Rules in terms of Promotion of Access to Information Act: public hearings; Draft Amendments to High Court & Magistrate Court’s Rules: consideration

Meeting report

Ms Clair Hartley, Director: Rules Board for Courts of Law (Rules Board) explained that the Promotion of Access to Information Act 2 of 2002 (PAIA) was enacted to give effect to the constitutional right of access to information as set out in section 32 of the Constitution. PAIA came into operation on 9 March 2001, with the exception of sections 10, 14, 15 and 51, which came into operation on 15 February 2002. Section 79 (1) of PAIA empowered the Rules Board to make rules of procedure for a court in respect of applications in terms of section 78. The provision also authorised the Rules Board to make rules of procedure for a court to receive representations ex parte referred to in section 80(3)(a). Section 78 made provision for an unsuccessful or aggrieved requester to apply to court for appropriate relief in terms of section 82. Furthermore, section 80 (3) provided that any court hearing an application may receive representations ex parte, conduct hearings in camera, and prohibit the publication of such information in relation to the proceedings as the court determines, including information in relation to the parties to the proceedings and the content of orders made by the court.

The most significant feature of the new rules guaranteed that applications, in terms of PAIA, could now be lodged in the Magistrates Court and not only the High Court. Another aspect of the proposed rules included a provision that where necessary, the rules must be supplemented by the rules of the court in which the application was brought.

Adv Johnson indicated that the Committee had received written submissions from 4 organisations, namely Eskom, South African Human Rights Commission, South African History Archive and the Open Democracy Advice Centre. The latter was the only entity that had requested to make an oral representation to the Committee.

ODAC Submission
Ms Allison Tilley, Chief Executive Officer, ODAC, viewed the proposal to allow magistrates courts to consider access to information issues as a positive move. However, she believed that an Information Commission would be better placed to address such issues. 

She argued that the Rules needed to cater for instances where the applicant disputed that the records contained confidential information despite the respondent making a case to the contrary. Case law showed that in such cases, most courts did not look at the records and instead relied on the descriptions of the records in order to make a decision. Unlike the Supreme Court, magistrates’ courts did not have inherent jurisdiction and required a set of rules with regards to the disclosure of records. The first aspect of the rules should set out a procedure whereby the documents were handed to the magistrate in a sealed way and in a manner where the magistrate was responsible for ensuring that the documents remained confidential.

A record may be technical in nature and an ordinary magistrate may be unable to determine whether or not such records were confidential in nature. In such an instance in the Supreme Court of Appeal, section 19 of the Supreme Court Act was used to refer the matter to an expert for an opinion. This opinion was used by the court to determine the nature of the records. However, the cost implications of using this section were great as the expert was paid by the parties to the application. ODAC suggested an alternative process whereby a magistrate was empowered to sit with an assessor who had a specific expertise in the subject matter of the request. The expert would advise the magistrate where the records were technical in nature.

Lastly, ODAC believed that the Magistrate’s Court should be considered the court of first instance, and the Supreme Court (High Court) should consider decisions on appeal, unless the parties consented to the jurisdiction of the Supreme Court.

Discussion
Adv Johnson recalled that the Committee had asked the Department of Justice (DoJ and Department) to consider the value of establishing an Information Commission to deal with access to information issues.

Mr Deon Rudman, Deputy Director: Legisation, DoJ, explained that the South African Law Reform Commission (SALRC) was currently investigating the viability of such a structure.  The Department was waiting to receive the Commission’s report and hoped to receive it towards the end of the year or early in the new year. He added that the executive would consider the recommendations of the report thereafter.

Adv Johnson asked Ms Tilley whether she concurred with the Human Rights Commissions’’ submission that the procedures proposed in the new rules were significantly cumbersome to all parties.

Ms Tilley did not believe that a good set of magistrate court rules were being introduced because it failed to consider a number of critical issues. 

Adv Johnson directed two questions at the Rules Board. Firstly, she enquired whether the proposed rules were adequate for the magistrates’ court to attend to matters. Secondly, she probed whether magistrate courts could make use of assessors.

Ms Hartley was satisfied that the rules empowered magistrate courts to address all issues. In addition, she explained that the magistrates were authorised to make use of experts as provided for in the Magistrates Act.

Mr J Jeffery (ANC) noted that ODAC had made representations to the Rules Board previously, and wondered whether their concerns, particularly in relation to assessors, had been considered.

Ms Hartley admitted that ODAC had made representations to the Rules Board in 2004. At the time, the Rules Board found that it could not include a rule with regard to assessors because it was not in PAIA. She added that the Board had informed ODAC about this decision. 

Mr Jeffery recalled that there was a draft set of rules in 2005, which ODAC had commented on. He sought to determine whether there was any difference between that version and the current set of rules.
 
Mr Rudman indicated that when the Department had received the rules, it had accepted that consultation had taken place. The current rules were essentially the same as the earlier draft, which ODAC had commented on, except for few minor technical changes.

Mr Jeffery bemoaned the fact that the process (to table the Rules) had taken more than six years. In addition, he criticised the Board for failing to consult adequately with stakeholders. Also, he noted that the Committee had no choice but to adopt the rules because they had already been approved byte Minister of Justice in March 2008. However, he advised that the Committee should draft a strongly worded report which is critical about the amount of time this process had taken as well as about the lack of consultation.

Adv Johnson recalled that when the Committee had extended the deadline for the Judicial Matters Bill, it had stated that the delay was unacceptable. Also, she acknowledged that the rules were not the best set of rules. However, given the delay and the importance that there be some set of rules, she recommended that the Committee approve them. Finally, she added that the Board should within six months of the new term of parliament report back to the Committee on this matter.

Members agreed with the recommendation.

Draft Amendments to the High Court and Magistrates Court Rules
Ms Hartley noted that the Committee was being called upon to consider the amendment of Rule 67 of the Magistrate’s Court Rules, as well as consequential amendments relating to the numerical list and alphabetical list of forms. 

In addition, Ms Hartley asked the Committee to consider the amendments of the Rules relating to the conduct of proceedings in the High court. She noted that proposed amendments were being made to Rules 49, 49A, 51, 52, and Form 25 of the First Schedule.

Discussion
Members criticised the consultation process followed (in formulating the Rules) but nevertheless approved both set of rules.

The meeting was adjourned.