Qoboshiyane NO v Avusa Publishing Eastern Cape (Pty) Ltd and Others

In August 2009 the MEC for Local Government and Traditional Affairs in the Eastern Cape appointed Kabuso CC under s 106(1)(b) of the Local Government: Municipal Systems Act 32 of 2000 to investigate alleged maladministration in the Nelson Mandela Bay Metropolitan Municipality. The investigation report was delivered to the MEC in February 2010. In November 2010 Avusa Publishing Eastern Cape (Pty) Ltd, a newspaper publisher, requested access to the report under the Promotion of Access to Information Act 2 of 2000 (PAIA). The request was refused by the information officer and on internal appeal by the MEC, relying on ss 44(1)(a) and (b) of PAIA, on the basis that disclosure would undermine an ongoing statutory process. Avusa applied to the Eastern Cape High Court under ss 78 and 82 of PAIA. The High Court ordered disclosure under the mandatory public-interest override in s 46 of PAIA. The MEC complied with the order and publicly handed over the report, but subsequently sought leave to appeal to the Supreme Court of Appeal.

The appeal was dismissed with costs.

The case affirms the doctrine of peremption in South African appellate procedure and clarifies the approach of the Supreme Court of Appeal to moot appeals under s 21A(1) of the Supreme Court Act. Substantively, it reinforces the mandatory nature of the public-interest override in s 46 of PAIA and rejects attempts to read implied limitations into the statute based on ongoing investigations, thereby strengthening the constitutional right of access to information.