THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 570/2010

In the matter between:

THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
First Appellant
THE DEPUTY INFORMATION OFFICER,
OFFICE OF THE PRESIDENCY
Second Appellant
THE MINISTER IN THE PRESIDENCY
Third Appellant

and

M & G MEDIA LIMITED
Respondent

Neutral citation:
The President of RSA v M & G Media (570/10) [2010]
ZASCA 177 (14 DECEMBER 2010)

Coram:
NUGENT, VAN HEERDEN, MAYA, CACHALIA JJA and
BERTELSMANN AJA

Heard:
22 NOVEMBER 2010

Delivered:
14 DECEMBER 2010

Summary:
Promotion of Access to Information Act 2 of 2000 – access to
report made to the President – whether grounds shown for
refusing access.

_______________________________________________________________________

ORDER
_______________________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (Sapire AJ sitting as
court of first instance).

The appeal is dismissed with costs that include the costs of two counsel.

_______________________________________________________________________

JUDGMENT
_______________________________________________________________________

NUGENT JA (VAN HEERDEN, MAYA and CACHALIA JJA and
BERTELSMANN AJA concurring).

[1] Open and transparent government and a free flow of information
concerning the affairs of the state is the lifeblood of democracy. That is
why the Bill of Rights guarantees to everyone the right of access to ‘any
information that is held by the state’,1 of which Ngcobo J said the
following in Brümmer v Minister for Social Development:2
‘The importance of this right ... in a country which is founded on values of
accountability, responsiveness and openness, cannot be gainsaid. To give effect to
these founding values, the public must have access to information held by the State.
Indeed one of the basic values and principles governing public administration is
transparency. And the Constitution demands that transparency ‘must be fostered by
providing the public with timely, accessible and accurate information.’’

1 Section 32(1)(a): ‘Everyone has the right of access to any information that is held by the state…’.
Section 31(1)(b) confers a right of access to information held by other persons in certain circumstances
but that is not relevant for present purposes.
2 2009 (6) SA 323 (CC) para 62.

[2] But few constitutional rights are absolute. Generally they are
capable of being limited within the confines of s 36. The right of access
to information that is held by the state has indeed been limited by the
Promotion of Access to Information Act 2 of 2000 – which fulfils
Parliament’s constitutional obligation to enact national legislation to give
effect to the right. It is the application of those limitations that forms the
subject of this appeal.

[3] The appeal concerns a report that is in the possession of the
President of the Republic. Two senior judges prepared the report after a
visit to Zimbabwe shortly before an election that was held in that country
in 2002. They did so at the request of the then incumbent of the
Presidency – former President Mbeki. The report has never been released
to the public at large.

[4] M&G Media Limited (the respondent) is the publisher of a weekly
newspaper called the Mail and Guardian (I will refer to the respondent as
M&G). It wants to see the report but the President declines to disclose it.
M&G and the then editor of its newspaper applied to the North Gauteng
High Court under the provisions of the Act for an order compelling him
to do so. Sapire AJ granted the order and the President (and others cited
in the application) now appeals with the leave of that court.

[5] The Act creates a mechanism for access to be had to recorded
information – what the Act calls a ‘record’ – that is in the possession of a

public body3 (and other bodies in certain circumstances). The Act lays
down various formalities that need to be complied with. It is not disputed
that they have all been met in this case.

[6] A request for access to a record must be made to the ‘information
officer’ of the public body concerned.4 If the request is refused – in whole
or in part5 – then the applicant is entitled to an internal appeal against the
refusal.6 If the internal appeal fails then the requesting party may apply to
a court under s 78(2) for ‘appropriate relief’.

[7] In this case the request by M&G was considered and refused by Mr
Trevor Fowler (the second appellant). He was a deputy information
officer in the Presidency at the time. He also deposed to the answering
affidavit on behalf of all the appellants. At the time that he deposed he
was the Acting Director-General and Accounting Officer in the
Presidency.

