On 6 February 2012, the Cape High Court ruled in favour of an
application by the Cape Argus newspaper in terms of the Promotion
of Access to Information Act (PAIA) for a copy of the so-called Nel
The report emanated from an internal ANC inquiry which was convened following allegations that the former Premier of the Western Cape, Ebrahim Rasool, had indirectly used public funds to influence two journalists to write stories favourable to him, while rubbishing his opponents.
Judge Griesel ruled in the newspaper's favour last year, finding that the newspaper had made a compelling case for a copy of the report, but asked to take a "judicial peek" at the report to satisfy himself that it did not contain additional information the newspaper was not entitled to.
The ANC argued that the report was compiled as an internal report, which was interim in nature and that the majority of findings were inconclusive. The ANC also argued that there were persons interviewed upon agreement that their identity and participation would be kept confidential. Ultimately, the ANC submitted that "its capacity to deal with its internal affairs must not be compromised simply by reason that it being a ruling party, in instances such as this, its divisions, dynamics and relations are intertwined with matters of the state".
The court held that "what is discussed in the report relate primarily to allegations of irregularities perpetrated by government officials and not to internal divisions within the ANC" and that it would be incorrect to classify the investigation as purely a 'domestic ANC matter'.
The court concluded that the investigation dealt pertinently with matters relating to provincial government and the exercise of public power by government officials, and was therefore required by the applicants for the exercise and protection of their right to media freedom.
In an unusual turn of events, Judge Griesel's February judgment, allowing the Cape Argus access to the Nel report, controversially attached the full report, thereby making it a public document.
The ANC have filed notice of its intention to apply for leave to appeal to the Supreme Court of Appeal or to a full bench of the Western Cape High Court.
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