The M&G lodged its initial application in 2007 following the government's decision not to release the 2002 report
This follows a decision by the Constitutional Court in November last year to send the M&G‘s Promotion of Access to Information Act (Paia) application back to the lower court to allow a “judicial peek” at the contents of the report before deciding whether to release it to the newspaper.
The matter was brought to the Constitutional Court by the presidency, which had previously been ordered – first by the high court and then by the Supreme Court of Appeal – to release the report to the M&G.
The M&G lodged its initial application in 2007 following the government’s decision not to release the 2002 report, commissioned by then-president Thabo Mbeki.
The government argued that the report, compiled by Constitutional Court Justice Sisi Khampepe and Deputy Chief Justice Dikgang Moseneke, was a record of Cabinet, which is excluded from Paia’s ambit in terms of section 12 (a) of the Act. Both justices recused themselves when the matter was heard in May last year.
In a majority decision written by former chief justice Sandile Ngcobo, the court ruled that the high court, where the matter had originated, should invoke its power to study the report’s contents.
Although it was a majority judgment, the Bench was split on the matter. Justice Edwin Cameron led a dissenting judgment, stating that the presidency had failed to justify its refusal to release the report and further arguing for its immediate release.