2004 freedominfo.org Global Survey Results - South Africa
Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated 12 May 2004)

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. (1)

The Promotion of Access to Information Act (PAIA) was approved by Parliament in February 2000 and went into effect in March 2001. (2) 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 it is necessary to enforce 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 for both public and private bodies. Most of the exemptions require some demonstration that 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 showed 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.

There are criminal fines and jail terms for those who destroy, damage, alter or falsify records. The public prosecutor can investigate cases of maladministration. It reports having received six cases. (3)

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 were to be submitted to the HRC and published in the Government Gazette by February 2003. This was delayed until August 2003. The Commission announced in August 2003 that it was delaying the submission requirements for private bodies that are not public companies until 2005. 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. Government bodies must also publish a list of categories of information that is published without requiring an access request.

The SA Human Rights Commission is designated to oversee the functioning of the Act. (4) It is required under the law to issue a guide on the Act and submit reports to Parliament. It can also promote the Act, make recommendations, and monitor its implementation. It received 40 complaints in 2001-02. (5) A major problem has been that the Commission has received little funding for any activities under the Act. In its 2000-2001 Annual Report, the Commission noted that lack of funds prevented it from conducting any work on the Act. The HRC was required to delay the publication of its manual on the Act due to a lack of public and private bodies submitting their manuals.

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 recently commissioned papers on its role and the possible creation of an independent information commission.

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, POATIA 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." (6) 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. (7)

The Apartheid-era Protection of Information Act of 1982 sets rules on the classification and declassification of information. (8) 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.

The Law Reform Commission issued a paper on Privacy and Data Protection in August 2003 as part of an effort to enact a law to enforce the constitutional right of privacy. (9)

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. (10)

Notes

1. The Constitution of the Republic of South Africa, Act 108 of 1996. http://www.polity.org.za/govdocs/constitution/saconst.html

2. Promotion of Access to Information Act, Act 2 of 2000. For a detailed analysis of the Act, see Currie and Klaaren, The Promotion of Access to Information Act Commentary (Siber Ink 2002).

3. South African History Archive, Strengthening the Role of the South African Human Rights Commission in relation to the POTAIA, July 2003.

4. SAHRC PAIA Home Page: http://www.sahrc.org.za/paia.htm

5. SAHRC, 6th Annual Report, 2001-02.

6. Allison Tilley and Victoria Mayer, Access to Information Law and the Challenge of Effective Implementation, in The Right to Know, the Right to Live: Access to Information and Socio-Economic Justice (ODAC 2002).

7. Dale McKinley, The State of Access to Information in South Africa.

8. Protection of Information Act No 84 of 1982, 3 June 1982.

9. South African Law Reform Commission, Privacy and Data Protection. Issue Paper 24, August 2003. http://wwwserver.law.wits.ac.za/salc/issue/issue.html

10. http://www.national.archives.gov.za/arch_act.htm