[8] Supporting affidavits were filed by Mr Kgalema Motlanthe (the
first appellant) – who was the President of the Republic at the time the
answering affidavits were filed – and by Ms Mantombazana Tshabalala-

3 Section 1 defines a ‘public body’ to mean
‘(a)
any department of state or administration in the national or provincial sphere of government or
any municipality in the local sphere of government; or
(b)
any other functionary or institution when –
(i)
exercising a power or performing a duty in terms of the Constitution or a provincial
Constitution; or
(ii)
exercising a public power or performing a public function in terms of any legislation.’
4 Section 18(1).
5 In certain circumstances part of the record may be severed from the rest under s 28, which provides as
follows:
‘(1) If a request for access is made to a record of a public 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’.
6 Sections 74-78.

Msimang (the third appellant – since deceased) – who undertook the
internal appeal. At the time she deposed to her affidavit she was the
Minister in the Presidency. An affidavit was also filed by Mr Frank
Chikane, who was the Director-General in the Presidency and its
information officer at the material time.

[9] The Constitution – and consequently the legislation that it has
spawned – signals a decided rejection of past odious laws, policies and
practices. In Shabalala v Attorney-General of Transvaal7 Mahomed DP
expressed that trenchantly in relation to the Interim Constitution (it
applies as much to the present Constitution) when he called it a ‘radical
and decisive break from that part of the past which is unacceptable’. He
went on to say:
‘There is a stark and dramatic contrast between the past in which South Africans were
trapped and the future on which the Constitution is premised. The past was pervaded
by inequality, authoritarianism and repression. The aspiration of the future is based on
what is “justifiable in an open and democratic society based on freedom and
equality”. It is premised on a legal culture of accountability and transparency. The
relevant provisions of the Constitution must therefore be interpreted so as to give
effect to the purposes sought to be advanced by their enactment’.

[10] Etienne Mureinik8 captured the essence of the Bill of Rights9 when
he described it as a ‘bridge from a culture of authority … to a culture of
justification’ – what he called ‘a culture in which every exercise of power
is expected to be justified.’ The Bill of Rights, he continued10
‘is a compendium of values empowering citizens affected by laws or decisions to
demand justification. If it is ineffective in requiring governors to account to people
governed by their decisions, the remainder of the Constitution is unlikely to be very

7 1996 (1) SA 725 (CC) para 26.
8 Etienne Mureinik ‘A Bridge to Where? Introducing the Interim Bill of Rights’ 1994 (10) SALJ 31.
9 Once more with reference to the Interim Constitution.
10 Page 32.

successful. The point of the Bill of Rights is consequently to spearhead the effort to
bring about a culture of justification. That idea offers both a standard against which to
evaluate [the Bill of Rights] and a resource with which to resolve the interpretive
questions that it raises’.

[11] The ‘culture of justification’ referred to by Mureinik permeates the
Act. No more than a request for information that is held by a public body
obliges the information officer to produce it unless he or she can justify
withholding it. And if he or she refuses a request then ‘adequate reasons
for the refusal’ must be stated (with a reference to the provisions of the
Act that are relied upon to refuse the request).11 And in court proceedings
under s 78(2) proof that a record has been requested and declined is
enough to oblige the public body to justify its refusal.12

[12] The proceedings that are contemplated by s 78(2) are not a review
of or an appeal from the decision of the information officer or the internal
appeal. They are original proceedings for the enforcement of the right that
the requester has under s 11(1) to be given access to a record in the
absence of grounds for refusing it. The proceedings must be commenced
on application. They are ‘civil proceedings’ to which ‘the rules of
evidence applicable in civil proceedings’ apply.13 I think that that latter
provision contemplates that the civil rules of evidence apply as much to
the manner in which evidence is received as it does to the admissibility of
evidence.

11 Section 25(3)(a).
12 Section 81(3)(a): ‘The burden of establishing that…the refusal of a request for access…complies
with the provisions of this Act rests on the party claiming that it so applies’.
13 Sections 81(1) and (2).

