freedom of information | news | links | measuring openness

Section 32 of the South African Constitution of 1996 states:

(1) Everyone has the right of access to - (a) any information held by the state, and; (b) any information that is held by another person and that is required for the exercise or protection of any rights;
(2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

The Promotion of Access to Information Act (PAIA) was approved by Parliament in February 2000 and went into effect in March 2001. It implements the constitutional right of access and is intended to "Foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information" and "Actively promote a society in which the people of South Africa have effective access to information to enable them to fully exercise and protect all of their rights."

Under the Act, any person can demand records from government bodies without showing a reason. State bodies currently have 30 days to respond (reduced from 60 days before March 2003 and 90 days before March 2002).

The Act also includes a unique provision (as required in the Constitution) that allows individuals and government bodies to access records held by private bodies when the record is "necessary for the exercise or protection" of people's rights. Bodies must respond within 30 days.

The Act does not apply to records of the Cabinet and its committees, judicial functions of courts and tribunals, and individual members of Parliament and provincial legislatures. There are a number of mandatory and discretionary exemptions for records of both public and private bodies. Most of the exemptions require some demonstration that the release of the information would cause harm. The exemptions include personal privacy, commercial information, confidential information, safety of persons and property, law-enforcement proceedings, legal privilege, defense, security and international relations, economic interests, and the internal operations of public bodies. Many of the exemptions must be balanced against a public-interest test that require disclosure if the information show a serious contravention or failure to comply with the law or an imminent and serious public safety or environmental risk.

For public bodies such as national government departments, provincial government departments and local authorities, the internal review is handled by the responsible Cabinet minister. It can then be reviewed by a High Court. Decisions of private bodies are appealed directly to the court. The courts can review any record and can set aside decisions and order the agency to act. The South African History Archive and the Open Democracy Advice Centre have brought a number of successful court cases against both public and private bodies where the courts have ordered the release of information or the public bodies have settled the cases out of court. In 2005, businessman Richard Young won a three-year fight to have draft documents released in respect of a controversial government investigation into procurement processes surrounding a major arms deal. The drafts showed that a number of significant findings had been omitted or watered down in the publicly-released report, suggesting "serious irregularities" in the procurement process. Notably, the Attorney General, when questioned by MPS in 2003, denied making any material edits to the final report. In another notable decision, in April 2005, the Institute for Democracy in South Africa (IDASA) lost an appeal to the Cape Town High Court seeking to establish the principle that political parties were obliged to give details of substantial private donations under the Act. The Court found that political parties are not public bodies under the Act and alternatively that the information was not required for the proper exercise of the right to vote, such that the political parties as private bodies were under no disclosure obligation under the law. The Supreme Court of Appeal limited the right of individuals to obtain information from private bodies, ruling in March 2006 that a hospital was not required to provide information to the wife of a deceased patient who was trying to obtain more information about his death as part of a potential lawsuit against the hospital.

There are criminal fines and jail terms for those who destroy, damage, alter or falsify records. The public prosecutor can investigate cases of maladministration.

Public and private organizations must publish manuals describing their structure, functions, contact information, access guide, services and description of the categories of records held by the body. The manuals are submitted to the South African Human Rights Commission and published in the Government Gazette. The National Intelligence Agency was exempted in June 2003 from having to publish a manual until 2008 and the South African Secret Service received a similar exemption. Most smaller private organizations were exempted in September 2005 from producing manuals until 2011. Government bodies must also publish a list of categories of information that is accessible without requiring an access request.

The South African Human Rights Commission (SAHRC) has been designated to oversee the functioning of the Act. It was required under the law to issue a User's Guide on the Act in all official languages. It must also submit annual reports to Parliament, and can promote the Act, make recommendations, and monitor its implementation. A major problem has been that the Commission initially received little funding for any activities under the Act.

