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JOINT AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
15 October 1999
HEARINGS ON THE OPEN DEMOCRACY BILL
Committee for Private Database Users (see submission)
Department of Public Works (see submission)
Department of Land Affairs (see submission)
Institute for Security Studies (see submission)
Open Democracy Campaign Group (see documents below)
Open Democracy Campaign Group Documents:
Briefing by The Open Democracy Campaign Group
Submission on Enforcement Procedures prepared by Human Rights Committee and Idasa
Submission on Horizontality prepared by COSATU
Submission on Horizontality prepared by South African Council of Churches
Extract from a Legal Opinion prepared by Paul Farlam of the Cape Bar
The Committee for Private Database Users gave a submission outlining the private sector view of the Bill. While they feel that the issue of horizontality needs to be improved, they support the Bill as is, and if changes are needed , these should be effected at a later date. The Department of Public Works had problems with a number of sections in the Bill and much discussion ensued on their proposal of not having an internal appeal process. The Department of Land Affairs reviewed its entire written submission because the Committee had not received it ahead of time. The Institute for Security Studies pointed out changes that needed to be made to the whistleblower section of the Bill.
The Open Democracy Campaign Group gave their presentation. The group consists of representatives from, amongst others, Black Sash, IDASA, COSATU, the Human Rights Committee and the South African Council of Churches. Although they have already made earlier submissions, they have joined together to present on new issues that have developed and which they are concerned about. Essentially there are three areas of concern: whistle blowers, privately held information and the drafting for the enforcement of the 'right to know'.
Committee for Private Database Users (see submission)
Brian Currin from the Committee for Private Database Users asked the Committee to pass the Bill as is. The private sector views the Bill as being generally workable, and they do not want any more delay in getting the Bill passed by the February deadline.
Chairperson de Lange told him that the Bill would be passed by February, but asked what he thought of the horizonality aspects of the Bill. Mr Currin said that the Bill substantially, but not totally, meets the objectives regarding access to information. To try and redraft the Bill so that it provided access to information to all would make the Bill too lengthy and would cause too much delay.
The Chair asked Mr Currin how he felt about the definition of private body. Mr Currin agrees that the definition is a bit narrow, but he does not feel that this is so detrimental as to hold up the Bill's passage. The Chair told him to review the other submissions that were coming in and encouraged Mr Currin to make another written submission in response to the issues that other organizations were raising in their submissions. The Chair pointed out that the privacy bank was intended to be wider, but now it is so narrow that an issue has been raised as to whether or not this part of the Bill is in compliance with the Constitution. Mr Currin agreed that the definition could be more inclusive, and said that he would review the other submissions and respond accordingly.
Department of Public Works (see submission)
Burt Anabell from the Department of Public Works stated that the Bill was a long time coming and that it was a good thing for the government as a whole. Mr Anabell commented on Sections 13, 20, 38, 40, 44, 63, and 67-71. The majority of questions posed to Mr Anabell were on his suggestion to do away with internal appeals (Section 67-71).
Mr L Lever (DP): If there is no internal appeal process, then who would do it? With regards to Mr Anabell's comment on section 40: would it be wise to bring in a criminal element?
Response: It would be wise to bring in a criminal element to prevent abuse of the process and to provide a balance in the system to deal with people to seek information for malicious reasons.
The Chair commented that he did not know how people would ask for information maliciously.
Mr A Leon (DP): Your submission seems to kill the right to access information rather than promoting it. Have you considered that section 44 offers a balance test for information officers in making their determinations, and have you looked at section 63 which promotes open government? How do you reconcile your suggestion of affidavits with the openness that the Bill is trying to promote?
Response: The department does understand the right, but the Committee must adopt a balanced approach. It must take into account the cost of implementation.
Mr Masutha (ANC): Do you really feel that eliminating the internal appeal is a necessary revision to the Bill?
Response: If a decision is made within the Department, then the decision will be biased. One needs someone removed from the issue
Ms P Jana (ANC): I understand your concerns with sections 38 and 40 in that there are some unclear terms in them. Do you want them to be clarified in the Bill or by regulations?
Response: We want guidelines written outside of the language of the Bill
A question was asked regarding Mr Anabell's concern over the cost implications of creating a new position. The Bill says that the department is to "designate" a person not hire a new one. Further, would not eliminating an internal appeal hurt the Department's ability to protect the information and also add additional administrative burdens on them?
Response: The Department does not want to have to give additional duties to a person who already has a huge workload. The department is already smaller than it used to be. With regards to the internal appeal question, decisions should not be made within the department.
The Chair commented that the internal appeal was created to promote the change in culture of the institution, because it creates an internal legal procedure which means lower costs and more openness.
Department of Land Affairs (see submission)
Prof G Budlander read his written submission because the committee had not received it in advance.