[13] The approach to evidence in application proceedings is well known
and need not be repeated in full.14 A court will not weigh the veracity of
the evidence on the papers alone. Generally, but with exceptions,15 a
court must rely for its decision upon the facts that are alleged by the
respondent, together with those alleged by the applicant that he or she
cannot dispute. Where an application cannot properly be decided in that
way rule 6(5)(g) confers a wide discretion on a court to hear oral
evidence.

[14] In cases of this kind the public body bears the burden of proving
that secrecy is justified,16 but the general rules that I have referred to
apply as much in such cases.17 That burden of proof nonetheless casts an
evidential burden on the public body to allege sufficient facts that will
justify the refusal. The burden of proof in its true sense will come into
play if the veracity of the evidence is required to be tested – in which case
it is for the public body to satisfy a court that its evidence is probably
true.

[15] While the ordinary rules apply generally to applications under
s 78(2) there are nonetheless some aspects of such proceedings that call
for special mention. The first is that true disputes of fact will seldom arise
because the material facts will generally be within the peculiar knowledge
of the public body. If an application for information is not to be thwarted
by that inequality of arms I think that a court must scrutinise the
affidavits put up by the public body with particular care and, in the

14 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) 634I-635C.
15.Plascon-Evans, above, at 635C: ‘For example, where the allegations or denials of the respondent are
so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers’.
16 Section 81(3).
17 Ngqumba v Staatspresident 1988 (4) SA 224 (A).

exercise of its wide discretion that I referred to earlier,18 it should not
hesitate to allow cross-examination of witnesses who have deposed to
affidavits if their veracity is called into doubt.

[16] Secondly, it can be expected that an information officer, or other
officials of a public body, will most often not have direct knowledge of
facts that are material to justifying secrecy, and will necessarily be reliant
upon documents and other hearsay sources. Section 3 of the Law of
Evidence Amendment Act 45 of 1988 gives a court a wide discretion to
admit hearsay evidence and liberal use of that section is quite capable of
overcoming difficulties that might be encountered by a public body in
that regard.

[17] The founding affidavit in this case contains a host of media and
other reports concerning the political travails that have afflicted
Zimbabwe over many years. In the answering affidavits the appellants
objected to that evidence on the basis that it was hearsay. It seems to me
that the material was tendered only to demonstrate the wide public
interest in and concern for events that were alleged to have occurred in
that country at the time the report was prepared and for that purpose it is
not hearsay at all. But in any event the travails of that unfortunate
country, and their consequences for South Africa, are so notorious that
we would be myopic not to accord them judicial notice.

[18] The feature of this case that strikes me most forcefully is the gulf
between the observations that I referred to earlier in this judgment and the
affidavits that have been filed by the appellants in purported justification

18 Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163; Plascon
Evans, above, at 635A-B.

of secrecy. At another time courts were regularly confronted with laws
that precluded them from going behind conclusions and opinions formed
by public officials. For example, at one time the Minister of Justice was
entitled to prohibit a person from being in a specified area ‘whenever the
Minister is satisfied’ that the person was promoting feelings of hostility
between different sections of the inhabitants of the country (Sachs v
Minister of Justice; Diamond v Minister of Justice19). Emergency
regulations permitted arrest and detention if ‘in the opinion of [a police
officer]’ that was necessary for the maintenance of public order etc
(Minister of Law and Order v Dempsey20). Deportation could be ordered
if a government functionary was ‘satisfied’ that the person concerned was
dangerous to peace, order, good government etc. (Winter v Administrator-
in-Executive Committee21). There are many other examples. As Corbett J
observed in South African Defence and Aid Fund v Minister of Justice,22
they were all instances in which
‘the statute itself has entrusted to the repository of the power the sole and exclusive
function of determining whether in its opinion the pre-requisite fact, or state of affairs,
existed prior to the exercise of the power’.

[19] The affidavits that have been filed by the appellants are
reminiscent of affidavits that were customarily filed in cases of that kind.
In the main they assert conclusions that have been reached by the
deponents, with no evidential basis to support them, in the apparent
expectation that their conclusions put an end to the matter. That is not
how things work under the Act. The Act requires a court to be satisfied
that secrecy is justified and that calls for a proper evidential basis to
justify the secrecy.

