Qoboshiyane NO v Avusa Publishing Eastern Cape (Pty) Ltd

In August 2009, the MEC for the Department of Local Government and Traditional Affairs in the Eastern Cape appointed Kabuso CC to investigate concerns of maladministration in the Nelson Mandela Bay Metropolitan Municipality, acting in terms of s 106(1)(b) of the Local Government: Municipal Systems Act 32 of 2000. The Kabuso report was handed to the MEC in February 2010. In November 2010, Avusa Publishing Eastern Cape (Pty) Ltd, which publishes The Herald and Weekend Post newspapers, sought access to the Kabuso report under the Promotion of Access to Information Act 2 of 2000 (PAIA). The request was refused by the information officer and on appeal by the MEC, Mr Qoboshiyane. The MEC argued that the process under s 106 was incomplete as he had not yet decided what action to take, and that disclosure would undermine the ongoing process. Avusa brought proceedings under ss 78 and 82 of PAIA to obtain access. Dukada AJ granted the application, ordering disclosure within five days on the basis of mandatory disclosure in the public interest under s 46 of PAIA. The MEC complied with the order, publicly handing over the report at a ceremony, although stating he disagreed with the judgment. Eight days later the MEC applied for leave to appeal, which was granted.

• Whether the appeal was perempted by the MEC's unequivocal compliance with the court order prior to seeking leave to appeal
• Whether the appeal had become moot by virtue of the report already having been disclosed
• Whether section 46 of PAIA (mandatory disclosure in the public interest) is subject to a limitation where there is an ongoing investigation under s 106 of the Systems Act and disclosure would undermine that process
• The proper interpretation and application of s 46 of PAIA in balancing public interest in disclosure against potential harm

The appeal was dismissed with costs.

The binding legal principles established are: (1) Where a party unequivocally complies with a court order after judgment without reservation of rights, any right of appeal is perempted. Conduct relied upon to establish peremption must be unequivocal and inconsistent with any intention to appeal. (2) An appeal is moot where it no longer presents an existing or live controversy and any judgment would have no practical effect or result between the parties. The court has discretion under s 21A(1) of the Supreme Court Act to dismiss moot appeals, and will only hear such appeals where discrete legal issues of public importance arise that require the court's adjudication. (3) Section 46 of PAIA creates a mandatory obligation to disclose records where: (a) disclosure would reveal evidence of substantial contravention of or failure to comply with the law (or imminent and serious public safety or environmental risk), and (b) the public interest in disclosure clearly outweighs the harm contemplated in the provision under which access could otherwise be refused. (4) Section 46 operates as a public interest override after it has been determined that a record may legitimately be withheld under other provisions of PAIA. There is no warrant for restricting the operation of s 46 by reference to ongoing administrative processes such as investigations under s 106 of the Municipal Systems Act. (5) The enquiry under s 46 is fact-sensitive, requiring case-by-case balancing of harm against public interest in disclosure.

The court made several obiter observations: (1) While the court assumed without deciding that considerations relating to an incomplete s 106 investigation might provide justification for refusing access under ss 44(1)(a) or (b) of PAIA, this matter remained in dispute. (2) The court indicated that it did not suggest the high court judge was wrong in his conclusion on the facts that the public interest in disclosure outweighed the harm, though this was not definitively determined. (3) The court noted that the structure of chapter 4 of PAIA represents a careful balance between the constitutional right of access to information under s 32(1) of the Constitution and protection from disclosure in defined circumstances, divided into mandatory and discretionary categories of refusal, all subject to the public interest override in s 46. (4) The court observed that there is little if any discernible difference between the approach of the Constitutional Court to mootness and that of the Supreme Court of Appeal under s 21A(1), citing the Constitutional Court's jurisprudence developed in the absence of a statutory provision like s 21A(1). (5) The court reiterated the wisdom of Innes CJ in Geldenhuys & Neethling v Beuthin that courts exist for settlement of concrete controversies and actual infringements of rights, not to pronounce upon abstract questions or advise upon differing contentions.

This case is significant in South African law for establishing key principles regarding: (1) peremption of appeals through unequivocal compliance with court orders; (2) the doctrine of mootness and the court's discretion to hear moot appeals only where discrete legal issues of public importance arise; and (3) the interpretation and operation of s 46 of PAIA as a mandatory public interest override that cannot be restricted or limited by reference to other administrative processes. The case clarifies that s 46 requires information officers to undertake a fact-sensitive balancing exercise in every case, weighing public interest in disclosure against potential harm, and that this override operates even where other provisions of PAIA might otherwise permit refusal of access. It reinforces the constitutional right of access to information under s 32 of the Constitution and the structure of PAIA as carefully balancing this right against legitimate grounds for withholding information, with public interest as the ultimate determinant in specified circumstances.