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

M & G Media Limited (M&G), which publishes the Mail & Guardian newspaper, requested access under the Promotion of Access to Information Act 2 of 2000 (PAIA) to a report prepared by Justices Khampepe and Moseneke following their visit to Zimbabwe before the 2002 presidential elections. The report was commissioned by then-President Mbeki and was never publicly released. The request for access was made on 7 June 2008. The second appellant (Deputy Information Officer) refused the request, citing exemptions under sections 41(1)(b)(i) and 44(1)(a) of PAIA. The third appellant (Minister in the Presidency) dismissed an internal appeal on the same grounds. The high court ordered disclosure, which was upheld by the Supreme Court of Appeal. The Constitutional Court, by a 5-4 majority, set aside those orders and remitted the matter to the North Gauteng High Court for examination of the record under section 80 of PAIA (the 'judicial peek' provision). Upon remittal, Raulinga J examined the report and ordered disclosure to M&G. The Presidency appealed.

• Whether the Presidency had discharged the onus under section 81(3) of PAIA to establish that refusal of access to the report was justified under sections 41(1)(b)(i) (information supplied in confidence by another state) and 44(1)(a) (records prepared to assist in policy formulation)
• Whether the court a quo correctly exercised the discretion to examine the record under section 80 of PAIA ('judicial peek')
• What the proper scope and purpose of 'ex parte representations' under section 80(3)(a) of PAIA entails
• Whether affidavits by Presidents Mbeki and Zuma should have been admitted as representations under section 80(3)(a)
• Whether the contents of the report supported the claimed exemptions from disclosure
• Whether the public interest override under section 46 of PAIA applied

The appeal was dismissed with costs, including the costs of three counsel. The order of the high court directing the Presidency to make the report available to M&G Media Limited was confirmed.

Section 80(3)(a) representations must be directed at addressing the contents of a record that the court has examined through a judicial peek, and cannot be used as an opportunity to introduce new evidence extraneous to the record that should have been part of the original case. An attempt to introduce evidence under section 80(3)(a) that was originally prepared to persuade a court not to conduct a judicial peek at all, and which was prepared without reference to the record's contents, falls outside the ambit of section 80(3)(a) and constitutes an abuse of process. The onus under section 81(3) of PAIA to establish that refusal complies with PAIA rests on the party refusing access, and this onus cannot be discharged through unmotivated assertions, incantation of statutory language, or ipse dixit statements, particularly where the contents of the record itself do not support the claimed exemptions. Where a public body claims exemption under section 44(1)(a), the record must have been obtained or prepared for the purpose of policy formulation from the outset; a decision to use it for that purpose after receipt does not satisfy the requirements of the section.

Brand JA noted that even if the public interest override in section 46 of PAIA were engaged, it could only come into consideration once it has been established that the public body was entitled to refuse access on the grounds upon which it relied. The court observed that the Presidency's failure to call President Mbeki or the two judges who prepared the report to give evidence in the initial proceedings (a point raised by Cameron J in the Constitutional Court minority judgment) was telling, as such evidence could have been given without reference to the contents of the record. The court noted that President Zuma's affidavit might potentially have been relevant for considering the public interest override under section 46 insofar as it addressed potential impact on international relations, though the Presidency had never relied on section 41(1)(a)(iii) which specifically addresses prejudice to international relations. The judgment emphasized that proceedings under PAIA differ from ordinary civil proceedings in several respects, including constraints on parties in presenting evidence, but these unique features cannot be exploited to introduce evidence improperly.

This case provides important clarification on the operation of section 80 of PAIA, particularly the 'judicial peek' mechanism and the nature of ex parte representations under section 80(3)(a). It confirms that such representations must be directed at the contents of the record examined by the court, not used as an opportunity to introduce new evidence that should have formed part of the original case. The judgment reinforces that the onus under section 81(3) rests firmly on the public body refusing access, and that this onus cannot be discharged through bare assertions or ipse dixit statements. The case demonstrates the courts' commitment to transparency and access to information, particularly where matters involve public interest in governmental actions concerning international relations. It also illustrates the limits of claimed confidentiality and emphasizes that exemptions must be properly substantiated with reference to actual record contents, not through conclusory statements about the nature or purpose of information.