Open Democracy Bill (B 67-98): hearings

Meeting report

JUSTICE PORTFOLIO COMMITTEE
23 March 1999
OPEN DEMOCRACY BILL (B 67-98): HEARINGS

Documents handed out:
Public Hearings Programme (23 & 24 March)
Attorney General: Grahamstown
Attorney General: Transvaal
Banking Council
Black Sash
Centre for Applied Legal Studies
Centre for Conflict Resolution / Ceasefire Campaign
Chief Justice: Ishmael Mahomed
COSATU
Consumer Institute South Africa
Direct Marketing Association
Direct Response Marketing
Edgars: 7 August 1998
Edgars: 28 November 1997
Eskom
Freedom of Expression Institute
Human Rights Committee
IDASA
Judge: Bloemfontein
Judge President: Durban
Judge President: Northern Cape
Judge President: Western Cape
Legal Resources Centre
Leisure Books
Ministry for Intelligence Services
NADEL
NEDCOR
National Postal Forum
Open Democracy Lobby Group (9 NGOs)
South African Catholic Bishops' Conference (SACBC)
South African Chamber of Business (SACOB)
South African Council of Churches (SACC)
South African Human Rights Commission
Telkom
Transnet
Tupperware Southern Africa

SUMMARY
The following organisations gave an oral submission:
Human Rights Committee
Legal Resources Centre for Environmental Justice Networking Forum
Black Sash
Idasa
National Association of Democratic Lawyers
South African Catholic Bishops’ Conference
South African Human Rights Commission
COSATU
Ministry for Intelligence Services
Their full comments can be found in their written submissions.

MINUTES
Chairperson JH De Lange (ANC) welcomed the committee members to today’s hearings and asked Ms P Proudlock to begin regarding the Human Rights Committee’s comments the Open Democracy Bill (ODB).

Human Rights Committee
Ms Proudlock emphasised in her presentation that making the constitutional right of access to information a reality is essential to ensure an open and democratic society, good governance, a transparent exercise of power, and a participatory democracy. The ODB is an important piece of legislation that purports to give effect to a constitutional right that bears a particular significance in South Africa.

Chairperson De Lange commented that the Human Rights Committee submission was quite one-sided and that her comments contain no reflection of the government’s position. He is worried about this imbalance. Mr W Hofmeyr (ANC) asked if someone could address the budget implications of suggestions made in the submission, particularly regarding the position of an information officer and the establishment of tribunals. Will the State need to hire additional personnel and provide training? Another MP asked with regard to classified information, how broad does the right of privacy extend? Ms Proudlock responded that adequate personnel already exists but that they are not working at full capacity. Therefore, if duties are rearranged, one person can be designated as an information officer. In addition, tribunals will not be separate entities but rather fitted into the structure of the magistrates courts. As for the question regarding privacy issues, Ms Proudlock deferred that question to the SACC’s forthcoming presentation.

Chairperson De Lange requested documentation from Ms Proudlock’s presentation, particularly comparative information. He asked if she could provide examples from other countries’ legislatures. He also emphasised that the position of the government need to be considered and this component was "glaringly" missing from Ms Proudlock’s presentation.

At this point, Chairperson De Lange was called to attend a Rules Committee meeting occurring simultaneously. He excused himself after asking Ms DP Jana (ANC) to chair the remainder of the meeting.

Legal Resources Centre for Environmental Justice Networking Forum
Ms A Andrews of the Legal Resources Centre presented comments on behalf of the Environmental Justice Networking Forum to the committee. Ms Andrews focused on how the ODB fits into the National Environmental Management Act (NEMA). The access to information provisions contained in NEMA lapse when the ODB comes into being. Therefore, Ms Andrews stressed that the ODB process must retain in some way those aspects of NEMA that are protective of the environment.

Since the committee had no questions for Ms Andrews at the end of her presentation, Chairperson Jana allowed her to speak more about her submission. Ms Andrews further summarized my written submission that the committee was given. Mr Hofmeyr asked Ms Andrews if it was better to preserve what is in NEMA or rather should additional clauses be added to the ODB to compensate for these lapses mentioned in her presentation. Ms Andrews responded that NEMA does not clearly spell out the right to privately held information. It was anticipated that the ODB could cover this. She suggested that Section 31 of the ODB needs "tinkering" in order to bring it in lone with NEMA’s intentions.

