Cynicism and the Rule of Law: A Critical Analysis of President of the RSA v M&G Media Limited 2012 2 SA 50 (CC) and Associated Judgments

Abstract

In June 2015 the High Court granted an interim order prohibiting Sudanese President Omar al-Bashir from leaving South Africa. Although Al-Bashir is wanted by the International Criminal Court for war crimes and South Africa is a signatory to the Rome Statute and has passed the Implementation Act, the government failed to arrest him as required by an order of court. Short-term political considerations appear to have outweighed the need to respect the rule of law. Parallels can be drawn between this incident and the decision by the executive to refuse access to the Khampepe Report when requested to do so by the Mail and Guardian newspaper. The report was prepared at the request of former President Mbeki by two senior South African judges, after a visit to Zimbabwe shortly before the election held in that country in 2002. In an attempt to prevent disclosure, the executive approached various courts on six different occasions and drew out the process for more than six years. The main issue in this case is the use of section 80 of the Promotion of Access to Information Act by the courts, a discretionary power that is applied sparingly. In terms of PAIA, the state is prevented from making reference to the content of a record in order to support a claim of exemption. In such instances, section 80 provides courts with the power to inspect the record – a procedure known as a ‘judicial peek’ – in order to make a determination as to whether the exemption is justified. This case provides a clear example of how the state cynically used this provision as a dilatory tactic in refusing access to the report. The current system that relies solely on the courts to handle access to information matters undermines the main objectives of the Act and is inefficient and costly. It is recommended that PAIA be amended to provide for an information commissioner with powers to mediate and make binding decisions.