Cosatu will be the first to challenge the Protection of State Information Bill in court because it risks turning South Africa into a security state again, general secretary Zwelinzima Vavi warned on Thursday. Vavi said that although the Bill was redrafted under pressure from the Congress of South African Trade Unions, the version passed by the National Assembly last year still raised the spectre of abuse of classification to conceal corruption.
He told MPs the scope of the draft legislation was too wide, the penalties it imposed disproportionate, and the potential impact on South Africa's democratic values devastating. "You have to be concerned that the scope of the Bill is extended way beyond what is necessary ... it takes a huge swipe at everything that moves," he told a third day of public hearings on the secrecy Bill by the National Council of Provinces.
Cosatu's biggest fear was the Bill might "inadvertently draw us closer to a threat of entrenching a security state". "Back to where we come from -- the police state. Everything marked confidential and everybody seeing something marked confidential suddenly fearing 15 to 25 year imprisonment." Reminding MPs that he represented two million union members -- and voters -- Vavi said the Bill was ripe for constitutional challenge on several grounds and Cosatu would not be deterred by the fact that it would find itself on the same side as opposition parties. He singled out clause 3 (2) (b), which allowed the minister of state security to confer the power to classify information on any other state entity, and clause 49, which bans the publication of anything deemed a state security matter, as unacceptable. "You cannot give the minister a blanket right. What we fear is that if you give such a blanket right you might end up with the lease agreements between the police and the various agencies being classified. That is very, very dangerous. Please don't pass a law you will regret in future," he said. Had the Bill been law, these provisions and those that would send journalists to jail for disclosing state secrets might have meant that two scandal-tainted ministers sacked last year -- Sicelo Shiceka and Gwen Mahlangu-Nkabinde -- would still be in their posts, Vavi said. "Just close your eyes and think if we would have seen the backs of two ministers last year. We would have not known that if it had not been for the excellent work of the media," he said, adding that the Bill was not the place to address concerns about media ownership and bias.
"The persecution of the media would only exacerbate the problems of inaccuracy and bias. In our view, it is necessary to enhance investigative reporting in the public interest. However as the Bill places extensive restrictions on the access and disclosure of classified information, it would necessarily severely curtail this objective."
Vavi went on to bemoan the Bill's assertion, contained in clause 1 (4), that it trumped the progressive Promotion of Access to Information Act. "What it means is that fundamental piece of transformation becomes secondary to security legislation. We think that is very dangerous." Furthermore, the draft law's provisions on whistleblowers -- many of them union members -- who disclosed classified information to reveal wrongdoing was plainly unconstitutional. Clause 43 offered exemption from prosecution only if the revelations pertained to the whistleblower's employer and, in addition, shifted the burden of proof from the state to the accused. "We have said if these types of clauses go through then we will be left with no choice but to approach the Constitutional Court," he said. "We will be the first to arrive there. Our lawyers are standing very ready to do so."
Veteran human rights lawyer George Bizos, appearing on behalf of the Legal Resources Centre (LRC), listed seven fundamental flaws in the Bill and concurred that it violated the Constitution. The LRC agreed with Vavi's criticism of the heavy onus the Bill sought to place on those accused of breaching it, saying it could see somebody "condemned to 25 years in jail for being stupid".
Bizos urged MPs to refer the Bill to the Constitutional Court, warning that if it were enacted in its current form "there will be a very long queue of applicants to take the president, the minister of justice to court". He then deviated from his text to deplore the government's planned assessment of the Constitutional Court and Supreme Court of Appeal and urged the government to follow former president Nelson Mandela's example in respecting the courts.
Vavi said he found succour in the fact that Mandela's former defence lawyer shared his views on the Bill. "It gives us comfort that you are in the same corner," he said.
Source: Mail & Guardian
Showing posts with label Promotion of Access to Information Act. Show all posts
Showing posts with label Promotion of Access to Information Act. Show all posts
Thursday, March 29, 2012
Monday, March 12, 2012
Bizos: Secrecy Bill 'threatens values' of Constitution
Veteran human rights lawyer George Bizos argued in a submission to Parliament that the Protection of State Information Bill is unconstitutional on several counts. "The current draft of the Bill, as it stands, runs contrary to and indeed threatens many of the fundamental values and principles enshrined in the Constitution," he wrote.
