Mail & Guardian’s court victories signal a significant boost for the Access to Information Act

The Mail & Guardian have won two important court cases this week in their bid to uncover facts that belong in the public domain. Both applications were brought in terms of the Promotion of Access to information Act (PAIA) which places an obligation on public and private bodies to respond to requests for access to records within 30 days of the request being made.

In the first case, the M&G sought access to the report on the 2002 Zimbabwe elections compiled by Deputy Chief Justice Dikgang Moseneke and Justice Sisi Khampepe for former president Thabo Mbeki. Access to this report had been denied by the office of the president on the grounds that the report contained confidential information supplied by the Zimbabwean government and that the report had been compiled to assist in the formulation of the South African government’s policy on Zimbabwe.

An additional argument was made when the M&G brought the matter before the court, that Cabinet records were exempt from the Act. While no evidence was led to show that the report had been laid before Cabinet the president argued that, as head of Cabinet, the exemption must apply to all records in his possession. The court ruled that, “the obvious answer to this is that the president is not the Cabinet”. The court also rejected the other arguments made in favour of secrecy and ordered that the report be handed over to the M&G.

In the second case the M&G had applied to, FIFA’s Local Organising Committee (LOC), the body responsible for hosting and staging the 2010 World Cup for documentation relating to tenders invited and issued by the committee. In its argument in support of this application the M&G notes that it has been asking for this information for many months and that its formal request, filed in terms of the PAIA, had met with a blanket refusal from the LOC who insisted that, as private organisation, the way in which it spent its money had nothing to do with the M&G or the South African public.

As the M&G points out in an editorial on this matter, “South Africa, and South Africans – have made major sacrifices for this tournament. We have spent money that probably would have been better directed to economic and social infrastructure. We have given FIFA extraordinary legal protection, financial indemnities, tax-free status and even the suspension of some of our rights. The LOC owes us a duty in return. The least of it is to show us that it has spent money cleanly, effectively and fairly”.

The court had to address two issues, firstly to assess whether the LOC was a private or public body and secondly, if it were found to be a private body, whether the M&G required access to the information for the exercise or protection of any right. The court noting that eight government ministers sat on the LOC board and that it had received substantial public funds ruled that the LOC was a public body and that legislation passed under the Merchandise Marks Act, which designates the World Cup as a protected event required the committee to follow public procurement principles, including transparency. It also noted that the M&G had shown that it required the records for the exercise of its right to media freedom. 

The court concluded that the committee ‘charged with organising the most significant event in the world, purporting to do so in the public interest, takes a legally insupportable stance in seeking to keep its conduct inaccessible to public scrutiny’, and ordered that the LOC hand the tender documents over to the M&G within 30 days.

As the Daily Maverick says in its report on this issue, “While this is a victory for one newspaper, the precedents set out in the legal process are clearly a triumph for journalism in this country”.

Access the news report and the full judgement in respect of the Zimbabwean Report here.

Access the news report and the full judgement in respect of the LOC tender documentation here.

Sources:
Sunlight, not secrecy. Mail & Guardian, June 11 to 17 2010
We are already champions. Mail & Guardian, June 11 to June 17 2010

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