SUBMISSION ON THE OPEN DEMOCRACY BILL 67 0F 1998

PREPARED BY THE CONSUMER INSTITUTE SOUTH AFRICA

MARCH 1999

THE RIGHT TO HAVE ACCESS TO INFORMATION AND CONSUMER RIGHTS


Background
In what became known as the 'Macassar Disaster,' in 1995, a vast number of residents outside the African Explosives and Chemicals Industries (AECI) were exposed to toxic sulphur oxide fumes, following an accidental breakout of fire on the sulphur stockpiles. The stockpiles had been dumped and probably forgotten on AECI premises in the Cape Peninsula, a few years earlier. The 'Macassar Disaster' incident provided yet another clear demonstration to the world that catastrophic industrial incidents are no more restricted to industrial workers only. Rather, industrial safety has long assumed the character of public safety.

Further, rapid industrialisation and development of the chemical industry, pesticides' units, asbestos and cement factories have resulted in the use, manufacture, storage and transport of hazardous and toxic products of varied kinds in greater quantities than ever before. As the 'Macassar Disaster' has shown, some of these chemicals are explosive, flammable, toxic, whereas others are corrosive and radioactive.

In some areas today, these potentially dangerous chemicals and waste products continue to be stored or transported to warehouses even within residential areas, threatening disasters such as fire, explosion, leakages to and exposure of communities to harmful gases, etc. Such incidents, as the 'Macassar Disaster' has illustrated, may often lead to permanent or temporary injury or even loss of life and / or damage to or destruction of property. As was implicit in the findings of the 'Macassar Disaster' Commission of Enquiry, workers in industries referred to, their families and residents who live in the vicinity of such industries are generally unaware of the imminent dangers to their health, life, safety, and to their property. By implication, a failure to disclose the relevant information or denial to the public of the right to reliable information means that persons who might be affected would not know, for instance, what chemicals and how much of such chemicals are being emitted from the factories around which they live or work, or whether any prescribed standards were not being met. Further, such persons and the public generally, would not know what measures should be taken to avoid the potentially life threatening situation. Therefore, in cases of accidents, explosions or leakages, common knowledge is that the public often does not know what preventive or mitigating measures or antidotes are to be taken. Ironically, though, such information is in most cases available but often classified as 'private' between the government and the factory concerned.

In addition, science and industry develop thousands of new kinds of potentially dangerous consumer products, many of which are extremely complicated, leaving consumers puzzled and confused. Consumers' good health and safety are often threatened due to lack of information concerning the quality, safety and reliability of products, goods and services that they buy. For example, while tests are done to determine whether new medicines are safe, the results of such tests are generally kept a secret from consumers.

Moreover, it has presumably happened to every consumer on more than one occasion: In the middle of preparing a meal with recently purchased food, a second look tells you that product is spoiled and cannot be used. Even if the store refunds the purchase price of the product, it cannot compensate for lost time, irritation, and the inconvenience of being unable to use the product as planned. The seriousness of this problem becomes even more apparent when one considers that for every spoiled or stale product bought, dozens more are purchased that, although not yet spoiled, are tool old to offer much nutritional value.

In most stores, consumers find it impossible to determine the freshness of foods before purchasing them because they are systematically denied information about product shelf-life that manufacturers and retailers know. For example, most of the thousands of packaged food products sold in grocery stores are marked with a code data that indicates when the product should be removed from the shelves. However, each manufacturer and/or retailer marks this information differently and in such a way that it cannot be easily interpreted by an average consumer or shopper. The following code data illustrates the problem : MAN 0297 EXP 0398, sell by 0398, sell by 03 MAR, BEST BEFORE 04 MAR 98. (Note however, that while certain manufacturers and/or retailers paste such information on their shelves and not on products, many products are sold without any such information whatsoever!)

The first code data means the product was manufactured during the second month (February) of 1997 and will expire during the third month (March), 1998. The second means the product will expire by the third month (March), 1998. The last one means the product should be sold by 3 March 1998, and used before 4 March 1998. The crucial question is : given the unacceptably astronomical rate of illiteracy in South Africa, how many manufacturers can honestly claim that consumers can fully understand the meaning of such data ? Very few, if any at all, we suspect.

Some manufacturers and retailers are probably aware of the difficulties faced by consumers in interpreting the code data, and are apparently taking full economic disadvantage of the situation. A cursory investigation that we conducted at some grocery stores for example revealed that some products are left on the shelves, when they should have been removed days, months, and even years before!

In most cases, it is equally increasingly difficult for consumers to determine which company manufactures what product. From time to time, new companies and divisions of corporate giants are known for continually emerging or going under while they sell or provide a host of services , goods or products under different names. Mergers, acquisitions, and other marketing strategies continue to add to the confusion in the consumer marketplace. These events often place significant obstacles in the way of the consumer when an attempt is made to buy a much wanted product, to obtain high-quality service, including the names and addresses of qualified repair shops, the parts that can keep and expensive machine working, or various hard-to-find accessories that will make the product more convenient and pleasant to use. Moreover, as most products do not bear the particulars of a manufacturer, it is even more difficult for an aggrieved consumer to hold a manufacturer to the terms of a warranty, or most importantly, to hold a manufacturer accountable for shoddy or defective goods.

