Case name (full citation)/Legislation:
President of the Republic of South Africa and others v M and G Media limited CCT 03/11 [2011] ZACC 32

Area of law:
Constitutional Law – Right to access to information held by the State

Brief facts/summary:
The matter arose when the publisher of the Mail and Guardian newspaper, brought an application under the Promotion of Access to Information Act 2 of 2000 (“the Act”), that the President make public a report, drafted by two South African judges, on the 2002 presidential elections in Zimbabwe.  The judges observed the elections at the request of President Thabo Mbeki.

In terms of the Act, the State must prove that it is justified in withholding the information, which the State failed to do in the North Gauteng High Court as well as the SCA, both courts finding that the record should be disclosed because the state had not discharged the burden placed upon it by the Act.  The State applied for leave to appeal to the Constitutional Court.

The majority, per Ngcobo CJ, found that where the State cannot provide sufficient justification for withholding the information, the High Court should invoke its power, in terms of the Act, to examine the report in order to verify the state’s contentions.

In a strong dissenting judgment, per Cameron J, it was held that the Presidency failed to justify its refusal to release the report.  The dissent concluded that the report should therefore be released without further consideration of the matter by the High Court.

Importance/value:
The High Court is now more likely to use its discretionary powers in terms of the Act in order to examine the contents of the information to which access is claimed. Unfortunately, however, it seems that the State will still be allowed to provide poor, unjustified reasons for withholding information requested in terms of the Act.

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