It was brought by Eastern Cape local government MEC, Mlibo Qoboshiyane.
The matter related to a case between the MEC and Avusa Publishing’s Herald newspaper, in Port Elizabeth. It was brought before the Port Elizabeth High Court in March 2011.
The Herald applied on November 24, 2010, for access to the Kabuso Report, a section 106 report, in terms of the Municipal Systems Act.
The report, which the MEC received in February 2010, followed an investigation into possible maladministration at the Nelson Mandela Bay metro municipality.
In October 2011, the high court ordered that the report be handed to the newspaper within five days, which was done by the MEC.
In papers in the Supreme Court of Appeal (SCA), the MEC agreed with the high court findings about handing the report to the newspaper, but questioned the court’s conclusion that section 46 of the Promotion of Access to Justice Act required disclosure of the report.
Section 46 provides a limited public interest override of the mandatory protection of information.
On Wednesday, the judges of a full SCA Bench questioned the appeal, because the right to appeal stopped when the MEC complied with the court order.
There was also no indication on the papers that the MEC had reserved the right to appeal when he handed over the report.
“There is no issue on the papers that there was a right reserved,” said Appeal Court Judge Kenneth Mthiyane.
Richard Buchanan, for the MEC, said what was required was a decision whether information in a section 106 investigation could be made available
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