Promotion of Access to Information Act Revised Rules of Procedure

Meeting report

The Chairperson opened the meeting by requesting a moment of silence for prayer.

Draft Revised Rules of Procedure for Application to Court: Promotion of Access to Information Act Mr Raj Daya, Deputy Chief State Law Advisor for the Rules Board for Courts of Law, said that the National Assembly, through a Portfolio Committee, has approved these draft revised rules. Both the NA and NCOP had approved the original Rules of the Promotion of Access to Information Act (PAIA), No 2 of 2000. He added that this was the last approval outstanding for the PAIA Rules amendments.

He said that the current rules are in practice and citizens and institutions have access to them.

Mr Lungisani David Neke, Principal State Law Advisor: Rules Board for Courts of Law, said that these Rules known as the PAIA Rules of Procedure are an amendment of the current rules. The purpose of these amendments was to bring about uniformity to the Court Rules as well as in response to certain court pronouncements in the 2009 Constitutional Court judgment of Bruma v Minister of Social Development.

He said that the amendments seek to place greater reliance on the Rules Regulating Conduct of Proceedings in the Magistrates Courts of South Africa (Magistrates Court Rules) and the Uniform Rules of Court (High Court) with the hopes that this will bring uniformity and more compliance with the requirements of Section 79 of PAIA. The amendments were kept straightforward and simple in the hope of attracting better compliance.

Initially the Rules prescribed longwinded procedure including forms and notices but now it has been simplified by diverting applicants to the rules of the court the applicant is approaching. Certain anachronisms were done away with such as the 8km Rule which required respondents to provide an address within an 8km distance of the court. It has now been extended to 15km. Other changes have also been made such as the rules on court fees. Previously court fees could be paid in revenue stamps but this has been abolished since 2009. The amended rules bring the procedure up-to-speed with these types of developments.

The Rules Board committee drafted the revised rules and then sent them to various role players for comments. Both users of the rules, organisations and law societies amongst others, were presented with the draft Rules. The rules were then redrafted based on the feedback and refined before being sent back to the role players for approval. The PAIA Rules Committee then approved the Rules, after which it was sent to the Office of the Chief State Law Advisor who also made recommendations.

Adv Paul Farlam SC, Head of Committee dealing with PAIA in the Department of Justice, said that the reasons for the changes are three-fold. The first was to address problems identified through Constitutional Court judgments; second, was to update the Rules to reflect the fact that there are now Magistrates Courts Rules which render separate set out procedures redundant; and lastly, to deal with anachronisms such as court fees. The changes were really to make the rules simpler and to avoid objections on technicalities. Moreover, the changes are hoped to improve access to justice.

Discussion
Mr S Thobejane (ANC) said that it is encouraging to realize that court decisions are taken seriously and are complied with. He said that this piece of legislation has historical background and that lessons should be drawn from it.

Adv Farlam replied that the Rules Board is fortunate enough to have two senior judges on its panel, Judge van der Merwe and Judge Majiet, two magistrates, academics and practitioners all have whom have brought the Department of Justice’s attention to the judgments and their pronouncements.

Ms T Wana (ANC) said that she is not happy with the scrapping of court fees because it could potentially lead to lawlessness where any person can come forward looking for information, especially in the context of our communities where people are often found to be undisciplined. She questioned how secure state information really is then.

Adv Farlam said that a distinction needs to be drawn between the application for information and then, only upon refusal of such application, the lodging of a document with the court for the information. If you request information in terms of PAIA, one needs to pay a fee. However, when such application is refused, such refusal may be taken to court. In the latter instance, the lodging of a document for court is not at a fee because people have a right of access to court which must be realised.

Mr Neke reiterated that revenue stamps were abolished in 2009.

Mr Daya said there were documented cases where court officials were using those revenue stamps and turning the process into a cash-paying private business. Since the court system could not control the way that procedure was being run, it also lead to the repeal of revenue stamps.

With regards to the security of state information, Adv Farlam said that there are various grounds on which information can be refused if information is sought from the state. These include the compromise of security, compromise of economic interest or commercial confidentiality, amongst others. Then there is the question of ex parte representations in terms of Rule 4 which provides for the existence of secretive information. Where there is secretive information, the court may order that such information be dealt with in a sensitive manner that protects the interests of the while still ensuring that the judge can look at it before bringing it out.

The Chairperson asked the Committee whether the Revised Rules by the Department of Justice could be approved without further amendments.

The Committee approved the Revised PAIA Rules.

Committee Business
The fourth term committee programme was considered.

Mr G Michalakis (DA) requested that briefings take a different form rather than watered down presentations while other Members sought clarity on the programme. The programme was subsequently adopted without objection together with the previous committee meeting minutes.

The meeting was adjourned.

[Apologies from Ms G Manolope (ANC), Mr M Mohapi (ANC) and Ms B Engelbrecht (DA)]