Shortly before the 2002 Zimbabwean elections, then-president Thabo Mbeki appointed Justices Dikgang Moseneke and Sisi Khampepe to assess the constitutional and legal issues relating to that election. The two judges prepared a report and submitted it to the president, who never released it to the public.
This newspaper then requested access to the report in terms of the Promotion of Access to Information Act (PAIA). This request was refused, apparently, on two grounds: that the disclosure of the report would reveal information supplied in confidence by or on behalf of another state, which in turn was contrary to section 41 of PAIA, and that the report had been prepared for the purposes of assisting Mbeki to formulate executive policy on Zimbabwe, which was protected from disclosure in terms of section 34 of PAIA.
Both the high court and Supreme Court of Appeal (SCA) held that a refusal to grant access to the report was not justified under either of the two PAIA sections. Now, thanks to a paper-thin majority at the Constitutional Court (five judges to four), the public will still be none the wiser about the contents of the report, at least for some time.
The majority judgment, penned by retired Chief Justice Sandile Ngcobo, ordered that the case be remitted to the high court to enable it to examine the report and therefore decide whether the presidency’s case of non-disclosure was justified. The reasoning of the majority judgment can be summarised as follows: Ngcobo accepted that the holder of information, the presidency in this case, bore the onus of establishing that a refusal to grant access to the report was justified. The majority, save to record that the report “may or may not be protected in whole or in part from disclosure”, did not find that the state had proved its case. Nonetheless, the majority held that the court should invoke its powers under section 80 of PAIA to call for additional evidence in the form of the record so that the high court could “independently — assess the validity of claims to exception”.
The presidency had also claimed that they were prevented by the provisions of sections 25(3)(b) and 77(5)(b) of PAIA to make any reference to the contents of the record in order to support its claim that it could not disclose the report. The majority found that, because the presidency was statutorily hampered in making its case, it was just and equitable to remit the matter to the high court so that it could “peek” at the record and make a determination as to whether the claim for secrecy was justified. To the extent that this summary appears to be incoherent, the fault lies less with this columnist than with the judgment. The justification of this conclusion can be found in the minority judgment of Justice Edwin Cameron.
Cameron makes the obvious but nonetheless powerful point that when the Mail & Guardian requested the report the deputy information officer in the presidency, Trevor Fowler, provided only two grounds for refusing the request. Both were, in effect, repetitions of the wording of the applicable sections in PAIA. Cameron pointed out that nowhere had the presidency attempted to provide any clear explanation for precisely “why its hands were tied” by the provisions of PAIA. Notwithstanding affidavits from Deputy President Kgalema Motlanthe, who held office as president when the M&G went to court in January 2009, and President Jacob Zuma, who also deposed an affidavit, there was no affidavit from Mbeki — who most certainly could have cast light on why the report was considered secret. Nor was there any evidence provided by way of an affidavit from the two justices who had written the report.
The conclusion should be obvious. Given that the presidency had not even begun to discharge the burden of establishing that the refusal of the report was justified, there was no basis on which to set aside the decisions of the high court and the SCA. But only four justices grasped this basic point.
Turning to the application of section 80 and the idea of a “judicial peek at the report”, Cameron warned that this section should only be used sparingly. To employ it as a means of resolving the problem caused by a failure of the presidency to provide relevant affidavit evidence that might have justified its refusal was “a grave error”.
The incoherence of the majority judgment aside, the cardinal question concerns the future implications for judicial protection of transparency and access to public information — which, as Ncgobo acknowledged, is crucial to the realisation of the various rights embodied in the Constitution.
It may well be that it is a misreading of these judgments to conclude that there is at least a significant section of the Constitutional Court that would defer to government when it comes to matters of secrecy. The appeal against the earlier decisions was, of course, not set aside. The case could still end in success for the M&G, but doubts remain. The majority judgment, when compared to the minority, should prompt a debate about whether this is a different Constitutional Court to the one that blazed a progressive jurisprudential path in the first 15 years of its existence. Given the challenges facing the court, including probable litigation regarding the “secrecy Bill” and an appeal by the presidency on its momentous defeat in the Menzi Simelane case, it is question that will soon be answered.
For more on the M&G‘s bid to force the president to release the 2002 Zimbabwe election report view our special report