Further, prices for essential services and products such as, inter alia; bank transactions, insurance policies, bus, train and aeroplane fares, fuel consumption, telecommunication, water and electricity, are often increased and implemented without prior notification and opportunities for dialogue and discussions being granted to consumers whose financial circumstances, and hence livelihood, are directly affected thereby. And this despite the existence of contractual agreements in certain cases.

Consumers also regularly complain about being denied access to certain services or facilities such as overdrafts, personal loans and other facilities provided by financial institutions. As these institutions are not required by legislation to give reasons therefor, their conduct often lends credibility to suspicions that their service provisions are racially motivated.

The regulatory processes have largely not worked in favour of consumers. This is more so because regulatory processes can work only if all sides are adequately informed and well-represented before policy makers. Manufacturers and service providers employ professionals to advocate the industry's viewpoint before policy makers. But consumers often go unrepresented, and the regulators are left to act both as judge and, hopefully, as consumer advocates. However, because regulators end up hearing one-sided arguments, it is not surprising that consumers get shortchanged.

Consumers are thus justifiably frustrated and angry, because they cannot see any recourse except to pay and to keep paying.

A culture of secrecy
Secrecy is endemic in the private sector. While publicly claiming to be open and accountable, role players in the private sector are often extremely reluctant to agree to requests for information that is not routinely published. Those in control of information usually offer various reasons for denying those entitled, their right to have access to such information. Such reasons range from 'private and confidential,' 'not in the public interest,' 'privileged,' 'classified,' 'sensitive,' 'difficult,' 'impossible,' etc, etc. Even where documents containing information are not so classified, they are still not readily available because they are either unpriced or exorbitantly priced. It is further noteworthy that on rare occasions when information is released, if at all, and at the discretion of those in control of it, such information is often presented in such a way as to make it opaque and difficult to understand by consumers and/or their representatives.

In most cases, however, only that information which is favorable to their interests is released. Public relations in the form of publicity material is frequently confused with detailed, accurate and informative data. Further, information which has a bearing on their incompetence, inefficiencies, excesses and gross irregularities committed at the expense of consumers is often not disclosed. There is no real commitment to transparency.

Legislation in many areas makes it impossible or very difficult for consumer groups and other organisations to obtain information that the companies often claim to be commercially confidential. Readiness to claim commercial confidentiality has helped to foster a culture of secrecy that has permeated private sector organisations.

Experience gained during the National Party government has shown that the only means to improve such an undesirable state of affairs is to enact a comprehensive right to information legislation. Only fear of exposure is known to produce a real commitment to transparency and accountability on the part of those entrusted with the public welfare. By extension of logic, it is submitted that the same arguments apply with equal force vis-a-vis private bodies whose decisions impact on the public welfare, in view of the fact that such decisions are exercises of public power.

The 'public' versus 'private body' divide ...
It is submitted that whether an entity falls in the public or private body category depends largely on who owns it, the nature of the goods, products and/or services it provides, and the definition of the receipients of or consumers in respect of whom the goods, products and / or services are provided. An entity is therefore a 'public body' if, firstly, it is wholly or partially owned or controlled or financed by the state. Secondly, if it provides public goods, products or services to the public, alternatively, if the goods, products or services are for consumption by the public. Such public services include, inter alia; public safety, security and defence, public transport, banking, insurance, credit, medical health care, and general social welfare.

Logically, an entity is a 'private body' if, by definition, it is the converse of a 'public body'. However, the distinction is often blurred.

Public bodies and the tenets of administrative law ...
In terms of the administrative law requirements of natural justice, before any decision which has an impact on the right of any person is taken, such person must be given the opportunity to make representations which may influence the nature and outcome of such decision. Failing that, the Court would reverse such decision on the grounds of procedural irregularity. Having said that, it is significant to note that the present government's macro-economic policies have impelled it to embark on wide-ranging privatisation initiatives under the auspices of the Ministry of Public Enterprises. Previously and currently state-controlled/owned or state-financed enterprises or 'governmental bodies' are being converted into private ownership. However, the change in ownership would not necessarily result in a change in the nature of the goods, products and / or services which are provided by these entities to consumers.

Further, (considering government's current privatisation policy initiative) it is noteworthy that services which have traditionally been the responsibility of the government, for example, policing, (neighbourhood watching), public transport, medical health care, finance, etc, have long begun to be offered by entities which, technically, are 'private bodies' even though, by virtue of the nature of their activities, they provide public services and thus exercise public power in the same way as any 'governmental body' or 'public body.' The activities of such bodies are thus invariably, matters of public interest. In light of the foregoing, it is submitted that the 'private' versus 'public body' distinction in this context is misleading. Rather, focus should be on what a body does to determine whether its activities are matters of public interest and therefore subject to monitoring and policing in terms of the principles of administrative law, and in particular, the Republic of South Africa Constitution Act 108 of 1996.

