ACTING KZN Prosecutions Director Moipone Noko has officially refused to release the report on why the National Prosecuting Authority (NPA) dropped fraud and corruption charges against two high-profile KZN politicians.
Advocate Noko wrote to the DA late Wednesday stating that the reasons for not charging KZN Speaker Peggy Nkonyeni and provincial Finance MEC Mike Mabuyakhulu are "confidential" and cannot be released. The DA will today officially submit a Promotion of Access to Information Act (PAIA) request to the NPA to get this information. We believe that the NPA must make the record of decision public as it is in the public's interest to know whether the criminal justice system is free from political bias.
This is important given the massive network of politicians and officials in multiple provinces who are linked to dealings with controversial businessman Gaston Savoi. The DA has previously won a Supreme Court of Appeal case against the NPA for the release of the report on why corruption charges against President Zuma were dropped.
We believe that the precedent set by this decision should also apply to the KZN NPA's report on the so-called "Amigo's" case.
Source: Politicsweb
Showing posts with label PAIA. Show all posts
Showing posts with label PAIA. Show all posts
Sunday, September 2, 2012
Friday, April 20, 2012
Posted by: amaBhungane Posted on: April 20, 2012 Posted in: Perspective Comments: 7 Comments Views: 3078 Eish and goodbye: the pains of information-seeking
Sorry, in advance, to the politically correct who support sex work and to dentists who love their jobs. But in my subjective mind, while there are many torturous jobs, these two spring to mind first: selling sex to strangers and drilling into someone’s mouth. Right up there, however, has to be an aspect of my job as advocacy co-ordinator: that of “information officer”, which I performed since January 2011 at the M&G Centre for Investigative Journalism (amaBhungane).
This performance entailed making requests for information – without much success – and filling out official forms to request information from public and private bodies in terms of the Promotion of Access to Information Act (Paia) of 2000. This Act is what the government and supporters of the secrecy Bill have been waving in our faces. In other words, the secrecy Bill balances out Paia. So, if something is classified in terms of the secrecy Bill, no problem, you can always apply, using Paia, to request the very same info get declassified. Do you sniff cumbersome and burdensome?
Alas, the present reality of Paia is already a hoot, without the secrecy Bill being passed.
In the execution of my tasks as information officer, I have ground my teeth in frustration and have had three migraines in one year, as opposed to my usual, only one. I blame Paia. It takes a very special person to do Paia requests. Someone who is patient, gentle and kind, and who doesn’t mind phoning the same person weekly, with the same conversation: “Hello, how are you, where is the information you promised to send me last week?” Then that person says to you: “Gosh, didn’t you get it?” And you go: “Gosh, no, when did you send it?” But you know the cheque is not in the post. In fact, it hasn’t gotten anywhere close to being posted.
An inordinate amount of time is spent trying to get information. I have had about a 10% success rate. To get what you need, you have to fill out a form, but there is a process and challenges to face before you send the form.
First, many people in public and private bodies seem not to know of Paia. I don’t know if they are pretending blissful ignorance. Second, they give you a name and you fill out the form and with some satisfaction and press the send button. Third, you then get a call to say that was not the correct person to deal with. So you start the process all over again. Fourth, you email, fax, and post to ensure that at least through one method the request falls onto the right lap. And then telephone to confirm receipt of the request.
To begin to describe the frustration you feel when you hear that the request was not received is beyond the power of words to describe. I grind my teeth, get a tense neck and worry about a migraine coming on, and I start again. Fax. Email. Post. Telephone. “How are you? When can I expect…?”
Our kind receptionist, Thuli, has witnessed my trying to send the same fax over and over again. She has often offered to help fax for me. Sometimes, she has discovered that I was given the wrong number.
Back to the process. It goes like this: an investigator needs information. You have to find out who the right person is to send the information to. You often get it wrong, or sometimes the wrong name is given to you, maybe in ignorance, maybe deliberately. There is no way of knowing for sure. Then, you fill out the forms. You follow up. You send again. The request is refused. You lodge an internal appeal. But you get the run-around first, to find out who you lodge the internal appeal with. When all fails you go to court. We haven’t done that in the past year.