Mr Hofmeyr asked Ms Andrews if she was proposing changes to NEMA. Ms Andrews responded that she was not, but the ODB must cover where NEMA lacks. In page four (4) of her submission, she provided suggested language for revising the ODB but explained that this suggestion requires more thought and time. Chairperson Jana asked Ms Andrews if she could resubmit proposed language for this part of the ODB after working on the language. Ms Andrews agreed to do that and with no further questions, concluded her presentation.

South African Council of Churches (SACC)
Mr M Damon from SACC started by providing the committee with a summary of SACC’s mission. He then emphasised that SACC strongly supports the adoption of legislation that wipes away secrecy and moves towards transparency. He stressed the vital importance of protecting whistleblowers and SACC’s concern with the ODB giving full effect to section 32 of the Constitution. He explained that if the ODB does not give full effect to this constitutional provision, it will trigger a "mountain of litigation" and an eventual finding of unconstitutionality by the courts.

Mr G Solomon (ANC) commented that freedom of information also includes a journalist’s right to protect his sources. This component is up to the courts to decide. Mr Damon responded that the SACC’s submission is from a public information perspective. For example, in the Argus this weekend, a story about ESKOM and its Y2K readiness was printed. ESKOM refused to disclose its readiness regarding the Y2K glitch. Mr Damon used this example as an instance where the public has a right to know such information.

Another MP asked about the costs that will be imposed on private bodies in disclosing requested information. Mr Damon responded that private bodies must bear the cost because they have an obligation to provide information to the public. Chairperson Jana asked if he had any specific examples from other jurisdictions about how private bodies provided information to the public. Mr Damon said that he did not have any examples at this time but that the presenters for the Black Sash and Idasa would cite examples in their presentations.

Mr Tilton, a researcher from the SACC, added that it is not advisable for a blanket exemption to be granted to journalists under the ODB. He explained within the SACC’s proposed insertions into the ODB, language is present that can be used to protect sources of journalists. Also, Mr Tilton said that reasonable charges for postage, photocopying, and time spent on a request may be passed on to the requester of information.

Black Sash
Ms A Tilley expressed her concern that sections contained within the draft ODB that were very extensive are no longer present in the current bill. She also expressed her concern about the lack of clarity regarding the language of section 32(2) of the Bill of Rights after the mandated timeframe has expired. What happens to this clause after April 2000? Ms Tilley also addressed the issue of information officers, the Human Rights Commission, and the right to administrative justice.

Ms LB Ngwane (ANC) asked why do we need tribunals. Why not use the existing courts? She proposed that if information officers are available as a first level of review, then the courts are available as a second level. Ms Tilley responded that yes, information officers need to be placed at a fairly senior position to be able to access effectively information within an organisation. If an organisation refuses a request for information, then an internal review process would contain costs. As a last resort after exhausting the bureaucracy, a person can then go to the courts. However, in the courts, people often need legal aid and must wait for a court date to be set. Much time and money is involved in using the court system. Tribunals have definite cost and time benefits.

Chairperson Jana commented that Ms Tilley seems to be advocating an informal structure to process applications and access information. Ms Tilley responded that if it is left to the high court level, problems rather than solutions will be created. People will be denied access to the information that this bill grants as a right.

Idasa
Mr R Calland started by explaining the NGO campaign group that had been collaborating on their submissions for today’s hearings. Mr Calland endorsed the views of the four previous speakers in addition to NADEL, SACBC, and the Human Rights Commission.

In his presentation, Mr Calland explained that the external review by the High Court, as currently envisaged by the ODB, does not provide a remedy that is cheap, speedy and accessible. Rather, it provides the reverse. Hence, a creative, innovative and cost effective alternative, such as a tribunal, must be considered. Mr Calland’s full comments are included in his attached written submission.

