In President of South Africa v M&G Media Limited, the court ruled that courts must take a “judicial peek” into records when an organisation claims it can’t justify its refusal to disclose information because it will compromise the secrecy of the information they do not want to disclose. The judgment helps us interpret section 80 of the Promotion of Access to Information Act (PAIA). It sets out the court’s role in fostering a culture of justification while promoting the confidentiality of information. The Court ordered M&G Media Limited and the President to return to the High Court, the court was required to examine the President’s report and determine whether the grounds of refusal were justified.
Who should care about this judgment and why?
- South African courts because they must examine on a case-by-case basis whether an organisation is justified to refuse disclosure of information without giving a requestor that justification.
- The Information Regulator because it has a recourse of approaching the courts to peek into records that organisations claim they can’t justify their refusal to disclose because it will compromise their secrecy and determine if this is correct.
- Private and public organisations because they may need to submit information they have for courts to determine whether they need to keep confidential or not. You can’t keep any information away from the courts.
What could you do about it?
- Dive into the detail by reading the full judgment.
- Access other relevant judgments by joining a Michalsons programme.
Our insights on the judgment
So often in access to information cases, we have a challenge of balancing between creating an open society and protecting someone’s privacy. This is a classic judgment that shows mechanisms in our law that help navigate through this challenge. Section 80 of PAIA presents a crucial measure to afford people their privacy while verifying the authenticity of their claims. If this mechanism didn’t exist then organisations would simply rely on the secrecy of information to avoid transparency.
Digest
In the lead-up to the 2002 Zimbabwe elections, President Thabo Mbeki appointed two judges to visit the country and assess constitutional and legal issues related to the elections. When the judges returned from their visit they drafted a report and submitted it to the President. However, the Presidency did not publish this report. Mail and Guardian, a weekly newspaper requested access to the report. The Presidency refused access and relied on two grounds. They claimed that:
- disclosing the report would reveal information supplied in confidence by or on behalf of another country, and
- the judges prepared the report to help the President formulate policy on Zimbabwe.
PAIA allows for public bodies to rely on both grounds, however, Mail and Guardian held that the Presidency has the onus to give evidence to justify this refusal. The Presidency said they could not do this without compromising the secrecy of the report. The High Court and Supreme Court of Appeal agreed with Mail and Guardian and said that the Presidency couldn’t avoid justifying their refusal to disclose. The Presidency appealed this in the Constitutional Court and argued that the court must peek into the report and establish if they were correct.
Order
The Court ordered the M&G and the President to go back to the High Court. The court must look at the report and determine if the Presidency’s refusal is justified.
Details of President of the Republic of South Africa v M&G Media Limited
- Universal citation: [2011] ZACC 32
- Also reported at
- Full name: President of the Republic of South Africa v M&G Media Limited
Please note: The summary of this judgment is not intended for a general audience. It is specifically drafted for the members of the Michalsons Access to Information programme.
