/ 4 December 2014

Editorial: State cases that insult the public

The courts have well defended the public's rights this week in two key judgements.
The courts have well defended the public's rights this week in two key judgements.

This past week, a Johannesburg high court judge passed judgment in a case concerning the National Key Points Act – the apartheid-era legislation used by the present government to withhold information about, most famously, the president’s private Nkandla complex. The government’s addiction to secrecy, however, extended even further: it said it could not reveal any information about key points and, moreover, it couldn’t even tell the public which places are, in fact, key points.

Judge Roland Sutherland, quite rightly, was having none of this. He pointed out the absurdity of demanding that the public and media respect the law on “key points” if those locations have not been disclosed. Moreover, the law stipulates that the declaration of key points must be gazetted by the government, something the present authorities have failed to do.

The government would reveal only that there are 200 national key points, most of them not even owned by the state. It also focused on the alleged danger to the individual owners of such properties (from unspecified “dark forces”) if details of their location and so forth were made public. As the judge noted, the relevant law is not concerned with those individuals, so that argument is empty too.

Basically, the government had no case. It gave reasons for its refusal to release the information that were different to the reasons given by state officials at the time of the original application. No real evidence was adduced for the refusal, said the judge, and his response to the government’s lawyers’ quotation from James Bond in support of its poor case was little more than a raised eyebrow.

The Mail & Guardian was an amicus curiae – a friend of the court – in the case, presenting the media’s view of how this old law from 1980, and its ham-fisted use by the government, hampers the gathering of information in the public interest. The judge supported our view.

Also, compare this instance of a fruitless legal war to the case of the Khampepe report: the presidency spent six years defending its secrecy. But, eventually, its lawyers had to admit they had no case at all – and never did.

And note the conclusion of a matter heard this week, also in a Gauteng high court, in which state legal officials and advisers fought tooth and nail to avoid a payout to a mother who, 14 years ago, gave birth to a severely disabled son after her emergency Caesarean section was delayed. The judge referred angrily to “callous, incompetent” officials and said that “one searches in vain for the reasons” they fought the case.

She went further, making two state lawyers and a doctor personally liable for half the costs of the case because they had prolonged the battle for years, despite having no legal reasons for doing so. We applaud the judge. If public servants and advisers were held personally liable for costs when they go to court without a case or drag cases out unduly, they would hesitate to apply the president’s Stalingrad defence to cases brought by ordinary citizens.