CCT03/11

[2011] ZACC 32

2012 (2) BCLR 181 (CC)

2012 (2) SA 50 (CC)

Ngcobo CJ Majority judgment

Yacoob J separate judgment

Froneman J separate judgment

Cameron J dissenting judgment

29 November 2011

http://hdl.handle.net/20.500.12144/3638

Application for leave to appeal against a judgment of the SCA: President of the Republic of South Africa v M & G Media Ltd 2011 (2) SA 1 (SCA); 2011 (4) BCLR 363 (SCA). See also earlier judgment of the North Gauteng High Court, Pretoria: M & G Limited and Another v President of the Republic of South Africa and Others [2010] ZAGPPHC 43; Case No 1242/09, 4 June 2010

Application for leave to appeal against a judgment of the Supreme Court of Appeal, which ordered disclosure of a report [the Moseneke/Khampepe report on the 2002 Zimbabwe elections] after finding that the State’s refusal to grant access to it was unjustified. The State argued that it had discharged the evidentiary burden, imposed by section 81(3) of the Promotion of Access to Information Act (PAIA), of establishing that its refusal was justified by the exemptions it claimed. The Court held that the evidentiary burden of showing that a record was exempt from disclosure fell on the holder of the information. There were some doubts as to whether the report should be disclosed. The court should therefore have exercised its discretion under section 80 of PAIA to call for additional in camera evidence in the form of the contested record itself. The main judgment set aside the orders of the High Court and the Supreme Court of Appeal. The case was remitted to the High Court for it to examine the record and make a just and equitable order. In a dissenting judgment, Cameron J held that there was no warrant to remit the matter for the High Court. The State had failed to make out a case for withholding the report, and it should be released without more. Majority: Ngcobo CJ (Froneman J, Mogoeng J, Mthiyane AJ and Yacoob J concurring). Separate concurrences: Froneman J and Yacoob J. Dissent: Cameron J (Jafta J, Nkabinde J and Van der Westhuizen J concurring).