Bizos, from the Legal Resources Centre's constitutional litigation unit, prepared the submission on behalf of human rights organisation Passop. It is one of 293 written presentations sent to the National Council of Provinces' ad hoc committee processing the Bill after it was passed by the National Assembly last year amid a public outcry. Nelson Mandela's former defence lawyer enumerated seven flaws in the Bill, starting with the absence of a public interest defence. "We view a public interest defence as imperative. Such a defence would exempt from prosecution certain individuals in limited and appropriate circumstances where the disclosure has been made in public interest."
In Bizos's view, the Bill would undermine the provisions of the Promotion of Access to Information Act (Paia) of 2000 and its status as the supreme law giving effect to section 32 of the Constitution, in which citizens' right to access to information held by the state is enshrined. Paia makes disclosure in the public interest mandatory in cases where the information would reveal the commission of a crime, or the existence of imminent public safety risk or environmental risk. Section five of Paia also states that it applies to the exclusion of any act that restricts disclosure or is materially inconsistent with its provisions. Yet, the Protection of State Information Bill in section 1(4) explicitly states that "despite" section five of Paia, it trumps any other law relating to classified information.
Bizos wrote: "Any proposed legislation that seeks to displace the clear provisions of Paia also violates section 32 of the Constitution and is thus unconstitutional. "The Bill's attempt to trump Paia, a constitutionally-mandated statute, is a further indication of the Bill's overall unconstitutionality." He notes that those who defend the absence of a public interest defence have argued that such a clause was unnecessary because the Bill criminalises wrongful classification.
The argument is wrong, Bizos said, because the draft law does not allow those prosecuted for disclosing state information to argue in defence that it was wrongly classified to begin with. "This further ignores the practical reality that improperly classified information will be difficult, if not impossible, to detect and challenge without the efforts of investigative journalists and whistleblowers who will be hamstrung in their ability to bring these illegal classifications to light if they fear lengthy jail terms."
Constitutional law expert Pierre de Vos said he agreed with Bizos because the Bill was drafted in such a manner as to criminalise disclosure of classified information, regardless of whether the classification was lawful. Bizos also faulted the Bill for allowing the minister of state security to confer the power to classify information on other ministers. This usurps the principle of accountability enshrined in section one of the Constitution because it removes the oversight of a particular function from Parliament, and places it with the delegating minister. He went on to say that the legislation runs counter to criminal law by basing liability not on the accused's intention, but on the far lower standard of proof that he or she "ought to have known" they were disclosing a secret.
Bizos also said that imposing prison sentences of up to 25 years for the offences in the Bill is excessive and that the Classification Review Panel it seeks to establish will not be seen as independent or impartial. This was because a member of the panel could be removed by a majority vote in the National Assembly, raising a reasonable suspicion of political bias.
Finally, he said the Bill flouts the constitutionally-mandated Promotion of Just Administration Act by potentially ousting the jurisdiction of the high court to review classification -- which is an administrative act.
The submissions include a 20-page letter from public protector Thuli Madonsela, who warned that it jeopardises freedom of expression and her ability to do her job by preventing journalists and whistleblowers from reporting abuses.
The Congress of South African Trade Unions (Cosatu), in its contribution, calls for the inclusion of a public interest defence and foresaw the Bill would "worryingly" have the effect of "entrenching authority through a security state". Cosatu has, along with rights groups, media houses and opposition parties, threatened to challenge the Bill in the Constitutional Court if it is signed into law in its current form.
The ad hoc committee will meet on Wednesday to schedule further hearings on the Bill.
Source: Mail & Guardian
Bizos, from the Legal Resources Centre's constitutional litigation unit, prepared the submission on behalf of human rights organisation Passop. It is one of 293 written presentations sent to the National Council of Provinces' ad hoc committee processing the Bill after it was passed by the National Assembly last year amid a public outcry. Nelson Mandela's former defence lawyer enumerated seven flaws in the Bill, starting with the absence of a public interest defence. "We view a public interest defence as imperative. Such a defence would exempt from prosecution certain individuals in limited and appropriate circumstances where the disclosure has been made in public interest."
