In an August ruling, the Constitutional Court replaced the 30-day limit set down in the Promotion of Access to Information Act with 180 days.

Access to information crucial to accurate reporting

Handing down judgement in the Conrad Stefaans Brümmer vs the Minister of Social Development and Others case, Judge Sandile Ngcobo said by unanimous decision the court had decided to replace the time limit as the limitation of 30 days was not justifiable. The judge said access to information was crucial to accurate reporting.

According to the ruling, the 180 days will stay in place as an interim measure until Parliament corrects section 78 (2) of the Promotion of Access to Information Act. It is this section of the Act which provides for a person refused access to information to challenge the refusal in court. The challenge, however, must be brought within 30 days.

Brummer and the struggle to get access to Oilgate scandal info

Mail & Guardian journalist Brümmer had sought information from the Department of Social Development regarding the Oilgate scandal. When his request was refused and an internal appeal was unsuccessful, Brummer approached the Cape High Court for relief. However, by this time, the 30 days limit was already over. And so Brummer then applied for condonation. Were the court to refuse him condonation, he challenged the 30 day limit contending that it violated his rights of access to court as well as to information as guaranteed in the Constitution.

The Minister and the Director-General of Social Development both opposed the application. They argued that the High Court should not condone Brummer’s non-compliance with the 30 day limit as he had not provided a satisfactory explanation for the delay. They also contended that Brummer should have brought his application under section 77 (5) (c) of PAIA, which allowed him 60 days instead of under section 78 (2).
The Minister of Justice and Constitutional Development joined the proceedings to defend section 78 (2).
The High Court held that applications to court are governed by section 78 (2) and not section 77 (5) (c) as argued by the respondents. The court also accepted it had power to condone non-compliance with the 30 day period but refused to condone Brummer’s non-compliance with that period, holding, among other things, that Brummer would not succeed in his application for request to information. However, the court considered the constitutionality of section 78 (2) and held that this section was unconstitutional as it did not give a person refused access to information adequate time to approach a court for relief. It therefore declared section 78 (2) unconstitutional and referred the matter to the Constitutional Court for confirmation.

30-days limit impossible to comply with
One of the friends of the court, the SA Archives Trust, had told the court that the 30-day limit was almost impossible to comply with and it inevitably led to additional costs when applying for condonation of filing outside this period.

Judge Ngcobo said the 30-days limited the right to access to court and the right to access to information. This means that from now on, a person who wishes to challenge the refusal of access to information must lodge an application to court within 180 days of being notified of a decision of an internal appeal refusing access to information.

Follow-up and story ideas

• Research and write or produce a report on the Promotion of Access to Information Act (PAIA) as it stands and how residents and journalists can make use of it to get information they need from public institutions.
• Interview someone from the Open Democracy Advice Centre (ODAC) about the implications of this Constitutional Court ruling. Request a step-by-step guide to using the PAIA and publish or broadcast this for your readers and listeners.
• Speak to the municipal officials and ask them whether they know their responsibilities in terms of providing access to information.

Some useful Websites for more information:

Open Democracy Advice Cente (ODAC): www.opendemocracy.org.za
Idasa: www.idasa.org.za
South African Local Government Association (SALGA): www.salga.net
National Parliament: www.parliament.gov.za