Independant Newspapers (Pty) Ltd and Others v African National Congress and Another (12164/11) [2011] ZAWCHC 436 (29 November 2011)

Reportable

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No 12164/11

In the matter between:

INDEPENDENT NEWSPAPERS

(PTY) LIMITED …...........................................................................First Applicant

GASANT ABARDER …...............................................................Second Applicant

JOHN ALLEYNE YELD …...........................................................Third Applicant

and

THE AFRICAN NATIONAL CONGRESS …............................First Respondent

GWEDE MANTASHE ….........................................................Second Respondent

Court: GRIESEL J

Heard: 10 November 2011

Delivered: 29 November 2011

JUDGMENT

GRIESEL J:

[1] This is an application in terms of the Promotion of Access to Information Act No 2 of 2000 ('PAIA'). The first applicant ('Indepen­dent Newspapers') is the owner and publisher of several daily and weekly newspapers, including The Cape Argus ('the Argus'). The second applicant, Mr Gasant Abader, is the editor of the Argus. The third applicant, Mr John Yeld, is a journalist with the Argus. The respondents are the African National Congress ('ANC'), and its secretary general, Mr Gwede Mantashe. Factual background [2] The applicants seek access to certain documents under the control of the respondents. The documents concern the so-called 'brown envelope journalism' scandal, which arose from the well-publicised contest between various factions of the ANC in the Western Cape during 2004-2009. One faction involved Mr Ebrahim Rasool, the former Premier and current ambassador to the United States, and his supporters. Another faction involved Mr Mcebisi Skwatsha and his supporters. The scandal arose out of accusations that office-bearers of the ANC associated with Rasool had paid journalists in the employ of Independent Newspapers to write newspaper articles favourable to positions adopted by him and his supporters. The allegations are not that Rasool and his supporters themselves paid journalists, but that they arranged for a company associated with the journalists, Inkwenkwezi Communications (Pty) Ltd ('Inkwenkwezi'), a media consultancy, to submit an invoice to the provincial government in order to obtain payment of public funds. [3] In April or May 2005 Independent Newspapers learnt of rumours in political circles that at least two of its journalists were being paid for writing articles favourable to the Rasool camp. The names of Mr Ashley Smith and Mr Joseph Aranes were mentioned in this context. The alle­gations initially were treated with circumspection. Later, regional executives of the ANC also told senior executives in Independent News­papers about the allegations, suggesting that journalists employed by the Argus were 'working for the Province'. They also alleged that there may be a conflict of interest involving Smith and accused Independent