In Bizos's view, the Bill would undermine the provisions of the Promotion of Access to Information Act (Paia) of 2000 and its status as the supreme law giving effect to section 32 of the Constitution, in which citizens' right to access to information held by the state is enshrined. Paia makes disclosure in the public interest mandatory in cases where the information would reveal the commission of a crime, or the existence of imminent public safety risk or environmental risk. Section five of Paia also states that it applies to the exclusion of any act that restricts disclosure or is materially inconsistent with its provisions. Yet, the Protection of State Information Bill in section 1(4) explicitly states that "despite" section five of Paia, it trumps any other law relating to classified information.
Bizos wrote: "Any proposed legislation that seeks to displace the clear provisions of Paia also violates section 32 of the Constitution and is thus unconstitutional. "The Bill's attempt to trump Paia, a constitutionally-mandated statute, is a further indication of the Bill's overall unconstitutionality." He notes that those who defend the absence of a public interest defence have argued that such a clause was unnecessary because the Bill criminalises wrongful classification.
The argument is wrong, Bizos said, because the draft law does not allow those prosecuted for disclosing state information to argue in defence that it was wrongly classified to begin with. "This further ignores the practical reality that improperly classified information will be difficult, if not impossible, to detect and challenge without the efforts of investigative journalists and whistleblowers who will be hamstrung in their ability to bring these illegal classifications to light if they fear lengthy jail terms."
Constitutional law expert Pierre de Vos said he agreed with Bizos because the Bill was drafted in such a manner as to criminalise disclosure of classified information, regardless of whether the classification was lawful. Bizos also faulted the Bill for allowing the minister of state security to confer the power to classify information on other ministers. This usurps the principle of accountability enshrined in section one of the Constitution because it removes the oversight of a particular function from Parliament, and places it with the delegating minister. He went on to say that the legislation runs counter to criminal law by basing liability not on the accused's intention, but on the far lower standard of proof that he or she "ought to have known" they were disclosing a secret.
Bizos also said that imposing prison sentences of up to 25 years for the offences in the Bill is excessive and that the Classification Review Panel it seeks to establish will not be seen as independent or impartial. This was because a member of the panel could be removed by a majority vote in the National Assembly, raising a reasonable suspicion of political bias.
Finally, he said the Bill flouts the constitutionally-mandated Promotion of Just Administration Act by potentially ousting the jurisdiction of the high court to review classification -- which is an administrative act.
The submissions include a 20-page letter from public protector Thuli Madonsela, who warned that it jeopardises freedom of expression and her ability to do her job by preventing journalists and whistleblowers from reporting abuses.
The Congress of South African Trade Unions (Cosatu), in its contribution, calls for the inclusion of a public interest defence and foresaw the Bill would "worryingly" have the effect of "entrenching authority through a security state". Cosatu has, along with rights groups, media houses and opposition parties, threatened to challenge the Bill in the Constitutional Court if it is signed into law in its current form.
The ad hoc committee will meet on Wednesday to schedule further hearings on the Bill.
Source: Mail & Guardian
Friday, July 1, 2011
'Spooks are everywhere'
The latest African Media Barometer (AMB): South Africa 2010 report presents a mixed picture on the state of the media and media freedom in the country. It says there is widespread belief that "spooks are everywhere".
South Africa's overall rating for its media environment has decreased, according to the report published by Friedrich-Ebert-Stiftung (FES) and the Media Institute of Southern Africa. FES is a private German political, non-profit, public-interest institution committed to social democracy. In 2006, the overall score for freedom of expression for the country was 3.2 out of 5, in 2008 it was 3.5 and in 2010 it decreased to 3.
Categories taken into account include: freedom of the media, the media landscape including diversity, independence and sustainability, broadcasting regulation and professional standards. Scoring in a range of subcategories were conducted by a 10-person panel of South Africans, including a trade unionist, a media academic, a journalist, a human rights activist, a broadcasting consultant, a social movement activist, a gender activist and an IT specialist.
The barometer says that although the right to freedom of expression, including media freedom and the right to access information, is guaranteed in the Constitution, in "recent years, though, these protections are being increasingly challenged in practice, or by proposals for new legislation". "The tone of the political discourse is becoming sharper", with "harsh criticism of corruption and greed in government circles from a broad spectrum of society". Government, as well as sections of the ANC, the report says, reacts defensively and critics are labelled as "unpatriotic", "enemies" or "counter-revolutionaries". And police, "overreact" against people with critical views whereas whistle-blowers feel increasingly insecure. "There are reports of people who had revealed instances of corruption to the press being threatened or even killed … and there is the suspicion that spooks are everywhere" the report says, quoting Congress of South African Trade Union's Zwelinzima Vavi's statement that many believe that people are listening in to phone conversations.
