Between a rock and a hard place, indeed

There are times when it is hard not to wonder whether the interpretation by our courts of the Promotion of Access to Information Act (PAIA) are not hampering instead of promoting openness and transparency in government. (It is sometime also hard not to have a “schadenfreudegasm” when one’s criticism of a judgment appears to have been prescient.)

When the Constitutional Court handed down judgment in the case of President of the RSA and Others v Mail & Guardian Media Ltd, I argued that the judgment by the majority seemed to be animated by a eagerness to assist the Presidency (who had utterly failed to make out a case for why a report prepared by two judges sent to Zimbabwe by then President Thabo Mbeki to look into that country’s troubled election should not be made public) to keep secrets. The dangers inherent in this approach motivated the minority in that case to write a strong dissenting opinion, a dissent with which I associated myself at the time.

The Presidency had originally failed to produce any plausible evidence by those directly involved in the matter, namely the President (at the time, this was Thabo Mbeki), or the two judges (Constitutional Court Justices Moseneke and Khampepe, who both recused themselves from hearing the case), all of which could have confirmed the bold (but unsubstantiated) assertions made by the Presidency about why they were justified in denying access to the report to the public (in other words, why they could keep secrets from us citizens). As an afterthought, so it seems, the Presidency argued that it could not provide a more persuasive justification for its refusal, as section 25(3)(b) and section 77(5)(b) of PAIA provide that a person who refuses access must exclude from the reasons stated “any reference to the content of the record”.

In order to give the Presidency another bite at the cherry to justify that which it had failed to justify before the High Court, the Supreme Court of Appeal and the Constitutional Court, the majority of the Constitutional Court relied on section 80 of PAIA which allows a court to call for additional evidence in the form of the document to which access was denied to have a secret “judicial peek” at that document itself. Section 80 allows the court to conduct a secret review of the document to determine whether the justification for the denial of access was valid or not.

The dissenting judges in the case cautioned against the use of section 80 of PAIA that would allow the court to have a secret “judicial peek” at the document. It should only be as a last resort that judges demand to have a “judicial peek” at the document to which access is being denied, said the minority. Moreover this section “should not be used to help government make its case when it has failed to discharge the burden the statute rightly places on it”.

There are good reasons for a court to avoid reliance on section 80 to have a secret peek at the document being denied to come to a secret conclusion based on a secret process. Although it might be necessary to do so, the risks inherent in resorting to secret judicial examination are so grave that it should be avoided if at all possible. Quoting from the Supreme Court of Appeal judgment, Justice Cameron pointed out the dangers of the majority’s approach:

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.

Nor should the public ever fear that courts may assist in suppressing information to which the Constitution says they are entitled. To give secret judicial examination of disputed records a central place in deciding claims to exemption, instead of enforcing the burden government rightly bears to justify withholding information, is in my view a grave error.

Well, the case is now serving again before the North Gauteng High Court and is presenting Judge Joseph Raulinga with some difficulties (as the minority judgment predicted). Not only has the Presidency submitted further documents (including an affidavit from former President Mbeki) to try and justify the withholding of the document, the judge is also now required to make a decision about whether the report should be released partly based on his “judicial peek” of that report. As Judge Raulinga remarked yesterday, he was “left standing between a rock and a hard place” in having to decide whether a South African observer report about Zimbabwe’s hotly contested 2002 elections should be released to the public.

Because judge Raulinga had now had insight into the report, he will have to make a decision based at least partly on the content of the report and not based on the plausibility of the arguments advanced by President Zuma’s lawyers about whether it was justified to keep the report secret in terms of PAIA. If he ruled in favour of secrecy, it will partly be based on his insight into a report that the rest of us citizens had not seen and whose content we can only speculate about. This means it will be difficult for him to write a legally plausible judgment as many of us will wonder whether he might not have been swayed by completely irrelevant aspects of the report which we have not seen. The legitimacy of the court itself is thus being endangered and the judgment (and even the motives of the judge) might well be questioned in the absence of plausible reasons being provided by the judge.

It seems to me that judge Raulinga should never have been forced to face this dilemma. As the minority judgment of the Constitutional Court pointed out, the Presidency had made no plausible argument for not releasing the report. It was, indeed inexplicable that neither the President at the time, or any of the judges involved provided evidence that would support the denial of access to the document.

Neither former President Motlanthe nor President Zuma could cast light on the judges‘  mission. President Mbeki could, but there was no affidavit from him. So the question is — why did President Mbeki not testify? Was he asked or not asked? If asked, did he refuse? Or if not asked, why?

Perhaps even more telling was the absence of evidence from the two judges. They, like former President Mbeki, are living and seemingly available. Why did they not testify? Were they asked? If not, why? A simple affidavit from any of them may have put a quick end to the issues.

The Presidency‘s hands were not tied. It could have obtained direct evidence from any one of the three people most intimately involved in the mission. It failed to do so. More even, it failed to explain why.

The new evidence submitted by the Presidency to the High Court did not provide any indication that the judges were formally asked by former President Mbeki to serve as the President’s envoys to Zimbabwe. Nor did the new evidence cast any light on the question of whether the judges were specifically asked to prepare a report with recommendations 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. All that is now left open for the judge is to decide whether the public interest in the release of the report “clearly” outweighed possible harm that would follow were the report to be released.

But how will a judge make this call and how will he justify to the public iof he cannot quote from the secret report which might have swayed him? Should he or she merely take for granted the vague assertions from the Presidency that harm would ensue if the report was made public? Should the judge read the report and then make a value judgment about whether the report is so explosive that it would destroy the tentative peace process in Zimbabwe and South Africa’s role in it? Surely this places the judge in an untenable position where he is required to predict the unpredictable, based on vague and possible purely party political concerns masquerading as the interests of the country?

That is why, in my opinion, the minority decision in the Constitutional Court judgment was correct: it was hoping to avoid placing a trial judge standing between a rock and a hard place. If he orders the release the report, it will probably contain damaging information about how Zanu PF stole that election. This could embarrass the South African government who has never formally admitted to having knowledge of election fraud and cheating in Zimbabwe. Zanu-PF might also use this as another excuse not to play along nicely (they will always find one, it seems). But if the judge orders that the reports should not be released, he will become party to a possible cover up and might indirectly be conniving with the government who is misleading its citizens about the situation in Zimbabwe and its knowledge of that situation.

I know what I would have done if I was him (not being a great fan of cover ups), but I am still glad I am not in his shoes.

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