Newspapers of covering-up the support by its journalists for the Rasool camp. As a result of these accusations, Independent Newspapers con­ducted an internal disciplinary investigation. The investigation proved to be inconclusive insofar as it did not produce any proof of payment received by either Aranes or Smith. Smith was nevertheless found guilty of failing to disclose a conflict of interest involving his wife and Inkwenkwezi. Smith duly resigned, while Aranes was demoted. [4] On 6 November 2009, an open letter from Mr Max Ozinsky, a senior ANC member in the Western Cape close to the Skwatsha camp, was published in the Mail & Guardian. The letter accused the ANC of a cover-up of the allegations concerning Rasool. It also stated that Rasool's term as premier could be understood only if his relationship with the media was understood and that the Argus had run a 'series of libellous articles ... in an apparent campaign to undermine potential rivals to Rasool'. It continued: 'Rasool became intimately involved in briefing journalists, and at least one senior journalist from the Cape Argus, but I believe more, benefitted financially from their proximity to a web of companies contracted by the province. I don't make this alle­gation lightly; there is proof. In 2006 the ANC was asked by lawyers for [Independent Newspapers] to provide them with evidence for the allegations that journalists were paid to write stories. A formal decision was taken by the provincial leadership of the ANC that, to protect the best interests of the party, documents in our possession should be handed over. We provided the same evidence to the national leadership of the ANC. A disciplinary process was undertaken at the paper that led to the quiet resignation of one journalist, but I do not believe that the full story of this extraordinary scandal was ever told. .. .' (Emphasis added) [5] On 27 November 2009 the Mail & Guardian published an article about the brown envelope journalism scandal. The article mentioned inter alia that there had been an ANC internal inquiry into the matter headed by Mr Andries Nel MP. [6] In June 2010 Smith approached the current editor of the Argus, Mr Abarder, stating that he wanted to 'come clean'. (Aranes had in the meantime also resigned from Independent Newspapers pursuant to the Mail & Guardian article.) He subsequently made an affidavit for presentation to the DPP in which he disclosed how he and his then fiancee, Ms Joy van der Heyde, together with Aranes and a Mr Zane Orrie, had formed Inkwenkwezi, of which Orrie and Van der Heyde were the directors. Orrie would use his political influence to ensure that the company would get tenders from the provincial government. In pursuance of this goal, regular meetings (sometimes late at night) were held between the members of the company and Rasool at the latter's official residence, Leeuwenhof. The understanding between the members of Inkwenkwezi and Rasool was that they would assist the latter with media advice and in return Inkwenkwezi would receive business from the provincial government. [7] After the scandal broke, Yeld, on behalf of Independent News­papers, reported on the scandal as a newsworthy story. He noticed that the Mail & Guardian article referred to a tape recording of a meeting at which the allegations about payments to journalists were discussed. The meeting involved the former ANC premier of the Western Cape, Ms Lynne Brown, who had in the meantime replaced Rasool as premier. Applying in terms of PAIA, Yeld managed to obtain a copy of the transcript of the tape recording from Ms Brown. The transcript included the following passage from the conversation (spoken by Brown): 'There's a document, confidential document; I only have a summary of the docu­ment. The document was submitted to Gwede [Mantashe] about a, it gives a history of in-fighting in the province. It details Zane Orrie's involvement, justifies the bok-makierie, bokmakierie and what, Ashley Smith and the handling of the journalists issue and then goes on to deal with the Ramatlakane issue... ' (In the course of the same conversation, that took place on 15 April 2009, repeated mention was made of cash payments made to journalists in brown envelopes, thus giving the scandal its name.) [8] Putting two and two together, Yeld inferred that the 'confidential document' referred to by Brown in the conversation was the Nel report that had been mentioned earlier in the Mail & Guardian article of 27 November 2009. This caused Yeld to request a copy of the Nel report, aswell as a seven page report by Western Cape ANC members headed 'Why Rasool had to be asked to resign'. He did so on 23 August 2010 by requesting the documents in terms of part 2 of PAIA (request to a public body). On 3 March 2011 he requested the same documents, but this time in terms of part 3 of PAIA (request to a private body). Both his requests were ignored by the ANC. In terms of s 58 of PAIA, the respondents must accordingly be 'regarded as having refused the request'. This opened the door to the applicants to apply to this court for 'appropriate relief in terms of the Act.1 Relief claimed [9] In the notice of motion, the applicants seek an order granting them access to - '(i) the report of the internal inquiry headed by the former [sic] Deputy Justice Minister Andries Nel; (ii) the report by the Western Cape members of the first respondent sent to the first respondent's head office headed with words to the effect of 'Why Rasool had to be asked to resign'. [10] Dealing first with the document referred to in para (ii) above, this aspect may be disposed of briefly. In this regard, it appears from the applicants' own papers that an article was published in the Argus on 23 July 2008, in which reference was made to a 'seven-page document leaked to the Cape Argus', listing the ANC's reasons for removing Rasool. The article proceeds to quote at length from this document. On the face of it, therefore, it would appear that the applicants already havewhat they are looking for. When asked about this during argument, counsel was unable to identify any other document dealing with the same topic to which access might be required. Counsel rightly did not pursue this aspect of the application with too much vigour. The applicants have accordingly not made out a case to show that they are entitled to access to a copy of the document in question. What remains for consideration, therefore, is the applicants' claim to access to the 'Nel report'. [11] The applicants recognise that for purposes of this application the ANC is to be regarded as a 'private body', with the result that the first request referred to above, addressed to the ANC as a public body, may be ignored for present purposes. In terms of s50(l)(a) of PAIA, a 'requester' must show that the record of a private body is 'required for the exercise or protection of any rights'.2 In this regard, it has been held that the word 'required' should be interpreted to mean that the inform-ation requested must be reasonably required'.3 A requester must accord­ingly show what the right is that he or she wishes to exercise or protect, what the information is that is required and how that information would assist in the exercise or protection of the right in question.4 [12] The rights that the applicants seek to exercise or protect by way of the present application are, first, the constitutional right to freedom of expression, which includes freedom of the press and freedom to receive or impart information or ideas, as enshrined in s 16(1) of the Constitution.5 Secondly, the applicants seek to exercise the common-law right to protect their reputation. These rights, in the context of the

present application, will be examined in more detail after consideration of the respondents' attitude with regard to the application. The respondents' stance [13] In the answering affidavit filed on behalf of the respondents Mr Mantashe disputed the applicants' entitlement to the relief claimed. The attitude of the respondents appears from the following extracts from his affidavit: 'The applicants have launched this misconceived application under the misguided belief that they are entitled to an internal report of the ANC simply because some members of the ANC work in various areas of the state. The report in question . . . was commissioned by the ANC in order to investigate internal differences and disagreements within its provincial leadership in the Western Cape. Some members of the ANC in the Western Cape complained that other members were using the media in the pursuit of their differences with other members of the ANC. . . . (T)he applicants have not demonstrated that an internal document of a private body is sought to exercise or protect any of their constitutionally enshrined rights. ... I submit that it would be untenable if the ANC were to be compelled to make public its internal investigations regarding its own internal affairs.' [14] Elsewhere the deponent reiterated that 'the investigation was confidential and an internal process of the ANC and that many of the individuals interviewed by Mr Nel in the course of his investigation 'agreed to participate in the process on condition of confidentiality'. Heclaimed that 'it was important for the investigation to be conducted on this basis in order to ensure that all who participated were free to express their views without fear of prejudice'. Mr Mantashe He denied, furthermore, that the internal report is a matter in the public interest: 'That the applicants are interested in the affairs of the ANC is obvious, but I deny that such an interest is the same as the public interest requirement as envisaged by the Act.' [15] In passing, it may be noted that the deponent places an unduly restricted meaning on the 'rights' that may be protected or