The expert committee that drafted the Act proposed creating an Open Democracy Commission and specialized information courts, but those sections were removed by the Cabinet before the draft bill was introduced in Parliament. The SAHRC commissioned papers on its role and the possible creation of an independent information commission and announced in October 2004 that it planned to seek the authority to have greater oversight over the PAIA. The 2004-05 SAHRC Annual Report included a recommendation for the establishment of an Information Commissioner to act as a cheap, timely independent appeals mechanism under the Act.

There have been problems in the implementation of the Act and its use has been limited. A survey conducted by the Open Democracy Advice Centre in 2002 found, "on the whole, [PAIA] has not been properly or consistently implemented, not only because of the newness of the act, but because of low levels of awareness and information of the requirements set out in the act. Where implementation has taken place it has been partial and inconsistent." Almost half of the public employees had not heard of the Act. A larger problem pointed out by the Centre for the Study of Violence and Reconciliation is the poor records management of most departments.

More recently, ODAC published results of a monitoring survey carried out over a period of 6 months in 2004 during which 140 requests were submitted to 18 public institutions by 7 requestors from different spheres of civil society. The 2004 Monitoring Survey followed a similar 2003 Monitoring Survey, undertaken as part of a pilot monitoring study. The 2004 Survey found that only 13 percent of the submitted requests for information resulted in the information being provided within the 30-day time limit in the Act, while 63 percent of the requests were ignored. Out of the 140 requests that were formulated, the requestors were unable to submit 15 percent of them. Only 1 percent of the responses to the requests for information culminated in a written refusal and 2 percent met with oral refusals. Interestingly, a comparison of the two surveys shows that compliance has actually dropped; in 2003, 52 percent of the requests received no response and only 23 percent of requests received a positive response.

The South African History Archives also commissioned a study in 2004 on how prepared State departments were to manage requests for digital electronic records made under the Act. The Report indicated that few departments keep official records in electronic form and that there was no formal policy and procedure on how and when electronic records should be stored.

The last SAHRC report, produced for 2004-05, reported with concern that the number of public bodies submitting their statistical reports continues to remain low, with a decrease in the number of reports received. The SAHRC noted that if they cannot obtain proper reports the extent of use of the Act by the public cannot be accurately and comprehensively ascertained. The SAHRC identified that more training of officials will be undertaken in the following year to deal with the problem. The SAHRC also flagged that the reporting year will be changed from the financial year (ending in March) to the calendar year from 2007. Notable statistics for the 2004-05 year included the fact that the South African Police Service received 17,001 requests, compared to 14,744 the previous year. The next most targeted public body was the Department of Transport, with 716 requests. Interestingly, it appears that very few appeals - less than 20 - were made against refusals to disclose information.

The Apartheid-era Protection of Information Act of 1982 sets rules on the classification and declassification of information. The government announced the creation of a classification and declassification review committee in March 2003. The Truth and Reconciliation Commission found that there was a systematic destruction of classified documents starting in the period 1990-1994, sanctioned by the Cabinet. There has been considerable controversy over access to the records of the Truth and Reconciliation Commission (TRC) some of which were sent to the National Intelligence Agency. The government is claiming that it can reclassify the "sensitive" documents in the files. In 2003, SAHA won an out of court settlement under the terms of which the files were moved to the National Archives and are being prepared for public access. SAHA also discovered the existence of many thousands of Military Intelligence files that had never been sent to the TRC. SAHA used the PAIA to secure lists of these files and is now systematically accessing the files themselves. SAHA discovered in February 2006 that thousands of files from military intelligence files had been sent to Zimbabwe without keeping copies even after a PAIA request had been filed.

The Law Reform Commission is currently holding a public consultation on privacy and data protection as part of an effort to enact a law to enforce the constitutional right of privacy. It issued a second discussion paper and draft bill in October 2005.

The National Archives of South Africa Act of 1996 provides for the release of records in the custody of the National Archives after 20 years.

[Footnotes for this section are currently unavailable but will be posted the week of July 10. All footnotes and references are also available in the full study, available here.]