However, South Africa scored top marks for the fact that entry into and the practice of journalism was legally unrestricted and that websites and blogs were not required to register or get permission from state authorities. The scores dropped in the category: "the right to freedom of expression is practised and citizens, including journalists, are asserting their rights without fear". In 2008 it was 3.2 and in 2010 it was 2.9. The advertising market, according to the survey, was not large enough to support a diversity of media outlets: in 2008 this score was 3.9 and in 2010, it dropped to 2.7 There was a significant decrease in adequate competition legislation/regulation to prevent media concentration and monopolies. In 2008 it was 4.7 and in 2010 it was 2.6. In the same vein, the indictment on broadcasting regulation and its levels of transparency and independence was severe: the 2006 score was 4.6, the 2008 score was 5 and the 2010 score was 3.3. The scores for "public information is easily accessible, guaranteed by law, to all citizens" was generally low for the three years. In 2006, it was 2.7, in 2008 it was 2.3, and in 2010 2.7.
Regarding the provision that there were "no laws restricting freedom of expression such as excessive official secrets or libel acts, or laws that unreasonably interfere with the responsibilities of media", the country scores a good 4, but the report says if the Protection of Information Bill is enacted and if a media appeals tribunal is instituted, it would change the picture.
Applying for information in terms of the Promotion of Access to Information Act of 2002 (Paia) is "cumbersome" and "often requests for information are ignored. Further, many departments did not appoint information officers as required under the act, the report says. Mention is made of the Mail & Guardian winning a High Court order in June 2010, which obliged the government to release a report on the 2002 elections in Zimbabwe. The judge agreed that the release of the report was in the public interest, but government appealed to the Supreme Court of Appeal, lost that appeal in December 2010, and then applied to the Constitutional Court this year. Judgment is pending.
The Secrecy Bill, if enacted, would threaten the gains envisaged in Paia, according to the report.
Source: Mail & Guardian
South Africa's overall rating for its media environment has decreased, according to the report published by Friedrich-Ebert-Stiftung (FES) and the Media Institute of Southern Africa. FES is a private German political, non-profit, public-interest institution committed to social democracy. In 2006, the overall score for freedom of expression for the country was 3.2 out of 5, in 2008 it was 3.5 and in 2010 it decreased to 3.
Categories taken into account include: freedom of the media, the media landscape including diversity, independence and sustainability, broadcasting regulation and professional standards. Scoring in a range of subcategories were conducted by a 10-person panel of South Africans, including a trade unionist, a media academic, a journalist, a human rights activist, a broadcasting consultant, a social movement activist, a gender activist and an IT specialist.
The barometer says that although the right to freedom of expression, including media freedom and the right to access information, is guaranteed in the Constitution, in "recent years, though, these protections are being increasingly challenged in practice, or by proposals for new legislation". "The tone of the political discourse is becoming sharper", with "harsh criticism of corruption and greed in government circles from a broad spectrum of society". Government, as well as sections of the ANC, the report says, reacts defensively and critics are labelled as "unpatriotic", "enemies" or "counter-revolutionaries". And police, "overreact" against people with critical views whereas whistle-blowers feel increasingly insecure. "There are reports of people who had revealed instances of corruption to the press being threatened or even killed … and there is the suspicion that spooks are everywhere" the report says, quoting Congress of South African Trade Union's Zwelinzima Vavi's statement that many believe that people are listening in to phone conversations.
However, South Africa scored top marks for the fact that entry into and the practice of journalism was legally unrestricted and that websites and blogs were not required to register or get permission from state authorities. The scores dropped in the category: "the right to freedom of expression is practised and citizens, including journalists, are asserting their rights without fear". In 2008 it was 3.2 and in 2010 it was 2.9. The advertising market, according to the survey, was not large enough to support a diversity of media outlets: in 2008 this score was 3.9 and in 2010, it dropped to 2.7 There was a significant decrease in adequate competition legislation/regulation to prevent media concentration and monopolies. In 2008 it was 4.7 and in 2010 it was 2.6. In the same vein, the indictment on broadcasting regulation and its levels of transparency and independence was severe: the 2006 score was 4.6, the 2008 score was 5 and the 2010 score was 3.3. The scores for "public information is easily accessible, guaranteed by law, to all citizens" was generally low for the three years. In 2006, it was 2.7, in 2008 it was 2.3, and in 2010 2.7.