exercised under PAIA: it is not only their 'constitutionally enshrined rights' that enjoy protection in terms of PAIA as suggested, but 'all rights, including contractual rights or rights arising from delictual claims'.6 Moreover, the 'rights' referred to are not confined to those of the requester only.7 [16] Furthermore, it may be noted that in terms of s 56(3) of the Act, the respondents were obliged, when refusing a request for access, to notify the requester and to state, inter alia, 'adequate reasons for the refusal, including the provisions of this Act relied on'. The respondents have not attempted to grapple with the specific provisions of PAIA so as to establish immunity from disclosure with reference to the grounds for refusal of access to records recognised in chapter 4 of the Act.8 Instead, they asserted in broad general terms that the applicants are not entitled to 'an internal document of a private body' - a ground which does not enjoy protection from disclosure in terms of PAIA. To the extent that it is suggested by the respondents that some of the individuals interviewed in the course of his investigation 'agreed to participate in the process on condition of confidentiality', the respondents have not attempted to bring themselves within the ambit of s 65 of PAIA, which directs the head of a private body to refuse a request for access to a record of the body 'if its disclosure would constitute an action for breach of a duty of confidence owed to a third party in terms of an agreement'. Had these provisions been invoked, I have no doubt that the applicants would have been able successfully to invoke the overriding provisions of s 70(1) of the Act, which mandates disclosure if- (a) disclosure of the record would reveal evidence of - (i) a substantial contravention of, or failure to comply with, the law; or (ii) . . . and (b) the public interest in the disclosure of the record clearly outweighs the harmcontemplated in the provision in question'. [17] In the light of the stance adopted by the respondents herein, however, these questions do not arise. Freedom of expression and the media [18] Against this background, I now turn to consider the question whether the applicants have made out a case that the document in question, namely the Nel report, will assist them in exercising the rights that they assert. [19] As mentioned earlier, the principal right invoked by the applicants is the right to freedom of expression and the media. Much hasbeen written on this subject.9 As for the importance of the freedom of the media in a democracy, Nugent J A felt that it 'has been articulated so often that nothing is served by adding to what has been said in that regard'.10 As recent events on the legislative front have shown, however, none of this can be taken for granted and eternal vigilance remains, as ever, the price of freedom. [20] In Khumalo v Holomisa, supra,11 O'Regan J (writing for a unani­mous Constitutional Court) quoted with approval from an earlier judg­ment by Joffe J where he said: 'It is the function of the press to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators. The press must reveal dishonest mal-and inept administration. . . It must advance the communication between the governed and those who govern.' 12 [21] As to the duty of the press, O'Regan J continued by stating: '(T)hey have a constitutional duty to act with vigour, courage, integrity and responsibility. The manner in which the media carry out their constitutional mandate will have a significant impact on the development of our democratic society. If the media are scrupulous and reliable in the performance of their constitutional obli­gations, they will invigorate and strengthen our fledgling democracy. If they vacillate in the performance of their duties, the constitutional goals will be imperilled. The Constitution thus asserts and protects the media in the performance of their obligations to the broader society, principally through the provisions of s 16.'13 [22] Applied to the facts of this case, the applicants claim that they reasonably require the information sought so as to enable them to report accurately, not on the 'own internal affairs of the ANC, as suggested, but on matters of general public interest - on an 'extraordinary scandal', as it was called by the ANC's own Mr Ozinsky. The applicants expect that the information sought may reveal evidence of contraventions of the law by a former premier of this province and the manner in which the ANC dealt with the situation. The fact that the individual in question happened to have been an ANC functionary at the time is neither here nor there. The fact of the matter is that the premier of a province occupies a public position, effectively at the behest of the political party that wields power in that province. The person who occupies the position does so in direct consequence of voters' choice. Thus, s 38(1) of the Constitution of the Western Cape, 1 of 1998, provides that '[t]he Provincial Parliament must elect a Premier from among its members . . . ', whereas s 40(3) provides that the Provincial Parliament may remove a premier by resolution, supported by at least two thirds of its members, only on three grounds, including 'a serious violation of . . . the law' and 'serious misconduct'. A premier found guilty of arranging benefits for journalists - paid for by a province - in return for favourable coverage would no doubt be guilty of a serious violation of the law, and serious misconduct. [23] In this instance, Rasool was not removed in terms of the Western Cape Constitution, but he was 'redeployed' by the ANC pursuant to an internal enquiry. Rasool continues to hold high office at the behest of the ANC. To the extent that the Nel report may deal with aspects surrounding Rasool's relationship with Independent Newspapers journalists; payments made to those journalists (or entities connected with them); and the effect all of this had on his 'redeployment', the applicants are undoubtedly entitled to access to such information in the exercise and protection of their rights and in execution of their duty to 'ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators'.14 Reputation [24] The second right asserted by the applicants is their right to protect their reputation. The core element of the reputation of a news­paper is that it reports accurately, honestly and with integrity.15 In the context of the present case, Independent Newspapers is rightly concerned that its reputation may have been compromised by the fact that 'at least two' of its journalists have been implicated in allegations of bribery, which means that they may not have been reporting honestly. Although Independent Newspapers has reacted internally to the scandal, the response of certain members of the ANC was to accuse the newspapers of a cover-up. Moreover, it was claimed that the 'full story' of the scandal has not been told. In these circumstances, Independent Newspapers is entitled and obliged to investigate the full extent of the scandal insofar as it may impact on their reputation. [25] It is trite law that the common-law crime of bribery is committed both by the person who corrupts another by giving the bribe and by the person who receives it. The same principle applies with regard to the Prevention and Combating of Corrupt Activities Act 12 of 2004. Insofar as Independent Newspapers have investigated the conduct of (some of) the alleged 'bribees', they are in my view clearly entitled to know what the ANC has established in regard to the conduct of the alleged 'bribers' so as to refute accusations (from the ANC) of a cover-up and to satisfy themselves that all the 'bad apples' have been removed from the batch. Independent Newspapers' claim that it requires the information to act internally upon it 'if it reveals knowledge of employees who have not been disciplined, or a necessity to alter the systems that monitor, or codes that apply to, journalists employed by Independent Newspapers' establishes the necessary jurisdictional facts to justify access to the information required. Conclusion [26] In the light of the evidence revealed in this case, the applicants have in my view made out a compelling case in support of their claim for access to the document in question to the extent that it may deal with evidence of a potentially corrupt relationship between a former premier of this province and some journalists employed by Independent News­papers. However, it appears from the tape recording on which the applicants rely that the document in question goes wider and deals with a variety of other matters, not all of which may be relevant or reasonablyrequired for the exercise and protection of the rights in question. In this regard, the Act makes provision for severability of portions of a document.16 [27] The problem lies in the fact that the respondents have not sought to sever portions of the record, but have instead impermissibly sought to exclude the whole document from disclosure. The applicants, on the other hand, do not know what the document contains and are accordingly unable to deal with the question of severability. In these circumstances, the mechanism contemplated by s 80(1) of the Act appears to provide an ideal solution. It enables the court, on a confidential basis, to examine the document in question. The relevant portion of the subsection reads as follows: '. . . Any court hearing an application . . . may examine any record of a public or private body to which this Act applies, and no such record may be withheld from the court on any grounds.' Having examined such record, the court would be in position to determine, with reference to the principles enunciated above, whether the report in question contains the kind of information required by the applicants to exercise or protect the rights asserted and, if so, whether the applicants are entitled to access to the whole report or only to part thereof. [28] Section 80(3)(a) further provides that any court contemplated in subsec (1) may, inter alia, receive representations ex parte. In my view, it would be fair to employ the mechanism created by s 80(1) and to permit the respondents to deliver to the court, together with a copy of the report, written representations as contemplated. After perusal of the report and the ex parte representations, the court would be in a position to determine the further conduct of the matter, with reference to the provisions of s 80(3)(b) and (c). In the meantime, the substantive relief claimed by the applicants must temporarily remain in abeyance. Order [29] In the circumstances, the following interim order is issued: (a) The respondents are directed, within 5 (five) court days from the date of this order, to make available to the court in terms of s 80(1) of the Promotion of Access to Information Act No 2 of 2000 a copy of the report of the internal inquiry headed by Mr Andries Nel MP, together with such ex parte represent­ations in writing as it may wish to submit thereanent, as contemplated by s 80(3)(a) of the Act. (b) All further proceedings in this matter will remain in abey­ance pending compliance with the provisions of paragraph (a) above. B M GRIESEL Judge of the High Court