So what is the point I’m trying to make? Paia is slow and cumbersome. The turnaround time for receiving an acknowledgement of a request is long. The turnaround time for receiving the information is, mostly, never. Imagine what will happen if the secrecy Bill is passed in its current form – the “new” deadline for the Bill is May 17.
The M&G‘s amaBhungane investigators have heard me on the other end of the telephone, pretending to be patient and polite, and have been quite sympathetic. They have also heard me lose my temper, after I’ve put the phone down, and curse about the obstreperous nature of the other side or of having quit the smoking habit maybe a bit prematurely.
These requests for information are not just about exercising our constitutional rights to information. Investigations need information, full stop. Journalists cannot do their jobs without authentic information, as in documentation, be these from deeds offices, court records, or local government or private sector vaults.
I leave to take up a research position at Wits Journalism School on the state of the media in South Africa. I will also be involved in putting the finishing touches to my book, The Fight for Democracy: The ANC and media in South Africa. It is published by Wits University Press and will be out later this year. I say goodbye to my advocacy co-ordinator job on April 30 with mixed feelings. After all, there were a few great aspects: I was back at the M&G where I started my career as a journalist more than two decades ago (I love this paper, it definitely showcases the best journalism, especially investigations and analyses, in the country); I enjoyed writing comment pieces on the secrecy Bill; and finally, my engagement in media freedom and access to information activism was great.
As for Paia and the information officer performance, say no more. Maybe except for just one word: Eish.
Source: By Glenda Daniels: Mail & Guardian
This performance entailed making requests for information – without much success – and filling out official forms to request information from public and private bodies in terms of the Promotion of Access to Information Act (Paia) of 2000. This Act is what the government and supporters of the secrecy Bill have been waving in our faces. In other words, the secrecy Bill balances out Paia. So, if something is classified in terms of the secrecy Bill, no problem, you can always apply, using Paia, to request the very same info get declassified. Do you sniff cumbersome and burdensome?
Alas, the present reality of Paia is already a hoot, without the secrecy Bill being passed.
In the execution of my tasks as information officer, I have ground my teeth in frustration and have had three migraines in one year, as opposed to my usual, only one. I blame Paia. It takes a very special person to do Paia requests. Someone who is patient, gentle and kind, and who doesn’t mind phoning the same person weekly, with the same conversation: “Hello, how are you, where is the information you promised to send me last week?” Then that person says to you: “Gosh, didn’t you get it?” And you go: “Gosh, no, when did you send it?” But you know the cheque is not in the post. In fact, it hasn’t gotten anywhere close to being posted.
An inordinate amount of time is spent trying to get information. I have had about a 10% success rate. To get what you need, you have to fill out a form, but there is a process and challenges to face before you send the form.
First, many people in public and private bodies seem not to know of Paia. I don’t know if they are pretending blissful ignorance. Second, they give you a name and you fill out the form and with some satisfaction and press the send button. Third, you then get a call to say that was not the correct person to deal with. So you start the process all over again. Fourth, you email, fax, and post to ensure that at least through one method the request falls onto the right lap. And then telephone to confirm receipt of the request.
To begin to describe the frustration you feel when you hear that the request was not received is beyond the power of words to describe. I grind my teeth, get a tense neck and worry about a migraine coming on, and I start again. Fax. Email. Post. Telephone. “How are you? When can I expect…?”
Our kind receptionist, Thuli, has witnessed my trying to send the same fax over and over again. She has often offered to help fax for me. Sometimes, she has discovered that I was given the wrong number.
Back to the process. It goes like this: an investigator needs information. You have to find out who the right person is to send the information to. You often get it wrong, or sometimes the wrong name is given to you, maybe in ignorance, maybe deliberately. There is no way of knowing for sure. Then, you fill out the forms. You follow up. You send again. The request is refused. You lodge an internal appeal. But you get the run-around first, to find out who you lodge the internal appeal with. When all fails you go to court. We haven’t done that in the past year.
So what is the point I’m trying to make? Paia is slow and cumbersome. The turnaround time for receiving an acknowledgement of a request is long. The turnaround time for receiving the information is, mostly, never. Imagine what will happen if the secrecy Bill is passed in its current form – the “new” deadline for the Bill is May 17.