Mr Masutha (ANC): The key function of governmental department's is to provide access to information and to answer inquiries of the public. How does this Bill work to increase the burden on the departments?
Response: I agree that the departments have a duty, but the question is what is the appropriate duty to put on a department? You don't want to take attention away from other duties.
Ms Camerer (NNP): Won't making MPs pay for information defeat the purpose that they serve to their constituents? Wouldn't this just serve as a barrier for MPs to access information?
Response: There would be no fee payable for questions, but MPs should understand that they cannot ask for everything. It is a matter of recognizing what the department can provide with the time and resources that they have. It is not that the department does not want to provide the information, but it is about what the department will be able to produce within their means.
There was a question about whether the professor was suggesting that there should be a grading system of all information so that time frames can be marked on each grade of information?
Response: No, a grading system would be far too complicated
Ms Jana (ANC): Do you have a plan for implementation? She agrees that MPs should have to pay, but how would you determine who should and should not pay the fee? What kind of fee did he have in mind?
Response: No he has no complete plan of implementation.
There could be a simple test with regard to who can or cannot afford to pay the fee. The fee would be one that is related to the cost of the information.
Mr Jeffery (ANC): The submission raises lots of questions but does not provide any solutions. Could he comment on an implementation plan.
Response: There are some aspects of the Bill that could be implemented right away, which would not require a high administrative burden. However, the more complicated sections should be phased in.
Chair de Lange (ANC): Agrees with most of the submission because it fosters openness rather than closeness. Please comment on record keeping. Also, he agrees with having a fee for MPs, because he did not realize before that by excluding them you are excluding such a large chunk of people (10,000). Further, is 30 days to phase in the Bill enough time or too little time? Please comment on the 5 day urgent application deadline.
Response: The 30 day phase-in may be problematic especially for more rural areas and for local government. May want to phase in depending on location or on level of government.
The five days is very little and it causes a heavy burden on the department. Realistically five days is too short as they already struggle with the five day deadline for Parliamentary requests.
Mr Masutha (ANC): Doesn't the Bill go too far in protecting government departments?
Response: I agree that the Bill does protect the governmental departments as far as the content of the material disclosed, but it does not protect the departments from the volume of information that is being requested. The concern is in how long it would take to put an answer to a request together. The exclusions in the Bill do not take into account the time necessary to acquire that information.
Institute for Security Services (see submission)
Lala Camerer from the Institute for Security Services focused on Section 63 dealing with whistleblowers. She reviewed what is currently in the Bill and how the Bill should be changed to provide better protection. The Bill should serve to foster whistleblowing as a way of deterring corruption and wrongdoing. There are some administrative changes that need to be made, but it would come down to letting employees know of the provision in the Bill. It would be useful for it to be legislated that each department has an obligation to inform their employees that there is this whistleblower protection.
Ms Camerer (NNP): Isn't the answer not to delete section 83(B), which provides for criminal sanctions, but to add something in the legislation to protect those who have a suspicion. The point of the criminal sanctions is to deal with those people that act maliciously and not those that are negligent.
Response: Civil action as a solution is sufficient. You want to foster whistleblowers coming forward. The clearer the internal procedure the more the objective of this section will be fulfilled.
Mr Masutha (ANC): Should guidelines be added to the legislation that devise policies on how to manage whistleblowers?
Response: The legislation should provide for a standardized procedure that everyone can implement and inform their employees about
A question was asked if there should be a financial incentive for those that blow the whistle on say tax evasion?
Response: I am not sure if this would foster the culture that we want. In some countries a person can get a small percentage of the money saved. I do not feel this is a good idea - some people may wait until more money is taken before they blow the whistle just so they can get more money out if it
Are there regulations available that SA can adopt?
Response: Yes, the UK has some available. The UK really has an ideal model, and there are copies available that can be distributed to the Committee.
Open Democracy Campaign Group
Ms Alison Tilley of Black Sash briefly explained that as Ms Lala Camerer had covered a lot of ground on whistle blowers earlier in the day it would not be discussed in the presentation.
The concerns about privately held information centre on the issue of horizontality and how this will be legislated for. Proposed amendments to the current legislation are contained in the COSATU submission presented by Mr Oupa Bodibe. (See submission)
Finally the problematic costs of the enforcement of the 'right to know' can be dealt with if procedures are in place to access information that has already been processed and made available. Possible procedures were outlined by Mr Richard Calland of IDASA.