[1] This is an application in terms of the Promotion of Access to Information Act No 2 of 2000 ('PAIA'). The first applicant ('Indepen­dent Newspapers') is the owner and publisher of several daily and weekly newspapers, including The Cape Argus ('the Argus'). The second applicant, Mr Gasant Abader, is the editor of the Argus. The third applicant, Mr John Yeld, is a journalist with the Argus. The respondents are the African National Congress ('ANC'), and its secretary general, Mr Gwede Mantashe.

Factual background

[2] The applicants seek access to certain documents under the control of the respondents. The documents concern the so-called 'brown envelope journalism' scandal, which arose from the well-publicised contest between various factions of the ANC in the Western Cape during 2004-2009. One faction involved Mr Ebrahim Rasool, the former Premier and current ambassador to the United States, and his supporters. Another faction involved Mr Mcebisi Skwatsha and his supporters. The scandal arose out of accusations that office-bearers of the ANC associated with Rasool had paid journalists in the employ of Independent Newspapers to write newspaper articles favourable to positions adopted by him and his supporters. The allegations are not that Rasool and his supporters themselves paid journalists, but that they arranged for a company associated with the journalists, Inkwenkwezi Communications (Pty) Ltd ('Inkwenkwezi'), a media consultancy, to submit an invoice to the provincial government in order to obtain payment of public funds.