Chairperson Jana asked if Mr Calland could explain what he means by the word "speedy." Mr Calland responded that this should be decided on a case-by-case system. For example, if the case is urgent, then urgent relief should be sought.

Chairperson Jana commented that no defined time period was mentioned. If she remembered correctly from previous hearings regarding this bill, lawyers were opposed to tribunals because they are too informal. Mr Calland responded that lawyers typically do not like tribunals because they make less money in that system. He explained that tribunals can recognise the individual circumstances of each case whereas the High Court can not do that.

After the completion of Mr Calland’s presentation, Chairperson Jana apologised for the poor attendance of this committee today. She said that because of the holiday weekend, many MPs are busy with other meetings today. This committee is holding these hearings now at the end of the session because Parliament hopes to pass this bill during the next session.

National Association of Democratic Lawyers (NADEL)
Ms R Miunyuki explained that NADEL believes that the exclusion of the section entitled, "Disclosure of governmental decision-making guidelines," is detrimental to the intended effect of the bill and the proposed "right to know" model.

After the conclusion of her comments, no committee members had questions for Ms Munyuki. Chairperson Jana explained that she had just received this written submission and, therefore, needed time to read the comments. Chairperson Jana said that she would contact NADEL if she had any future questions.

South African Catholic Bishops’ Conference (SACBC)
Mr M Pothier said that it is hard to envisage the High Court as the place to resolve disputes regarding access to information. This seems to be a closed process for 99 out of 100 applicants to this court. The main problem with the ODB lies in what the bill claims to do. This bill does not fulfill the constitutional principle of transparency.

Mr Pothier asked the committee why the process for this bill has taken so long. He asked for an explanation for this delay. Chairperson Jana responded that the process followed for the ODB started long ago and was not shelved and ignored. Actually, this committee has allowed additional time for public participation and input.

Mr AC Nel (ANC) posed a question for the entire NGO alliance presenting their views today. He asked if it was possible for this legislation to have unintended consequences that benefited well-resourced people rather than disempowered parties. Mr Pothier responded that there is the chance that any legislation contains this flaw. That is the reason that he advocates language that eliminates this consequence. Ms Tilley added that these rights are needed in the hands of the public to push public officials towards openness and transparency.

ESKOM
Mr M Adam started by explaining ESKOM’s commitment to transparency and the disclosure of information to the public. He did stress however that public enterprises operating on a commercial basis need to be treated differently. Such a different treatment does not limit the public’s access to information. If public enterprises are treated differently from private companies, an unlevel playing field is created.

Mr Adam also discussed the issue of intellectual property held by ESKOM. Under the present ODB, third parties could access this type of information and later it could be sold by that third party. ESKOM also understands the need for announcing environmental safety issues. Mr Adam explained that this may lead to problems when information is disclosed prematurely and causes an unnecessary public outcry. It should be the role of the Minister to define "public safety" and "environmental risk." The success of the ODB depends on balancing good governance and public access to information.

Mr Solomon (ANC) asked Mr Adam to expand on why he thought the ODB would affect competition. Mr Adam responded that competition should not be introduced for competition sake. It should only be introduced for improvement sake. This bill creates unfair competition between ESKOM and its competitors.

SA Human Rights Commission
Ms V Meyer emphasised that the Commission wants to be clear on its mandate and its ability to deliver in regards to the ODB. Ms Meyer also announced to the committee that the Commission is planning a conference to discuss this bill amongst interested parties, including members of this parliamentary committee. The conference is scheduled for July/August of this year.

Ms SM Camerer (NNP) commented that while Ms Meyer’s comments were "on all fours" with the NGO coalition, her presentation did not contain specific comments on the issue of private information. She also asked for Ms Meyer’s comments on the draft equality legislation and the proposed equality commission. Ms Meyer responded that she is concerned with having the Commission act as a dispute resolution body. This would be inappropriate to be the next "court of call" after an internal review. On the issue of finances, Ms Meyer is not sure if her office would be able to deliver on the mandates provided under the ODB. Ms Meyer also said that she understands that the latest version of the equity legislation "trashes" the equity commission by excluding it altogether.

