [Zimbabwe], and their consequences for South Africa, are so notorious that we would be myopic not to accord them judicial notice”. He also said that the reasoning behind the Presidency’s decision to keep the report from the media was absurd.
The judge stated: “In my view, no evidential basis has been established by the appellants for refusing access to the report. The court found that no evidential basis had been laid for the refusal. If the Constitution and the Act are indeed a bridge to a culture of justification, it seems to me that for the appellants in this case it has been a bridge too far.”
What the judgement means
Pierre de Vos, chairperson of the Claude Leon Foundation in Constitutional Governance in Cape Town, says the judgement strengthens the efforts of those seeking information from any public body.
“It does so by making it clear that a public body may not refuse to provide the requested information merely by making bald assertions that the documents fall outside the scope of PAIA,” he said.
“This means that at least those with money to pay lawyers will be able to force state officials to provide access to information as required by PAIA — which at present are routinely and, as the SCA has now again confirmed, unlawfully denied.”
Alison Tilley, spokesperson of the Right2Know campaign, said: “The judgement upheld the importance of open and transparent governance and access to information. It makes clear the burden is on the state to show that there is a reason the information should be classified.”
Speaking on secrecy, Tilley said it was ingrained in South African politics — the apartheid government maintained secrecy for one reason, and the liberation movement, in exile, maintained secrets for another.
“People from both sides of the political divide have been schooled in secrecy.”
Protection of Information Bill
Dario Milo, a media law expert at attorneys Webber Wentzel, said that the PAIA is no silver bullet to problems with the Protection of Information Bill.
If, for example, under the Bill, the report had been leaked to a newspaper, the newspaper would have to return the report to the government and then apply for it under PAIA. It might ultimately succeed, but at the expense of two years’ effort, as it took the M&G in this case.
Milo said: “We’re dealing with a report that was handed to the president eight years ago and that has still not seen the light of day.
“This case is a good illustration of why we need a public interest defence [in the Bill] and cannot simply rely on the PAIA to cure the public interest concerns with the Bill.”
Milo said the Presidency had not acted in accordance with the values of a transparent democracy.
Tilley, meanwhile, said it was an interesting judgement that makes clear that the burden of proof is on the state. As the Protection of Information Bill stands, applicants for classified information would have to prove why the public disclosure of it would be beneficial.
“It’s not for the applicant to show why the report should be made public. The burden is on the state and it has to give evidence for that, not just speculation.”
“I assume that the Presidency might appeal to the [Constitutional Court],” said Milo. “Based on this judgement and on the case put up by the Presidency so far, this would probably not be wise and would amount to a further wasting of public funds. After two court judgements the Presidency has failed dismally to provide any cogent reasons for denying access to the report, so it would be surprising if they managed to conjure up such reasons for an appeal to the court — something they would need to do to have any chance of success.”
State attorney Moipone Mosidi said the Presidency has not yet decided on what to do.
“My clients are still studying the judgement and they will give us instructions as to how to proceed by Friday.”
Milo said the Presidency has seven days to appeal the ruling.
“If they don’t appeal, the report must now be made available within seven days.”