27 June 2013

SAHA admitted to serve as Amicus Curiae in the M&G Nkandla PAIA application

SAHA is pleased to announce that the North Gauteng High Court has approved its application to serve as amicus curiae in the current Nkandlagate litigation. Given SAHA's unique perspective and experience in PAIA matters, the organisation hopes to provide a valuable contribution in this litigation.

SAHA will be provided pro-bono legal representation by Cliff-Dekker Hofmeyer Incorporated.

Since 2001, SAHA's Freedom of Information Programme (FOIP) has been dedicated to pushing the boundaries of South Africa's Promotion of Access to Information Act, 2000 (PAIA). SAHA has submitted over 1800 requests for information. It has trained hundreds of activists, students, community members, NGO members, attorneys and paralegals in the use of PAIA.  SAHA has undertaken a broad range of litigation to test the boundaries of PAIA.

Recently, SAHA's ability to assist the High Court on PAIA related matters has been recognised in the decision to admit SAHA as amicus curiae in Mail and Guardian Centre for Investigative Journalism v Minister of Public Works No. 67574/12, which seeks review of a response to the PAIA request to the Department of Public Works for procurement details about President Zuma's Nkandla estate.

The Nkandla estate is of great public interest as it is suspected that there was irregular expenditure of more than R206 million of tax payer's money used to upgrade President Zuma's personal home.

Director of SAHA, Catherine Kennedy, has welcomed SAHA's role as amicus curiae in the Nkandlagate litigation:

"This matter presents an important opportunity to highlight elements of this case that seem to reflect worrying trends SAHA has detected in submitting PAIA requests for over a decade - firstly, the culture of secrecy that pervades many public bodies, and secondly, a reliance on apartheid era legislation and the misapplication of PAIA's security exemptions to withhold information.

As just one example of the protracted nature of litigation to address the culture of secrecy in public bodies, SAHA continues to seek gain access to an anonymised copy of the Truth and Reconciliation Commission Victims Database - some six or more years after making its first request.  Following repeated requests since September 2009, SAHA is now considering further litigation to obtain the long promised access to that database.

Hopefully SAHA's significant experience in utilising and testing PAIA will provide useful context and information to the Court to assist it in making a sound decision in this matter of such public and national interest.”

SAHA’s amicus role has arisen in part from concern about the processes followed in the refusal of its PAIA application on the basis of the National Key Points Act (NKPA). The classification of documents regime, is a tool that is capable of inappropriately reducing transparency, and in particular, the use of the NKPA to refuse to release information is not transparent and appears to be applied on an ad-hoc basis.

It is for this reason that SAHA is now considering a Court application to pursue the access to the NKPA list, as potentially related litigation to the current Nkandlagate litigation, to test the State's role in balancing access to information held by the state that can be made publicly available under PAIA.  The proposed litigation may also test the constitutionality of the NKPA legislation.

For more information on SAHA and the application to serve as amicus curiae contact the Freedom of Information Programme.