The M&G‘s amaBhungane investigators have heard me on the other end of the telephone, pretending to be patient and polite, and have been quite sympathetic. They have also heard me lose my temper, after I’ve put the phone down, and curse about the obstreperous nature of the other side or of having quit the smoking habit maybe a bit prematurely.
These requests for information are not just about exercising our constitutional rights to information. Investigations need information, full stop. Journalists cannot do their jobs without authentic information, as in documentation, be these from deeds offices, court records, or local government or private sector vaults.
I leave to take up a research position at Wits Journalism School on the state of the media in South Africa. I will also be involved in putting the finishing touches to my book, The Fight for Democracy: The ANC and media in South Africa. It is published by Wits University Press and will be out later this year. I say goodbye to my advocacy co-ordinator job on April 30 with mixed feelings. After all, there were a few great aspects: I was back at the M&G where I started my career as a journalist more than two decades ago (I love this paper, it definitely showcases the best journalism, especially investigations and analyses, in the country); I enjoyed writing comment pieces on the secrecy Bill; and finally, my engagement in media freedom and access to information activism was great.
As for Paia and the information officer performance, say no more. Maybe except for just one word: Eish.
Source: By Glenda Daniels: Mail & Guardian
Wednesday, February 22, 2012
Access to Information unpacked
Foundational to the new democratic order in South Africa are the values of accountability, responsiveness and openness as enshrined in the first section of the founding provisions of our state of the art Constitution, according to which we now all aspire to live.
Accountability means that those in positions of power or authority must be able to justify the decisions they take and explain their actions reasonably. To do so properly and to the satisfaction of the persons seeking accountability, it is often necessary to afford access to materials and information in them that back up the justifications and explanations that officialdom furnishes.
Responsiveness has been widely interpreted to mean acting in a way that is conducive to the promotion of fulfilling the needs of ordinary people. The state is obliged to respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights which is Chapter Two of the Constitution. These rights to dignity, the achievement of equality and the enjoyment of the various freedoms set out reflect the aspiration of the new order to transcend the injustices of the past and to transform our society into one in which healing occurs and the divisions of the past are replaced by unity in diversity with peace, progress and prosperity.
Openness can be equated with transparency. This requires that the affairs of state should not generally be opaquely conducted behind closed doors and out of the public gaze. Government is exhorted to show what it is doing and tell the public why policy choices are made in any particular way. This is participatory democracy, limitable only in reasonable and justifiable ways.
Among the rights guaranteed to all are the rights to access to information and freedom of expression. These are inter-related.
In the 21st century there are oceans of data available containing seas of information that, when properly analysed provide waves of knowledge of the issues of the day. From the knowledge gleaned from the information available pearls of wisdom can be found to exercise rights responsibly, make choices wisely and exercise opportunities advantageously; all in ways that respect the humane and compassionate ethos of the new order.
To facilitate the implementing of the values highlighted and the exercise of the rights to freedom of expression and access to information, the Promotion of Access to Information Act has been passed, so that those who are stingy or shy with the information in their possession can be compelled to share it with interested parties for the greater good of the nation. Using this Act is a great accountability tool available to all for the cost of a letter.
Paul Hoffman SC
22 February, 2012.
Accountability means that those in positions of power or authority must be able to justify the decisions they take and explain their actions reasonably. To do so properly and to the satisfaction of the persons seeking accountability, it is often necessary to afford access to materials and information in them that back up the justifications and explanations that officialdom furnishes.
Responsiveness has been widely interpreted to mean acting in a way that is conducive to the promotion of fulfilling the needs of ordinary people. The state is obliged to respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights which is Chapter Two of the Constitution. These rights to dignity, the achievement of equality and the enjoyment of the various freedoms set out reflect the aspiration of the new order to transcend the injustices of the past and to transform our society into one in which healing occurs and the divisions of the past are replaced by unity in diversity with peace, progress and prosperity.
Openness can be equated with transparency. This requires that the affairs of state should not generally be opaquely conducted behind closed doors and out of the public gaze. Government is exhorted to show what it is doing and tell the public why policy choices are made in any particular way. This is participatory democracy, limitable only in reasonable and justifiable ways.
Among the rights guaranteed to all are the rights to access to information and freedom of expression. These are inter-related.
