31 May 2009

SAHA submits Amicus Curiae in Constitutional Court

On 26 May 2009, SAHA submitted its Amicus Curiae in the Constitutional Court in support of the matter between Stefaans Conrad Brummer (applicant) and The Minister of Social Development (first respondent), Director General of the Department of Social Development (second respondent), The Minister of Justice and Constitutional Development (third respondent). The South African History Archives and the Human Rights Commission of South Africa were amicus curies.

Advocate Snyders commenced proceedings representing the Human Rights Commission of South Africa. Advocate Snyders spoke of the important role played by the HRC in terms of promoting constitutional democracy and human rights and monitoring the implementation of the Promotion of Access to Information Act 2. of 2000 (PAIA). The Constitutional Court, in particular Justice Ngcobo and Justice Yacoob, spent some time chastising the HRC for handing its written submission three days after the official deadline of Tuesday 19 May 2009. However the HRC had previously been advised by SAHA and others that they had no objections to the late submission of the Human Rights Commission's amicus curiae. Advocate Snyders was permitted to submit the HRC's amicus curiae once due respect had been given to the need to consider the usefulness of receiving the HRC's amicus curiae to assist with the course of justice whilst at the same time remaining aware of the need to hear the matter properly and fairly (allowing the respondents time to respond).

Advocate Gabriel, representing the applicant, investigative journalist Stefaans Conrad Brummer, spoke of the length of time it has taken to deal with the applicant's request for information in terms of the Promotion of Access to Information Act 2. of 2000 (PAIA). Events that have taken place over the past three years demonstrate a case of preventing access and disclosure of information and a complete disregard for the objects of the Act. A number of arguments were raised before SAHA had the opportunity to offer its amicus curiae.

Advocate Nasreen Rajab-Budlender was given just 15 minutes to offer the main points detailed in SAHA's submission. SAHA insists that the 30 day period set by Section 78 of PAIA allocated for a requester or third party to apply to court for appropriate relief in terms of Section 82 of PAIA is wholly inadequate and unconstitutional. 30 days is an extremely prohibitive short period in which to expect a litigant to approach a court for relief for a number of reasons. Litigation is a costly option and a requester must seek an advocate who is prepared to offer support on a pro bono basis which can take up to 30 days alone. SAHA must first consider the plausibility of litigating on a particular individual or group of cases before seeking board approval and finding and briefing a suitable and available advocate. All of these individual stages can take up to 30 days (and in some cases more than 30 days) in and of themselves.

Much of the morning's discussion was around the inconsistencies of Section 78(2) and 77(4) and 77(5). Essentially, Section 78(2) states that the requester or a third party must apply to court for relief in terms of Section 82 within 30 days after exhausting the internal appeal procedure against a decision of an information officer. Section 77 provides guidance to the relevant authority in terms of a decision on the internal appeal and notice thereof. Section 77(4) states that the relevant authority must notify the requester of the decision on the internal appeal. Section 77(5) states that in notifying the requester of the decision on the internal appeal the relevant authority must advise the requester or third party of their right to lodge an application to court against the decision of the internal appeal within 60 days.

This inconsistency has remained in the Act since its commencement on 09 March 2001. The Chief Justice and his colleagues spent some time questioning the feasibility of considering any of today's submissions in view of this inconsistency. SAHA submitted that the requester is required to interpret his or her responsibilities in terms of Section 78(2) considering Section 77(4) and (5) are instructions to the relevant authority in a public body whereas Section 78 is operative and speaks directly to the applicant. Furthermore Section 78 must only be considered once all appeal processes have been exhausted. In theory, the requester (or third party) would respond either to notification provided by the relevant authority in terms of Section 77, or would refer directly to Section 78 by means of determining the next step of appeal. In practice, SAHA can not recall a case where a relevant authority has notified them of the decision on their internal appeal where they have been advised that they have 60 days to lodge an application to court in terms of Section 77(5)(c)(ii). In the absence of any such notification SAHA reverts to requirements in terms of Section 78(2) to lodge its application to court within 30 days.

Court proceedings also considered the overuse amongst public bodies of blanket refusals. Whilst Section 77(5)(a) states that the relevant authority must state adequate reasons for its decision on the internal appeal including the provisions of the Act relied upon, this is, to a large extent, ignored. Whilst it is true that the relevant authority must exclude from its notification any reference to the content of the records (Sec 77(5)(b)) it is obliged to at least refer to which sections of the Act are relied upon for continued refusal of access. Once a case reaches the High Court it is very hard for a judge to rule on whether records should in fact be disclosed when the reasons for declining access have not been outlined by the public body in terms of Section 77(5)(a). Despite Section 80 giving power to the court to view any records whose access is being disputed this provision is vastly underused. Judge Cameron noted that for a court to view each record for every case is neither realistic nor efficient. Nonetheless SAHA has noted the increasing need to insist that courts take note of Section 80 where appropriate.

Justice O'Regan alluded to the fact that whilst the onus should be on the public body to establish exemption provisions this is not always done. In some cases public bodies are not adequately resourced for its staff to be aware of the provisions of the Act in others there is simply a dismissal of the relevance and importance of the Act. SAHA is painfully aware of the need to improve understanding and awareness of PAIA not only amongst public bodies but also private bodies and civil society.

It was agreed that the inconsistency of Section 77 and Section 78 must certainly be resolved. At the time the court broke for lunch it was suggested that this matter be taken to the National Assembly and be dealt with by Parliament however no firm ruling was given to this regard.

The court adjourned for lunch. The respondents submitted their arguments in the afternoon session however SAHA's representatives were forced to leave before this time due to other work commitments. The respondents have been given 2 weeks in which to consider the Human Rights Commission of South Africa's amicus curiae. Judgment is expected in approximately 3 months.

For a full copy of SAHA's written submission (Amicus Curiae) please contact either Charlotte Young or Fritz Schoon.

 A full report on this case can be found on the website for the Constitutional Court: http://www.constitutionalcourt.org.za/site/home.htm

Related media reports online

MG journalist challenges Information Act