Regarding the provision that there were "no laws restricting freedom of expression such as excessive official secrets or libel acts, or laws that unreasonably interfere with the responsibilities of media", the country scores a good 4, but the report says if the Protection of Information Bill is enacted and if a media appeals tribunal is instituted, it would change the picture.
Applying for information in terms of the Promotion of Access to Information Act of 2002 (Paia) is "cumbersome" and "often requests for information are ignored. Further, many departments did not appoint information officers as required under the act, the report says. Mention is made of the Mail & Guardian winning a High Court order in June 2010, which obliged the government to release a report on the 2002 elections in Zimbabwe. The judge agreed that the release of the report was in the public interest, but government appealed to the Supreme Court of Appeal, lost that appeal in December 2010, and then applied to the Constitutional Court this year. Judgment is pending.
The Secrecy Bill, if enacted, would threaten the gains envisaged in Paia, according to the report.
Source: Mail & Guardian
Tuesday, December 14, 2010
M&G wins bid for 'secret' Zim report
The Mail & Guardian has again won in its bid to obtain a confidential report on the 2002 Zimbabwe presidential election at the Supreme Court of Appeal (SCA) in Bloemfontein on Tuesday. President Jacob Zuma's office appealed against the June 2010 judgement in the North Gauteng High Court which ordered the government to release the report to the M&G.
In what was widely hailed as a victory in the struggle for state transparency in South Africa, Acting Judge S Sapire then ordered the government to hand over the report within 10 days. As the deadline was due to expire, the Presidency announced that it would seek leave to appeal. However it is likely that the Presidency will again try to appeal the ruling at the Constitutional Court. The information being fought for is a 2002 report compiled by judges Dikgang Moseneke and Sisi Khampepe -- acting as special envoys to Zimbabwe -- for then-president Thabo Mbeki.
The M&G contends that the report is of public interest, given the widespread view that the 2002 Zimbabwe election, culminating in a victory for President Robert Mugabe, was marred by vote-rigging, intimidation, violence and fraud. When the Presidency rebuffed the M&G's initial attempts to gain access to the report, the newspaper lodged an application under the Promotion of Access to Information Act.
M&G editor Nic Dawes said on Tuesday: "In the most limited sense the judgement is important because it will provide us all with a much better understanding of what was going on in Zimbabwe ahead of the enormously controversial 2002 elections and what our president Mbeki was told about those circumstances by two senior judges. "Perhaps more importantly, the judgement sets out crucial constitutional principals of freedom of information and limits to the power of the state. What it makes crystal clear is that it's simply not good enough for government officials to assert they believe that information should be kept secret. They need to justify such decisions on the basis of genuine evidence and a proper understanding of the constitutional and legal framework. In that sense this is a victory for all South Africans."
Access to the report was also critical as it speaks to the separation of powers between the judiciary and executive, Dawes said. "If these judges went there to conduct an independent inquiry into those constitutional and legal questions than clearly that ought to be public information," said Dawes. "If they went there as representatives of [then] president Mbeki that would raise very serious questions of the separation of powers."
Mbeki sent the judges to the neighbouring state to obtain information on the constitutional and legal problems emerging in Zimbabwe at the time of the 2002 elections. Mbeki's office and the Zimbabwean government facilitated the mission. One of the purposes which Mbeki intended to put the report to was that of formulating policy and taking decisions pertaining to the situation in Zimbabwe. The M&G argued that although some years have passed since the report was compiled and submitted, it remained a matter of great public interest and importance for several reasons.
It was submitted that the report may provide important information relevant to the question whether the 2002 Zimbabwean Presidential elections were "stolen". Whether or not that was so was a matter of importance to an accurate contemporary historical record of the region. It was also submitted that it was central to the legitimacy of the continuation in the presidential office in Zimbabwe of the present incumbent Mugabe.