[3] In April or May 2005 Independent Newspapers learnt of rumours in political circles that at least two of its journalists were being paid for writing articles favourable to the Rasool camp. The names of Mr Ashley Smith and Mr Joseph Aranes were mentioned in this context. The alle­gations initially were treated with circumspection. Later, regional executives of the ANC also told senior executives in Independent News­papers about the allegations, suggesting that journalists employed by the Argus were 'working for the Province'. They also alleged that there may be a conflict of interest involving Smith and accused Independent

Newspapers of covering-up the support by its journalists for the Rasool camp. As a result of these accusations, Independent Newspapers con­ducted an internal disciplinary investigation. The investigation proved to be inconclusive insofar as it did not produce any proof of payment received by either Aranes or Smith. Smith was nevertheless found guilty of failing to disclose a conflict of interest involving his wife and Inkwenkwezi. Smith duly resigned, while Aranes was demoted.

[4] On 6 November 2009, an open letter from Mr Max Ozinsky, a senior ANC member in the Western Cape close to the Skwatsha camp, was published in the Mail & Guardian. The letter accused the ANC of a cover-up of the allegations concerning Rasool. It also stated that Rasool's term as premier could be understood only if his relationship with the media was understood and that the Argus had run a 'series of libellous articles ... in an apparent campaign to undermine potential rivals to Rasool'. It continued:

'Rasool became intimately involved in briefing journalists, and at least one senior journalist from the Cape Argus, but I believe more, benefitted financially from their proximity to a web of companies contracted by the province. I don't make this alle­gation lightly; there is proof.

In 2006 the ANC was asked by lawyers for [Independent Newspapers] to provide them with evidence for the allegations that journalists were paid to write stories. A formal decision was taken by the provincial leadership of the ANC that, to protect the best interests of the party, documents in our possession should be handed over. We provided the same evidence to the national leadership of the ANC. A disciplinary process was undertaken at the paper that led to the quiet resignation of one journalist, but I do not believe that the full story of this extraordinary scandal was ever told. .. .' (Emphasis added)

[5] On 27 November 2009 the Mail & Guardian published an article about the brown envelope journalism scandal. The article mentioned inter alia that there had been an ANC internal inquiry into the matter headed by Mr Andries Nel MP.

[6] In June 2010 Smith approached the current editor of the Argus, Mr Abarder, stating that he wanted to 'come clean'. (Aranes had in the meantime also resigned from Independent Newspapers pursuant to the Mail & Guardian article.) He subsequently made an affidavit for presentation to the DPP in which he disclosed how he and his then fiancee, Ms Joy van der Heyde, together with Aranes and a Mr Zane Orrie, had formed Inkwenkwezi, of which Orrie and Van der Heyde were the directors. Orrie would use his political influence to ensure that the company would get tenders from the provincial government. In pursuance of this goal, regular meetings (sometimes late at night) were held between the members of the company and Rasool at the latter's official residence, Leeuwenhof. The understanding between the members of Inkwenkwezi and Rasool was that they would assist the latter with media advice and in return Inkwenkwezi would receive business from the provincial government.

[7] After the scandal broke, Yeld, on behalf of Independent News­papers, reported on the scandal as a newsworthy story. He noticed that the Mail & Guardian article referred to a tape recording of a meeting at which the allegations about payments to journalists were discussed. The meeting involved the former ANC premier of the Western Cape, Ms Lynne Brown, who had in the meantime replaced Rasool as premier. Applying in terms of PAIA, Yeld managed to obtain a copy of the transcript of the tape recording from Ms Brown. The transcript included the following passage from the conversation (spoken by Brown):

'There's a document, confidential document; I only have a summary of the docu­ment. The document was submitted to Gwede [Mantashe] about a, it gives a history of in-fighting in the province. It details Zane Orrie's involvement, justifies the bok-makierie, bokmakierie and what, Ashley Smith and the handling of the journalists issue and then goes on to deal with the Ramatlakane issue... '

(In the course of the same conversation, that took place on 15 April 2009, repeated mention was made of cash payments made to journalists in brown envelopes, thus giving the scandal its name.)

[8] Putting two and two together, Yeld inferred that the 'confidential document' referred to by Brown in the conversation was the Nel report that had been mentioned earlier in the Mail & Guardian article of 27 November 2009. This caused Yeld to request a copy of the Nel report, aswell as a seven page report by Western Cape ANC members headed 'Why Rasool had to be asked to resign'. He did so on 23 August 2010 by requesting the documents in terms of part 2 of PAIA (request to a public body). On 3 March 2011 he requested the same documents, but this time in terms of part 3 of PAIA (request to a private body). Both his requests were ignored by the ANC. In terms of s 58 of PAIA, the respondents must accordingly be 'regarded as having refused the request'. This opened the door to the applicants to apply to this court for 'appropriate relief in terms of the Act.1

Relief claimed

[9] In the notice of motion, the applicants seek an order granting them access to -

'(i) the report of the internal inquiry headed by the former [sic] Deputy Justice Minister Andries Nel;

(ii) the report by the Western Cape members of the first respondent sent to the first respondent's head office headed with words to the effect of 'Why Rasool had to be asked to resign'.