In his presentation he said that the system of enforcing a person's 'right to know' should be clear, cheap, accessible and speedy. The system that the Bill puts in place must be workable for both the requesters and holders of information. The Bill proposes a process of external review through the right to make applications to the High Court. However this would be expensive, inaccessible, intimidating, slow and hence inappropriate. In the context of the whole system the emphasis must be on information being as accessible as possible. The idea of the 'right to know' is that there should be automatic disclosure of government information. If the information is automatically available to the public this would be less burdensome for government, the only cost would be photocopying or the setting up of a website. Therefore any internal review procedure would only deal with information that falls outside that which is automatically disclosed. The documentation produced therefore relates to the process of external review and an alternative to the High Court process. The Open Democracy Campaign Group proposes a tribunal system that would be informal and cheap for both its users and the government. The vision is that this tribunal will become a 'Democracy Tribunal' that links the three limbs of constitutional rights - the right to information, equality and justice. It will provide the means to gain quick redress on all three areas and will link the enforcement mechanisms of the legislation on all three. The proposed amendments also include the system for appointing tribunal officers. As in the Small Claims Court you will make your case to them about the information refused to you. They will hear why this information was refused and then will decided - simply yes or no - whether the access to the information is to be granted or refused. This will be very fast. The tribunal should exist within the magistrate court (to keep costs low and accessibility high) but it is possible that a new designated officer will be created to run the tribunal.
Questions by committee members.
Questions began with a discussion on the proposed amendments to Sections 47A-47D (access to privately held information), as outlined in the submission made by the South African Council of Churches. Adv de Lange suggested that three positions could be held regarding legislating for access to private information:
- do not do anything about it now;
- allow open access. However without guidelines, chaos is possible;
- leave the Bill as it is but broaden the scope of what private bodies are within part four.
The proposed amendments by the Open Democracy Campaign Group demand that a minimum framework is drafted for some sort of public information system or service. However it was unclear whether the privately held information aspects of the Bill would be retained or whether it would be totally replaced by the information system. Adv. de Lange wished to know exactly how these would fit together.
Mr Bodibe (COSATU): We need a new platform to deal with private information that retains what is set out already but also set out a new framework within the Bill that gives general overriding powers to legislate for privately held information.
Adv. de Lange remained concerned that the proposed section 47 would not fit easily with the Bill and would surely clash with section 50. Mr D Tilton (SACC): There would be no conflict because S50 deals with the narrow issue of personal information held by private bodies. The bill currently defines a private body to be a person "possessing or controlling a personal information bank." Simply deleting this aspect of the definition, as some witnesses have proposed, would eliminate any distinction between a private body and a "person". This would create new problems and it would not extend the scope of the right of access to privately-held information to give full effect to S32(1)(b) of the constitution. The new S47 we are proposing would provide a broad interim framework for access to any information that is required for the exercise or protection of any right. Adv. J de Lange maintained that there would be uncertainty about which procedure should be followed if both clauses are retained. He requested that more information be provided for the committee.
With regard to the group's proposal of a tribunal system, Adv. J de Lange commented that the proposed system seemed to be very inquisitorial instead of the adversarial processes associated with magistrates.
Mr Calland: We believe that an adversarial system creates a strict dependency on lawyers that make access to information less accessible for those who cannot afford the costs involved. An inquisitorial procedure will reduce the dependency on legal assistance. By removing the adversarial system, the process will become informal, less expensive and enhance accessibility. This will create a new arena where people can give input more freely similar to that of the small claims court.
Mr Masutha (ANC): Regarding horizontality you appear to state that regulating the private sector is complex therefore assuming that the public sector will be easy to regulate. However could the public sector not turn out to be just as complex?
Ms Smuts (DP): There is much difficulty with the 'right to know' concept. We know that the government owes us the right to its information but why should there be a 'right to know' in the private sector? What responsibility should the ordinary person have? The committee has decided that in this regard the legislation needs a clause-by-clause approach so that it must be clear exactly how the 'right to know' applies to each of the Bill's aims. What is meant by "the right to know"?
Ms Tilley: There is often not a substantial difference when dealing with the private or public sectors. A person dealing with a bank or a Department over a welfare grant usually experiences that the two are similar. The divide between what is government and what is not is eroding and the relationship a person has with one is not necessarily different to that which they have with the other. It has become merely a question of power relations and the focus should be on the balance of power rather than whether a body is public or private.
Mr Bodibe: The private sector must be within the legislation. The complexity is due to administrative requirements making the 'private sector' both people and companies. Individuals have few resources and any system must be designed to take this in to account but still provide the necessary access to information. We believe in the 'right to know' so are suggesting that legislation must set minimum levels of access to private information that is collected and made accessible by the public sector. We do not have all the answers but would propose an empowering (not prescriptive) clause to consider what information should be made automatically available. This should be developed through a consultative process as it will an integrated institution of information disclosure.
Imam Solomon (ANC): Have you considered having the Public Protector as the mediator? Or as the Human Rights Commission already plays a role in improving access to information could they run the tribunal?
