Following a range of requests lodged in mid 2013, the South African History Archive's Freedom of Information Programme received a number of decisions not to release requested information. Those decisions appeared to be contrary to section 5 of the Promotion of Access to Information Act, 2000 (PAIA) which clearly sets out the supremacy of PAIA over other laws relating to information disclosure.
Over a six month period, a number of public bodies as diverse as the Office of the Auditor-General, the South African Reserve Bank and Companies and Intellectual Property Commission, all asserted that specific legislation regulating their activities limited their ability to disclose information under PAIA.
This trend provides troubling evidence of a trend of control over information in South Africa's current pre-election period, that echoes the secrecy prevalent in the apartheid era bureaucracy.
In the clarity provided by the end of apartheid and at the dawn of the new democratic South Africa, the issue of access to information by the South African public was squarely considered. At that time, the Constitution was drafted to include section 32 to ensure all South African's had the right of access to information. This would enable South Africans to finally obtain information about some of the old apartheid era regime's more dubious government decisions, and to hold the new government accountable to all the people for its decisions.
PAIA was the legislation that enacted that right, and provided a foundation of access to information that supported and ensured the ability to exercise and protect other Constitutional rights, even as against private bodies. This was achieved by the supremacy given to PAIA in section 5 of that Act.
However, 13 years after the enactment of PAIA it appears that a range of public bodies have either forgotten or become confused about that legislation.
Some public bodies have become so focused on their own activities of reporting into government - rather than to the South African people - or focused on collection of fees set out in their own legislation, that they have lost sight of the important Constitutional rights and principles that are at issue when information is requested under PAIA.
In response to this concerning trend, SAHA sought a statement from the South African Human Rights Commission reiterating the supremacy of PAIA over other legislation, and also clarity that the PAIA fee regime overrides other contradictory fee arrangements.
The attached PAIA notices provide that assurance, specifically in relation to the Companies Act, 2008 as set out in Davis v Clutcho (2003) ZWCHC 23. However, the Human Rights Commission also makes clear that PAIA overrides other contrary legislation recently relied on by public bodies, including the Public Audit Act, 2004 and the South African Reserve Bank Act, 1989.
It is hoped that this additional clarity will support the release of information under PAIA, in accordance with the clear wording and intention of that legislation.
Should your organisation wish to join other civil society groups that champion the release of documents under PAIA, please write to SAHA at foip@saha.org.za and we can assist you to make an application to join the PAIA Civil Society Network (PAIA CSN). SAHA currently acts as the Secretariat for the PAIA CSN.