[10] Dealing first with the document referred to in para (ii) above, this aspect may be disposed of briefly. In this regard, it appears from the applicants' own papers that an article was published in the Argus on 23 July 2008, in which reference was made to a 'seven-page document leaked to the Cape Argus', listing the ANC's reasons for removing Rasool. The article proceeds to quote at length from this document. On the face of it, therefore, it would appear that the applicants already havewhat they are looking for. When asked about this during argument, counsel was unable to identify any other document dealing with the same topic to which access might be required. Counsel rightly did not pursue this aspect of the application with too much vigour. The applicants have accordingly not made out a case to show that they are entitled to access to a copy of the document in question. What remains for consideration, therefore, is the applicants' claim to access to the 'Nel report'.

[11] The applicants recognise that for purposes of this application the ANC is to be regarded as a 'private body', with the result that the first request referred to above, addressed to the ANC as a public body, may be ignored for present purposes. In terms of s50(l)(a) of PAIA, a 'requester' must show that the record of a private body is 'required for the exercise or protection of any rights'.2 In this regard, it has been held that the word 'required' should be interpreted to mean that the inform-ation requested must be reasonably required'.3 A requester must accord­ingly show what the right is that he or she wishes to exercise or protect, what the information is that is required and how that information would assist in the exercise or protection of the right in question.4

[12] The rights that the applicants seek to exercise or protect by way of the present application are, first, the constitutional right to freedom of expression, which includes freedom of the press and freedom to receive or impart information or ideas, as enshrined in s 16(1) of the Constitution.5 Secondly, the applicants seek to exercise the common-law right to protect their reputation. These rights, in the context of the

present application, will be examined in more detail after consideration of the respondents' attitude with regard to the application.

The respondents' stance

[13] In the answering affidavit filed on behalf of the respondents Mr Mantashe disputed the applicants' entitlement to the relief claimed. The attitude of the respondents appears from the following extracts from his affidavit:

'The applicants have launched this misconceived application under the misguided belief that they are entitled to an internal report of the ANC simply because some members of the ANC work in various areas of the state. The report in question . . . was commissioned by the ANC in order to investigate internal differences and disagreements within its provincial leadership in the Western Cape. Some members of the ANC in the Western Cape complained that other members were using the media in the pursuit of their differences with other members of the ANC. . . . (T)he applicants have not demonstrated that an internal document of a private body is sought to exercise or protect any of their constitutionally enshrined rights. ... I submit that it would be untenable if the ANC were to be compelled to make public its internal investigations regarding its own internal affairs.'

[14] Elsewhere the deponent reiterated that 'the investigation was confidential and an internal process of the ANC and that many of the individuals interviewed by Mr Nel in the course of his investigation 'agreed to participate in the process on condition of confidentiality'. Heclaimed that 'it was important for the investigation to be conducted on this basis in order to ensure that all who participated were free to express their views without fear of prejudice'. Mr Mantashe He denied, furthermore, that the internal report is a matter in the public interest:

'That the applicants are interested in the affairs of the ANC is obvious, but I deny that such an interest is the same as the public interest requirement as envisaged by the Act.'

[15] In passing, it may be noted that the deponent places an unduly restricted meaning on the 'rights' that may be protected or

exercised under PAIA: it is not only their 'constitutionally enshrined rights' that enjoy protection in terms of PAIA as suggested, but 'all rights, including contractual rights or rights arising from delictual claims'.6 Moreover, the 'rights' referred to are not confined to those of the requester only.7

[16] Furthermore, it may be noted that in terms of s 56(3) of the Act, the respondents were obliged, when refusing a request for access, to notify the requester and to state, inter alia, 'adequate reasons for the refusal, including the provisions of this Act relied on'. The respondents have not attempted to grapple with the specific provisions of PAIA so as to establish immunity from disclosure with reference to the grounds for refusal of access to records recognised in chapter 4 of the Act.8 Instead, they asserted in broad general terms that the applicants are not entitled to 'an internal document of a private body' - a ground which does not enjoy protection from disclosure in terms of PAIA. To the extent that it is suggested by the respondents that some of the individuals interviewed in the course of his investigation 'agreed to participate in the process on condition of confidentiality', the respondents have not attempted to bring themselves within the ambit of s 65 of PAIA, which directs the head of a private body to refuse a request for access to a record of the body 'if its disclosure would constitute an action for breach of a duty of confidence owed to a third party in terms of an agreement'. Had these provisions been invoked, I have no doubt that the applicants would have been able successfully to invoke the overriding provisions of s 70(1) of the Act, which mandates disclosure if-

(a) disclosure of the record would reveal evidence of -

(i) a substantial contravention of, or failure to comply with, the law; or

(ii) . . . and

(b) the public interest in the disclosure of the record clearly outweighs the harmcontemplated in the provision in question'.

