The Promotion of Access to Information Act (PAIA) does not apply to records of the Cabinet and its committees, the Presidency argued in the North Gauteng High Court on Tuesday.
Marumo Moerane SC made the submission on behalf of the Presidency, as the Mail & Guardian‘s legal bid to access a report on the 2002 Zimbabwean elections continued into a second day.
“This is a crucial and unprecedented case concerning the public’s right of access to information held by the Office of the Presidency,” the M&G‘s attorney, Dario Milo, told the paper.
“PAIA preaches government in the sunshine, and is meant to be a departure from the secrecy of the apartheid state,” he continued.
The report on the 2002 Zimbabwean elections was compiled by Judges Dikgang Moseneke and Sisi Khampepe, acting as special envoys to Zimbabwe for then-President Thabo Mbeki.
When the M&G first brought an application under the Act to access the report in 2008, it was rebuffed by the Presidency, and again on appeal.
Jeremy Gauntlett SC, acting for the M&G, argued in response to Moerane that the Presidency had not presented any evidence that the report had indeed been sanctioned by, or tabled in, Cabinet.
Gauntlett also criticised the “anorexic affidavits” submitted by the Presidency, which he said made it difficult for himself, Moerane and Acting Judge L Sapire to argue on the basis of the facts of Moseneke and Khampepe’s mandate from Mbeki.
The nature of the two judicial envoys’ mandate is important because Moerane argued that two sections in the Act limit the public’s right to access information.
The first limitation the Act sets is on information that would reveal confidential exchanges between governments, in this case South Africa and Zimbabwe (contained in Section 41).
The second limitation is on information that would assist in policymaking (Section 44).
Both SCs wrapped up their submissions on Tuesday. Judgment “could take a week, it could take a month”, Milo said.