In the 21st century there are oceans of data available containing seas of information that, when properly analysed provide waves of knowledge of the issues of the day. From the knowledge gleaned from the information available pearls of wisdom can be found to exercise rights responsibly, make choices wisely and exercise opportunities advantageously; all in ways that respect the humane and compassionate ethos of the new order.
To facilitate the implementing of the values highlighted and the exercise of the rights to freedom of expression and access to information, the Promotion of Access to Information Act has been passed, so that those who are stingy or shy with the information in their possession can be compelled to share it with interested parties for the greater good of the nation. Using this Act is a great accountability tool available to all for the cost of a letter.
Paul Hoffman SC
22 February, 2012.
Tuesday, August 3, 2010
The Protection of Corruption Bill
After much critical comment from civil society on the Protection of Information Bill, last week the Chief State Law Adviser Enver Daniels chose to respond. This response does not look good for the future of freedom of expression and access to information in this country. Mr Daniels has chosen to simply dismiss the mass national and international protest submitted against the Bill. Apparently civil society is being "hysterical". I have to disagree. His attempts to diminish the impact of the mass of criticism are not going to be enough to silence the protests if all they essentially consist of is a position that can be summarised as: "I'm about 40% sure it should turn out alright".
The three chief areas of concern are simple enough: the wide powers for classification, and two of the penalty clauses against the release of classified information. Apparently, "...read in its entirety, the Bill would withstand scrutiny". This is in spite of the fact, putting aside these broader principled concerns of civil society, the drafters have failed to even consider the more pedantic contradictions within the Bill itself which reveal a strange level of scrutiny by the lawmakers. For instance, there are fundamental contradictions in application between section 19 and 24(2) which have not practicably been analysed.
According to Mr Daniels, "[w]e don't think the provisions are too wide". This in spite of the fact that any public official, if so delegated, can classify any document if it "may be harmful [or endanger or cause serious or irreparable harm] to the security or national interest of the Republic or could prejudice the Republic in its international relation" [Emphasis added]. The first concern here is the inclusion of "may". A decision-maker doesn't even need to be sure - if he has a suspicion, classification commences. And then it moves to those slippery terms of national interest and security - would bad publicity from another corruption scandal prejudice our international relations? And are delegated officials truly able to assess what my national interest would be, with no need to reference this against anything? Further, does national interest translate to government interest, or essentially ANC interest? These are not the kind of ‘finer details' which we should leave for time to solve: the fact that government is resistant to clearing up these definitions and applications before the Bill is passed should be making everyone uncomfortable.
Mr Daniels also said that lawmakers could not add in a caveat on allowing for the release of classified documents if it was in the public interest, which would be a caveat to protect journalists and activists from the draconian criminal penalties created. He noted that this was because he had no policy directive to do so. Perhaps he could have turned to Promotion of Access to Information Act 2 of 2000 (PAIA), a piece of constitutional legislation that should inform the construction of the Bill anyway, which also speaks of public interest waivers and could give the lawmakers some guidance in navigating these treacherous waters.
Mr Daniels did however note his own trepidation and was quoted as saying: "I hope people of integrity are going to perform these functions". However, hoping people will perform with integrity when there is no accountability mechanism put in place is a kind of hopefulness not appropriate for lawmakers who should be creating laws that, according to the rule of law, are certain and implementable. You cannot hope that checks and balances work, that do not in fact exist...even more disturbing is the fact that, once classified, public officials needn't even acknowledge the existence of the document. This allowance for bare denial makes the already somewhat toothless internal appeal mechanisms useless. The internal appeals mechanisms also provide for an inordinately delayed decision-making period and would add even more costs into the fray for activists.
There can be no way that the broad power given to officials with absolutely no effective accountability measures can ever be viewed as a constitutionally viable exercise of discretion. We as civil society do not need to have faith, and bare faith alone, in our decision-makers - this is why checks and balances, as well as guidance in decision-making, usually exist with the creation of new laws. Faith without evidence is religion rather than governance and is probably not a sound basis for informed public participation. And herein lies the rub - diminishing the information which the public sees about what its government is doing not only disempowers them, but makes the supposed representation of the publics' interest by their elected government farcical.