Consumer Protection in South Africa
South Africa has an array of consumer protection bodies. The most important of these bodies include; the Business Practices Committee, the Provincial Governments Departments of Consumer Affairs, the South African Bureau of Standards, statutory professional regulatory bodies and 'industry-specific' self-regulatory bodies.

(i) The Business Practices Committee
The Committee was established in terms of the Harmful Business Practices Act 71 of 1988. In short, the Committee makes recommendations to the Minister of Trade and Industry regarding business conduct which is considered to be harmful to consumers. It also recommends steps which may be taken to regulate or to eliminate such conduct. However, the Committee does not have powers to recommend compensation or the imposition of sanctions against the wrongdoer. Such matters can only be pursued through ordinary courts of the land.

(ii) Provincial Departments of Consumer Affairs
The establishment of the Consumer Affairs Departments in South Africa's nine provinces and under the Department of Trade and Industry (DTI) followed a declaration in terms of the Republic of South Africa Constitution Act 108 of 1996 that consumer affairs is a functional area of concurrent national and provincial legislative competence. DTI, through other directorates in the department, is responsible for the implementation and monitoring of, inter alia; the Credit Agreements Act 75 of 1980, the Usury Act 73 of 1968, the Sales and Service Matters Act 25 of 1964 and the activities of small, medium and micro enterprises.

(iii) The South African Bureau of Standards (SABS)The SABS was established in terms of the Standards Act 24 of 1945 to contribute towards the strengthening of the economy of South Africa and towards the enhancing of the quality of life of its entire people by promoting quality and standardisation.

Further, the Standards Act 29 of 1993 empowers the SABS to get involved in the regulatory area of consumer protection by publishing compulsory standards under the Act and its regulations, monitoring compliance under the Trade Metrology Act 77 of 1973, and making voluntary standards compulsory by reference. The compulsory standards are used primarily where the health and safety of the public are at risk. To date, the SABS has published approximately 4 200 standards, of which only 45 are compulsory.

Further, in its voluntary capacity, the SABS merely encourages manufacturers to enter into agreements whereby the latter pay for the right to have their products regularly tested, and to bear the SABS mark as proof that such products are of good quality, and are safe to use.

It is significant to note that manufacturers are generally not obliged by any legislation whatsoever, to give their particulars in order to provide for the event when consumers may wish to lodge complaints against them for faulty products. Consumers may, however, report such manufacturers' faulty appliances or products to the SABS if they have been unable to contact the manufacturer concerned. The SABS will then stop the sale of such products until such time that the compliance certificate has been issued. If goods are dangerous, the SABS can seize or even destroy them.

That notwithstanding, many manufacturers continue to manufacture and bring into the market, potentially unsafe and dangerous products, without a full disclosure of such facts to consumers. A recent study conducted by the SABS reveals that more than 400 manufacturers have not complied with the legal minimum requirement standards of safety. Further, the study reveals that as many as 65 per cent of electrical and electronic household goods sold in South Africa are illegal or grey imports. The study thus constitutes concrete proof of how consumers' well-being remains at considerable risk. Consumers may wish to take manufacturers to court on the grounds of product liability. However, without legislation that compels the making of full disclosure on the part of manufacturers, add that the often daunting prospects of litigating against big companies, consumers are often at crossroads.

(iv) Statutory Professional Bodies
The legislature has made provision for establishment of several statutory professional bodies whose objective is to assist consumers who have been subjected to 'dishonourable or unprofessional conduct' on the part of a particular member of the professional body concerned. Such bodies include the Law Societies, the Medical and Dental Council, the Nursing Council, the Pharmacy Board, the Bar Council, the Council for Architects, the Estate Agents Board, etc, etc. All of these bodies in essence provide public services and thus exercise public power.

In respect of their members, these bodies have powers ranging from suspending to striking off their rolls, members who have been found guilty of 'dishonourable or unprofessional conduct.' Nonetheless, people who use services provided by members of these bodies often face insurmountable obstacles in that they do not have the right to access to information held by transgressing members that could be essential for supporting their contentions.

(v) Self-regulatory bodies
These so-called independent bodies have been set up and are financially supported by companies carrying out a similar or related type of business, to ensure that their system of self-regulation works. A few examples of such companies include; members of the Furniture Traders Association/Consumer Credit Association, the Direct Marketing Association of South Africa, Life Assurance, Short-term Insurance, the Banking Council and many others.

Self-regulation occurs by means of a Code which members are then required to sign an acknowledgement of compliance when joining the body entrusted with the regulatory function. However, membership of a self-regulating structure is, in most cases, voluntary. As such, members who do not agree with recommendations of the regulating body can simply eliminate their membership or have it eliminated by the body. As there are no strong punitive measures capable of implementation by self-regulatory bodies, adequate consumer protection in this context has also been unsatisfactory.

