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JUSTICE PORTFOLIO COMMITTEE
24 March 1999
OPEN DEMOCRACY BILL (B 67-98): HEARINGS
Documents handed out:
Submissions on Open Democracy Bill
Attorney General: Grahamstown
Attorney General: Transvaal
Centre for Applied Legal Studies
Centre for Conflict Resolution / Ceasefire Campaign
Chief Justice: Ishmael Mahomed
Consumer Institute South Africa
Direct Marketing Association
Direct Response Marketing
Edgars: 7 August 1998
Edgars: 28 November 1997
Freedom of Expression Institute
Human Rights Committee
Judge President: Durban
Judge President: Northern Cape
Judge President: Western Cape
Legal Resources Centre
Ministry for Intelligence Services
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
Tupperware Southern Africa
Full comments can be found in the written submissions.
Chairperson De Lange welcomed everyone back for a second day of hearings on the ODB. He explained that the bill must be passed by Parliament by November because there would probably be no re-adjournment until February 2000 and that exceeds the constitutional deadline for this legislation. There will be no amendments to the bill at this stage but researchers are here today to write down suggestions and analyse the submissions made to the committee regarding the ODB. Chairperson De Lange also explained that after 9am, he must leave the hearings to attend a Joint Rules Committee meeting occurring simultaneously. Therefore, Ms LB Ngwane would chair the meeting in his absence.
Centre for Conflict Resolution
Mr L Nathan from the Centre for Conflict Resolution at the University of Cape Town stressed the critical issue concerning transparency contained within the ODB and how the right to access of information is essential for good governance. When the right to information is lowered, the chance of an abuse of power is raised. It is essential that security services are accountable to proper controls.
Chairperson De Lange asked Mr Nathan for examples from other countries where the executive branch is subject to open democracy legislation. Mr Nathan said that in the US, when the president exports arms exceeding a certain value, he must report this to Congress. Chairperson De Lange asked for additional examples. Mr Nathan briefly explained the procedures in Canada and Sweden. Mr Nathan also added that South Africa has agreed to the UN Arms Register. Chairperson De Lange asked how far does Mr Nathan want the government to go in disclosing information on arms deals. Mr Nathan responded that the name of the country, the quantity of arms, and the types of weapons should be disclosed. Chairperson De Lange asked that in order for a country to be number one in the world, must it also be the most transparent. Is this feasible for a country with only a five year old government? Mr Nathan said that South Africa does not necessarily need to be modelled after another state. It is wrong that this Parliament is less aware of arms deals occurring in South Africa than foreign embassies who are aware of such deals. Mr Nathan said that "in a nutshell, the right to life supercedes the right to commercial confidentiality." Page nine of his submission suggests ways in which sensitive cabinet information can be protected.
Another MP asked if it was not possible for intelligence services to amend the public disclosures of arms sales. Mr Nathan clarified his argument in that not all Cabinet proceedings should be made public, but that a blanket exemption goes too far. As a matter of a general approach, an investigation under the police should not be in the public domain. The police would be unable to conduct a criminal investigation with complete openness. Mr Nathan is not arguing against clauses in the bill that allow law enforcement officials to conduct their jobs, but cover-ups of illegality by these officials must not be allowed.
Mr R du Toit started by explaining the ways in which Transnet is affected by the ODB. First, international competition will be affected. Legal access to internal information can be used against Transnet. This creates an uneven playing field with other players in the transportation and logistical market. Second, information on pending joint ventures may impact business relations. Third, any information given to outside parties should be based on good governance and not because the State is the main shareholder. Transnet’s main point was that it believes that it should be exempt from the ODB in toto.
Chairperson Ngwane commented that Mr du Toit’s presentation was too general. She asked if the negative impact of the ODB was unique to Transnet. Mr du Toit responded that Transnet is a public company as opposed to Telecom and Eskom as statutory companies. Mr du Toit said that the ODB will be used for fishing expeditions and will paralyse the operations of Transnet. He agreed that even application of the ODB amongst all its competitiors would solve the problem.
Chairperson Ngwane further asked how Transnet currently provides information to the public. Mr du Toit explained that Transnet has a public relations office and distributes information that way.
Mr J Klaaren from Wits University
He started his comments by endorsing the submissions made by the group of eight NGOs during yesterday’s hearings. He also wanted to establish clarity on which constitutional clause comes into effect after February 2000. He presented specific questions and provided answers throughout his presentation.
An MP asked Mr Klaaren’s opinion on a blanket exemption for the judiciary. Mr Klaaren responded that a blanket exemption should only apply to the Cabinet.