In court papers, the newspaper argued that with new elections coming up in Zimbabwe it was important to see whether Mugabe continued to hold office by virtue of alleged illegalities and irregularities stretching back to at least 2002.
Source: Mail & Guardian
Commentary by Pierre de Vos on his blog Constitutionally Speaking can be found here.
In what was widely hailed as a victory in the struggle for state transparency in South Africa, Acting Judge S Sapire then ordered the government to hand over the report within 10 days. As the deadline was due to expire, the Presidency announced that it would seek leave to appeal. However it is likely that the Presidency will again try to appeal the ruling at the Constitutional Court. The information being fought for is a 2002 report compiled by judges Dikgang Moseneke and Sisi Khampepe -- acting as special envoys to Zimbabwe -- for then-president Thabo Mbeki.
The M&G contends that the report is of public interest, given the widespread view that the 2002 Zimbabwe election, culminating in a victory for President Robert Mugabe, was marred by vote-rigging, intimidation, violence and fraud. When the Presidency rebuffed the M&G's initial attempts to gain access to the report, the newspaper lodged an application under the Promotion of Access to Information Act.
M&G editor Nic Dawes said on Tuesday: "In the most limited sense the judgement is important because it will provide us all with a much better understanding of what was going on in Zimbabwe ahead of the enormously controversial 2002 elections and what our president Mbeki was told about those circumstances by two senior judges. "Perhaps more importantly, the judgement sets out crucial constitutional principals of freedom of information and limits to the power of the state. What it makes crystal clear is that it's simply not good enough for government officials to assert they believe that information should be kept secret. They need to justify such decisions on the basis of genuine evidence and a proper understanding of the constitutional and legal framework. In that sense this is a victory for all South Africans."
Access to the report was also critical as it speaks to the separation of powers between the judiciary and executive, Dawes said. "If these judges went there to conduct an independent inquiry into those constitutional and legal questions than clearly that ought to be public information," said Dawes. "If they went there as representatives of [then] president Mbeki that would raise very serious questions of the separation of powers."
Mbeki sent the judges to the neighbouring state to obtain information on the constitutional and legal problems emerging in Zimbabwe at the time of the 2002 elections. Mbeki's office and the Zimbabwean government facilitated the mission. One of the purposes which Mbeki intended to put the report to was that of formulating policy and taking decisions pertaining to the situation in Zimbabwe. The M&G argued that although some years have passed since the report was compiled and submitted, it remained a matter of great public interest and importance for several reasons.
It was submitted that the report may provide important information relevant to the question whether the 2002 Zimbabwean Presidential elections were "stolen". Whether or not that was so was a matter of importance to an accurate contemporary historical record of the region. It was also submitted that it was central to the legitimacy of the continuation in the presidential office in Zimbabwe of the present incumbent Mugabe.
In court papers, the newspaper argued that with new elections coming up in Zimbabwe it was important to see whether Mugabe continued to hold office by virtue of alleged illegalities and irregularities stretching back to at least 2002.
Source: Mail & Guardian
Commentary by Pierre de Vos on his blog Constitutionally Speaking can be found here.
Tuesday, November 2, 2010
What can be done to make the dispute resolution process more rewarding?
In many instances a party who has suffered some form of loss at the hands of another does not have access to the documents, recordings or data which would enable that aggrieved party to enforce its rights against the perpetrator of the harm.
In the past the aggrieved party would institute action and would subsequently seek access to these documents, recordings or data in the course of the discovery procedures provided for in the court rules. This may mean that the true grounds of the action for recovery are only revealed at a fairly late stage once the discovered documents, recordings or data have been considered. Amendments to the pleadings (resulting in additional costs) may be necessary. At worst the discovery process may make it clear that the wrong party has been sued, and that the aggrieved party ought to have looked elsewhere to make good its loss.
These documents, recordings or data are only available once litigation is at an advanced stage. They may expose solid grounds for liability on the part of the Defendant. Had access to these documents, recordings or data been available at the outset, there would have been a strong incentive for the Defendant to settle the claim without compounding the harm by forcing the aggrieved party to embark on an expensive and time consuming process of enforcing its rights.
