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JUSTICE PORTFOLIO COMMITTEE; SECURITY & JUSTICE SELECT COMMITTEE
24 July 1998
OPEN DEMOCRACY BILL [B67-98]: BRIEFING
Documents handed out:
Open Democracy Bill [B67-98]
Open Democracy Bill: briefing compiled by Adv van Schoor
The Open Democracy Bill was introduced by two members of the drafting task team. The briefing was followed up with questions for clarification. A plan for further processing of the Bill was agreed upon by the committee members. Closing date for submissions is 10 August and Public hearings will take place on 19 and 21 August. Until the tagging of this Bill as either a S75 or S76 bill is decided upon, the Bill will be dealt with jointly by the NA and NCOP committees.
Adv Gumbi of the Deputy President's Office and a member of the task team, outlined the drafting process for the Open Democracy Bill. The five-member task team has worked on drafting the Bill since 1994. The long drafting period was due to the constitutional changes, from the interim to the final Constitution, to this right.
The drafting involved consultation of similar legislation in countries such as Australia, New Zealand, India, the UK, the US, and Canada and adopting it to the South African context. In respect of access to information and transparency of government, the adoption of a more open democracy in South Africa is particularly complicated by the large extent of illiteracy and by budgetary constraints in South Africa. Due to the latter concern, for instance, proposals are made in the Bill to move away from local tribunals to a more centralised system for dealing with complaints about refused access to state information.
Ms Van Schoor from the Chief State Law Advisors' Office gave an outline of the content of the Open Democracy Bill, closely following the short version and hardly elaborating on it.
Discussion and questions
The Justice Portfolio Committee Chairperson, Mr J De Lange, called the Bill the most complex piece of legislation since the "Truth and Reconciliation Commission Bill", and called for questions by the committee members to put to the task team representatives.
D Jana (ANC): Why was the protection of persons exposing corruption and mismanagement, the so-called whistle-blowers, and the issue of personal privacy and information put together in the same Bill?
Response: All relate to open governance.
M Mzizi (IFP) referring to paragraph 8 of the short verson on "Enforcement mechanism", asked why the Bill recommends that "if urgent request for access or urgent internal appeal or internal appeal is unsuccessful; or contravention of whistle-blower provision is alleged, an urgent motion application may be lodged with high court"? Would not the magistrate courts be more accessible and practical to use for this purpose?
Response: The matters to be dealt with involve such important principles and issues, for example, national security, that they should be allocated to the highest level of tribunals. The high court is therefore the right institution to consider, in each instance, whether the requester or the government body is correct. Besides, only 'heavy' issues usually end up in court, e.g. trials involving companies/newspapers scrutinising state security. Therefore, the additional pressure to the high court is not expected to be too high.
B Molewa (ANC): Will requesters have to state reasons why they are asking for information?
Response: No, they will only have to categorise themselves as either commercial, personal or non-commercial requesters for fee purposes.
M Moosa (ANC): Why does the Bill not provide for special provisions for the protection of minors?
Response: Special provisions for groups such as children, women and old people already in place in the court system are regarded as sufficient. However, if desired, special provisions for these groups could be included in the Bill as well.
R Radue (NP): Are there any precedents in any other country of legislation on access to information?
Response: Most other countries have a less detailed constitution than South Africa's so judicial interpretation is more common than parliamentary interpretation. Our constitution
specifically requires an act of parliament.
J De Lange (ANC): a) Why will only recorded information be made available, not opening for requests to governmental bodies on collecting specific information? b) Why does the Bill not include legislation on the administration of governmental archives?
Response: Much state information is not computerised or categorised properly.
L Landers (ANC): a) How will the civil service be trained to meet the new demands and procedures? b) Looking at the paragraph 8 of the short verson of the Bill on "Enforcement mechanism", the Bill assumes that in case of refusal of information, and failure of internal appeal within the respective government body to deal with it, the next step will be the high court. Why not an intermediate step, to alleviate the burden on the high court?
Response: a) The civil service will be trained. b) Perhaps another intermediate step would be useful.
M Moosa (ANC): a) How will the civil service be trained? b) How will the high courts be assisted to deal with the additional pressure?
Response: a) That will be the responsibility of the Human Rights Commission. Most of the task team's work has already involved the sensitisation of the civil service, informing government departments about upcoming changes. Much of the information system is in place, as government bodies are already used to dealing with requests, for example, from the press. We pray that the public service will now have got the message. b) Experience in other countries has varied. For example, in Canada a huge apparatus was set up to meet the flood that was expected, but which did not come. Consequently a flood is not regarded as the most realistic prospect in South Africa and a plan has not been made as yet.
D Jana (ANC): How will the Bill be implemented?
Response: There is no need for a special ministry. The Human Rights Commission and the various governmental bodies will be responsible for the implementation.
M Mzizi (IFP): Only persons who expose government mismanagement and corruption "in good faith" will be protected for their whistle-blowing. But who will decide whether they blew the whistle "in good faith"?
Response: This must be considered in each case.
J Jeffrey (ANC): Were the provincial councils consulted in the drafting process?
J De Lange (ANC): Should there not be more specific places to direct the exposure of mismanagement and corruption for whistle-blowers, in order to ensure their protection? Look for example at the particular tribunals in Australia.
Response: The information must go to responsible people, and alternatives are necessary.
M Moosa (ANC): If records are already open, why cannot the requester get access to it directly, instead of contacting other institutions?
Response: In order to alleviate the administrative burden. This is purely a (budgetary) balancing section.
L Landers (ANC): Should whistle-blowers who have mistakenly blown the whistle, not lose their protection?
Response: It is already stated that if the whistle-blower does not act "in good faith", she or he is not protected by law.
The committees decided upon the follow-up process for the Bill:
10 August: Closing date for submissions
19 + 21 August: Public hearings.
The further processing of the Bill depends on its tagging as either a section 75 or 76 Bill. Until this tagging is decided upon, the Bill will be dealt with jointly by the NA and NCOP committees.
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