The solution is not as Mr Daniels proposes in the PAIA. An additional problem with the Bill is that - though not expressly conflicting - the conflicting priorities each law will have the effect of making PAIA a toothless tiger. My experience from working as an elected member on the National Coordinating Committee of the Deputy Information Officers Forum has taught me that the greatest inhibiter to Information Officers performing their function, which is to release as much information as possible, is their fear of reprisal by superiors. Let's turn now then to section 38 - the offences section that criminalises the disclosure of classified and related information. Although the section says "except where such disclosure is for a purpose and a manner authorised by law", which would include a release through PAIA, I am fairly sure that it won't take Information Officers very long to do their utilitarian calculation: comply with the PAIA Act which tells them to lean towards openness because it's the right thing to do, or take caution of the Bill which says proceed in secrecy or face imprisonment if you mess something up. They would have to be pretty masochistic to get this choice wrong, especially when there is no accountability once the document has been classified.
Another consideration to be had in analysing civil society's supposed hysteria is the concerted effort in the last few weeks of government to encroach on media freedom in all areas. The proposal of a Media Appeals Tribunal subject to parliament - which would obviously deprive the entity of the kind of independence needed to fairly monitor media - marks a trend of behaviour which everyone should be disturbed by.
Perhaps an analogy would assist Mr Daniels to understand civil society's position. Hysteria is when I am swimming in the ocean and then faint and drown because a piece of seaweed floats past. In contrast, it is not what is happening here: yelling to those around us to watch out when there is a great white shark swimming at speed towards us, jaws open but wearing a badge saying "Trust me". Until you tranquilise it or tie it down, I think the best move for civil society is to keep shouting. It is not just media and freedom of information law advocates who will have less to do on the weekends if this Bill is passed. The promotion of a government environment that can even better foster corruption affects us all. And we thought the Arms Scandal was bad - at least we knew about it.
Source: The South African History Archive
The three chief areas of concern are simple enough: the wide powers for classification, and two of the penalty clauses against the release of classified information. Apparently, "...read in its entirety, the Bill would withstand scrutiny". This is in spite of the fact, putting aside these broader principled concerns of civil society, the drafters have failed to even consider the more pedantic contradictions within the Bill itself which reveal a strange level of scrutiny by the lawmakers. For instance, there are fundamental contradictions in application between section 19 and 24(2) which have not practicably been analysed.
According to Mr Daniels, "[w]e don't think the provisions are too wide". This in spite of the fact that any public official, if so delegated, can classify any document if it "may be harmful [or endanger or cause serious or irreparable harm] to the security or national interest of the Republic or could prejudice the Republic in its international relation" [Emphasis added]. The first concern here is the inclusion of "may". A decision-maker doesn't even need to be sure - if he has a suspicion, classification commences. And then it moves to those slippery terms of national interest and security - would bad publicity from another corruption scandal prejudice our international relations? And are delegated officials truly able to assess what my national interest would be, with no need to reference this against anything? Further, does national interest translate to government interest, or essentially ANC interest? These are not the kind of ‘finer details' which we should leave for time to solve: the fact that government is resistant to clearing up these definitions and applications before the Bill is passed should be making everyone uncomfortable.
Mr Daniels also said that lawmakers could not add in a caveat on allowing for the release of classified documents if it was in the public interest, which would be a caveat to protect journalists and activists from the draconian criminal penalties created. He noted that this was because he had no policy directive to do so. Perhaps he could have turned to Promotion of Access to Information Act 2 of 2000 (PAIA), a piece of constitutional legislation that should inform the construction of the Bill anyway, which also speaks of public interest waivers and could give the lawmakers some guidance in navigating these treacherous waters.
Mr Daniels did however note his own trepidation and was quoted as saying: "I hope people of integrity are going to perform these functions". However, hoping people will perform with integrity when there is no accountability mechanism put in place is a kind of hopefulness not appropriate for lawmakers who should be creating laws that, according to the rule of law, are certain and implementable. You cannot hope that checks and balances work, that do not in fact exist...even more disturbing is the fact that, once classified, public officials needn't even acknowledge the existence of the document. This allowance for bare denial makes the already somewhat toothless internal appeal mechanisms useless. The internal appeals mechanisms also provide for an inordinately delayed decision-making period and would add even more costs into the fray for activists.