For reasons set out above, the need for enactment of a comprehensive access to information legislation has become most urgent to enable consumers fully to exercise their rights.

Consumer Rights and Chapter 2 of the Constitution (Act 108 of 1996)...
Consumers have the following rights that, it is submitted, will only adequately be protected if the right to have access to information is extended to apply in respect of private bodies that render public services, or that exercise public powers:

1. The Right to Safety
In terms of this right, consumers have the right to protect themselves against unsafe industrial activities, goods and services, which may damage or destroy their property, injure or even kill them. The right to safety is inextricably linked to the right to life in terms of section 11 of Act 108 of 1996.

It is submitted that consumers' ability fully to exercise the right to life and to safety in particular, depends wholly on a full prior disclosure being made by chemical, pesticides and such industries, manufacturers of goods, products and service providers concerning the degree of safety of their industrial activities or reliability of goods, products or services, precautions that should be taken to avoid accidents, or to mitigate damages or injuries in the case of accidents, and who is to be held liable in the event of consumers having grievances concerning such activities, goods, products or services.

2. The Right to be Informed
Every consumer has the right to complete information on the pricing, quantity and ingredients of goods, products and services, as well as the identity of manufacturers or providers thereof.

Further, consumers have the right to disclosure of information about the production, storage, transportation, use or release of hazardous substances that could potentially endanger the health or life of communities residing around industries. This right is subsumed under the right to freedom of expression as provided in section 16 (1)(b) of Act 108 of 1996, which says :

'Everyone has the right to freedom of expression, which includes, freedom to receive or impart information or ideas'.

Similarly, comments which have been made with reference to the right to safety, and to life, equally apply in relation to the consumer right to be informed.

The Right to be Heard
Consumers have the right to be heard on issues, policies, plans, programmes and decisions that concern them. The right to he heard is also implicit in the constitutional right to freedom of expression.

4. The Right to Choose
Consumers h ave the right to choose from a variety of quality goods and services available at competitive prices. In the case whereby a monopoly is the supplier or provider, consumers have the right to quality goods and services at reasonable prices. Similarly, this right can be excercised only once consumers are able to clinch their freedom to receive or impart information or ideas on goods and services available in the market. This right is also protected under section 16 (1)(b) of Act 108 of 1996 which has been referred to above.

5. The Right to Consumer Education
Every consumer has the right to be aware of basic consumer rights and responsibilities in order to be able to make an informed decision concerning choice of goods, services, and pricing thereof. The right entails submission to mandatory comparative testing, ranking and evaluation of all consumer goods and products such as food, pharmaceuticals, and domestic electric appliances in particular, with the aim of publication of such findings for consumer education. This may empower consumers into taking action against unsafe products and claims which are not substantiated by laboratory tests. This right is implicit in the right to basic education provided under section 29 of Act 108 of 1996. It is also subsumed under section 16 (1) of Act 108 of 1996.

6. The Right to Redress
The right entitles consumers to inter alia; redress of grievances concerning substandard, unsafe, unduly expensive goods and services, unfair claims which are not substantiated by tests and other unfair practices against them. The right to redress is consistent with the provision of section 34 of Act 108 of 1996 that says :

'Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum'.

7. The Right to the Satisfaction of Basic Needs
Every consumer has the right to basic goods and services such as adequate food, drinking water, shelter, clothing, health care and education. The right is consistent with section 27 of Act 108 of 1996 which says:

'Everyone has the right to have access to health care services, ... sufficient food and water, including, if they are unable to support themselves and their dependants, appropriate social assistance.'

8. The Right to a Healthy Environment
The consumer right to a healthy environment is consistent with section 24 of Act 108 of 1996 which, entitles consumers to the right to live and work in an environment that does not threaten their health and life, and which does not pose a danger to present and future generations.

In terms of this right, consumers and communities who live around industrial units and workers in such industries are entitled to information on such industries' Toxic Release Inventories.

Further, irrespective of whether consumers, workers or the community demand such information or not, legislation must ensure that it is a proactive initiative taken by the industry to discharge its obligation to society, to share information on the products and processes and on potential threats to safety arising out of them. What is needed by communities is a 'right to know' and a willingness of the industry to allow affected communities to organise their visits to plants, and to decide for themselves issues of public safety that concern them directly.

COMMENTS ON THE OPEN DEMOCRACY BILL
The Consumer Institute South Africa is generally content with the provisions of the Bill. However, our comments are in respect of the following provisions thereof: (a) the Preamble, (b) Clause 1 (1), (c) Clause 3 (1)(a), (d) and (e), (d) Clause 5 (2)(c)(ii) and (iii), (e) Clause 8, (f) Clause 11, (g) Clause 31 (1)(b), (h), Clause 37, (i) Clause 44, (j) Clause 53 and 54, (k) Clause 59 and, (l) Clause 72.

1 The Preamble
In terms of the preamble, provision is made, inter alia, to give effect to the constitutional right of access to any information held by the state (section 32 1(b)); and to make available to the public information about the functions of governmental bodies.

