Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

19 January 2000

Documents handed out:
Draft of 18/1/2000 (OPD 104)
Part 4 Appeals Against Decisions (OPD 105)
{Promotion of} access to {or freedom} of information" Bill (OPD 104a)
Public bodies (OPD 106)
Chapter on information commissioner

Morning session
After discussing the noted draft legislation (as detailed in the Minutes), the Chair, Mr. de Lange (ANC), set forth the following schedule for the committee:

A final draft will be produced for the afternoon of 20/1/2000 and during an extended session the text will be finalised, with any further modifications to be made during the discussion. This discussion will continue into Friday, if necessary, with the aim being a committee vote that day or on Monday, prior to the debate in the full Parliament scheduled for Tuesday, January 25.

During the afternoon, the committee dealt with the Administrative Justice Bill.

Evening Session
In Clause 83 (Applications regarding decisions of information officers or relevant authorities of public bodies or heads of private bodies) in Option 1 for Chapter 2, it was decided to include a subsection that dealt with third parties.

The committee also made an amendment to 6(4) of the Public Protector Act adding a new subsection that dealt with "any dispute arising out of the operation or application of the Open Democracy Bill". The Chair stated that this amendment will give the Public Protector the power to mediate any disputes relating to the Open Democracy Bill for both public and private bodies.

Adv de Lange commented to members that it was important to finalise the options and the wording of each clause, rather than to reopen debates.

Morning session
The committee continued to discuss the Draft of 18/1/2000 (OPD 104):
Clause 6 Application of Other Legislation for Providing Access
The Chair noted that as this provision is not really "subject to section 92" this opening phrase should be deleted and instead the clause should begin "Nothing in this Act...".

He pointed out that the reference to Schedule 2 should be deleted and the reference should be only to "Schedule 1", comprised of Part A (pertaining to public bodies) and Part B (pertaining to private bodies).

He also made the point that section 92 still needs to be linked to Clause 6, but Ms van Schoor noted that this link is established by section 92's reference to what will now be known as "Schedule 1".

Concerning section 92, the Chair said there must be a test in subsection (2) for the applicability of other legislation , but that a test was inappropriate in subsection (1) for adding legislation to the Schedule. The Chair added that he prefers Option 2 for subsection (2) (with the change, "...any other legislation not listed in Schedule 1 which provides..."), but the question remains which test to use.

Clause 8 Part Applicable when Performing Functions as Public or Private Body
The Chair indicated that "other related provisions" should be specifically enumerated rather than left as a general reference. He stated that it is critical to clarify that, for purposes of this Act, a body from whom information is requested can be both public and private, the characterisation depending on the function being discharged in relation to any specific information. Ms Chohan-Khotha (ANC) suggested that this be addressed in the Act's Preamble, but the Chair reiterated that it must be included in this clause as well. Mr Masutha (ANC) suggested that handling this issue, and others, by use of explanatory footnotes would be helpful, but the Chair noted that these would have no legal effect.

Mr Smith (IFP) suggested that the drafting problem could be solved by ensuring that "a body" be defined as possibly public, private, or both, depending on the function being discharged in a specific instance. Further, the use of the phrase "when a public body" in subsection (a) of this clause might clarify matters. The Chair agreed.

Clause 9 Objects of Act
The Chair noted that the following points had been previously raised: access to information as a right; the under-emphasis of the right to information from private bodies; the need to emphasise the role of transparent and cooperative governance, both public and private, which was also to be included in the Preamble.

The Chair went on to note his preference for Option 2 for Clause 9, with Ms Chohan-Khotha's suggestion that in subsection (b)(ii) the wording should be "....other rights including the Bill of Rights...". The Chair indicated that this properly referenced the important constitutional rights which must be balanced in the application of this Act.

On subsection (e), Mr Smith questioned the terms "function and operation" and "scrutinise acts and omissions", which the Chair instructed Ms van Schoor to reconsider and alter.

Clause 10 Guide on How to Use Act
No amendments were made.

Clause 11 Right of Access to Records of Public Bodies
The Chair stated that use of the phrase "any requester", rather than "any person", is preferable for clarity and consistency.

Clause 12 Act Not Applying to Certain Public Bodies or Officials Thereof
The Chair questioned whether this exemption is in the right place in the Act. Substantively, Mr. Lever (DP) queried whether the more expansive Option 2, which he prefers, is favored, and the Chair indicated that it is.

