On Tuesday 10 February 2015 the matter of My Vote Counts NPC v Speaker of the National Assembly & Others was before the Constitutional Court in Johannesburg. Essentially the court was asked to decide whether the Promotion of Access to Information Act, 2000 (PAIA) is sufficient, and was intended to be sufficient, in and of itself, to discharge Parliament’s duty under section 32(2) of the Constitution. Section 32(2) of the Constitution provides that Parliament must enact national legislation that will give effect to the right of access to information as contained in section 32(1) of PAIA. Section 31 (1) of the Constitution in turn provides as follows:
“(1) Everyone has the right of access to:
(a) any information held by the State; and
(b) any information held by another person that is required for the exercise or protection of any rights.”
The Applicant’s case
The duty to create records
My Vote Counts (MVC) argued that PAIA only gives access to ‘records’, as defined within PAIA, and therefore in effect only gives access to information where that information has already, previously, been captured in material form. It was argued that, as PAIA itself does not directly confer a duty to create records, compliance with the duty to grant access to information can in some situations be avoided by public and private bodies which will simply not create a record of information they do not wish to grant access to under PAIA.
In SAHA’s experience, while there is other legislation such as the Public Finance Management Act, 1999 and the National Archives and Records Service of South Africa Act, 1996, and regulations thereto, which does confer a duty, on both public and private bodies, to create and keep accurate records, this duty is often ignored in order to deny access to information. The court in Mail and Guardian v Minister of Public Works and Another considered specifically the duty on public bodies in relation to record keeping and found that a failure by public bodies to comply with this duty is “a dereliction of one of the most important obligations on a government”.
Information versus records
MVC highlighted the fact that the right in section 32(1) the Constitution is specified as being a right of access to ‘information’ and that this concept is much broader than what is provided for in PAIA, namely a right of access to information contained in ‘records’. On this basis, it was argued, PAIA does not give full effect to the duty in section 32(2) of the Constitution, nor was it intended to, and as PAIA does not give full effect to this duty, Parliament has a duty to enact further legislation in order to give effect to other aspects of the right to information as contained in section 32(1).
Interestingly some other jurisdictions, such as the United Kingdom do provide for a right of access to information without limiting this to information captured in material form.
Information and the right to vote
MVC therefore asked the court to order that Parliament, in furtherance of this duty, enact legislation specifically to provide access to information about private funding of political parties, arguing that this information is needed to exercise the right to vote as contained in section 9(3) of the Constitution.
The Respondents’ case
The principle of subsidiarity
The Speaker and other Respondents asked the court to dismiss MVC’s application under the principle of subsidiarity; this principle requires that where a specific law has been enacted to give effect to a constitutional right, any dispute about that right should be adjudicated under that specific law, rather than by having reference to the constitutional right directly.
Information versus records
The Respondents argued that the use of concepts such as ‘access’ and ‘held’ in the wording of section 32(1) of the Constitution meant that the Constitution only ever intended to grant access to records, and not to information in a broader sense. They argued that PAIA was designed to, and does in fact, cover all that was intended by section 32(1), and that MVC should therefore not have asked the court to order Parliament to pass new legislation but, in so far as they felt PAIA fell short of achieving what it was intended to achieve, should have attacked the constitutionality of PAIA.
The court questioned whether the Respondents’ very narrow interpretation of the words ‘access’ and ‘hold’ could be correct, pointing to the fact that these terms can be used more broadly, for example, one can ‘hold a view’ without it being captured in material form.
Information and the right to vote
Counsel for the respondents, Advocate Wim Trengove, told the court that – while he would urge the court not to make a finding on this aspect, as looking at this aspect is unnecessary should the court dismiss the application under the principle of subsidiarity – his personal view is that information about private party funding is necessary to exercise the right to vote and as such a PAIA application for records holding such information would succeed, even if the party to which the request is made is a private body.
Judgment
Judgment was reserved in this matter which will have far reaching impact for access to information in South Africa, specifically for organisations such as SAHA and other members of the PAIA Civil Society Network that use PAIA on a regular basis. SAHA will therefore be watching closely for the outcome.