There can be no way that the broad power given to officials with absolutely no effective accountability measures can ever be viewed as a constitutionally viable exercise of discretion. We as civil society do not need to have faith, and bare faith alone, in our decision-makers - this is why checks and balances, as well as guidance in decision-making, usually exist with the creation of new laws. Faith without evidence is religion rather than governance and is probably not a sound basis for informed public participation. And herein lies the rub - diminishing the information which the public sees about what its government is doing not only disempowers them, but makes the supposed representation of the publics' interest by their elected government farcical.
The solution is not as Mr Daniels proposes in the PAIA. An additional problem with the Bill is that - though not expressly conflicting - the conflicting priorities each law will have the effect of making PAIA a toothless tiger. My experience from working as an elected member on the National Coordinating Committee of the Deputy Information Officers Forum has taught me that the greatest inhibiter to Information Officers performing their function, which is to release as much information as possible, is their fear of reprisal by superiors. Let's turn now then to section 38 - the offences section that criminalises the disclosure of classified and related information. Although the section says "except where such disclosure is for a purpose and a manner authorised by law", which would include a release through PAIA, I am fairly sure that it won't take Information Officers very long to do their utilitarian calculation: comply with the PAIA Act which tells them to lean towards openness because it's the right thing to do, or take caution of the Bill which says proceed in secrecy or face imprisonment if you mess something up. They would have to be pretty masochistic to get this choice wrong, especially when there is no accountability once the document has been classified.
Another consideration to be had in analysing civil society's supposed hysteria is the concerted effort in the last few weeks of government to encroach on media freedom in all areas. The proposal of a Media Appeals Tribunal subject to parliament - which would obviously deprive the entity of the kind of independence needed to fairly monitor media - marks a trend of behaviour which everyone should be disturbed by.
Perhaps an analogy would assist Mr Daniels to understand civil society's position. Hysteria is when I am swimming in the ocean and then faint and drown because a piece of seaweed floats past. In contrast, it is not what is happening here: yelling to those around us to watch out when there is a great white shark swimming at speed towards us, jaws open but wearing a badge saying "Trust me". Until you tranquilise it or tie it down, I think the best move for civil society is to keep shouting. It is not just media and freedom of information law advocates who will have less to do on the weekends if this Bill is passed. The promotion of a government environment that can even better foster corruption affects us all. And we thought the Arms Scandal was bad - at least we knew about it.
Source: The South African History Archive
Tuesday, April 7, 2009
Private prosecutions are rare - and expensive
Private prosecutions are rare in South African legal history and rarely succeed - perhaps one reason why the Democratic Alliance has decided to first seek a full judicial review of the decision to drop charges against Jacob Zuma.
Under the Criminal Procedure Act, any private person may launch a prosecution if the National Prosecuting Authority declines to prosecute or halts a prosecution and issues a certificate of nolle prosequi (we shall no longer prosecute).
The prosecution would then be initiated by summons.
But such a person would have to prove some substantial and peculiar interest in the issue - and would also have to prove they were a direct victim of the alleged crime.
The act is silent on how a private prosecution would obtain evidence. In the case of Zuma, this evidence is in the hands of the State.
A legal source said the only way to obtain the information would be through an application under the Promotion for Access to Information Act. By applying for a judicial review, the DA may be on firmer legal ground.
Constitutional law expert Pierre de Vos said that while the NPA had the discretion to decide whether to prosecute, it had to make that decision within the terms of the law.
"One could argue a review is necessary in terms of deciding whether the NPA met its constitutional obligations," De Vos said.
"Any decision (on whether to prosecute) would have to be based on the NPA's prosecutions policy spelt out in Section 179 of the constitution.
"The question would be, was that followed when the decision was taken - or was it made on non-legal, or political, grounds? As an organ of state, the NPA can act only in terms of the law."
Professor Marinus Wiechers, retired Unisa professor of constitutional law, said a class-action suit could be another option open to those who wanted to challenge the NPA's decision by way of private prosecution.
"The constitution does make provision for class-action suits, representing a broad public spectrum of interest, so it would not be totally far-fetched," he said.
Gauteng lawyer John Ngcebetsha said: "I think most people would rather want this to be aired in a public court. What we have is clearly a national constitutional crisis."