Clause 13 Body Deemed as Part of Another Public Body
The Chair noted his preference for Option 1 of subsection (2) which applies to committees and subdivisions of a public body, and thus eliminates the need for subsection (1) and Option 2 of subsection (2).

Clause 14 Access in terms of Act by Public Body to Records of other Public Body not provided for
The Chair also noted that in the wake of other changes, notably in the definition of "requester", Clause 14 could also be eliminated.

Clause 15 Manual of Functions of...a Public Body
The Chair solicited comment on subsection (d); none was made.

Clause 16 Voluntary Disclosure of Records
The Chair noted that clarification of subsection (5) is necessary, extending the exclusion of applicability of certain of the Chapters not only to those enumerated in this subclause but also to "any other relevant provision of the Act".

Mr Smith then raised the question of the applicability of these reporting requirements to private bodies exercising public functions, and the Chair confirmed that technically these would apply, and that a limitation of such sweeping requirements could be considered.

On Clause 16A, the Chair suggested that the onus could be on each public body to disseminate contact information, rather than on the national communications officials, and to bear the cost of same. The Chair indicated his preference for Option 1 for subsection (1), with the addition at the end of the phrase, "as are prescribed." On subsection (2), a question was raised as to the practical effect of the publishing timeframes of telephone directories, and the Chair suggested that the phrase "as soon as reasonably possible" be employed, or to eliminate the subsection entirely.

The Chair then noted that Clauses 17-48 are procedural, and will be dealt with separately.

Clause 49 Right of Access to Records of Private Bodies
The Chair noted that for consistency "person" be changed to "requester". He pointed out that for subsection (a), Option 1 limited use of the Act to protection of constitutional rights, with Options 2-6 being more restrictive, limiting use of the Act to protecting only the rights of the person seeking to use the Act. The Chair also indicated his concurrence with Mr Smith that Option 2 is best.

The Chair went on to note that the additional requirements for use of the Act found in subsections (b) and (c) are acceptable. He said that the ANC wishes to add another, that is, that government can be a "requester" in acting to protect the rights of a third party or the public. The Chair noted that in attempting to do so the government would still be subject to court determinations concerning records or bodies being exempt from the Act, and of the public interest, and that therefore there was no danger of government overreaching itself.

Clause 76 Right of Internal Appeal to Relevant Authority
The Chair noted that this procedure applies only to "pure" government bodies, which should be clarified in the text of subsection (1), along with using "requester" and "third party", in separate subsections, if necessary, rather than "person".

He said that subsection (2) should be eliminated lest there be confusion about whether internal appeals must be exhausted before bringing a court action.

During the afternoon session, the committee dealt with the Administrative Justice Bill.

Evening session
There were no problems raised in relation to:
Clause 77: Manner of internal appeal, and appeal fees
Clause 78: Notice to and representations by other interested persons
Clause 79: Decision on internal appeal and notice thereof

Adv de Lange was unhappy with both options listed for this definition. He asked Ms van Schoor to see if the definition of "court" in the Administrative Justice Bill, would be better suited here.

Option 1: Chapter 2: Internal appeal included in Bill
Clause 80: Non-exclusion of other remedies
It was decided by members of the committee to choose Option 2, which omits this clause from the Bill.

Clause 82: Applications regarding decisions of information officers or relevant authorities of public bodies or heads of private bodies
The Chair felt that the wording of both 82(1) and 82(2) in Option 1 was not very clear. He said that it must be clear that 82(1) refers to "a person" and 82(2) refers to a "third party". He stated that he wanted Option 1 of 82(1) and 82(2) to read as it does under Option 2 for Chapter 2 - No internal appeal procedure included in Bill. He believed that under Option 2 for Chapter 2, it clearly specified how "a person" goes to court, and how a "third party" goes to court. The Chair asked Mr Du Preez to add a section to 82 under Option 1 for Chapter 2 that reads exactly as 82(2) reads under Option 2 for Chapter 2. Mr Du Preez replied that because Option 1 for Chapter 2 deals with including internal appeals, and Option 2 for Chapter 2 deals with excluding internal appeals, the exact wording could not be used. The Chair asked that the new section be added with the necessary changes. He also asked that "person" be changed to read "requester".

Mr Du Preez later stated that the section would read:
(3) A third party -
(a) that has been unsuccessful in an internal appeal to the relevant authority of a public body; or
(b) aggrieved by a decision of the head of a private body in relation to a request for access of that body, may by way of an application, within 30 days apply to a court for appropriate relief in terms of section 87.

