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Chapter: 

IV. Governance issues

Open government

The Promotion of Access to Information Act (PAIA) came into operation on March 9, 2001.1 The Act is a general freedom of information law, modeled on the FOI laws of the United States and Commonwealth jurisdictions. It is, however, unusual and groundbreaking in at least two respects. First, it is based on, and backed up by, a specific constitutional right of access to information, entrenched in the Bill of Rights.2 Second, this right and, as a consequence, the Act are applicable not only to information in government hands but also to information held in the private sector.3 There is no freedom of information commission to monitor the implementation of the Act or to provide dispute-resolution services. Instead, the South African Human Rights Commission is charged with monitoring the use of the Act, publicizing the rights that it creates, assisting members of the public to make requests, conducting research and publishing explanatory material about the Act. Disputes about alleged maladministration of the Act (e.g., requests for information not answered, indexes of records not submitted as required by the Act) can be heard by the Public Protector (the South Africa's Ombudsman). Disputes about the substance of a refusal of a request for information can be resolved by applying to the ordinary courts.4

Concern has been expressed from various quarters (including the Human Rights Commission) about the ineffectiveness of the Act's dispute-resolution processes. Litigation is widely recognized as being too inaccessible and cumbersome to be an effective tool of to enforce the freedom of information rights in the Act and in the Constitution.5 Some amelioration of this situation has been proposed by the South African Law Reform Commission in its draft Protection of Personal Information Act (see above). The draft Act recommends that the regulatory commission that will enforce rights and duties in the field of data protection also be responsible for similar enforcement of the PAIA. This would create a "joined-up" Information Commission with oversight over both laws, along the lines of the UK's ICO. This is an interesting proposal which ought to be supported. It has the prospect of curing one of the most obvious deficiencies in the current access to information regime, the absence of an authoritative dispute-resolution mechanism intermediate between a decision-maker and the courts.

On paper, the PAIA grants extensive freedom of information rights. However, these rights have not been particularly effective in practice. Research conducted by the Open Democracy Advice Centre showed that PAIA requests to both the public and private-sector were dealt with extremely slowly or, more troublingly, simply ignored.6 There appears to be widespread ignorance of the requirements of the Act, even of its existence, in the public sector.7

There have been a number of high profile cases involving the use of PAIA. For example, the leader of the Opposition made a successful request to the Presidency and the Ministry of Justice for records relating to a number of controversial presidential pardons of prisoners who had been refused amnesty by the Truth and Reconciliation Commission.8 One of the most active users of the Act - the South African History Archive (SAHA), a NGO that collects and archives apartheid-era documentation - has retrieved large quantities of classified material from military archives and documents collected by the Truth and Reconciliation Commission.9 While SAHA has had some important victories, the organization suggests that use of the Act has been limited because the culture of freedom of information has not taken root yet and because PAIA has been poorly publicized.10 The Institute for Democracy in South Africa (IDASA) launched a campaign to use the access rights granted by the PAIA to require political parties to disclose the sources of their funding.11 Predictably enough, the requests for this information were not met with transparency by political parties, and the organization began a court process to test the principles at stake.12

The political party funding litigation ended in 2005 with a decision of the Cape High Court holding in effect that IDASA could not cross the 'need to know' threshold for private-body requests under PAIA.13 PAIA grants an unqualified right to request information from a public-sector holder, but for "private bodies" the Act requires a requester to show that the information requested is "required for the exercise or protection of any rights." In the IDASA case it was held that, first, political parties were private bodies under the Act. That being so, IDASA was non-suited to request the information it had sought from them (essentially, details of their funders and the extent of the funding) because it could not show that there was a link between the information and the exercise or protection of the organization's rights.

Outside occasional high-profile litigation, there appears to have been little use by requesters of the private-sector provisions of the Act, but the extent to which the Act has had an impact on the private sector is almost impossible to measure.14 Certainly, the Act's requirements that private bodies publish indexes of their records have widely been ignored.15

Footnotes

  • 1. Act 2 of 2000.
  • 2. Section 32 of the 1996 Constitution. The section grants a right of access to "any information held by the state" and to "any information . . . held by another person and that is required for the exercise or protection of any rights."
  • 3. "Concerns Raised over Access to Information Act," Mail & Guardian, May 10, 2001.
  • 4. Application can be made either to the High Court or to a magistrates' court. The courts have wide powers to inspect the disputed records and to order disclosure of records.
  • 5. "Information Law not Accessible to Public - HRC," Business Day, February 3, 2004.
  • 6. http://www.opendemocracy.org.za/documents/SA2004OSJIMonitoringStudySumma...
  • 7. A earlier survey conducted by the Open Democracy Advice Centre revealed that 54 percent of the public bodies contacted by the Centre were unaware of the Act, 16 percent were aware of the Act but did not implement it and only 30 percent were aware of it and implementing it. "Few Groups Aware of Act on Access to Information," Business Day, October 14, 2002.
  • 8. "Leon Set to Get Data on Pardons," Business Day, October 15, 2002.
  • 9. http://www.saha.org.za/collections.htm
  • 10. http://www.saha.org.za/overview.htm
  • 11. Political party funding is currently unregulated in South Africa. There are no limits on the amounts of funding a party can receive, nor are there any disclosure requirements.
  • 12. http://www.idasa.org.za/
  • 13. http://www.constitutionalcourt.org.za/Archimages/4397.PDF
  • 14. The Human Rights Commission's duty to compile statistics on the use of the Act applies only with respect to requests made to public bodies.
  • 15. Widespread failure by both public and private bodies to comply with the Act's publication requirements resulted in the Minister of Justice granting a six-month extension on the Act's deadline for compliance until February 2003, a second extension until August 2003 and a third (ostensibly "final") extension until August 2005.