Ministry for Intelligence Services
Ms T Netshitenzhe started by clarifying the difference between information and intelligence. She also raised the issue of third parties in lawsuits. What information is protected? For this reason, Ms Netshitenzhe requested that the word "substantial" be deleted from section 36(1) of the ODB. She would like to see a balance between transparency and secrecy. The Ministry of Intelligence also differs from NADEL’s approach to the right to know. The Ministry prefers a "need to know" approach.

Chairperson Jana asked if the inspector general will have the appropriate capacity to fulfill the mandate of the ODB. Ms Netshitenzhe responded that the inspector general would have the capacity. Chairperson Jana also asked if Ms Netshitenzhe could elaborate on the differences between the "need" to know and the "right" to know. Ms Netshitenzhe provided an example of when an internal memorandum that is not meant to be released at a particular time creates an issue of classification. The Minister should have the power to classify these types of documents. After a certain lapse of time, the Minister can then release such documents for the public.

Ms Camerer inquired about the delay in appointing an inspector general. Why is this appointment so long overdue? Ms Camerer also asked that by taking the word "substantial" out of the ODB, would all classified documents be affected, including low classified documents? Ms Netshitenzhe replied that the Ministry of Intelligence Services is also looking forward to having an appointment of an inspector general. When talking about the different classifications of information contained with the ODB, regulations containing guidelines on classification are also needed. She does not foresee restricted classified information protected from disclosure when it is not likely to cause substantial harm.

Mr Nel asked that in terms of determining substantial harm, does the Ministry have any proposals in this regard? Ms Netshitenzhe responded that her office is presently receiving many requests from the public and as she had responded previously to Ms Camerer, guidelines are needed. Ms Netshitenzhe agreed with the Human Rights Commission’s comment that the disclosure language contained within the ODB is unclear as to what is meant by "substantial."

Chairperson Jana thanked Ms Netshitenzhe for her comments and also for waiting throughout the morning and into the afternoon to present her comments to the committee since she was not originally listed on today’s agenda.

COSATU
Mr Bodibe, Mr N Coleman, and Ms S Liebenberg of COSATU were the last presenters of the day. They said that they want the ODB to incorporate the right to know approach because otherwise, any other approach would place the bill beyond the reach of the disadvantaged. Just giving access to information is not sufficient. Short falls in other institutions such as the post office will also interfere in the public trying to access public information.

Chairperson Jana asked the COSATU team for their comments regarding private institutions inclusion in the ODB. COSATU responded that in the private sector, the fees should be limited to the production costs of the request. Specifics regarding this question are forthcoming in an annexure to this presentation to the committee.

Ms Camerer commented that COSATU has appeared to have joined the "group of eight" NGO coalition since their comments are in line with the previous submissions made this morning. She asked if COSATU had any constructive suggestions as to where the money would come from for the financing of their suggestions for the ODB. Mr Coleman responded that they are not suggesting a separate body but rather a special designation within the Human Rights Commission to handle these matters. Ms Liebenberg added that the High Court’s review of matters would be restricted to questions of law. Mr Bodibe added that COSATU recognises the link between the ODB and other legislation. COSATU is still thinking through these linkages.

Mr De Lange asked the COSATU team if they could provide examples from other countries where the administrative tribunal model has been successful. Mr Bodibe responded that this is a difficult question and in cases of private bodies, appointing information officers is not always workable. Ms Liebenberg added that the provincial tribunals in Canada seem to have success.

Mr Solomon asked COSATU to comment on their interests of lowering taxes and prices. The COSATU team referred the committee to page 8 of its submission in response to that question. Mr Coleman added that the ODB will be a tool for the public to exercise its rights. This is a process towards deepening democracy.

Chairperson Jana thanked all of the participants for a fruitful day of comments and questions. Mr De Lange added that he knew that thirty minutes of input does not give justice to all of the work that the presenters have accomplished in preparation. There will be no discussion by the committee at this stage on the bill. Today started the discussion process and will continue into the next session of Parliament. Mr De Lange also welcomed additional submissions by the presenters to add to what was shared today.