In respect of private bodies, provision is made for persons to have access to their personal information held by such private bodies.

In addition, the Bill makes provision for the correction of personal information held by governmental or private bodies. Ironically, the preamble does not expressly give effect to the constitutional right of access to any information held by another person, which a private body is. Thus it seems that a person would be able to correct personal information held by the state or governmental bodies in that the preamble entitles such person to the right to have access to it. However, correcting personal information held by 'private bodies' would be difficult in that the Bill does not give effect to the constitutional right of access to information held by private bodies. The Bill thus fails to give full expression to section 32 (1)(b) of Act 108 of 1996 as demanded by section 32 (2) of Act 108 of 1996 which decrees that :

'National legislation must be enacted to give effect to this right, ...'

(This point shall be argued further below).

Secondly, in making provision for the protection of persons disclosing evidence of contraventions of the law, serious maladministration or corruption in respect only of governmental bodies, the Bill fails to provide inducements for (consistent) compliance with the law, a high standard of professional ethics of good administration and accountability that should no less apply in the administration of 'private bodies,' especially those that, render a public service or are public enterprises or bodies, while technically, they are 'private bodies.' Section 195 (1) read with subsection (2) of the Republic of South Africa Act 108 of 1996 lays down basic values and principles governing:-

(a) administration in every sphere of public
(b) organs of the state; and
(c) public enterprises.

In light of the above, and the often misleading distinction between 'public bodies' and 'private bodies', it is inconceivable that by prescribing the governing values and principles of public administration to the three situations or entities mentioned above, the legislature intended for such values and principles to be abandoned once full- scale privatisation of a public enterprise has occurred. Rather, it is submitted that the drafters of the Constitution Act 108 of 1996 intended that the values and principles of good public administration apply no less to private bodies that render public services, or exercise public powers.

Clause 1 (1)
In terms of clause 1 (1)(xii), a "non-commercial requester" means a requester seeking access to a record for the purpose of-

(a) ...
(b) education or research by a non-profit or an educational or non-profit body or a member or employee of that body in his or her capacity as such.

The Consumer Institute South Africa (CISA) falls within the definition of a "non-commercial requester" in that it is a non-profit and educational body whose focus area is consumer research and lobbying. This is done in consistence with CISA's mission, which is to improve the welfare of all consumers and to enable them to assert their consumer rights.

Further, in terms of clause 1 (1)(v), the Bill delimits the exercise of a public power or the performance of a public function only to a ‘governmental body.’ We have argued that private bodies now also perform most of the functions that were traditionally performed by the government. In view of the fact that certain private bodies, in rendering a public service, exercise public powers and thus are involved in activities that pertain to matters of public interest or concern, it flows logically that the definition should be widened to apply to all such bodies. This can be achieved if the designation 'governmental body' is deleted wherever it appears and the phrase 'public body' is substituted in its place. Such change would also enable consumer organisations and the public to bring class or representative actions against 'private bodies' which, by virtue of their activities affect public safety, or constitute an environmental risk. This contention is also arguably supported by the definition of ‘public safety or environmental risk’ under clause 1(xxii) which is said to include the risk or potential risk to the environment or the public (including individuals in their place of work) associated with -

(a) a product or service which is available to the public;
(b) a substance which is released into the environment or workplace, or is present in food for human or animal consumption;
(c) a form of public transport; or
(d) an installation or manufacturing process or substance which is used in that installation or process.

Clause 3 (1)(a)
Clause 3 (1)(a) of the Bill provides that the objects of this proposed Act are, inter alia; to give effect to the constitutional right of access to any information held by the state by providing public access, as swiftly, inexpensively and effortlessly as reasonably possible, to that information without jeopardising good governance, privacy and commercial confidentiality.

It is noteworthy that certain drugs such as, for instance, dipyrone (also known as analgin, analgium, metamizol, etc,) have been withdrawn, severely restricted or completely banned in other countries such as Germany, Australia, Greece, Denmark, Canada, Egypt, UK, Saudi Arabia, Ireland, Bangladesh, and in a host of others. In Germany, for instance, the drug was banned after it caused death to 94 patients due to severe loss of white blood cells caused by damage to bone marrow, between 1981 and 1984. However, dipyrone continues to be a popularly prescribed painkiller in many countries, including South Africa!

In light of the above, and the objects of the Bill and clause 3 (1)(a) in particular, can CISA as a ‘non-commercial requester’ request and receive information relating to the prescription of the drug, perform confirmatory research and disseminate the findings as well as information concerning the withdrawal, restriction or banning of such drug in other countries for the benefit of consumers? In our view, the availability of such information is basic to consumers' constitutional rights. For instance, consumers would need such information in order -

to exercise their right to choose from a variety of quality drugs sold at competitive prices.
to protect their right to life.

to educate and inform themselves.

to exercise their right to live and work in a healthy environment, etc, etc.

