A timeline of signicant events in South Africa's history of acccess to information, created for the World Resources Institute.
Created by gabriellarazzano on Nov 3, 2011
Last updated: 11/07/11 at 02:09 AM
South Africa ranked 12th out of 89 countries in the Centre for Law & Democracy's Global Access to Information Ratings (ATI Ratings), a two year comparative analysis of 89 legal regimes for access to information across the globe, and 13th out of 80 nations in an additional study that dealt with implementation of access to information laws, known as the Six Questions Campaign (the Campaign). In the ATI Ratings, South Africa benefited from the broad application of its legislation, which is complemented by a strong constitutional right to access information. Negatives in South Africa's legal regime identified by the ATI Ratings included the damaging exceptions for records of the cabinet and members of parliament, as well as the inability of the Human Rights Commission to provide proper solutions for the review of a refused request for information. These obstacles are directly linked to the non-existence of an Information Commissioner.
http://www.law-democracy.org/?p=1184
Though still in a Bill, the Justice Committee has noted their intention to create an Information Commissioner who will have powers under both the Protection of Personal Information Bill (also known as the “Privacy” Bill), as well as the Promotion of Access to Information Act 2 of 2000. Over the past ten years of PAIA, one of the most repeated criticisms has been the lack of Information Commissioner to act as an empowered independent oversight mechanism in order to provide a realistic avenue of recourse, and also push monitoring and awareness-raising from a centralized and coherent body.
The Protection of State Information Bill (also known as the “Secrecy Bill” has seen sustained criticism from civil society since it was introduced by the Ad Hoc Parliamentary Committee in 2010 for its perceived infringements on access to information and press freedom in SA (the Bill creates offences around classified information with no public interest defense). On the eve of its tabling before parliament – after the ANC had used their political weight to push it through the parliamentary process with very few of the amendments advanced by the public – the ANC withdrew the Bill in response to growing political pressure, allowing more time for campaigners to promote adoption of the changes necessary in order to make it consistent with the Constitution.
http://www.citizen.co.za/citizen/content/en/citizen/local-news?oid=226139&sn=Detail&pid=334&Secrecy-bill-halted-for-%E2%80%98consideration%E2%80%99
The Open Government Partnership, which includes:
•Brazil
•Indonesia
•Mexico
•Norway
•Philippines
•South Africa
•United Kingdom
•United States
launch their founding declaration. This Partnership commits its members to a comprehensive set of open governance principles. South Africa is the only African country represented amongst the founding members.
http://www.opengovpartnership.org/
The declaration establishes fourteen principles designed to guide the right to information on the continent. The declaration also includes a call to action, challenging international and Pan African bodies as well as national governments to take action to implement the principles. It also calls on civil society to:
• engage with governments in developing, enhancing and implementing access to information laws;
• monitor progress on the implementation of access to information laws;
• create awareness on access to information and provide assistance to facilitate public access to information;
• ensure transparency in their own activities; and
• promote international right to know day, 28 September.
http://www.pacaia.org/
The Centre for Human Rights, in collaboration with the Special Rapporteur on Freedom of Expression and Access to Information in Africa, held a public consultation on the Draft Model Law for AU Member States on Access to Information in Africa on 29 April 2011, during the 49th Ordinary Session of the African Commission on Human and Peoples’ Rights (ACHPR) in Banjul, The Gambia. The aim of the consultation was to introduce the Draft Model Law, developed pursuant to Resolution 167 (XLVIII) 2010 of the ACHPR, authorising the Special Rapporteur to initiate the process of developing a model access to information legislation for Africa.
http://www.chr.up.ac.za/index.php/ati-news.html
A young journalist, Gcina Ntsaluba, used PAIA to access the salaries of Director-Generals in South Africa. The story revealed a number of inflated and inconsistent salaries in departments.
http://www.citypress.co.za/Politics/News/Govt-mandarins-net-nice-cash-20110319
In response to a PAIA request submitted by journalists of Media24, the Umalusi Council finally answered questions relating to the adjustments of marks of matriculants in 2010 and released a large tranche of statistical documentation to journalists.
http://www.andrewtrench.com/2011/02/23/bust-open-secrets-south-africas-wonderful-access-information-laws/
The judgment reaffirmed the importance of the Promotion of Access to Information Act 2 of 2000 (PAIA) and highlighted the current inadequacies in its implementation by public bodies. In terms of the law, it has restated the imperative on public bodies to properly justify refusals to a request. As Nugent stated: "[t]he Act requires a court to be satisfied that secrecy is justified and that calls for a proper evidential basis to justify the secrecy." Information Officers cannot merely use ‘perfunctory conclusions' rather than a sound reason to refuse a request. As the FOIP team have so often experienced in practice, the Information Officer. The judgment notes that not only do PAIA cases require public bodies to follow normal rules of evidence but that the nature of PAIA requests, and the fact that the refuser is usually holding peculiar knowledge about the content of the information in question, means affidavits supporting refusal of access need to be more closely scrutinised than would otherwise be usual. An appeal is currently being considered by the Constitutional Court.