19 1934 AD 11.
20 1988 (3) SA 19 (A).
21 1973 (1) SA 873 (A).
22 1967 (1) SA 31 (C) at 35A-B.

[20] There is another striking feature of this case. There are three people
who have direct knowledge of the mandate that was given to the judges –
Mr Mbeki and the two judges – and two people who have direct
knowledge of how that mandate was executed – the two judges
themselves. Theirs would naturally have been the best evidence on those
issues but it has not been forthcoming, without explanation. Indeed, there
is no suggestion that such evidence has even been sought. Moreover, one
might justifiably expect in high matters of state that there would be
contemporary documentation of some kind recording at least the mandate
upon which the judges embarked. Once more there is no evidence of that
kind and no explanation for its absence. What the appellants’ case
amounts to is little more than rote recitation of the relevant sections and
bald assertions that the report falls within their terms. That is not the
‘stark and dramatic contrast’ with the past that was referred to by
Mahomed DP. Nor does it reflect the ‘culture of justification’ that was
referred to by Mureinik and which is imbedded in the Act.

[21] There are three grounds upon which the appellants seek to justify
the secrecy of the report. The first can be disposed of briefly. The Act
excludes from its ambit a record ‘of the Cabinet and its committees’.23
That was not the basis upon which access was initially refused by Mr
Fowler and Ms Tshabalala-Msimang. Both say that while at first they
were under the impression that the Act applied to a record of the
President they were subsequently advised, and accept the advice, that the
Act does not apply to a record that is held by the President because he is
the head of the cabinet. That contention was wisely not pressed in
argument before us. The President is not the cabinet. Moreover, there is
no suggestion that the report ever served before the cabinet.

23 Section 12(a).

[22] Some provisions of the Act make secrecy mandatory and others
make it discretionary. The sections with which we are concerned are both
discretionary. Section 41(1)(b) permits access to a record to be refused if
its disclosure
‘would reveal information supplied in confidence by or on behalf of another state or
an international organisation.’
Section 44 allows access to a record to be refused
‘if the record contains an opinion, advice, report or recommendation obtained or
prepared … or an account of a consultation, discussion or deliberation that has
occurred … for the purpose of assisting to formulate a policy or take a decision in the
exercise of a power or performance of a duty conferred or imposed by law.’

[23] I have pointed out that the present proceedings are neither a review
nor an appeal. But the reply that Mr Fowler gave to the request, and the
outcome of the internal appeal, are nonetheless instructive when
considering the affidavits as a whole.

[24] Mr Fowler was required by s 25(3)(a) to ‘state adequate reasons for
the refusal, including the provisions of the Act relied on’. The ‘reasons’
that he furnished to M&G were couched as follows:
‘I have thoroughly examined the contents of the report and I am of the view that the
disclosure of the contents thereof will reveal information supplied in confidence by or
on behalf of another state or an international organisation.
Further, the PAIA entitles me to refuse a request for access to a record of the body if
the record contains an opinion, advice, report or recommendation obtained or
prepared for the purpose of assisting to formulate a policy or take a decision in the
exercise of a power or performance of a duty conferred or imposed by law.
Consequently, access to the record that you have requested is hereby refused in terms
of sections 41(1)(b)(i) and 44(1)(a) of the PAIA.’

[25] The first troubling feature of that reply is that Mr Fowler purports
to have concluded that the report contained information that had been
given by either ‘another state’ or by ‘an international organisation’. An
‘international organisation’ is defined in the Act to mean ‘an international
organisation (a) of states or (b) established by the governments of states’.
Purely as a matter of logic it is difficult to see how he could genuinely
have concluded that the report contained information that had been given
by either the one or by the other. Information is capable of being provided
by one entity to the exclusion of the other, or of being provided by both,
but it could not have been provided by the one or the other in the
alternative (assuming that such information was given at all).