[17] In the light of the stance adopted by the respondents herein, however, these questions do not arise.

Freedom of expression and the media

[18] Against this background, I now turn to consider the question whether the applicants have made out a case that the document in question, namely the Nel report, will assist them in exercising the rights that they assert.

[19] As mentioned earlier, the principal right invoked by the applicants is the right to freedom of expression and the media. Much hasbeen written on this subject.9 As for the importance of the freedom of the media in a democracy, Nugent J A felt that it 'has been articulated so often that nothing is served by adding to what has been said in that regard'.10 As recent events on the legislative front have shown, however, none of this can be taken for granted and eternal vigilance remains, as ever, the price of freedom.

[20] In Khumalo v Holomisa, supra,11 O'Regan J (writing for a unani­mous Constitutional Court) quoted with approval from an earlier judg­ment by Joffe J where he said:

'It is the function of the press to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators. The press must reveal dishonest mal-and inept administration. . . It must advance the communication between the governed and those who govern.' 12

[21] As to the duty of the press, O'Regan J continued by stating:

'(T)hey have a constitutional duty to act with vigour, courage, integrity and responsibility. The manner in which the media carry out their constitutional mandate will have a significant impact on the development of our democratic society. If the media are scrupulous and reliable in the performance of their constitutional obli­gations, they will invigorate and strengthen our fledgling democracy. If they vacillate in the performance of their duties, the constitutional goals will be imperilled. The Constitution thus asserts and protects the media in the performance of their obligations to the broader society, principally through the provisions of s 16.'13

[22] Applied to the facts of this case, the applicants claim that they reasonably require the information sought so as to enable them to report accurately, not on the 'own internal affairs of the ANC, as suggested, but on matters of general public interest - on an 'extraordinary scandal', as it was called by the ANC's own Mr Ozinsky. The applicants expect that the information sought may reveal evidence of contraventions of the law by a former premier of this province and the manner in which the ANC dealt with the situation. The fact that the individual in question happened to have been an ANC functionary at the time is neither here nor there. The fact of the matter is that the premier of a province occupies a public position, effectively at the behest of the political party that wields power in that province. The person who occupies the position does so in direct consequence of voters' choice. Thus, s 38(1) of the Constitution of the Western Cape, 1 of 1998, provides that '[t]he Provincial Parliament must elect a Premier from among its members . . . ', whereas s 40(3) provides that the Provincial Parliament may remove a premier by resolution, supported by at least two thirds of its members, only on three grounds, including 'a serious violation of . . . the law' and 'serious misconduct'. A premier found guilty of arranging benefits for journalists - paid for by a province - in return for favourable coverage would no doubt be guilty of a serious violation of the law, and serious misconduct.

[23] In this instance, Rasool was not removed in terms of the Western Cape Constitution, but he was 'redeployed' by the ANC pursuant to an internal enquiry. Rasool continues to hold high office at the behest of the ANC. To the extent that the Nel report may deal with aspects surrounding Rasool's relationship with Independent Newspapers journalists; payments made to those journalists (or entities connected with them); and the effect all of this had on his 'redeployment', the applicants are undoubtedly entitled to access to such information in the exercise and protection of their rights and in execution of their duty to 'ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators'.14

Reputation

[24] The second right asserted by the applicants is their right to protect their reputation. The core element of the reputation of a news­paper is that it reports accurately, honestly and with integrity.15 In the context of the present case, Independent Newspapers is rightly concerned that its reputation may have been compromised by the fact that 'at least two' of its journalists have been implicated in allegations of bribery, which means that they may not have been reporting honestly. Although Independent Newspapers has reacted internally to the scandal, the response of certain members of the ANC was to accuse the newspapers of a cover-up. Moreover, it was claimed that the 'full story' of the scandal has not been told. In these circumstances, Independent

Newspapers is entitled and obliged to investigate the full extent of the scandal insofar as it may impact on their reputation.

[25] It is trite law that the common-law crime of bribery is committed both by the person who corrupts another by giving the bribe and by the person who receives it. The same principle applies with regard to the Prevention and Combating of Corrupt Activities Act 12 of 2004. Insofar as Independent Newspapers have investigated the conduct of (some of) the alleged 'bribees', they are in my view clearly entitled to know what the ANC has established in regard to the conduct of the alleged 'bribers' so as to refute accusations (from the ANC) of a cover-up and to satisfy themselves that all the 'bad apples' have been removed from the batch. Independent Newspapers' claim that it requires the information to act internally upon it 'if it reveals knowledge of employees who have not been disciplined, or a necessity to alter the systems that monitor, or codes that apply to, journalists employed by Independent Newspapers' establishes the necessary jurisdictional facts to justify access to the information required.