http://www.saflii.org/za/cases/ZASCA/2010/177.html
In this case, the Supreme Court of Appeal delivered another progressive decision on the extent of an exemption. The Court held that the confidentiality clause in the tender at issue does not carry through after award of tender as a matter of interpreting PAIA s 37(1)(a). Further, the Court held that the pricing schedule used in the submitted tender would not probably cause harm in terms of PAIA s 36 (1)(c)).
http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZASCA/2005/113.html&query=transnet%20SA%20metal
These rules as passed were the key procedural step required to facilitate PAIA matters to be heard in the Magistrates Court as the court of first instance – as opposed to the High Court as before. This was as a result of section 78 of PAIA which makes allowance for a requester to apply to court for appropriate relief, as expanded by General Notice 585 of 14 May 2004 (GG 26332). However, even though the rules of procedure necessary for the use of Magistrates’ Courts have now been passed, there continue to be obstacles placed before requesters who wish to utilise the Magistrates’ Court to seek appropriate relief, largely because Magistrates have not been properly trained and assigned as required by the section read in full.
In one of the most significant access to information court judgments, the Constitutional Court handed down judgment declaring section 78(2) of PAIA unconstitutional. This section had allowed applicants only 30 days in which to pursue an action in court after exhausting internal remedies. Reflecting on the prohibitive costs and difficulties inherent for civil society organizations in particular, the Constitutional Court ordered a suspended declaration of invalidity to allow Parliament to amend this oversight. Pending this correction, an applicant has 180 days in which to initiate court action.
http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZACC/2009/21.html&query=%20brummer
In the original application, a NGO applying for access to information in a campaign to monitor the risks of genetically modified organisms (GMOs) was ordered to pay hefty courts costs. This case was appealed to the SCA and eventually to the CC, where the final court handed down a definitive ruling to ensure that the threat of negative costs awards would not serve as an instrument to discourage public interest litigation.
http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZACC/2009/14.html&query=biowatch
The National PAIA Civil Society Network (PAIA CSN) was established in November 2008 in response to the need for greater collaboration and cooperation amongst organisations and individuals working to achieve a culture of openness and accountability through the effective implementation of the PAIA in South Africa. The first meeting was held at the University of Witwatersrand, Johannesburg, in February 2009.
http://www.saha.org.za/projects/national_paia_civil_society_network.htm
In this case the court considered whether a student trying to access information from Mittalsteel was correct in considering the entity to be a public body. The court held that “public body” should be given a broads meaning. A public body will therefore be said to exist where the body in question performs a public function.
http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZASCA/2006/93.html&query=mittalsteel
In this case, the facts concerned a request by a widow for access to information from a private hospital concerning the care given to her deceased husband. In a split decision affirming the Clutcho v Davis standard of “substantial advantage or element of need”, the Court made a distinction between “useful and relevant” for the exercise or protection of rights and “essential or necessary”. The latter was required. Thus, ‘of assistance’ is a necessary though not sufficient requirement for satisfaction of the PAIA s 50 standard.
http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZASCA/2006/34.html&query=unitas%20v%20van%20wyk
Created through a partnership between the Open Democracy Advice Centre and the South African Human Rights Conmmission, the Golden Key Awards were launched as an important annual event also known as the Openness and Responsiveness Awards. The purpose of the Awards is: “to recognise exemplary work in promoting openness, transparency and accountability in the public and private sectors through usage and compliance with the Promotion of Access to Information Act (PAIA)”
In Clutcho v Davis 2005 (3) SA 486 (SCA), the Supreme Court of Appeal expressed an important rule with respect to the relationship between PAIA and company law. Considering a PAIA request for access to financial records of a private body by a member of the body, the Court held that the evidence advanced in this case failed to lay a foundation for request for accounting books. The hint of impropriety was not enough. In principle and on appropriate facts, such a request could be granted according to a test of “substantial advantage or element of need”.
http://www.saflii.org/za/cases/ZASCA/2005/16.html
This utilisation of FOI can be seen as one of the most signifcant FOI victories for media, which has paved the way for the utilisation of PAIA by the media in SA. The information released as a result became known as the "Expenses Scandal", which rocked the British Parliament and resulted in a signifcant number of dismissals and resignations.
http://www.telegraph.co.uk/news/newstopics/mps-expenses/5335266/MPs-expenses-the-timeline.html
The International Right to Know Day, celebrated on 28 September, was established in 2003 by access to information advocates from around the globe. The aim is to raise awareness of every individual's right of access to information. Accordingly, many SA access to information initiatives are centred on this date as a part of international access to information advocacy.
