27 January 2017

The Media and Accessing Information – An Intern Reflects

There are various ways in which journalists can access information for purposes of dissemination to the public. It was reported by City Press that they were in possession of documents that revealed wasteful and fruitless expenditure incurred by Dudu Myeni, the chairperson of South African Airways. It is not clear how these documents were obtained by City Press, but journalists, hardly ever do reveal their sources.

One way for journalists to obtain records and shape national debates has been through the use of the Promotion of Access to Information, 2000 (PAIA). As informers, journalists utilise PAIA to ensure that both private and public bodies are held to account.

SAHA’s FOIP intern reflects on a few cases that provide insight into how the South African media has utilised PAIA as a tool to access information:

In Avusa v Qoboshiyane, the High Court applied section 46 (public interest override). The Herald newspaper submitted a PAIA request to the MEC for Local Government and Traditional Affairs in the Eastern Cape for access to the Kabuso report. The Kabuso report was the outcome of investigations into maladministration in the Nelson Mandela Bay Metropolitan municipality. The High Court held that the refusal to provide access to the report was ordinarily justified under section 44(1)(a) and (b) of PAIA. However, the Court ultimately decided that withholding access to the report would not be in the public interest as it evidences a substantial contravention of the law and the public interest in the report far outweighed the harm to the interest protected by section 44(1)(a) and (b).

President of the Republic of South Africa and others v M & G Media Limited is an example of how the state should consider access to information requests. The Mail and Guardian submitted a PAIA request for a report that was drafted by two South African judges on the 2002 Zimbabwean presidential election. Access to the report was refused for reasons that it would reveal information shared in confidence by Zimbabwean officials and that it was obtained to assist the President in formulating executive policy. The Constitutional Court held that in order for the state to discharge its burden of proof it had to put forward sufficient evidence to show, on a balance of probabilities, the information refused fell within the exemptions claimed. Furthermore the Court recognised that it would perform a judicial peak in circumstances where there is insufficient evidence to decide on whether the exemption is rightly claimed and when it is in the interests of justice to do so.

In Brummer v Minister for Social Development and others section 78(2) of PAIA was challenged. Mr Brummer, a journalist, had submitted a PAIA request to the respondent which was refused. His internal appeal was also unsuccessful. He applied to Court for condonation given that his application to challenge the unsuccessful internal appeal was outside the 30 day period prescribed by PAIA. Furthermore, Brummer challenged the constitutionality of the 30 day limit. The Constitutional Court confirmed the order of the High Court declaring section 78(2) unconstitutional as it limited the right of access to court and the right to access information. Parliament has since extended the period to 180 days.

Courts are responding favourably to journalists’ use of PAIA. This strengthens journalists’ confidence in using PAIA as a tool and empowers them to effectively assume the crucial role of disseminating information of public interest.