Adv de Lange was pleased the new section.

Clause 83: Jurisdiction of court
Adv de Lange reminded the committee that clause 83 was now excluded from both options for Chapter 2 of the Bill as per Ms Chohan-Khotha's (ANC) request to include it in the definition of "court".

84: Assistance of Human Rights Commission
All members were content with the omission of 84(2) and 84 (3) from the revised working draft, and with the deletion of the word "sensory" in front of "disability".

Clause 85: Disclosing records to and precautions against disclosing, by court
Adv de Lange reminded members that 85(3a) will be deleted from both options for Chapter 2, and that a new section will be created to add in the "Rules Board" clause. He stated that this new section will be a duplication of clause 8 from the Administrative Justice Bill which states:
"The Rules Board for Courts of Law established by section 2 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), must within one year after the date of commencement of this Act, make and implement rules of procedure for judicial review."

The Chair stated that this clause must be added, because it makes general rules for judicial review that include the Magistrate Courts. He instructed Ms van Schoor to draft this new section "word for word."

Clause 86: Burden of Proof
It was agreed that Option 2 was best, with the deletion of "not criminal" in the title.

Clause 87: Decision on application
Adv de Lange queried why it was written "any order or other decision " in both 87(1) and 87(2). He asked what decision the court could make that would not be covered by order. He asked Ms van Schoor that "or other decision" be deleted, and that it be reworded to read "an order that is just and equitable". He stated that this is how appears in the Administrative Justice Bill.

The Chair then asked what the point was of including 87(3). Ms Chohan-Khotha (ANC) stated that it acts as a reminder to the courts. The Chair felt it was unnecessary to have a section that tells the courts that they must have regard for a speedy and inexpensive resolution. He said that this is obvious, and it did not need to be stated. It was agreed to revise the wording in 84(1) and 84(2), and omit 84(3).

Public Protector Act, No. 23 of 1994
Clause 6: Reporting matters to and additional powers of Public Protector
The Chair stated that it was necessary to make an addition to 6(4) of the Public Protector Act. He asked Ms van Schoor to add a subsection (vi) which states:
"any dispute arising out of the operation or application of the Open Democracy Bill."

Adv de Lange said this would then give the Public Protector the power to perform the functions outlined in 5(4b)(i-iii) of the Public Protector Act to the Open Democracy Bill. He said that would give the Public Protector the power to mediate any dispute relating to the Open Democracy Bill, for both public and private bodies.
Mr Smith (IFP) asked if it was obligatory that the Public Protector perform these functions. The Chair responded that it was not.

Adv de Lange then raised concern over the use of the term "investigates" in 6(4a). He believed that it would be problematic to insert a subsection (vi), and that a new subsection 6(4d) must be created which states:
"to endeavor, in his or her initiative, to on receipt of a complaint or request to resolve any dispute relating to the operation or application of the Open Democracy Bill by:
(i) mediation, conciliation, or negotiation;
(ii) advising, where necessary, any complaint regarding appropriate remedies; or
(iii) any other means that may be expedient in the circumstances;

It was agreed that the new change would be made.

The meeting then turned to the draft: "{PROMOTION OF} ACCESS TO {FREEDOM} OF INFORMATION" BILL (OPD 104a)

Clause 89: Additional functions of Human Rights Commission

Adv de Lange reminded the committee that this clause was rewritten to accommodate the "must" and "may" lists with respect to what duties the Human Rights Commission (HRC) will perform.
It was agreed in 89(2a) to insert "every two years" that the HRC review this Act instead of "annually". Mr Jeffery (ANC) then raised concern as to the necessity of 89(2a). He argued that a review of this Act would occur in any case, when the HRC submit reports to the National Assembly as outlined in 89(1b). The Chair agreed, and it was decided that 89(2a) could be deleted.

Ms van Schoor suggested that two changes be made. First, in 89(2c) to delete "monitor the administration" and replace it with "implementation", and secondly, delete 89(2d)(i), in its entirety, and the word "generally" from 89(2d)(ii). She stated that it would then read:
"if reasonably possible, on request, assist any person wishing to exercise a right contemplated in this Act."

Ms van Schoor stated that it has the exact same meaning, without being as "wordy".
The committee agreed to the changes. Adv de Lange noted that the addition of 89(3) was Mr Cronin's (ANC) request about ensuring that the HRC take an active role in promoting education and disseminating information. Mr Smith (IFP) asked that 89(2) be changed to read "The Human Rights Commission may, to the extent {financial} resources are available". All members agreed that all changes up to and including 89(3) were acceptable.