It is beyond doubt that such information is more likely to jeorpadise 'good governance,' 'privacy' and 'commercial confidentiality' of pharmaceutical companies. Having said that, would the Medicines Control Council, as a 'governmental body,' be entitled to deny consumers their constitutional right to have access to such information on the grounds that disclosure thereof may jeorpadise 'good governance' and 'commercial confidentiality?' Further, would such denial constitute a reasonable and justifiable limitation consistent with an open and democratic society based on human dignity, equality, and freedom as decreed by section 36 of Act 108 of 1996?

If prescription of the Dipyrone drug in Germany and the subsequent death of Germany's consumers is a reliable guide, then the scenario painted above could easily be repeated in South Africa. This is largely because of the broad nature of the phrases 'good governance' and 'commercial confidentiality' which are susceptible to manipulation and abuse at the expense of consumers. The legislature should thus give a precise definition of the two phrases in light of competing rights to life (and the attendant subsidiary rights to safety, health, etc.) 'good governance,' and 'commercial confidentiality.' Admittedly, there clearly are sometimes cases for withholding information on the grounds of 'commercial confidentiality,' these shoukd be the exception and not the rule as implied in clause 3 (1)(a). If a company wishes to claim that some information is 'commercially confidential,' it should discharge the burden of proof in terms of what category of 'commercial confidentiality' the information falls into and also give reasons why that is the case. Alternatively, we suggest that the two phrases be deleted as clause 38 of the Bill is broad enough to encompass in precise terms, what could have been intended by 'good governance' and 'commercial confidentiality' under clause 3.

However, any information which relates to the quality, suitability or safety of the goods or services supplied by the public body, or information which consists of the results of any investigation carried out by, or any information supplied to the public body, concerning a public safety hazard should not be exempt from disclosure as it is in the public interest.

Clause 3 (1)(e)
This clause is important to CISA in relation to individuals' credit records, confidential banking details, confidential health records, etc, etc.

Clause 5 (2)(c)(ii) and (iii)
Clause 5 (2)(c)(ii) and (iii) of the Bill makes provision for a guide to be published by the Human Rights Commission which must include the manner and form in which, a request should be made for access to a record of a private body containing personal information held by such private body and a governmental body contemplated in clauses 9, 50, 51, and 52.

Whereas in terms of clause 9 any person must be given access to any record of a governmental body; clause 50 provides that a person must, on request be given access to any record of a private body containing personal information about the person. Clause 51 refers to correction of personal information held by 'private bodies.'

The distinctive features of clauses 9 and 50 referred to above are the use of the words 'any person' in relation to any record held by ‘governmental body’ as compared to the words 'a person' in relation to any record of a 'private body' containing 'personal information' about the person. The difficulties placed in the way of those persons who will seek access to records in the possession of private bodies is that such persons would be required to prove that such records contain personal information about them. By implication, for instance, where a governmental body may own a chemical plant which emits poisonous gases into the air, or dumps hazardous waste material, pollutes dams, rivers or beaches in the vicinity of a residential area and in violation of the right to a healthy environment, any person, including environmental groups have the right in terms of the Bill, to demand information from such governmental body. Such information may be used to prove, for example, that the plant is a threat to public safety or a potential risk to the environment and thus should be closed down. However, an anomaly exists in that if such plant was owned by a 'private body', neither the environmental group or any person whatsoever would be entitled as a right to demand such information as referred to above, as against a 'private body'. Such person would be required in terms of clause 50 to prove that the information relates to him / her personally. Surely this cannot be right! The activities of the two industries in the hypothetical situation illustrated above constitute a threat to public welfare regardless of who owns or controls them.

Clause 8
In consideration of arguments raised under clause 1 (xii) above concerning the 'non-commercial requester,' insertion of clause 8 in the Bill is to be commended. For instance, this clause would provide for a situation as where information is given to state departments on products that were banned or withdrawn internationally and locally. In such cases, the state would have an obligation to disclose such information to the public or persons affected thereby as soon as reasonably possible.

Nonetheless, it may prove quite useful to insert a provision regarding the manner of disclosure of such information. Our view is that the state may use all media provided by the South African Broadcasting Corporation (SABC) as bearer of the public broadcast mandate. Further, the state may use the Departments of Education and Health to ensure that such information is disseminated timeously and as widely as possible.

Clause 11
Insertion of this clause is also to be commended for its direct relevance to CISA as a research and lobbying organisation and publisher of Consumer Focus and, provider of information on issues of concern to consumers.

Clause 31 (1)(b)
Comments that were made in respect of clause 3 (1)(a) above are equally relevant to clause 31 1(b). We foresee a situation whereby a request by consumers or their organisations for and disclosure by the information officer of a governmental body of information supplied by a third party concerning, for example, a drug, prescription of which has been banned, restricted or withdrawn in other countries '... could reasonably be expected to cause harm to the commercial or financial interests of that third party...' Alternatively, disclosure of such information '...would be likely to put that third party at a disadvantage in contractual or other negotiations or cause it prejudice in commercial competition.'

