17 April 2014

PAIA forces final Presidential decision on kingship claim

Having waited for four years to get an answer to his kingship application, David Lebina Mofokeng, who refers to himself as Morena Mofokeng, finally received a signed decision from the President after seeking the help of SAHA under the Promotion of Access to Information Act, 2000 (PAIA).

Commission of Traditional Leadership Disputes and Claims, acknowledgement of Morena Mofokeng's application. Archived as SAHA collection AL2878_B01.44.47

Morena Mofokeng made a kingship claim to Department of Traditional Affairs’ (DTA) Commission on Traditional Leadership Disputes and Claims (Commission) in 2009 seeking to be acknowledged as the head of Basotho.

After many attempts by Morena Mofokeng to get a decision from the department on his kingship claim had failed, he decided to seek SAHA’s help under the access to information legislation to get a progress update.

Since PAIA gives both private and public bodies only 30 days to respond to a request, it seems the DTA felt the pressure to respond to the PAIA request in order to avoid further legal action. However, in order to respond, the DTA had to obtain a response from the President with details explaining why the application was granted or denied.

On 31 October 2013, SAHA received what appeared to be a draft response for approval by the President, saying that the Morena Mofokeng‘s application was denied on the basis that South Africa does not have jurisdiction over Lesotho issues and that such a claim should be made to King Letsie III of Lesotho.

The relevant legislation provides that the President is required to take a final decision within 60 days on the recommendations of the Commission. However, the first response that SAHA received from the department was not signed by the President.

It appears that the draft Presidential response was released to SAHA due to SAHA's use of PAIA, and the pressure this exerted on the department as the timeframe for a response to SAHA's internal appeal was closing, and the possibility of legal action was looming.

A month later, on 26 November 2013, SAHA received the same response received from the department, but this time it was signed by the President and a Minister of Cabinet.

SAHA has concluded that the pressure from SAHA's use of PAIA not only encouraged the department to respond, but also put pressure on the President to make a decision on this issue by signing the final response documents to kingship claims made to DTA.

SAHA is pleased to have observed that PAIA is not only a useful mechanism for making access to information request and obtaining records, but is also a great advocacy tool in holding both public and private bodies to account when it comes to moving quickly on issues, making timely decision and finalising documentation of decisions in a expeditious manner.

Most of these documents have been embargoed until consent is given from the requester, Morena Mofokeng.   

If you would like to find out more about how to submit PAIA requests, please email foip@saha.org.za  or call 011 718 2560/3.

To track active PAIA requests SAHA has recently submitted to public and private bodies in South Africa, visit SAHA's PAIA TRACKER online.