President of the Republic of South Africa and Others v M & G Media Limited

In 2002, former President Thabo Mbeki appointed two senior judges (Justice Khampepe and Justice Moseneke) to visit Zimbabwe shortly before its presidential election to assess constitutional and legal issues relating to that election. Upon their return, the judges prepared a report and submitted it to the President. The report was never released to the public. M & G Media Limited (M&G), publisher of the Mail & Guardian newspaper, requested access to the report pursuant to section 11 of the Promotion of Access to Information Act (PAIA). The Presidency refused the request on two grounds: (1) that disclosure would reveal information supplied in confidence by or on behalf of another state contrary to section 41(1)(b)(i) of PAIA; and (2) that the report was prepared for the purpose of assisting the President to formulate executive policy on Zimbabwe, as contemplated in section 44(1)(a) of PAIA. The Deputy Information Officer, Mr Trevor Fowler, and later the Minister in the Presidency, Dr Tshabalala-Msimang (on internal appeal), both refused the request using substantially the same reasoning, largely reciting the statutory provisions without providing adequate reasons. The M&G challenged the refusal in court.

• Whether the Presidency discharged its statutory burden under section 81(3) of PAIA of establishing that its refusal to grant access to the report was justified by the exemptions claimed under sections 41(1)(b)(i) and 44(1)(a)
• What constitutes adequate evidence to discharge the burden of proof in PAIA proceedings
• The circumstances under which a court may invoke section 80 of PAIA to conduct an in camera examination of a disputed record
• Whether affidavits asserting personal knowledge without explaining how that knowledge was acquired are sufficient to discharge the burden under PAIA
• The proper standard for courts to apply in deciding whether to invoke section 80 of PAIA

Appeal succeeded. The orders of the High Court and Supreme Court of Appeal were set aside. The matter was remitted to the North Gauteng High Court, Pretoria, to examine the record pursuant to section 80 of PAIA and to determine the application in light of the Constitutional Court's judgment. No order as to costs was made.

The binding legal principles established are: (1) In proceedings under PAIA, the state bears the evidentiary burden under section 81(3) of establishing on a balance of probabilities that its refusal of access to a record is justified by the exemptions claimed. (2) To discharge this burden, the state must provide evidence that the record falls within the description of the statutory exemption claimed; mere recitation of statutory language or ipse dixit assertions are insufficient. (3) Affidavits must provide sufficient information to bring the record within the exemption claimed, with what is sufficient depending on the nature of the exemption. (4) Where a deponent asserts personal knowledge of facts, there must be some indication, at least from the context, of how that knowledge was acquired, to enable a court to assess the weight and reliability of the evidence. (5) Courts have discretion under section 80 to examine a disputed record in camera, and this discretion should be exercised where it would be in the interests of justice to do so. (6) It will generally be in the interests of justice to invoke section 80 where there is doubt, emerging from the unique limitations parties in access to information disputes face in presenting and refuting evidence, as to whether an exemption is rightly claimed, particularly where: (a) the state plausibly claims its hands are tied by sections 25(3)(b) and 77(5)(b) from referring to the contents of the record; (b) the requester is unable to effectively challenge the state's evidence due to lack of access to the record; or (c) there are questions of severability under section 28.

The majority judgment made several non-binding observations: (1) The constitutional right of access to information gives effect to the founding values of accountability, responsiveness and openness, and is crucial to realizing other rights in the Bill of Rights including freedom of expression and the right to vote. (2) Under PAIA, disclosure is the rule and exemption is the exception. (3) Foreign jurisprudence from the United States, Canada and Australia demonstrates that comparable jurisdictions require the state to show that records fall within exemptions claimed, with exemptions construed narrowly. (4) Section 80 should be used sparingly, as a last resort, but properly exercised it will not undermine public trust in courts and is vital to vindicating the right of access to information. (5) The power to examine records under section 80 can serve to deter frivolous claims of exemptions. Cameron J's dissenting judgment observed that: (1) Secret in camera examination should only be invoked where government has laid a plausible foundation for a plea that its hands are tied, or where government has laid a basis for claiming an exemption but doubt exists about its validity. (2) The provision should be used to amplify access, not to occlude it or to help government make its case when it has failed to discharge its burden. (3) Courts should be reluctant to become parties to secrecy, as this upends fundamental principles of adversarial process and open justice. Yacoob J (concurring in the result) expressed the view that it would ordinarily be impossible to make an appropriate order under section 82 without examining the document, and that unless a court is completely satisfied it can decide without the document, the record must be examined.

This judgment provides the first comprehensive Constitutional Court guidance on the operation of PAIA and the constitutional right of access to information held by the state under section 32 of the Constitution. It establishes important principles regarding: (1) the burden of proof in access to information disputes and how that burden must be discharged; (2) the standard of evidence required from public bodies refusing access to information; (3) the proper approach to claims of personal knowledge in affidavits; (4) the circumstances in which courts should invoke their power under section 80 to conduct secret in camera examination of disputed records; and (5) the tension between transparency and necessary secrecy in a constitutional democracy. The case reflects fundamental disagreement about when courts should resort to secret examination of disputed records, with the majority adopting a more expansive approach and the minority urging restraint. The judgment reinforces that South African law favors disclosure over secrecy, with exemptions to be construed narrowly, though it also recognizes practical constraints on parties in access to information disputes.