In CISA's view, the criteria for disclosure should be "public safety or environmental risk" as laid down under clause 1 (xxii) in the Bill, albeit with due consideration for other concerns such as those laid down under clause 31 (1)(b). Once again, we need to emphasize that such information would inevitably be required to enable consumers to exercise their constitutional right to life, safety, health, etc, etc.

Clause 37
This clause is objectionable in that it appears to seek to place the South African government's obligations to the international community above those of its citizens. One merely needs to point at the mishaps that were brought to bear on many African countries' already ailing economies due to dictates of the World Bank and the International Monetary Fund's structural adjustment programmes, as an indicator of how respect for international obligations often occurs at the expense of local social development needs and economic imperatives.

In our view, respect for international law obligations should occur only through the government fulfilling its constitutional duty to respect, protect, promote and fulfil the rights in the Bill of Rights as laid down under section 7(2) of Act 108 of 1996.

Clause 44
The provisions of this clause are consistent with CISA's general view on Open Democracy that legislation should ensure that there is transparency, accountability to, and public participation in all decision-making processes whereby matters of public interest are involved.

The clause will promote consumer confidence and assist in the development of the information society.

Clauses 53, 54, and the right to privacy ...
Clauses 53 and 54 respectively prohibit private and governmental bodies from using "....a record containing personal information except -

(a) if the person to whom or to which the information relates has consented to its use...
(b) for the purpose for which the information was obtained or compiled or for a purpose consistent with that purpose; or
(c) for a purpose for which the information may be disclosed to the private or governmental body in terms of clauses 55 or 56."

As this clause affects the right to privacy, it is worthwhile to look at the impact information technological development has had on this right.

Firstly, it is noteworthy that advances in information technology contribute to increasing amounts of personal data, processing of personal data in various spheres of social and economic activity, and the ability to access such data. Such data can reveal highly confidential particulars, for instance about a person's identity, including medical history and financial circumstances.

However, technological advances in this area have not been accompanied simultaneously by social respect for the stored and transmitted data. In consequence of the limited social respect for the electronically stored data, the large quantities of data stored, and the ability easily to access such data, individuals, consumers and their groups are concerned that this storage of data threatens their constitutional right to privacy as contained in section 14 of Act 108 of 1996. More so in view of the proposed Act's clauses 53 and 54.

Another area of concern is the fact that increased storage of data as well as easy accessibility and manipulation of such data makes it difficult for individuals to control the dissemination of information about themselves by third parties.

Therefore, in order to address the concerns raised above, the legislature needs to enact legislation that would provide for the crucial balancing of the individual right to privacy, and the unrestricted freedom of trade enjoyed by participants in the global market in terms of section 22 of Act 108 of 1996. However, the matter is res nova in South Africa.

That notwithstanding, it is also significant to note that section 39 (1) (b) of Act 108 exhorts the court, tribunal or forum to consider international law when interpreting the Bill of Rights. Some of the provisions of the European Union's (E.U) directives are thus instructive:

In order to secure the individual's right to privacy, the Directive creates common rules for businesses or administrations that collect, hold, or transmit personal data as part of their activities. Article 6 of the Council Directive requires Member States to provide that personal data "must be:

(a) processed fairly and lawfully;

(b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes...

(c) adequate, relevant and not excessive in relation to the purpose for which it is collected and / or further processed;

(d) accurate ... up to date..."

Article 6 further provides that Member States shall provide in their legislation, guidelines under which personal data can be processed such as where the "data subject has unambiguously given his consent," and processing is necessary for the performance of a contract (Clause 55 (g) ) to which the data subject is a party, in circumstances where processing is necessary to protect the vital interests of the data subjects (Clause 55 (h)(ii) ). Similarly, where these businesses or administrations transfer data, those receiving such data must ensure that they will process the data with an adequate level of privacy protection.

E.U Directives referred to above are particularly relevant to the Open Democracy Bill. Our view is that the objective of section 32 of Act 108 of 1996 and of the Open Democracy Bill generally and within the context of consumer protection in particular, is to ensure:

(1) accountability of governmental bodies and private bodies which render a public service or exercise public power,
(2)that every person secures his/her constitutional right to information concerning their safety, health, lawful gathering and storage information, and
(3) that private and often confidential information is not abused.

The provisions of the United States of America's Fair Credit Reporting Act of 1971 (as amended) also provide a useful guide. In terms of this Act, creditors are obliged inter alia-

(a) To notify consumers of the name and address of credit reporting agencies whose reports were used as a basis for adverse credit decisions.

(b) Credit reporting agencies, upon request: To disclose to consumers the nature and substance of information in their credit bureau records; to reinvestigate disputed information and make corrections; and to allow consumers to file their explanations if reinvestigations do not resolve disputes.

(c) Credit reporting agencies to notify recent recipients (as specified by the consumer) of the credit reports, of corrections that may have been made, or in certain instances, the consumer's side of the story, and to include this material in future reports.

