The second applicant (South African History Archive) requested information from the Second Respondent (National Deputy Information Officer of the South African Police Service) on 4 October 2012, seeking disclosure of all places declared to be "national key points" under the National Key Points Act 102 of 1980 (NKP Act). The request was made in terms of section 18(1) of the Promotion of Access to Information Act 2 of 2000 (PAIA). The request was refused on 16 November 2012, with the Second Respondent invoking section 38(a) and (b)(i)(aa) of PAIA, claiming disclosure could endanger individuals' safety and prejudice security of buildings and structures. An internal appeal to the First Respondent (Minister of Police) was dismissed on 28 February 2013. The respondents argued that disclosure would attract "unnecessary attention" to key points, endanger individuals, and threaten national security. The first applicant (Right2Know Campaign) and second applicant are civil society organizations promoting transparency and access to information. M&G Media Limited was admitted as amicus curiae. The respondents claimed there were approximately 200 national key points, most privately owned, categorized as banks, munition industries, petro-chemical industries, water supply, electricity, communications, transport, government institutions, and data processing facilities.
The court declared the decisions by the First and Second Respondents to refuse the request for information unlawful and unconstitutional. The refusal decision was set aside. The respondents were ordered to supply to the applicants, within 30 days, the records indicating what places or areas have been declared a "National Key Point" or "National Key Points Complex" under sections 2 and 2A of the National Key Points Act 102 of 1980. The First and Second Respondents were ordered to pay the costs of the application, including the costs of two counsel.
1. Under PAIA, the state bears the burden of providing sufficient evidence to justify exemptions from disclosure; mere recitation of statutory language and ipse dixit affidavits are insufficient (applying President, RSA v M&G Media Ltd 2012 (2) SA 50 (CC)). 2. A "judicial peek" under section 80 of PAIA should be invoked only when government plausibly asserts a hands-tied argument or establishes a prima facie ground of exemption but doubt exists, and should not substitute for the state's burden of proof. 3. The principle of legality requires that laws, particularly those imposing criminal liability, must be adequately accessible and formulated with sufficient precision for citizens to regulate their conduct and foresee consequences. 4. There can be no secret laws in a constitutional democracy; citizens cannot be prosecuted for offences related to places they had no reasonable way of knowing were subject to special legal restrictions. 5. The public interest override in section 46 of PAIA applies where disclosure would reveal substantial contraventions of law or where the public interest in disclosure clearly outweighs claimed harm. 6. The National Key Points Act does not provide for secrecy regarding the identity of key points; its purpose is to ensure security measures are in place, with criminal sanctions applying only to disclosure of security measures, not key point status.
The court made observations about the wide and potentially problematic discretion granted to the Minister under section 2 of the NKP Act, noting the vague criteria of what is "necessary or expedient" for "safety of the Republic" or "in the public interest," leaving a field of concerns without clear limits. The court commented on the failure to establish the special account required under section 3B of the NKP Act, suggesting this raised troubling questions about compliance with law and oversight of public expenditure. The court noted the apparent inconsistency between government claims of necessary secrecy and actual government conduct in publicly disclosing key points in various contexts. Sutherland J made observations about the effects of the media examples cited (homeless people arrested outside Department of Justice building, protesters arrested outside Rustenburg Magistrates' Court, journalists' photographs destroyed at Groenpunt prison), illustrating the practical problems of non-disclosure. The court also commented on the distinction in the NKP Act between securing infrastructure versus personal security of individuals, noting this was the gravamen of the Act rather than individual protection.
This case is a landmark decision on access to information, transparency, and the principle of legality in South Africa. It established that the state cannot rely on bare assertions and statutory recitations to justify withholding information under PAIA, but must provide sufficient evidence to meet the threshold for exemptions. The judgment reinforced that PAIA is designed to promote transparency and accountability, and the burden rests on the state to justify non-disclosure. Significantly, the case established that the principle of legality requires that laws imposing criminal liability must be known and accessible to the public - there can be no secret laws. Citizens cannot be expected to comply with criminal prohibitions if they cannot know what places are subject to special restrictions. The judgment clarified the limited circumstances in which a "judicial peek" under section 80 of PAIA is appropriate, emphasizing it should not be a substitute for the state discharging its burden of proof. The case also demonstrated the application of the public interest override in section 46 of PAIA, showing that public interest in transparency and accountability can outweigh claimed security concerns, particularly where the state fails to provide evidence supporting those claims. The decision has had significant impact on debates about state transparency, national security, and public expenditure (including the Nkandla controversy).