2004 freedominfo.org Global Survey Results - South Africa

Back to top

2 FEBRUARY 2004
SOUTH AFRICA : Access to Information Crucial to Socio-Economic Rights
BuaNews (South Africa) reports on the role that open dialogue plays to ensure openness and transparency in South Africa.

Dr Leon Wessels, who is responsible for the right to access of information in the SA Human Rights Commission (SAHRC), in a speech at the second International Conference of Information Commissioners, suggested that SAHRC had the duty to monitor the implementation of the Promotion of Access to Information Act and make sure that government departments and private bodies met their obligations in terms of the law.

In this regard, he said the commission was obliged to present an annual report to Parliament.

"We have traveled a long distance because we have constitutional and legislative provisions but there is clearly not a culture of openness and transparency. The lack of participation by private and public bodies displays that," Dr Wessels said.

Dr Wessels said public bodies were required by law to report to the commission annually on how they complied with the Act.

"Public bodies go beyond government departments, it is everybody that is governed by statutes and receives public money. It is national, provincial, local government and parastatals," Dr Wessels said.

7 NOVEMBER 2003
SOUTH AFRICA: States Not Implementing Promotion of Access to Information Act
The Democratic Alliance (DA) has found that 70 percent of all government departments and 90 percent of provisional departments are not implementing the not implementing the Promotion of Access to Information Act reports Business Day (South Africa).

The DA claims that a study of government departments has shown that most have not yet appointed an information officer nor have they produced a manual, as required by the law.

"Government is failing to implement the provisions of the constitution and the Promotion of Access to Information Act. A survey of 37 national departments showed that no fewer than 26 more than 70% had not complied with the act," DA constitutional spokesman Tertius Delport said yesterday.

28 OCTOBER 2003
SOUTH AFRICA: IDASA to Sue Five Political Parties Over Funding
Africaonline reports that the Institute for Democracy in South Africa (IDASA) is taking the country's five largest political parties to court in in order to force them to reveal who gives them their money, even though South African law does not currently require political parties to identify their donors.

The Institute notes that South African political parties get some money from the government, and is arguing that the country's freedom of information law should therefore require the parties to reveal the rest of their funding sources.

The head of IDASA's politics program, Richard Calland said it is completely unreasonable to expect taxpayers to continue paying for parties' activities without knowing where they are getting the rest of their money.

15 AUGUST 2003
SOUTH AFRICA: Transparency in Political Party Funding
The Mail and Guardian (South Africa) reports that the Institute for Democracy in South Africa (Idasa) has threatened litigation in order to pressure five of the country’s largest political parties to reveal their sources of private funding.

Idasa lawyers will send letters informing the African National Congress, Democratic Alliance, New National Party, Inkatha Freedom Party and African Christian Democratic Party of the impending court action by the end of the month.

Not one of the country’s 13 political parties represented in Parliament disclosed anything after Idasa requested the information under South Africa's Promotion of Access to Information Act.

There comes a point when we have to use the rights in the Constitution,” said Richard Calland, head of Idasa’s Right to Know campaign. “We recognize political parties need public and private funding. What we are asking for is an end to the secrecy and some level of regulation. Political parties must become less dependent on large, secretive donations.”

22 AUGUST 2003
SOUTH AFRICA: State of Access to Information
Business Report (South Africa) reports on a study commissioned by the Centre for the Study of Violence and Reconciliation (CSVR), in which researcher Dale McKinley points to problems in the implementation of The Promotion of Access to Information Act (PAIA), including failure by the department of justice and the Human Rights Commission to educate both the public and public officials concerned with its implementation on the scope and potential of the act.

The act, which gives everyone a right to any information required for the exercise or protection of any rights, is possibly the only one anywhere that applies to the private and the public sector.

The PAIA stipulates that the right to access to information is not affected by the reason why the information is being demanded; it sets out the duties of those who hold information in both the private and public sectors; and it requires the Human Rights Commission to play a major role in opening up access to information.