Source: IoL
Under the Criminal Procedure Act, any private person may launch a prosecution if the National Prosecuting Authority declines to prosecute or halts a prosecution and issues a certificate of nolle prosequi (we shall no longer prosecute).
The prosecution would then be initiated by summons.
But such a person would have to prove some substantial and peculiar interest in the issue - and would also have to prove they were a direct victim of the alleged crime.
The act is silent on how a private prosecution would obtain evidence. In the case of Zuma, this evidence is in the hands of the State.
A legal source said the only way to obtain the information would be through an application under the Promotion for Access to Information Act. By applying for a judicial review, the DA may be on firmer legal ground.
Constitutional law expert Pierre de Vos said that while the NPA had the discretion to decide whether to prosecute, it had to make that decision within the terms of the law.
"One could argue a review is necessary in terms of deciding whether the NPA met its constitutional obligations," De Vos said.
"Any decision (on whether to prosecute) would have to be based on the NPA's prosecutions policy spelt out in Section 179 of the constitution.
"The question would be, was that followed when the decision was taken - or was it made on non-legal, or political, grounds? As an organ of state, the NPA can act only in terms of the law."
Professor Marinus Wiechers, retired Unisa professor of constitutional law, said a class-action suit could be another option open to those who wanted to challenge the NPA's decision by way of private prosecution.
"The constitution does make provision for class-action suits, representing a broad public spectrum of interest, so it would not be totally far-fetched," he said.
Gauteng lawyer John Ngcebetsha said: "I think most people would rather want this to be aired in a public court. What we have is clearly a national constitutional crisis."
Source: IoL
Friday, March 9, 2001
PROMOTION OF ACCESS TO INFORMATION ACT 2 OF 2000
The purpose of the Promotion of Access to Information Act is to give effect to the constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights; and to provide for matters connected therewith.
RECOGNISING THAT –
* the system of government in South Africa before 27 April 1994, amongst others, resulted in a secretive and unresponsive culture in public and private bodies which often led to an abuse of power and human rights violations;
* section 8 of the Constitution provides for the horizontal application of the rights in the Bill of Rights to juristic persons to the extent required by the nature of the rights and the nature of those juristic persons;
* section 32 (1) (a) of the Constitution provides that everyone has the right of access to any information held by the State;
* section 32 (1) (b) of the Constitution provides for the horizontal application of the right of access to information held by another person to everyone when that information is required for the exercise or protection of any rights;
* and national legislation must be enacted to give effect to this right in section 32 of the Constitution;
AND BEARING IN MIND THAT –
* the State must respect, protect, promote and fulfil, at least, all the rights in the Bill of Rights which is the cornerstone of democracy in South Africa;
* the right of access to any information held by a public or private body may be limited to the extent that the limitations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in section 36 of the Constitution;
* reasonable legislative measures may, in terms of section 32 (2) of the Constitution, be provided to alleviate the administrative and financial burden on the State in giving effect to its obligation to promote and fulfil the right of access to information;
AND IN ORDER TO –
* foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information;
* actively promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all of their rights.
Source: SABINET
RECOGNISING THAT –
* the system of government in South Africa before 27 April 1994, amongst others, resulted in a secretive and unresponsive culture in public and private bodies which often led to an abuse of power and human rights violations;
* section 8 of the Constitution provides for the horizontal application of the rights in the Bill of Rights to juristic persons to the extent required by the nature of the rights and the nature of those juristic persons;
* section 32 (1) (a) of the Constitution provides that everyone has the right of access to any information held by the State;
* section 32 (1) (b) of the Constitution provides for the horizontal application of the right of access to information held by another person to everyone when that information is required for the exercise or protection of any rights;
* and national legislation must be enacted to give effect to this right in section 32 of the Constitution;
AND BEARING IN MIND THAT –
* the State must respect, protect, promote and fulfil, at least, all the rights in the Bill of Rights which is the cornerstone of democracy in South Africa;
* the right of access to any information held by a public or private body may be limited to the extent that the limitations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in section 36 of the Constitution;
* reasonable legislative measures may, in terms of section 32 (2) of the Constitution, be provided to alleviate the administrative and financial burden on the State in giving effect to its obligation to promote and fulfil the right of access to information;
AND IN ORDER TO –
* foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information;
* actively promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all of their rights.
Source: SABINET
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