[26] Moreover, it is difficult to see how the report could possibly have
contained information given by an ‘international organisation’. There is
not the slightest suggestion in the affidavits that the judges were tasked to
have dealings with such an organisation or that they received information
from such an organisation. In response to our queries counsel for the
appellants suggested that Mr Fowler had adopted a ‘belt and braces’
approach. An honest information officer who fulfils his or her duty to
establish the true facts – which are not capable of occurring in the
alternative – and then to apply the provisions of the Act will have no need
for ‘belt and braces’. ‘Belt and braces’ are called for only where the
information officer is determined to refuse access on any account,
whatever the true facts.

[27] As for s 44 Mr Fowler said no more than that the section ‘entitles
me’ to refuse access if the record fell within its terms. It is difficult to see
why he thought that section to be relevant in the absence of a factual
finding that the report fell within its terms.

[28] But if a record falls within the terms of either of those sections then
the information officer has a discretion to allow or to refuse access. There
is no indication in the reply of Mr Fowler that he exercised a discretion at
all.

[29] The reasons given by Ms Tshabalala-Msimang for refusing the
internal appeal are no less troubling. She said no more than the following:
‘After considering your client’s appeal record including the contents of the requested
report, I am also of the view that the disclosure of the contents of the said report
would reveal information envisaged in Section 41(1)(b) of the [Act].
I am, further, of the view that the [Act] entitles the Deputy Information Officer to
refuse a request for access to a record of the Presidency, if the said record contains an
opinion, advice, report or recommendation obtained or prepared; for the purpose of
assisting to formulate a policy or take a decision in the exercise of a power or
performance of a duty conferred or imposed by law. This is in terms of Section
44(1)(a) of the PAIA.
As a result of the aforesaid, I consequently have no option but to refuse your Appeal
to access the Khampepe-Moseneke Report.’

[30] Once more those are not reasons but perfunctory conclusions. Once
more s 44 is called in aid only because the section ‘entitles’ an
information officer to refuse access in the specified circumstances and not
because those circumstances were found to exist. And once more it is
clear that no discretion was exercised. Indeed, the statement by Ms
Tshabalala-Msimang that she had ‘no option’ but to refuse the appeal
stands in stark contrast to the allegation in her affidavit that she exercised
a discretion. Once more one is left with the impression that the report was
refused oblivious to the demands of the Act.

[31] I have said that a court must scrupulously examine the grounds
upon which secrecy is claimed, particularly because the facts that purport
to found a claim of secrecy will generally be within the peculiar
knowledge of the public body concerned, if the rights of a requester are
not to be thwarted. Those perfunctory and dismissive responses to the
request do not inspire confidence that the appellant’s case will improve
on the affidavits and indeed it does not.

[32] Section 44 defines a record that falls within its terms by reference
to the purpose for which it was obtained or prepared. I need not deal in
this judgment with the proper construction to be placed on the section24
because the evidence does not bring the report within its terms no matter
how widely the section is construed.

[33] In his affidavit Mr Fowler alleges on numerous occasions that
‘the report was obtained and prepared for the purpose of informing the President, and
assisting in the formulation of policy and the taking of decisions in the exercise of his
power or performance of his duty as Head of State and the National Executive’.
He furnishes no evidential basis for those assertions but he does reveal a
startling explanation for his conclusion. After explaining the ‘mission’
upon which the judges were allegedly sent (I return to that later) he states
the following:
‘A related purpose of the mission which arose once the President had sight of the
report was that he was able to utilise the report to assist him in the formulation of
policy and taking of decisions in the exercise of his powers or the performance of his
duties in the aforementioned capacities in relation to the Zimbabwe situation…’
And yet later:
‘Taking into account the contents of the report it would have been of assistance in
formulating policy and taking decisions of the nature referred to in section 44(1)(a),

24 Cf. Philip Coppel Information Rights (2004) pp. 591-595.

concerning, inter alia, the political situation in Zimbabwe, and the President’s and
South Africa’s position and role in that regard. It is reasonably conceivable that the
report was of assistance.’
(In each case the emphasis is mine.)

