In August 2009 the Member of the Executive Council (MEC), the provincial government, responsible for the Department of Local Government and Traditional Affairs in the Eastern Cape ordered the investigation of maladministration in the Nelson Mandela Bay Metropolitan Municipality (para. 1).
The report of the investigation (the Kabuso report) was handed to the MEC in February 2010. In November 2010, Avusa Publishing Eastern Cape (Pty) Ltd (Avusa), which publishes The Herald and the Weekend Post newspapers in the region, sought access to the Kabuso report under the Promotion of Access to Information Act (PAIA) (para. 1).
The request was refused initially by the information officer and on appeal by Mr Qoboshiyane, the MEC at the time. Qoboshiyane relied on the exemptions in Article 44 of PAIA, in particular that the report constituted advice and disclosure could reasonably be expected to frustrate the deliberative process in a public body (para. 8). Avusa appealed and the lower Court granted access based on Section 46 of PAIA (mandatory disclosure in public interest). Qoboshiyane handed the report over to Avusa but nevertheless appealed to the Supreme Court of Appeal (paras.1-2).
PAIA Section 46 provides that an information officer is obliged to disclose records sough by a requester where two conditions are met: (i) disclosure of the record would reveal evidence of a substantial contravention of, or failure to comply with, the law and (ii) public interest in the disclosure clearly outweighs the harm contemplated in the provision under which the record could otherwise be withheld. The Court noted that Section 46 applies where the record could otherwise legitimately be withheld for one of the reasons set out in PAIA and disclosure is mandatory where the conditions set out in the section are satisfied. If the information officer does not provide access the court will order him or her to do so (para. 10-12).
The MEC accepted that the first condition of the test (disclosure with the record would reveal a contravention of the law) was met. The question thus cantered on the second requirement, whether there was an overriding public interest in disclosure. The Court found that, assuming there were initial legitimate reasons to withhold the information, the MEC had the obligation to weigh the harm that would arise from disclosure against the public interest in disclosure (para. 14).
The Court went on to say that it did not appear from the record that the MEC had undertaken that exercise. Since the lower court had found that the public interest in disclosure outweighed the harm that would have been caused, it was right to order access to the report (para.14).
The Court dismissed the appeal.
Judgment of the Court.