Chairperson Ngwane asked who will be the users of this bill. In other countries, big business and lobby groups are the users rather than rural women. How can this bill be made for the intended users? Mr Klaaren said that without the bill, government is used by only the powerful interest groups. The intention of the ODB is to extend this right to the general public.
Freedom of Expression Institute (FXI)
Ms L Pollecutt said FXI supports a right to know approach within the ODB. It also supports a tribunal or mediation body because the High Court is generally for the rich. The full comments of FXI are included in its attached written submission.
Ms F Chohan-Khota (ANC) asked Ms Pollecutt what she was talking about when she mentioned looking at the broader rights beyond the Constitution? She also asked for an explanation of a rights-based test for denying a request for information. FXI responded that there are "private tussles" often involving conflicting rights. One side can use the right of privacy while another side has a statutory right. A right from law or contracts must be available to ensure enforcement through litigation.
Ms Chohan-Khota asked what kind of test does FXI propose when dealing with the media. Ms Pollecutt responded that FXI is not advocating that the media be exempt from the ODB. However, the harm imposed on the media caused by a mandatory disclosure must be taken into consideration. Using the Staggie murders as an example, if journalists were forced to hand over information to the police, the public may perceive the media as informants to the police. This could also cause physical danger to journalists because the public may see them as violating the fundamental principle of not disclosing sources.
National Postal Forum (NPF)
Mr D Ivins explained the mission of the NPF as providing efficient and affordable postal services for all South Africans. NPF is in support of the ODB but concerned about the economic growth and job creation implications, particularly in regards to marketing mail.
Chairperson Ngwane asked Mr Ivins that when he refers to marketing mail, is this another word for "junk mail." Mr Ivins said that the two are the same.
Mr Nel asked that when one speaks about marketing for legitimate purposes, what is the extent of legitimate? Mr Ivins recognised the committee’s concern about junk mail and replied that only relevant information for marketing purposes should be held. For example, offers to buy expensive cars or life insurance should not be sent to people who can not afford such items.
Direct Marketing Association (DMA)
Mrs C Duval stressed the need for the ODB to address the use of computerised technology when responding to requests for information. Mrs Duval’s full comments are included in her attached written submission.
Chairperson Ngwane commented that it is interesting how Mrs Duval explained the expansion of accessing computerised information. Mrs Duval explained that when reading the words of the ODB, she noticed that the language refers to paper documents only. The ODB needs to include computer jargon as well.
Ms B Madumise and Mr Enkosi explained that 70 percent of Telkom is owned by the State. Therefore, everyone in the room was a shareholder in Telkom. Telkom asked the committee for specific exclusion from the ODB under the definition of "governmental body." Telkom said that it is "the goose that lays the golden egg" because of the benefits it produces. Telkom is a business like any other business – it pays taxes, receives no subsidy from the government, and runs on commissions.
Telkom also added that "substantial" harm within the ODB is not clearly defined. This part of the bill needs more clarity on how organs of the State are protected.
Ms Madumise added that the question of costs imposed onto Telkom needs to be addressed. If additional workforce is required to employ information officers, the costs of operation will rise. Also, Telkom wants to prevent the high costs involved in bringing disputes before the courts. Ms Madumise advocated a structure that is both inexpensive and accessible.
An MP commented that Telkom, Eskom, and Transnet are all saying that they are unique and should be exempted from the ODB. What does this mean? Ms Madumise responded that Telkom is competing with private bodies that are not included in the ODB. If the rules of the game applied evenly to everyone, then Telkom would have no problem with being included.
Mr Solomon asked what is the bottom line for Telkom? Ms Madumise replied that when the ODB lumps Telkom into the definition of a governmental body, the committee must realise how symmetrical regulations must be applied to all competitors. Chairperson Ngwane asked Telkom to come forward with concrete suggestions of how to exclude Telkom from the definition of governmental body.
The presenter said that after all the other presentations claiming that their specific organisations were unique, he was embarrassed to say that the Banking Council is also unique. However, he explained that the one difference with the Banking Council is that it wants to be included in the ODB. The Banking Council’s full comments are included in its attached written submission.
Chairperson Ngwane asked if the Banking Council’s interpretation of "private body" is the common interpretation for that definition. The Banking Council representative read aloud the definition from the bill and explained how he arrived at that interpretation.
With no further questions, Chairperson Ngwane thanked all the committee members for attending the past two days of hearings. Mr De Lange had returned to the meeting at this point and he made some closing comments to the committee since this would be the last meeting for this committee. He said that the last five years have been the most enriching time of his life even during times of anger. He commended the committee for its hard work and cooperation. An MP from the NNP and an IFP MP took turns complimenting Mr De Lange on his leadership of this committee.
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