The six year legal battle between M&G Media Ltd (M&G) and the office of the President of the Republic of South Africa (Presidency) for access to a judicial report on the 2002 presidential election in Zimbabwe (report) has finally drawn to a close. On 14 November 2014 the Constitutional Court dismissed the application for leave to appeal lodged by the Presidency.
The report was prepared by Justices Sisi Khampepe and Dikgang Moseneke for then President Thabo Mbeki, who had tasked them with assessing the constitutional environment in the lead-up to the election. Its very existence was not publicly known until 2008, when M&G lodged a request for access to the report under the Promotion of Access to Information Act, 2000 (PAIA). The Presidency refused the request, and dismissed an internal appeal against that refusal, on the grounds that the report contained information supplied in confidence by the Zimbabwean government, and was obtained for the purpose of policy-formulation, and therefore fell within the exemptions from disclosure under PAIA.
M&G took the Presidency to the Pretoria High Court in 2009, where (then) Acting Justice Sapire found that the Presidency had failed to provide any evidence to establish that the report fell within either of the exemptions - it had merely presented affidavits by officials with no personal knowledge of why President Mbeki sent the judges to Zimbabwe, nor what information the judges received in Zimbabwe and from whom. The Presidency was ordered to give M&G a copy of the report and to pay M&G's legal costs.
In 2010, the Presidency appealed to the Supreme Court of Appeal (SCA), arguing that its officials could do no more than merely recite the provisions of PAIA without revealing the contents of the report and therefore that it was "hamstrung" from furnishing fuller justification for refusing access to the report. The SCA did not accept this explanation, and unanimously upheld the High Court's order. In its judgment, the SCA declined to invoke its power to take a "judicial peek" at the report before ordering its release, on the grounds that this power should not be used as a substitute for the holder of information sufficiently justifying its refusal to grant access.
In 2011, the Presidency appealed to the Constitutional Court (CC), which was narrowly divided by five votes to four. The majority, led by former Chief Justice Ngcobo, held that the lower courts should have taken a judicial peek before ordering the release of the report, in order to overcome the "hamstring" which prevented the Presidency from furnishing fuller justification for keeping it secret. The minority, led by Justice Cameron, did not accept that the President was hamstrung from furnishing sufficient justification, as it failed to explain why it could not provide affidavits from President Mbeki or the judges themselves. By majority, the CC overturned the lower courts' order (including costs orders in M&G's favour) and remitted the matter to the High Court in order for the High Court to take a judicial peek at the report and then decide whether it should be released.
In 2012, the day before the Pretoria High Court was scheduled to hear the case, the Presidency tried to introduce a new affidavit from President Mbeki, in which he stated that he commissioned the report for policy-formulation purposes. The Presidency argued that this affidavit proved its case and that there was thus no need for a judicial peek. Justice Raulinga rejected the affidavit, saying that new evidence was beyond the scope of what the CC had ordered. Justice Raulinga took a judicial peek and invited submissions on why its contents justified the refusal. The Presidency then submitted President Mbeki's affidavit again, along with a new affidavit from President Zuma saying that he was still using the report to inform foreign policy. Justice Raulinga rejected this attempt too, finding that the Presidency was trying to "sneak new evidence in through the back door". He ordered that the report be released, finding that nothing in the report itself exempted it from disclosure under PAIA, and that, even if exemptions applied, they would be overridden by the public interest in disclosure.
In 2013, despite noting that the case had already travelled a "vicious cycle", Justice Raulinga granted the Presidency leave to appeal, again, to the SCA. The progress of the case was almost scuppered by a series of strange events in the first half of 2014. First, Justice Raulinga announced that the report, at which he had taken a judicial peek, had gone missing. The Presidency then took the position that there was no other copy of the report in existence, and thus that the matter had become moot. Then, after M&G asked Justices Khampepe and Moseneke whether they had a copy of the report and would provide it to the SCA (and they replied in the affirmative), the Presidency proposed that the report be sent to it before being sent to the SCA. The SCA intervened and secured a copy of the report directly from the judges.
In September 2014, the SCA heard argument and unanimously dismissed the appeal with costs. The SCA held that President Mbeki's affidavit was rightly rejected, as it had not been presented to assist the judicial peek, but rather to obviate it and "to plug the holes in the Presidency's case", which had been pointed out in all of the earlier judgments. In so doing, the Presidency "attempted to use the referral back to the High Court for a purpose which was the exact opposite of what the Constitutional Court had in mind", and in the process showed that it had never been "hamstrung" at all. The Court denounced this as "an abuse of process which cannot be tolerated". After taking its own peek, the SCA found that "there [was] nothing in the report that supports the grounds upon which the Presidency refused the access sought by M&G".
After the CC dismissed the Presidency's application for leave to appeal the SCA's decision (the sixth appeal filed by the Presidency during the course of the matter) the report was finally released to the M&G on 14 November 2014.