Conclusion

[26] In the light of the evidence revealed in this case, the applicants have in my view made out a compelling case in support of their claim for access to the document in question to the extent that it may deal with evidence of a potentially corrupt relationship between a former premier of this province and some journalists employed by Independent News­papers. However, it appears from the tape recording on which the applicants rely that the document in question goes wider and deals with a variety of other matters, not all of which may be relevant or reasonablyrequired for the exercise and protection of the rights in question. In this regard, the Act makes provision for severability of portions of a document.16

[27] The problem lies in the fact that the respondents have not sought to sever portions of the record, but have instead impermissibly sought to exclude the whole document from disclosure. The applicants, on the other hand, do not know what the document contains and are accordingly unable to deal with the question of severability. In these circumstances, the mechanism contemplated by s 80(1) of the Act appears to provide an ideal solution. It enables the court, on a confidential basis, to examine the document in question. The relevant portion of the subsection reads as follows:

'. . . Any court hearing an application . . . may examine any record of a public or private body to which this Act applies, and no such record may be withheld from the court on any grounds.'

Having examined such record, the court would be in position to determine, with reference to the principles enunciated above, whether the report in question contains the kind of information required by the applicants to exercise or protect the rights asserted and, if so, whether the applicants are entitled to access to the whole report or only to part thereof.

[28] Section 80(3)(a) further provides that any court contemplated in subsec (1) may, inter alia, receive representations ex parte. In my view, it would be fair to employ the mechanism created by s 80(1) and to permit the respondents to deliver to the court, together with a copy of the report, written representations as contemplated. After perusal of the report and the ex parte representations, the court would be in a position to determine the further conduct of the matter, with reference to the provisions of s 80(3)(b) and (c). In the meantime, the substantive relief claimed by the applicants must temporarily remain in abeyance.

Order

[29] In the circumstances, the following interim order is issued:

(a) The respondents are directed, within 5 (five) court days from the date of this order, to make available to the court in terms of s 80(1) of the Promotion of Access to Information Act No 2 of 2000 a copy of the report of the internal inquiry headed by Mr Andries Nel MP, together with such ex parte represent­ations in writing as it may wish to submit thereanent, as contemplated by s 80(3)(a) of the Act.

(b) All further proceedings in this matter will remain in abey­ance pending compliance with the provisions of paragraph (a) above.

B M GRIESEL

Judge of the High Court

1Section 78(2)(d)(i), read with s 82 of the Act.

2Section 50(1 )(a). The request in this instance was made by Yeld in his personal capacity and also (so it would appear) on behalf of Independent Newspapers. No request was made on behalf of the second applicant, Abarder, but this failure does not affect the outcome of the present application.

3Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC & others 2001 (3) SA 1013 (SCA) para 28; Clutchco (Pty) Ltd v Davis 2005 (3) SA 486 (SCA) para 13; Unit as Hospital v Van Wyk and Another [2006] ZASCA 34; 2006 (4) SA 436 (SCA) para 16.

4Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC & others, supra, loc cit.

5Sec 16(1) of the the Constitution, as far as relevant for present purposes, provides: 'Everyone has the right to freedom of

expression, which includes - (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas... '

5Sec 16(1) of the the Constitution, as far as relevant for present purposes, provides: 'Everyone has the right to freedom of

expression, which includes -

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas... '

6See: Van Niekerk v City Council of Pretoria 1997 (3) SA 839 (T) at 846G; referred to with approval in The Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC & anor 2001 (3) SA 1013 (SCA) para 27.

7See Woolman et al Constitutional Law of South Africa (2 ed; OS 2002) Vol 3 para 62.7 n 5.

8See eg sees 63-69 of the Act.

9Thus, for example, Woolman et al {op cit) devote no less than 193 pages to the subject in their chapter dealing with s 16 of the Constitution. See Vol 3 at 42-1 - 193.

10Midi Television t/a E-TV v DPP [2007] ZASCA 56; 2007 (5) SA 540 (SCA) para 5. See also Khumalo v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC) para 21 and the cases cited in footnotes 24 and 25; Brummer v Minister of Social Development 2009 (6) SA 323 (CC) para 63; M&G Media v 2010 FIFA World Cup Organising Committee 2011 (5) SA 163 (GSJ) paras 337-341.

11" Footnote 11 above, at para 23 of the judgment.

12Government of the RSA v 'Sunday Times' Newspaper & another 1995 (2) SA 221 (T) at 227H-228A.

13Khumalo's case, supra, para 24.

14See Sunday Times case (n 12 supra).

15See eg Khumalo's case, supra; Brummer's case, supra.

16Section 59(1) provides: '(1) If a request for access is made to a record of a private body containing information which may or must be refused in terms of any provision of Chapter 4 of this Part, every part of the record which- (a) does not contain; and (b) can reasonably be severed from any part that contains, any such information must, despite any other provision of this Act, be disclosed.'

16Section 59(1) provides:

'(1) If a request for access is made to a record of a private body containing information which may or must be refused in terms of any provision of Chapter 4 of this Part, every part of the record which-

(a) does not contain; and

(b) can reasonably be severed from any part that contains,

any such information must, despite any other provision of this Act, be disclosed.'