JUDGE PRESIDENT: NORTHERN CAPE
JUDGE-PRESIDENT'S CHAMBERS
11 AUGUST 1998


THE OPEN DEMOCRACY BILL

Your letter No. 3/15/15/2 (HMS) of the 31st ultimo refers. Part of the letter faxed to me is illegible, and all I can gather is that comments on the Bill are to be sent to a committee, which one I don't know.

I am therefore sending you (for transmission to the relevant committee) comments by van der Walt, J, on certain provisions of the Bill. Due to time constraints I have not been able to give proper consideration to the matter, and would only add that in my view section 77(3) should refer to "a legal practitioner" and not merely to "a person".

J J KRIEK
JUDGE PRESIDENT
NORTHERN CAPE DIVISION

THE JUDGE-PRESIDENT.

I applied myself mainly to the provisions of sections 73 and 74 of the Bill. It is all I had time for in any case. My comments are the following:-

1. SECTION 73.
(1) The "rules regarding an urgent application … applicable to (the) High Court referred to in paragraph (b) of sub section (1) are for all practical purposes contained in Rule 6(12) and amounts thereto that the Court has a judicial discretion to dispense with the forms. service and procedures provided for in the Rules, which in fact means that if this sub Rule is applied there are no prescribed rules and that the Court from case to case (often by way of implication), makes it own rules. What does "subject to this Chapter" mean? Does it mean that the provisions of the Chapter may not be dispensed with as minimum requirements? It does not mean that then it seems meaningless in any way.

To me it seems illogical to make what really is an exception the rule - an exception of which the effect actually is that there is no rule, especially if the substantiation of urgency also falls away. I would regard it as much more logical to lay down such rules as are regarded necessary and then to provide for exception in cases of urgency or injustice as is done by Rule 6 (12) of the Uniform rules.

(2) It seems to be bad draftmenship to give sub sections (2) and (3) on the one hand the same status in the construction of the section as sub section (1) on the other hand. Sub sections (2) and (3) relate to what is the subject matter solely of paragraph (b) of sub section (1) and should be coupled thereto as provisos as sub-paragraphs.

2. SECTION 74.
(1) Sub section (1) which allows for appeals to the High Court differentiate in paragraph (a) and (b) between
(i) an urgent request application (presumably section 20)
(ii) an internal appeal (presumably section 67)
(iii) an urgent appeal application (presumably section 71), and
(iv) the disallowance of the late lodging of an internal appeal (section 68(3))
while sub section (2) which prescribes times for the lodging of appeals only differentiates between
(i) the granting of a request for access on Internal appeal
(ii) an urgent appeal application (that) has been granted in respect of the internal appeal.

Not only is it difficult because of the inconsistent terminology, to mate the two different categories of distinction (they should naturally co-inside) but the category in sub-section (2) does not seem to en-compass all the different categories or cases provided for in sub-section (I). In other words one may find that you are allowed a right of appeal in a certain matter without a time for lodging such appeal being prescribed. A further question is whether there should be an appeal directly to the High Court in the case of actions taken in terms of section 20 without an internal appeal.

2. I am not at all sure that sub section 1 grants leave to appeal against all the kinds of detrimental decisions which can be taken by the lower authorities. Would the answer not lie in employing simple wording as is done in sub section (3), namely to grant a right of appeal from any decision given on internal appeal. The same kind of wording should also be employed in relation to internal appeals from decisions of information officers.

3. The drafting of sub-section (2) also appears clumsy and illogical. It seems that the main part of the sub-section and paragraph (a) thereof should be contained in one paragraph with paragraph (b) as a separate paragraph of equal status.

4. In relation to sub-section (3) there does not seem to be any logical reason for granting the Human Rights Commission an appeal directly to the High Court from decisions of information officers. Why should such decisions not also be subject first to an internal appeal?

5. The provisions of sub-section (4) should hardly be contained in a separate sub section remote from sub section (2) but should rather be a part of the latter sub section.

J.C. VAN DER WALT
JUDGE
NORTHERN CAPE DIVISION