Mr Masutha (ANC): Lots of these issues could originate in other sectoral issues. As we already have many structures and tribunals (e.g. labour court, proposed equality court) and many of the ODB issues could originate in other sectors, do you think that we might avoid the financial costs of a new body and use existing bodies?
Mr Calland: We have already discussed the use of the Public Protector, the Human Rights Commission and the equality court and now propose a new tribunal because we see it as the best solution. It would provide the public with a much better resource and would be totally neutral. If you ask whether the cost is worth it you must also ask whether you want the system to work. The High Court method will not work, it is only for those who are rich, powerful and have the knowledge to use it. If you want an accessible system then you must accept that this will have a price. However we actually believe that a tribunal system will be cheap for the government and the taxpayer. If the existing magistrate infrastructure is used then outlay costs will be minimal. Regarding the use of existing tribunals, I would point out the global trend of increased specialisation which I think South Africa must follow.
Mr F Jenkins (Human Rights Committee): The Human Rights Commission could be used but as there are only four offices nationwide this would make it less accessible than using the magistrate courts.
Ms D Smuts (DP): The tribunal proposal is creative but will it not be difficult to combine issues of open democracy, administrative justice and equality in to one 'Democracy Tribunal'?
Mr Calland: We accept that this may not be viable but as all three are so closely linked it should be considered.
Mr Masutha (ANC): This is a mixed issue situation where there will be a whole range of institutions with a role to play, some adjudicational and some non-adjudicational. I did not understand whether you are in favour of moving towards an internal appeal mechanism - as included in the Bill - as well as making room for the High Court?
Mr Calland: This is a complex issue but there is only one adjudicator according to the Bill in its current format. It is not that only complex cases will go to the High Court, all cases that need resolving must go to the High Court. We want an internal mechanism of adjudication and this is what we are proposing with our tribunal system.
Mr Jeffery (ANC): Why do you want to designate another body within the magistrate courts? Why not just make use of existing magistrates?
Mr Lever (DP): It makes sense to have special democracy officers but we will also need people with a wide range of fairly developed skills. This pool of skills might not be readily available. Will the democracy officers therefore have to work on a voluntary basis as the specialist officers of the Small Claims Court do?
Ms Camerer (NNP): We should look to the German system as it is fast and efficient. It is inquisitorial and linked to the court system.
Ms F Chohan-Khota (ANC): I am unsure exactly how you conceptualise the tribunals. They are to be inquisitorial in nature and yet work at the magistrate court level. Further where would appeals and review lie? Would they not effectively be erased as they involve an adversarial process?
Adv. de Lange (ANC): The use of magistrates courts could be problematic. This could have an impact on whether the tribunal would work as a tribunal. You cannot include the magistrate court in the system and expect it not to retain its courtly functions. If it acted like a court this could be as inaccessible as the High Court. The special court system set up in Australia to deal with open democracy was a complete failure because it was too formal. This makes it clear that we need a more flexible and informal system.
In response to all these questions Mr Calland gave the following description of the proposed tribunal system that includes the best aspects of the magistrates system but hopes to leave the worst out:
- The benefits of the magistrates system would be the use of the infrastructure which is located throughout the country, in known and accessible places.
- The problems would be the lack of skills and specialisation to deal with open democracy issues plus the heavy work loads magistrates already have.
- Therefore the key use of the magistrates system would be the physical locating of the tribunal in the court buildings.
- There would be no problem of the tribunal being inquisitorial yet having a adjudicating role.
- Appeals and referrals could by-pass the High Court and go straight to the Supreme Court of Appeal.
- The decision of the tribunal would be informal but it would still count on record. This means that further appeals cannot have long hearings of evidence but must make a quick decision on the evidence already considered.
- We are still unclear if we should use established pool of magistrates or create a new judicial officer. The latter may be better as it would create a new specialisation that could be developed according to need and would have a flexible skill base.
Mr Jeffrey requested that the committee see the costs of the Small Claims Court. It has a comparable system so will allow us to see how much the tribunal system might cost. Adv. de Lange agreed for this information to be made available but pointed out that as the court adjudicators are all volunteers the costs might not be comparable. Mr Calland suggested that the new Water Claims Tribunal or the Revenue Tribunal might provide comparable costs.
Adv. de Lange concluded by reiterating that just the physical use of magistrate courts could have constitutional implications. It is unlikely that the existence of a tribunal within the third and independent sphere of government would be permissible.
Ms Tilley responded that although the magistrate sits as a judicial officer within the court, the courts themselves are used for various administrative functions, especially small magistrate courts.
To this Adv. de Lange suggested that it might be easier to re-write the rules that establish a magistrate's position. Otherwise it must be ensured that the only link between the courts and the tribunal was the use of court facilities. He then requested that more exact information on what was being proposed should be provided for the committee.
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