In the words of Cameron JA in his dissenting judgement in UNITAS HOSPITAL v VAN WYK AND ANOTHER 2006 (4) SA 436 (SCA) “Litigation involves massive costs, time, personnel, effort and risks. Where access to a document can assist in avoiding the initiation of litigation, or opposition to it, the objects of the statute suggest that access should be granted.”
The statute to which Cameron JA refers is the Promotion of Access to Information Act 2 of 2000 (PAIA). This Act is aimed at giving effect to every person’s right to access to information expressed in Section 32 of the Constitution. Section 32 of the Constitution provides:
Everyone has the right of access to:
(a) any information held by the State; and
(b) any information that is held by another person and that is required for the exercise or protection of any rights.
An aggrieved party can therefore utilise the mechanism provided for in PAIA with a view to accessing documents, computer files, tape or video recordings, email messages and the like.
A decision regarding whether to employ the procedure embodied in PAIA must be made at an early stage of any dispute resolution process. Once legal proceedings (in the form of an action or application launched in a court of law) have commenced, the parties to that legal process are restricted to utilising the applicable court procedures and cannot then seek to apply for access in terms of PAIA.
An application for access to information under PAIA can be directed either at a public body such as a government department or a state owned enterprise, or at a private body such as a natural person or commercial corporate entity. The requirements to be met by an applicant when applying for access to information in the hands of a private body are more onerous, since in addition to meeting the requirements of an application directed at a public body, the applicant must show that the record in question is required for the exercise or protection of a right. The applicant need not disclose the reason for its request, where this is directed at a public body.
There are certain limited grounds on which either a public body or a private body may legitimately refuse to give access, and these include that access would involve unreasonable disclosure of personal information about a third party, or if the record in question contains trade secrets of a third party or information supplied in confidence by a third party which could reasonable be expected to put that third party at a disadvantage in contractual negotiations or commercial competition. Other grounds relate to the endangerment of the life or physical safety of individuals or of security of buildings, transport systems or other property. An obvious exception is a record which is privileged in legal proceedings since one cannot access records under PAIA which would protected from discovery in terms of the normal rules applicable in legal proceedings.
The obvious advantage of the PAIA process is that the aggrieved party will obtain the documentation much sooner. This fact has a number of important implications.
Very often documents, recordings or computer data are lost or destroyed over time. Obtaining copies at an early stage will avoid any prejudice arising from this type of incompetence. If the aggrieved party obtains all relevant records at an early stage it will be better placed, at the outset, to assess the prospects of success of litigation and to focus on the areas most likely to found a solid case at the trial, thus saving time and money. The lawyers representing the aggrieved party in any legal processes which may follow will be armed with the appropriate knowledge required for accurate pleading of the case, meaning that it should not be necessary to make amendments to the pleadings at a later stage, again saving time and money. The prospective Defendant will be in a position, at an early stage, to more accurately assess their prospects of successfully defeating the claim. If the evidence is such that they must accept that there is a high probability of a court finding against them, they are more likely to accede to a reasonable settlement of the claims, knowing that the aggrieved party is also in possession of this evidence.
Our Courts are very concerned that the provisions of PAIA not be used in circumstances where it is more appropriate to utilise the court procedures which have been in existence far longer. Our Courts do not allow what is termed as “a fishing expedition”.
The applicant would have to show that the records requested are required because they will afford the applicant with a substantial advantage or that there is an element of need. The fact that the records can be obtained from another source may be raised to substantiate a refusal by a private body. It would be helpful, in order to meet this requirement to show, for example, that the documents are necessary in order for the applicant to identify the correct Defendant and/or in order to properly formulate its claim.
When an aggrieved party contemplates proceedings aimed at the enforcement of its rights it would be well advised to first consider whether the mechanism provided for in PAIA can and ought to be employed before launching into formal court proceedings.
ENS - Edward Nathan Sonnenbergs
Janine Lee
South Africa
November 2 2010
Source: Lexology
In the past the aggrieved party would institute action and would subsequently seek access to these documents, recordings or data in the course of the discovery procedures provided for in the court rules. This may mean that the true grounds of the action for recovery are only revealed at a fairly late stage once the discovered documents, recordings or data have been considered. Amendments to the pleadings (resulting in additional costs) may be necessary. At worst the discovery process may make it clear that the wrong party has been sued, and that the aggrieved party ought to have looked elsewhere to make good its loss.