[34] The section does not render a report subject to secrecy if it is
‘reasonably conceivable’ that it has been of assistance in formulating
policy etc. It does not even render it subject to secrecy if it ‘would have
been of assistance’. Nor even if the President ‘was able to utilise the
report to assist him.’ It is subject to secrecy only if it was obtained or
prepared for that purpose. And it is only in the world that exists beyond
the looking glass that the purpose for which a report was obtained or
prepared is capable of ‘[arising] once the [reader] had sight of the report’.
As Jafta AJA said in Minister for Provincial and Local Government v
Unrecognised
Traditional
Leaders,
Limpopo
Province
(Sekhukhuneland):25
‘In the context under discussion [the word ‘obtain’] must mean procuring information
for any of the purposes referred to in the subsection.’

[35] Counsel for the appellants submitted that those allegations by Mr
Fowler were erroneous and should be ignored. I cannot see why
allegations that have been made with deliberation under oath should
simply be ignored. That the reasoning is absurd does not demonstrate that
the allegations were made erroneously – it demonstrates only that the
reasoning is absurd.

25 2005 (2) SA 110 (SCA) para 17.

[36] Abandoning reliance upon Mr Fowler counsel for the appellant
referred us to the affidavit of Mr Chikane, who said that he had ‘personal
knowledge’
‘that the Justices were appointed on the grounds of their skill and position; and that
their report was commissioned by the President and prepared for the purpose of
assisting him with the formulation of policy and the taking of decisions pertaining to
the situation in Zimbabwe, including the impact or possible impact of the
Zimbabwean situation on South Africa.’
Counsel submitted that the assertion by Mr Chikane that he had ‘personal
knowledge’ of the matter was a sufficient evidential basis to establish the
truth of the assertion.

[37] Knowledge of the occurrence of an event might come to a person
in one of three ways. It might come to him or her through directly
experiencing the occurrence of the event. Or the occurrence might be
reported to him or her by someone else. Or he or she might deduce that
the event has occurred by inference from other facts. If knowledge of the
occurrence of the event has come to a witness from direct observation
then his or her evidence is admissible to prove that it occurred. If that
knowledge was acquired from someone else then a proper basis must be
laid for admitting it as hearsay and enabling its weight to be evaluated.
And if the knowledge was acquired only by inference then that is not
evidential material at all: it is for a court to draw the inference itself upon
proof of primary facts.26

[38] A court is not bound to accept the ipse dixit of a witness that his or
her evidence is admissible. Particularly in cases of this kind, in which
information is within the peculiar knowledge of the public body, proper

26 Cf Die Dros (Pty) Ltd v Telefon Beverages CC 2003 (4) SA 207 (C) para 28.

grounds need to be demonstrated for the admissibility of the evidence.
Merely to allege that that information is within the ‘personal knowledge’
of a deponent is of little value without some indication, at least from the
context, of how that knowledge was acquired so as to establish that the
information is admissible, and if it is hearsay, to enable its weight to be
evaluated. In this case there is no indication that the facts to which Mr
Chikane purports to attest came to his knowledge directly and no other
basis for its admission has been laid. Indeed, the statement of Mr Chikane
that I have referred to is not evidence at all: it is no more than bald
assertion.

[39] It was submitted by counsel for the appellants that it is probable
that Mr Chikane had direct knowledge of the purpose for which the
appointment was made by reason of the office that he held at the time.
We are not concerned with probability. But in any event I see no reason
to assume that the Director-General in the Presidency is privy to
everything that the President does. The bald assertion by Mr Chikane
might just as easily be founded upon the same reasoning that led Mr
Fowler to make his similar assertion. Indeed, if Mr Chikane had direct
knowledge of the purpose for which the judges were commissioned it is
inconceivable that he would not have told Mr Fowler, who would not
then have needed to resort to absurd reasoning.

[40] But the main thrust of the objection to the production of the report
was directed to s 41(1)(b) of the Act – which allows a public body to
refuse access to ‘information supplied in confidence by or on behalf of
another state or an international organisation.’ I have pointed out that in
this case there is no suggestion – not even by bald assertion – that the
judges met with or received information from an ‘international

organisation’. The assertion is that they received such information from
the government of Zimbabwe.