But, according to the report, the gap between the act and its implementation is wide - and widening. To view the full text of the CSVR report click here.

23 JUNE 2003
SOUTH AFRICA: Private Company Ordered to Open Records
In a first for South Africa, a private company has been ordered to open its financial records to a shareholder.

The Cape Town (South Africa) reports that a small businessman in a small Western Cape town has won a big victory for investors in private companies - but may also have created logistical nightmares for them.

Last week a private company was ordered in terms of the Promotion of Access to Information Act to give a shareholder access to its financial records, a privilege that neither the Companies Act nor common law gives shareholders.

Public companies listed on the Johannesburg Stock Exchange are obliged to do so, however.

18 JUNE 2003
SOUTH AFRICA: Intelligence Agency Wants Exemption
The Mercury (South Africa) reports that the South African National Intelligence Agency (NIA) is negotiating with the justice department for a permanent exemption from the Access to Information Act.

Intelligence minister Lindiwe Sisulu said this yesterday in connection with a recent proclamation by justice minister Penuell Maduna which allowed the NIA a five-year reprieve from disclosing what documents it holds in terms of the Act.

All public and private bodies - except the NIA - have until August 31 to tell the country what information they hold and how and if it may be accessed.

18 MAY 2003
SOUTH AFRICA: SAHA Settles with the Department of Justice
The Sunday Times (South Africa) reports that the South African History Archive (SAHA) has settled its four-year battle against government attempts to keep the explosive information out of public view.

The documents could expose some of the most bizarre and sinister operations of the apartheid era - and expose the ANC government's attempts to keep them secret.

The breakthrough came last week when lawyers for the SA History Archive reached an out-of-court agreement with the Department of Justice, which has now undertaken to release documents it received from the Truth and Reconciliation Commission or provide valid reasons for not doing so.

The Archive's deputy director, Sello Hatang, based SAHA's claim on this information under the Promotion of Access to Information Act. Hatang's affidavit claims that the respondents - the departments of Justice and Arts and Culture - "have not applied their minds properly to this matter". Verne Harris, the SA History Archive's director and a former employee of the National Archive, said the National Intelligence Agency (NIA), who wanted to keep the information secret, was reluctant to disclose information collected by the Truth and Reconciliation Commission because of "a broader paranoia" within the government.

He said "some of its most powerful people" could be compromised by the documents, whose existence was officially confirmed only last month.

27 MARCH 2003
SOUTH AFRICA: High Court Orders Release of Arms Deal Documents
Cape Argus (South Africa) reports that the Cape High Court has ordered the government to hand over the full affordability study done before South Africa entered into a controversial arms deal. The Economists Allied for Arms Reduction (ECAAR) who brought forward the suit, claimed in court papers that the government's financial commitment to the arms deal infringes the socio-economic rights of poor people to improved housing, health care, food, water, social security and education.

ECAAR wants the court to declare the loan agreements unconstitutional and nullify the arms deal.

8 MARCH 2003
SOUTH AFRICA : New Committee Created to Review Secret Information
SABCnews.com reports that a special committee has been set up to review the classification and declassification of secret state information in South Africa. The Intelligence Services Minister Lindiwe Sisulu says the review is aimed at ensuring that the public's right to access information is not undermined, while at the same time protecting national security.

28 JUNE 2002
SOUTH AFRICA: FOI Lawsuit Filed in South Africa
Agence France-Presse reports that Apartheid victims have filed a court application demanding access to South Africa's policy on reparations, which affects some 21,000 people, after hitting what their lawyer described as a "wall of silence" from the government.

The Khulumani Support Group, which has some 4,000 members in the Western Cape region, is the first of four applicants asking for access to the reparations policy, affecting those found to be victims of gross human rights violations by the commission.

Notes

[Footnotes for this section are currently unavailable but will be posted the week of July 10. All footnotes and references are also available in the full study, available here.]

Back to top