These documents, recordings or data are only available once litigation is at an advanced stage. They may expose solid grounds for liability on the part of the Defendant. Had access to these documents, recordings or data been available at the outset, there would have been a strong incentive for the Defendant to settle the claim without compounding the harm by forcing the aggrieved party to embark on an expensive and time consuming process of enforcing its rights.
In the words of Cameron JA in his dissenting judgement in UNITAS HOSPITAL v VAN WYK AND ANOTHER 2006 (4) SA 436 (SCA) “Litigation involves massive costs, time, personnel, effort and risks. Where access to a document can assist in avoiding the initiation of litigation, or opposition to it, the objects of the statute suggest that access should be granted.”
The statute to which Cameron JA refers is the Promotion of Access to Information Act 2 of 2000 (PAIA). This Act is aimed at giving effect to every person’s right to access to information expressed in Section 32 of the Constitution. Section 32 of the Constitution provides:
Everyone has the right of access to:
(a) any information held by the State; and
(b) any information that is held by another person and that is required for the exercise or protection of any rights.
An aggrieved party can therefore utilise the mechanism provided for in PAIA with a view to accessing documents, computer files, tape or video recordings, email messages and the like.
A decision regarding whether to employ the procedure embodied in PAIA must be made at an early stage of any dispute resolution process. Once legal proceedings (in the form of an action or application launched in a court of law) have commenced, the parties to that legal process are restricted to utilising the applicable court procedures and cannot then seek to apply for access in terms of PAIA.
An application for access to information under PAIA can be directed either at a public body such as a government department or a state owned enterprise, or at a private body such as a natural person or commercial corporate entity. The requirements to be met by an applicant when applying for access to information in the hands of a private body are more onerous, since in addition to meeting the requirements of an application directed at a public body, the applicant must show that the record in question is required for the exercise or protection of a right. The applicant need not disclose the reason for its request, where this is directed at a public body.
There are certain limited grounds on which either a public body or a private body may legitimately refuse to give access, and these include that access would involve unreasonable disclosure of personal information about a third party, or if the record in question contains trade secrets of a third party or information supplied in confidence by a third party which could reasonable be expected to put that third party at a disadvantage in contractual negotiations or commercial competition. Other grounds relate to the endangerment of the life or physical safety of individuals or of security of buildings, transport systems or other property. An obvious exception is a record which is privileged in legal proceedings since one cannot access records under PAIA which would protected from discovery in terms of the normal rules applicable in legal proceedings.
The obvious advantage of the PAIA process is that the aggrieved party will obtain the documentation much sooner. This fact has a number of important implications.
Very often documents, recordings or computer data are lost or destroyed over time. Obtaining copies at an early stage will avoid any prejudice arising from this type of incompetence. If the aggrieved party obtains all relevant records at an early stage it will be better placed, at the outset, to assess the prospects of success of litigation and to focus on the areas most likely to found a solid case at the trial, thus saving time and money. The lawyers representing the aggrieved party in any legal processes which may follow will be armed with the appropriate knowledge required for accurate pleading of the case, meaning that it should not be necessary to make amendments to the pleadings at a later stage, again saving time and money. The prospective Defendant will be in a position, at an early stage, to more accurately assess their prospects of successfully defeating the claim. If the evidence is such that they must accept that there is a high probability of a court finding against them, they are more likely to accede to a reasonable settlement of the claims, knowing that the aggrieved party is also in possession of this evidence.
Our Courts are very concerned that the provisions of PAIA not be used in circumstances where it is more appropriate to utilise the court procedures which have been in existence far longer. Our Courts do not allow what is termed as “a fishing expedition”.
The applicant would have to show that the records requested are required because they will afford the applicant with a substantial advantage or that there is an element of need. The fact that the records can be obtained from another source may be raised to substantiate a refusal by a private body. It would be helpful, in order to meet this requirement to show, for example, that the documents are necessary in order for the applicant to identify the correct Defendant and/or in order to properly formulate its claim.
When an aggrieved party contemplates proceedings aimed at the enforcement of its rights it would be well advised to first consider whether the mechanism provided for in PAIA can and ought to be employed before launching into formal court proceedings.
Janine Lee
South Africa
November 2 2010
Source: Lexology
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