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

M&G Media Limited, publisher of the Mail and Guardian newspaper, requested access to a report prepared by two senior judges following their 2002 visit to Zimbabwe before an election there. The judges prepared the report (known as the Khampepe-Moseneke Report) at the request of then-President Mbeki. The President refused to disclose the report. M&G applied under the Promotion of Access to Information Act 2 of 2000 (PAIA) for an order compelling disclosure. The Deputy Information Officer in the Office of the Presidency, Mr Trevor Fowler, refused the request on grounds that: (1) disclosure would reveal information supplied in confidence by another state or international organisation (section 41(1)(b) PAIA); and (2) the report contained advice/opinion prepared to assist in formulating policy or taking decisions (section 44 PAIA). An internal appeal to the Minister in the Presidency also failed. The North Gauteng High Court (Sapire AJ) granted the order for disclosure, and the President appealed.

• Whether the report fell within the exclusion for records of Cabinet and its committees under section 12(a) of PAIA
• Whether disclosure would reveal information supplied in confidence by another state under section 41(1)(b) of PAIA
• Whether the report constituted advice, opinion or recommendation obtained to assist in formulating policy or taking decisions under section 44 of PAIA
• What evidential standard must a public body meet to justify refusal of access under PAIA
• The nature and scope of proceedings under section 78(2) of PAIA
• The burden of proof on public bodies refusing access to information

The appeal was dismissed with costs, including costs of two counsel. The order of the North Gauteng High Court compelling disclosure of the report was upheld.

Under PAIA, a public body refusing access to information bears the burden of proving with proper evidence that the refusal is justified. Proceedings under section 78(2) are original enforcement proceedings, not reviews, and ordinary rules of evidence apply. Mere assertions, conclusions or opinions by officials are insufficient - there must be an evidential foundation establishing the facts that bring the record within the relevant exemption. For section 44, the purpose of assisting policy formulation must exist at the time the record is obtained or prepared, not arise subsequently when it is read. For section 41(1)(b), there must be evidence that information was actually supplied in confidence by another state. Courts must scrutinize claims of secrecy carefully, given the constitutional commitment to open and transparent government and the 'culture of justification' that underpins the Constitution and PAIA. The burden on public bodies includes both an evidential burden to allege sufficient facts and a legal burden to prove those facts if disputed.

The court made several significant observations beyond what was strictly necessary for the decision: (1) Courts should be hesitant to use the 'judicial peek' power in section 80(1), as it potentially undermines open justice and public trust; (2) Liberal use should be made of section 3 of the Law of Evidence Amendment Act 45 of 1988 to admit hearsay evidence in PAIA proceedings, given that material facts are often within the peculiar knowledge of the public body; (3) There are limits to non-judicial functions that judges may perform - certain functions like diplomacy are so far removed from the judicial function that permitting judges to perform them would blur separation of powers; (4) The notorious political situation in Zimbabwe and its consequences for South Africa are matters of which courts can take judicial notice; (5) Media reports tendered to show public interest in a matter are not hearsay when used for that purpose; (6) An information officer who forms alternative conclusions (that information was supplied by either a state or an international organization) demonstrates a 'belt and braces' approach that suggests determination to refuse access regardless of the true facts, rather than honest fact-finding. The court also made broader observations about the Constitution representing a 'stark and dramatic contrast' with the past and embodying a transition from a 'culture of authority' to a 'culture of justification' - drawing on the influential academic work of Etienne Mureinik.

This is a landmark case on access to information in South Africa. It establishes crucial principles for the operation of PAIA and the constitutional right of access to information held by the state (section 32 of the Constitution). The judgment emphasizes that South Africa has moved from a 'culture of authority' to a 'culture of justification' where every exercise of state power must be justified with proper evidence. The case clarifies that: (1) public bodies bear a substantial burden of proof when refusing access to information; (2) bare assertions and conclusions by officials are insufficient - proper evidential foundations must be laid; (3) section 78(2) proceedings are original enforcement proceedings, not reviews; (4) courts must carefully scrutinize claims of secrecy and be willing to order cross-examination; (5) the purpose under section 44 must exist at the time of obtaining/preparing the document, not arise subsequently; and (6) hearsay evidence must be properly admitted with foundation laid. The judgment is a strong affirmation of transparency and open government as foundational constitutional values. It sets a high bar for government secrecy and rejects pre-constitutional approaches where officials' opinions were treated as determinative. The case has been widely cited in subsequent PAIA litigation and remains the leading authority on the evidential requirements for refusing access to information.