[41] On several occasions all the deponents allege that the mandate of
the judges was to ‘assess and report on the constitutional and legal
challenges’ that had arisen in the period leading up to the election.
Precisely what ‘constitutional and legal challenges’ were required to be
assessed has not been disclosed but I will accept for present purposes that
that was indeed their mandate.

[42] Assessing ‘constitutional and legal challenges’ pertaining to
another state does not entail that information is necessarily acquired from
that state, nor that information that might be acquired is necessarily
supplied in confidence. No doubt it was to fill those gaps that the
appellants turned to what I consider to be no more than a contrivance so
as to bring the report within the terms of the section.

[43] The case that the appellants advanced to justify the secrecy of the
report rests on three legs (though they were not necessarily advanced in
this order). First, the appellants sought to cast the judges in the role of
diplomats (they called them ‘envoys’27) who embarked upon a diplomatic
mission (I return to that later). Then they described the nature of
diplomacy, pointing out that it is ‘generally accepted’ in diplomacy that
information is exchanged in confidence. And finally it was asserted – as
if that were fact – that the judges were indeed received and dealt with in
Zimbabwe as diplomats.

27 Shorter Oxford Dictionary: ‘A public minister sent by one sovereign or government to another for
the transaction of diplomatic business. Now, esp. a minister plenipotentiary, ranking below an
ambassador, and above a ‘charge d’affaires’.

[44] On that last leg it was asserted, variously, that the judges were
‘received in Zimbabwe and granted interviews in their capacity as envoys
of the President’ and that ‘all parties shared the understanding that the
meetings and discussions arranged for and by the envoys were
confidential in nature’; that they ‘held confidential discussions with
various representatives of the Republic of Zimbabwe and were supplied
information in confidence on behalf of the state’; that the judges ‘were
received and hosted as special envoys by the Government of Zimbabwe’
on
the
‘understanding
that
any
communications
between
the
representatives of the Government of Zimbabwe and the [judges] was in
confidence’; that the government of Zimbabwe ‘facilitated the necessary
exchanges required for purposes of the diplomatic mission’ which
included ‘interactions with representatives of the government of
Zimbabwe and other officials who communicated their views to the two
[judges] in confidence’.

[45] Even then, the appellants do not assert that the judges received
information only from the government, but say that they received
information from the government ‘amongst others’. Where a record
contains partly information that may or must be refused and partly other
information, then the public body is obliged by s 28(1) to provide access
to the latter if the former can reasonably be severed. In this case there is
no more than a bland assertion that severance of one from the other is not
reasonably possible, without explanation for why that is so, and without
even an indication of the source and nature of the unprotected
information.

[46] But more important for present purposes, there is no evidential
basis at all for the purported assertions of fact that I have referred to. Not

Mr Fowler nor Ms Tshabalala-Msimang nor Mr Chikane accompanied
the judges on their visit to Zimbabwe and none purports to have direct
knowledge of how the judges went about their business or of the
information that they received. Nor has a basis been laid for establishing
those purported facts upon hearsay evidence. On the face of it those
assertions seem simply to have been constructed and they can be
summarily discounted.

[47] We are left with assertions that the judges were despatched on a
diplomatic mission – from which we are evidently expected to infer – at
best for the appellants – that they received information from the
government of Zimbabwe and received that information on conditions of
diplomatic protocol.

[48] At first the appellants cast the judges in the role of diplomats rather
tentatively. Mr Fowler described them initially as no more than
‘something in the nature of envoys’ but the appellants became
emboldened as the affidavits unfolded. Later it was said that the judges
were on a ‘diplomatic mission’; yet later that they were ‘special envoys’
to the President; and finally that they were ‘in essence the embodiment of
the President’.