(d) Credit reporting agencies to furnish reports only to those who have permissible purposes for the information.

In order to ensure that the objectives of the Open Democracy Bill are met, it is crucial that clauses 53 and 54 be limited along the lines of the E.U. Directives and the US' Fair Credit Reporting Act of 1977.

Further, information pertaining to ethnicity or race, political beliefs, religious affiliation, trade union membership, and health or sexual life should only be processed with the affected person's consent. However, legislation should also provide for cases where such information is collected by a third party, as where, for example; the defence and security or economic well-being of the country is at stake. In such cases, it would not be prudent to seek the consent of the person to whom the information relates. Nonetheless, legislation should require that there be a proper legal basis for processing such data. Therefore, data collection, processing, storage, communication, modification, usage and deletion or ultimate disposal of data should be evaluated in the light of the specific purpose for which it was collected. The proposed legal grounds are consent, contract, legal obligation, public interest, or the balance between legitimate interests of those controlling the data and those on whom data is held.

Clause 59
The clause is objectionable first in that it does not spell out in advance what the duration of the 'prescribed' period referred to, is. Secondly, it provides for the use of information that may have been obtained unlawfully, to be used for lawful purposes. This would be in violation of the common law rule that those who come to court 'should have clean hands.'

Clause 72
In terms of the clause, the Bill makes provision for a dispute resolution process that involves an internal appeal and ultimately approaching the High Court.

We are concerned that the financial implications of taking the matter to the High Court may hinder many consumers from fully exercising their constitutional rights to information, as against big and financially secure public bodies. This difficulty could be overcome by setting up a statutory independent body such as the Ombudsman for Information or the State Information Tribunal with powers of a civil court to which, such matters may be referred for arbitration, as an alternative to approaching the High Court for resolution. Thus consumers would have the option of easily accessible, non-adversarial and inexpensive dispute resolution machinery. Such a mechanism will also help all the parties involved in terms of speedily resolving disputes, and also avoiding adverse publicity to business which is inherent in normal court proceedings.

The office of the Ombudsman for Information would necessarily be set up by an independent administrative body comprising all stakeholders who will also negotiate its staffing requirements, terms of reference, powers, etc.

Conclusion
Consumers and consumer groups have a stake in clinching the right to information as against private bodies that wield public power, in the same way as any other public interest group, newspaper, or an individual may have against such bodies. Certain types of information, whether held by private bodies or governmental bodies, is at the root of various constitutional and consumer rights as has been contended above. Moreover, it is submitted that with the enactment of the right to information legislation, which applies equally to both governmental bodies and private bodies that exercise public power, lives can be saved, accidents and damage to property prevented. Further, such legislation would be in accordance with the notion that no democratic government can survive without the accountability of decision-makers to those whose lives are affected by such decisions.

In order for consumers to protect their constitutionally guaranteed rights, the minimum and most basic requirement is the right of access to :

section 32 (1) (a) any information that is held by the state; and
(b) any information that is held by another person and that is required for the exercise or protection of any rights.

It is submitted that by using the wording '...another person ...' in section 32 (1) (b) of Act 108 of 1996, the legislature anticipated that private bodies, such as companies, commercial organisation or corporations also hold information that may be basic to the exercise or protection of the rights, which are enshrined in the Chapter 2 of the Constitution. In terms of section 2 of the Interpretation Act 33 of 1957, 'person' includes-

(a)...
(b) any company incorporated or registered as such under any law;
(c) any body of persons corporate or unincorporate.

We further submit that if the right to information be extended to apply to private bodies, this would lead to even better decisions because there will be more discussions in advance of formulation and the adoption of policies. Consumers would be able to make timeous use of expert advice and relevant supporting documentation. Further, consumer organizations and environmental groups can also avail themselves of the opportunities to comment on public policy, expose bad policies and bring about competent policies.

"Consumers, by definition, include us all, they are the largest economic group, affecting and affected by almost every public and private economic decision. Yet they are the only important group...whose views are not often heard." (President of the United States John F. Kennedy in his 15 March 1962 declaration to the US Congress.)

References
1. Chetty, A. "A drug no one needs", in Problem Drugs, Amsterdam, Health Action International, 1993.
2. Terblanche, D. Consumer Focus, January 1998.
3. The Republic of South Africa Constitution Act 108 of 1996.
4. Meyers, J.M. "Creating Data Protection Legislation in the United States : An examination of Current Legislation in the European Union, Spain, and the United States in Magazine Case Western Reserve Journal of International Law, Winter 1997.
5. The Interpretation Act 33 of 1957.
6. McQuid-Mason, D.M. Consumer Law in South Africa, 1997.
7. Consumer Education and Research Centre: Access to Information, 1993.
8. Anderson, J.M. For the People :A Consumer Action Handbook, 1977.
9. Dee, S and Meek, C. "Secrecy and the UK utilities" in Consumer Policy Review, Vol 7 No 4, July/August 1997.

Bafana Makhubo :Researcher, Consumer Institute South Africa.