M & G Limited and Another v President of the Republic of South Africa and Others (1242/09) [2010] ZAGPPHC 43 (4 June 2010)

M & G Limited and Another v President of the Republic of South Africa and Others (1242/09) [2010] ZAGPPHC 43 (4 June 2010)

The court found that the respondents failed to provide factual evidence to justify the refusal of access to the Khampepe-Moseneke Report. The affidavits relied upon were not from persons with direct knowledge of the facts, and the respondents did not establish that the Report contained information supplied in confidence by or on behalf of another state or international organisation. The Report was not a Cabinet record and was not commissioned for policy formulation, but rather to assess constitutional and legal issues in Zimbabwe. The discretionary grounds for refusal under sections 41(1)(b)(i) and 44(1)(a) of PAIA were not substantiated. The burden of proof was not discharged, and the...

Citation
[2010] ZAGPPHC 43
Parties
Applicant: M & G Media Limited; Applicant: Ferrial Haffajee; Respondent: President of the Republic of South Africa; Respondent: Deputy Information Officer Office of the Presidency; Respondent: Minister in the Presidency; Amicus: Open Democracy Advice Centre
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 June 2010
Case Number
1242/09
Procedural Posture
Review Application / Application in Terms of Section 78 of Paia; Judgment on Merits
Outcome
Application granted; refusal of access set aside; respondents ordered to provide the Report and pay costs.
Judges
S W Sapire
Legal Topics
Promotion of Access to Information Act, Constitutional Right of Access, Public Interest Disclosure, Burden of Proof, Cabinet Privilege, Discretionary Refusal
Administrative Law Constitutional Law Promotion of Access to Information Act Constitutional Right of Access Public Interest Disclosure Burden of Proof Cabinet Privilege Discretionary Refusal

Case Brief

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Parties

M & G Media Limited

Applicant

Ferrial Haffajee

Applicant

President of the Republic of South Africa

Respondent

Deputy Information Officer Office of the Presidency

Respondent

Minister in the Presidency

Respondent

Open Democracy Advice Centre

Amicus

Procedural Posture

Review Application / Application in Terms of Section 78 of Paia; Judgment on Merits

Legal Issues

  1. 1 Whether the refusal of access to the Khampepe-Moseneke Report under PAIA was justified.
  2. 2 Whether the Report is excluded from PAIA as a Cabinet record.
  3. 3 Whether the grounds for refusal under sections 41(1)(b)(i) and 44(1)(a) of PAIA were substantiated by evidence.

Ratio Decidendi

The court found that the respondents failed to provide factual evidence to justify the refusal of access to the Khampepe-Moseneke Report. The affidavits relied upon were not from persons with direct knowledge of the facts, and the respondents did not establish that the Report contained information supplied in confidence by or on behalf of another state or international organisation. The Report was not a Cabinet record and was not commissioned for policy formulation, but rather to assess constitutional and legal issues in Zimbabwe. The discretionary grounds for refusal under sections 41(1)(b)(i) and 44(1)(a) of PAIA were not substantiated. The burden of proof was not discharged, and the...

Court Disposition

Application granted; refusal of access set aside; respondents ordered to provide the Report and pay costs.

Orders

  • The refusal by the Information Officer of access to the Report, and the confirmation thereof on appeal, is set aside.
  • The respondents or such of them as are in possession of the Khampepe-Moseneke Report must afford access to the applicant.