ANC queries judge over bribe report
Cape Town - The ANC has accused a Western Cape High Court judge of depriving it of the right to appeal against a judgment he made on access to a report the party compiled.
"By attaching the report to his judgment Judge [Bennie] Griesel has effectively deprived the ANC of its constitutional and legal rights to appeal against his judgment," spokesperson Jackson Mthembu said on Wednesday.
The report deals with a scandal involving former Western Cape premier Ebrahim Rasool and two former journalists at The Argus newspaper.
Judge Bennie Griesel ordered the African National Congress to give a copy of the report to the Independent Newspapers media group late last year.
He said the group had the right to access the documents as part of its efforts to eradicate corruption and dishonesty.
Griesel made the order after an application in terms of the Promotion of Access to Information Act (PAIA) by the Independent Newspapers group and Cape Argus editor Gasant Abader last year to access the report.
The party had to give him a copy of the report first for a "judicial peek" so that he could determine whether the document contained information that the media group may not see.
Mthembu said the party had "in accordance with its commitment to the rule of law" and in the good faith that the report would be seen and used by the judge only for the purposes outlined, complied with the order and provided Griesel with a copy.
Sensitive and complex matter
The correct approach would have been to order the ANC to make the report available to the applicants.
He said this would have afforded the ANC the opportunity to exercise its right to appeal in this sensitive and complex matter.
"The disclosure by a judge to an applicant, and the public at large, of a document furnished to the court pursuant to the provisions of the Promotion of Access to Information Act for the purposes of so-called "judicial peeking" is an unprecedented step for which we can find no legal basis or justifiable reason", Mthembu said.
"We believe that this is gravely prejudicial to a party contesting the disclosure of the document."
The ANC would apply for leave to appeal the "fundamentally flawed approach".
"The ANC believes that this matter raises important legal and constitutional principles regarding the right to privacy and access to information," Mthembu said.
"The ANC will be applying for leave to appeal against this judgment in an attempt to correct what is, we believe, a fundamentally flawed approach."
The party's investigation and report followed rumours that Rasool indirectly used public funds to pay the Cape Argus journalists Joseph Aranes and Ashley Smith to write stories favourable to him while rubbishing his opponents in the Western Cape ANC.
The allegations included that Aranes and Smith were rewarded with government work or through work given to Inkwenkwezi Media Strategists and Communicators by various government departments.
Free flow of information
At the time, Smith was married to one of Inkwenkwezi’s directors.
Funds were allegedly channelled to Aranes and Smith via Inkwenkwezi.
The ANC investigation is believed to have led to Rasool's ousting from his position in 2008. He has since been appointed as South Africa's ambassador to Washington DC.
In its court papers, Independent Newspapers invoked the right of freedom to impart and transmit information and the right to protect its reputation from allegations it had covered up the full extent of the scandal.
The ANC initially refused to give Independent Newspapers the report, which was compiled by Deputy Justice Minister Andries Nel.
It argued that the report belonged to a private organisation and that the information had been obtained on condition of confidentiality.
Abader said on Monday that the report corroborated what the newspaper had encountered in its own investigation into the issue.
He said it was important for the group to have pursued the matter through the courts.
"It was important for us to go this route so that we could guarantee the free flow of information," he said.
"Former Argus journalists were implicated in this report. The report also mentioned a former premier of the Western Cape. That gives it compelling public interest."
Constitutional law expert Pierre de Vos said that if Griesel found that there was nothing in the report that was justifiable to keep secret in terms of PAIA, then the newspaper would have a right to the report.
However, if an appeal was still possible and he gave the report, he might have made a mistake.
"If he believed that no other court would entertain an appeal, then he is fine," De Vos said.
"If there was a prospect that another court could have found differently, then the report could have been be kept secret despite the right in the Constitution that we have access to information."
De Vos said different rights were at stake in the case.
"The Constitution says everyone has the right of access to information... but by hiding report, the ANC could also be breaching the public's right to know."