[49] Diplomacy is an executive and not a judicial function. I would
need clear and substantiated evidence to persuade me that judges would
assume that role, or that it would be approved by the Chief Justice (who
is alleged to have approved their mission). While judges might from time
to time perform functions that are not strictly judicial Chaskalson P

pointed out in SA Association of Personal Injury Lawyers v Heath28 that
‘there are limits to what is permissible’. He went on to say:
‘Certain functions are so far removed from the judicial function that to permit Judges
to perform them would blur the separation that must be maintained between the
Judiciary and other branches of government. For instance, under our system a judicial
officer could not be a member of a legislature or cabinet, or a functionary in
government, such as the commissioner of police. These functions are not “appropriate
to the central mission of the Judiciary”. They are functions central to the mission of
the Legislature and Executive and must be performed by members of those branches
of government.’

[50] Once more an evidential basis for the assertions is entirely absent.
Neither Mr Fowler nor Mr Chikane (and also not Ms Tshabalala-
Msimang) has direct knowledge of how the judges went about their
business, whom they met, what they discussed, and on what terms their
discussions took place. No basis is even laid for advancing hearsay
evidence to that effect. Of course, it is possible that they have gleaned
those facts from the report itself, but as Mr Fowler was at pains to point
out, s 25(3) requires an information officer to exclude from his or her
reasons for refusing a request ‘any reference to the content of the record’,
and I think that must have been intended to apply as much when the
public body seeks to justify its refusal in court proceedings. Indeed, the
approach that was taken at least by Mr Fowler seems to me to be rather
unfortunate.  On the one hand he purports to rely upon the contents of the
report to reach at least some of his conclusions, while on the other hand
he tells M&G and this court that he is prohibited by law from revealing
the content of the report. I have pointed out that if facts are to be
established by inference then it is for the court – and not the witness – to
draw those inferences. The role of a witness or witnesses is only to place

28 2001 (1) SA 883 (CC) para 35.

the primary facts before the court to enable the inference to be drawn. No
such primary facts have been established in this case.

[51] Counsel for the appellants ultimately found himself obliged to
abandon even the assertions that the judges went about their business as
diplomats, with all that diplomacy entails. He said candidly that the most
that could truly be found on the affidavits was that the judges were
received in Zimbabwe with the courtesies that are ordinarily accorded to
diplomats. I have little doubt that judges who visit another country on
official business will usually be accorded courtesies of that kind but none
of the further assertions that are made by the appellants necessarily
follows from that fact.

[52] There is one further aspect of the procedures that are provided for
in the Act that I ought to mention. Section 80(1) permits a court to take
what counsel for M&G described as a ‘judicial peek’ at the record that is
in issue. A court that does that is prohibited from disclosing to any
person, including the requester, ‘any record … which on a request for
access, may or must be refused’. Courts earn the trust of the public by
conducting their business openly and with reasons for their decisions. I
think a court should be hesitant to become a party to secrecy with its
potential to dissipate that accumulated store of trust. There will no doubt
be cases where a court might properly make use of those powers but they
are no substitute for the public body laying a proper basis for its refusal.

[53] In my view no evidential basis has been established by the
appellants for refusing access to the report. It might be that the report
contains information that was received in confidence, and it might be that
it was obtained or prepared for a purpose contemplated by s 44, but that

has not been established by acceptable evidence. What the affidavits
perhaps establish by inference is that the judges were commissioned to
report on ‘constitutional and legal issues’ pertaining to the election. By
itself that does not bring the report within the terms of the sections that
were relied upon.

[54] There is no need to relate the findings of the court below in full.  It
is sufficient to say that it found that no evidential basis had been laid for
the refusal. For the reasons I have given its conclusion cannot be faulted.
If the Constitution and the Act are indeed a bridge to a culture of
justification it seems to me that for the appellants in this case it has been a
bridge too far.

[55] The appeal is dismissed with costs that include the costs of two
counsel.

_________________
R W NUGENT
JUDGE OF APPEAL

APPEARANCES:

For appellant:
M T K Moerane SC

L Gcabashe

Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein

For respondent:
J J Gauntlett SC

F Ismail

F B Pelser

Instructed by:

Webber Wentzel, Johannesburg

Honey Attorneys, Bloemfontein