Mr Jeffery (ANC) asked if 89(4) could be deleted. The Chair said that although it is a very weak subclause, it is a guideline for both the HRC, and private bodies, and that it really should be included. Mr Jeffery (ANC) restated that it should be deleted. The Chair said they would vote on whether to include it or not, when voting begins.

There were no problems or questions raised pertaining to Clause 90: Report to National Assembly by Human Rights Commission, or Clause 91: Expenditure of Human Rights Commission in terms of Act as stated.
The Chair informed the committee that Clause 92: Application of other legislation providing for access will stand over, until the amendments that were discussed earlier in the day are redrafted.

Clause 93: {Extended} periods for dealing with requests {during first two years}
The committee agreed that Option 2 for 93(1b) was preferable as it was much more clearly written.

Clause 93A: Correction of personal information
There was no agreement on the two options outlined. The Chair said that this would be decided when the vote occurs.

No concerns were raised over Clause 94: Liability, or Clause 95: Offences. Adv de LAnge noted that the "flagged" section in (95) will be taken out.

Clause 96: Regulations
No decision was made as to whether to use "required or permitted" or "must or may" in 96(1a). It was agreed that "or tabled in" in 96(2) be deleted, and "the determination of" be included in 96(3a).

Clause 97: Short title and commencement
Adv de Lange that he favored this Act to be called "Promotion of Access to Information Act, 2000". There was not a clear agreement that this would be the title. The committee did agree to Option 2 for 97(2b).

All members agreed that Schedule 1 and Schedule 2 were correct.

The committee turned its attention to A. PUBLIC BODIES (OPD 106)
Clause 17: Designation of deputy information officers and delegation
It was agreed to remove the word {suitable} from 17(1)

Clause 18: Form of requests
The committee agreed to Option 1 for 18(2).

Clause 19:Duty to assist requesters
Members were in favor of Option 2 for 19(1), and also in favor of Option 1 within the second option for 19(1).

Clause 20: Requests and Clause 21: Preservation of records until final decision on request were agreed to as stated. It was also decided by the committee to omit all references to {other than the personal requester} in Clause 22: Fees. Clause 23: Records that cannot be found or do not exist was agreed to as stated.

Clause 24: Deferral of access
The Chair asked that {OR any legislature} be included in 24(1c). There were no objections.

Adv de LAnge stated that the only decision that was required of Clause 25: Decisions on request and notice thereof and Clause 26: Extension of period to deal with request was deciding between the different wordings. The Chair said that this can be decided on during voting. The committee had previously agreed to Clause 27: Deemed refusal of request as stated.

Clause 28: Severability
The Chair noted the difference between Option 1 and Option 2 for 28(1) was that Option 2 does not contain the words "to be refused" as are mentioned in the first option. The Committee were in favor of Option 2.

No problems or concerns were expressed by committee members over Clause 29: Access and forms of access.

Clause 29A: Access to health records
It was agreed to include the term {serious} and {OR arrangements} in 29A(3a). No decision was made pertaining to the other wording. Mr Jeffery (ANC) asked if "whichever is reasonably possible" in (3a) could be changed to where possible. The Chair thought that there was not a need for either of the terms to be included. Adv de Lange argued the term "reasonably possible" is asking the information officer to judge and apply the tests to see if the counseling was or was not limited, alleviated, or avoided. He further argued that he did not want to put the information officer in a role of having to judge the reasonability of counseling. The Chair said that Mr Jeffery's (ANC) suggestion will be added as an option, but that he would vote to omit it.

The committee agreed to Clause 30: Language of access and Clause 31: Reports to Human Rights Commission as stated. No decision was made between the two options for Clause 57: Form of request or to the inclusion of the words {in the Republic} in Option 1. The Chair read over the changes that were made to Clause 58: Fees from the previous draft, but no decisions were made. Adv de Lange stated that the two options listed for Clause 59: Decision on request were ready for voting. He noted that Option 2 was proposed by the Democratic Party (DP). Clause 60: Extension of period to deal with request, Clause 61: Records that cannot be found or do not exist, and Clause 61A: Deemed refusal on request were agreed to as written.

Clause 62: Severability
It was agreed to by the committee to use Option 2 for 62(1).

Clause 63A: Access to health records
The same changes that occurred in Clause 29A apply to 63A.

The meeting adjourned.


No related


No related documents


  • We don't have attendance info for this committee meeting

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: