Thompson v Information Officer: Department of Defence and Military Veterans and Another

The applicant, a journalist, sought access in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA) to the record of a Board of Inquiry (BOI) conducted by the Department of Defence into the 'Battle of Bangui' which took place in the Central African Republic (CAR) between 22 and 24 March 2013. The battle involved SANDF troops and CAR rebel forces operating under the name 'Seleka', resulting in the deaths of 15 South African soldiers and injuries to a further 25. The applicant's PAIA request, submitted on 23 June 2019, was initially refused on 25 October 2019 on grounds of mandatory protection of third-party personal information under section 34(1). An internal appeal to the Minister of Defence and Military Veterans was also dismissed. After Part A proceedings (in which the Minister was ordered to provide adequate reasons), the Minister supplemented her reasons on 9 April 2021, relying additionally on exemptions relating to prejudice to international relations (section 41(1)(a)(iii)) and prejudice to the defence or security of the Republic (section 41(1)(a)(i) and (ii)). The CAR government was notified by note verbale via DIRCO on 15 December 2022 but did not respond.

• Whether the respondents discharged the evidentiary burden under section 81(3) of PAIA to justify their refusal of access to information on the grounds claimed.
• Whether disclosure of the BOI report could reasonably be expected to cause prejudice to the international relations of the Republic under section 41(1)(a)(iii) of PAIA.
• Whether disclosure of the BOI report could reasonably be expected to cause prejudice to the defence or security of the Republic under section 41(1)(a)(i) and (ii) of PAIA.
• Whether the court should exercise its discretion under section 80 of PAIA to conduct a judicial examination of the withheld record.
• Whether, under section 46 of PAIA, the public interest in disclosure outweighs the harm contemplated in section 41.

The court did not make a final determination on the merits of the PAIA request. Instead, it made an interim order in terms of section 80 of PAIA directing the respondents to deliver the SANDF Board of Inquiry record to the chambers of Mangcu-Lockwood J by 8 March 2024 for judicial examination. The court reserved the question of costs for later determination. The condonation applications for late filing by both parties were granted.

The ratio is not yet finalised, but the court applied the principles from President of the Republic of South Africa v M&G Media Ltd that: (1) the state bears the evidentiary burden under section 81(3) of PAIA on a balance of probabilities to show that a record falls within a claimed exemption; (2) it is not sufficient to merely recite statutory language or provide ipse dixit affidavits; and (3) where the state faces genuine constraints in presenting sensitive evidence publicly, it may be in the interests of justice for the court to invoke its discretion under section 80 to conduct a judicial examination of the withheld record.

The court expressed concern that the Department has never provided an official account of what transpired during the Battle of Bangui, even to the families of the deceased soldiers. The court noted the significant and continuing public interest in the matter. The court also observed that there is no provision in PAIA permitting refusal of a request on the ground that disclosure may damage the Republic

This case illustrates the application of the 'judicial peek' mechanism under section 80 of PAIA, following the Constitutional Court's guidance in M&G Media. It highlights the tension between the constitutional right of access to information and the state's claims of exemption on grounds of national defence, security, and international relations, particularly in the context of a military operation abroad that resulted in significant loss of life. The case also underscores the inadequacy of vague and unsubstantiated claims of exemption by the state and the court's willingness to scrutinise such claims through its independent review powers.