The AU Convention on Preventing and Combating Corruption was adopted by the heads of state at the African Union Summit held in Maputo on 11 July 2003. The AU Convention provides a comprehensive framework and covers a range of criminal offences including bribery (domestic or foreign), diversion of property by public officials, trading in influence, illicit enrichment, money laundering and concealment of property. It calls for measures on prevention, criminalisation, regional cooperation, mutual legal assistance and recovery of assets. It covers both public sector and private sector corruption, both supply and demand side.Particularly, Article 9 states: “Access to Information: Each State Party shall adopt such legislative and other measures to give effect to the right of access to any information that is required to assist in the fight against corruption and related offence”.
The TRC was set up in terms of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995, and was based in Cape Town. The mandate of the commission was to bear witness to, record and in some cases grant amnesty to the perpetrators of crimes relating to human rights violations, as well as reparation and rehabilitation. Importantly, in Vol 1, Chapter 8 of the report the Commission noted that they had discovered that an enormous number of official records had been systematically destroyed, particularly within the 1980s period as a new democratic government became more of a threat to the previous regime.
http://www.justice.gov.za/trc/
In spite of the fact PAIA was assented to on 2 February 200, there had been a staggered date for the enactment of various sections. However, as of this date the whole of PAIA came into effect, including ss 10, 14, 5 and 51 which had been the last in the staggering process.
Acting under his powers as per PAIA, the Minister passed Regulations which outlined the necessary content for the South African Human Rights Commission guide and the PAIA manual for public and private bodies. However, most importantly, it outlined the cost of applicable fees which public or private bodies can charge for an individual making a PAIA request , as well as the applicable charges for access to records. The Regulations also provided the format for forms to be used when making a PAIA request.
The Programme was launched with the aim of creating awareness of, compliance with, and use of PAIA by submitting requests for access to information. Since its inception, the programme has built up a comprehensive collection of released materials. It also assist in community-based training about PAIA.
http://www.saha.org.za/about_saha/freedom_of_information_programme.htm
In October 2000 ODAC was launched as a niche, not-for-profit partnership between the Institute for Democracy in South Africa (Idasa), the University of Cape Town Department of Public Law, and the Black Sash Trust. It is the only specialist Centre of its kind in South Africa (and on the African Continent). It serves as a practical, specialist service organisation to assist social justice-based organisations to access their rights in relation to PAIA and PDA.
http://www.opendemocracy.org.za/about/background/
This Act as a necessary additional law in ensuring good access to information practices in SA. The Act makes provision for procedures in terms of which employees in both the private and public sector may disclose information regarding unlawful or irregular conduct by their employers or other employees and be protected.
The Constitutive Act served as the foundation for the AU’s commitments and powers. Within this Act, Articles 3 and 4, both emphasise the significance of good governance, popular participation, the rule of law and human rights. This creates a foundation for the advancement of access to information as a commitment of all AU countries, including SA.
In spite of the fact PAIA was assented to on 2 February 200, there had been a staggered date for the enactment of various sections. However, following what became known as PAIA’s “hiatus” period, the majority of sections within PAIA came into operation and the Act was thus able to be utilised by those wishing to seek access to information.
On 2 February 2000 the President of South Africa signed the Act into law. It was published in the Government Gazette the following day. This Act gives effect to the right of access to information as contained in section 32 of the Constitution of the Republic of South Africa and is mandated in terms of that section.
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the Republic of South Africa, sets out the rights and duties of the citizens of South Africa, and defines the structure of the Government of South Africa. It is a progressive Constitution which entrenches various socio-economic rights (and not just civil/political rights) subject to progressive realisation. Within the Bill of Rights, within section 32, the Constitution entrenches the right of access to information, calling for the enactment of a law to give effect to this right (which was later PAIA).
These Principles were adopted on 1 October 1995 by a group of experts in international law, national security, and human rights convened by ARTICLE 19, the International Centre Against Censorship, in collaboration with the Centre for Applied Legal Studies of the University of the Witwatersrand, in Johannesburg. These Principles have been endorsed by Mr. Abid Hussain, the UN Special Rapporteur on Freedom of Opinion and Expression, in his reports to the 1996, 1998, 1999 and 2001 sessions of the United Nations Commission on Human Rights, and referred to by the Commission in their annual resolutions on freedom of expression every year since 1996.
http://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf
As a result of SA’s first democratic elections on 27 April 1994, Nelson Mandela was sworn in as President of South Africa after the ANC won the elections with a 63% majority.
SA had been marred by a secretive and racist government regime during Apartheid. As one of the most significant steps toward democratic freedom in SA, the first democratic elections were held on this date. The elections proceeded peacefully throughout the country as 20,000,000 South Africans cast their votes.
This document served as the ANC’s key constitutional principles for promoting democratic reform in SA. Vitally, the ANC made a call for an “open society” which would serve as a foundation for many of its contributions during the drafting of the Constitution.
http://www.anc.org.za/show.php?id=35
The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly at the Palais de Chaillot, Paris. The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled. It consists of 30 articles which have been elaborated in subsequent international treaties, regional human rights instruments, national constitutions and laws. Of particular importance, article 19 of the UDHR states:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”
http://www.un.org/rights/HRToday/declar.htm
Update Sources