• give effect to the Constitutional Right to Access Information
• help in the fight to combat corruption
• give meaning to the notion of open and accountable government

Crucial to the working of the ODB is the section on enforcement procedures. The Bill provides for two remedies: an internal appeal to the head of the government body that refused the request and in the case where the internal appeal in unsuccessful, motion proceedings before a division of the High Court. This submission focuses on the High Court provisions in Chapter 2, or the external enforcement procedure. There is concern that this mechanism is inaccessible, prohibitively expensive, and too slow.

We believe that an effective enforcement procedure should be:

• accessible both physically and intellectually;
• inexpensive for all parties concerned; and
• fast.

We propose an enforcement procedure within the existing Magistrates' Court system. This will place the least possible strain on the budget. Our focus is on designated Magistrates' Courts because we believe their location makes them more accessible to everyone in South Africa. We also propose a procedure akin to the inquisitorial manner of the Small Claims Court because we believe that this reduces the dependency of people on lawyers. We also believe such a procedure will facilitate intellectual accessibility, low costs and a speedy resolution of the disputes.

The following submission will explain:

• a designated Magistrate Court
• an appointed officers
• the powers of the appointed officers
• inquisitorial procedures
• appeal process
• direct referrals

The Minister of Justice and Constitutional Affairs, after consultation with the Magistrates Commission, will designate in writing a Magistrates'Court. It will have jurisdiction to hear appeals from the head of the department, either generally or in respect to a certain class of information. Using the infrastructure of the Magistrates' Court instead of the High Court would keep costs low and make the system more accessible. It is well known that the High Courts are not accessible to the majority of the population, especially those in rural areas.

The Magistrates Commission must list and recommend Magistrates, lawyers, academics, and other specialists, who are suitably qualified to be officers, to the Minister of Justice and Constitutional Affairs. Suitably qualified means that they possess broad knowledge of constitutional issues. The Minister of Justice and Constitutional Affairs will appoint the officers needed for each district. If necessary, the officers will be trained by the SAHRC to prepare them for the complex disputes that may emerge. We believe that the quality of constitutional analysis will not be compromised if the appointed officers are experts in their field. Proper qualifications for their task will also ensure that the procedure does not pose a danger to the protection of rights, specifically the right to privacy.

• decide on its jurisdiction
• subpoena witnesses and records to assist in determining the issues
• questioning of witnesses in simple language
• keep record of the proceedings
• make interim orders; e.g. preservation of information/property orders
• any appropriate order.

We believe that an adversarial system creates a strict dependency on lawyers that make access to information less accessible for those who cannot afford the costs involved. An inquisitorial procedure will reduce the dependency on legal assistance. However, we do not suggest a violation of the right to legal representation. By removing the adversarial system, the process will become informal, less expensive and enhance accessibility.

The concern that an inquisitorial procedure is substantially unchecked and that the management of evidence relating to claims rests with judicial officers is addressed by the way in which the presiding officers are appointed and by the right to appeal and review to the High Court. (see above: Appointed Officers, and below: Appeal Process)

The appeal process from the designated Magistrates' Court should remain as it is. The Magistrates' Courts Act No. 32 of 1944 (Chapter XI, section 83) lays out the appeal and review process as applicable to the Magistrates' Courts. In relation to this designated Magistrates' Court, the decisions of the appointed officer may be taken on review or appeal to the High court having jurisdiction to hear the appeal.

Because we do not suggest amendments to the constitution, we believe that the appointed officer should be empowered to refer questions of constitutionality of legislation to the Constitutional Court. In line with the need for fast justice, we believe the appointed officer should have the power to refer the question directly to the Constitutional Court that must treat the matter with urgency.

We believe that using a designated Magistrates' Courts system creates a flexible enforcement forum that could be used with enforcing the prospective Administrative Justice legislation and Equality legislation. Due to the synergy between the ODB and Administrative Justice, this choice of forum seems both logical and practical in terms of implementation.

Attached to this submission is a recommended draft that can be used to replace or amend the present Chapter two of the ODB.

October 4, 1999

Jointly prepared by the Human Rights Commission and Idasa on behalf of Open Democracy Campaign Group

This draft is aimed at replacing the present external enforcement mechanism of the Open Democracy Bill [B67-98], Chapter two.

72. This Chapter may not be construed to exclude or limit any other right a person has in terms of the law to remedy a matter in respect of which proceedings may be instituted in a court or, where appropriate, another independent and impartial tribunal or forum in terms of the right to access to information.

73. (1) A person -

1. that has been unsuccessful in an urgent request application, an internal appeal to the head of a government body or an urgent appeal application; or
2. aggrieved by a decision of the head of a governmental body to disallow the late lodging of an internal appeal in terms of section 68(3),

may appeal against the decision within 180 days after receiving the decision, subject to subsection (2).

(2) If an appeal is against the granting of a request for access on internal appeal that appeal must be lodged -

1. within 30 days; or
2. if an urgent appeal application has been granted in respect of the internal appeal, within 10 working days,

after the third party concerned has been notified of the decision to grant the request on internal appeal as well as the right to appeal.

(3) The periods referred to in subsections (1) and (2) may be extended for a fixed period -

1. by agreement between the parties; or
2. by an appointed officer in a designated Magistrates' Court, having jurisdiction in terms of section 76, on application by any party where the interests of justice so requires.

(4) The appropriate state institution supporting constitutional democracy as listed in Chapter nine of the Constitution may appeal against a decision of -

1. the information officer of a governmental body; or
2. the head of a governmental body on internal appeal.

(5) A third party notified of a decision of the head of a governmental body to disclose information regarding a serious public safety or environmental risk in terms of section 8(5)(a), may appeal against the decision within 10 working days after the third party concerned has been notified of the decision as well as the right to appeal.

74. If a contravention or threatened contravention of a provision of Part 5 is alleged in relation to a person, that person or another person listed in section 38 of the Constitution may lodge an application for appropriate relief.

75. (1) An appeal in terms of section 73 must be lodged -

1. with a Magistrates' Court having jurisdiction in terms of section 76; and
2. subject to this Chapter, may be informal and must be in writing.

(2) Subject to sections 76 and 77, the Rules Board must, after consultation with the Magistrates Commission, make and implement rules of procedure for appeals in terms of this act within one year after the enactment of this act.

76. A Magistrates' Court designated in writing by the Minister, after consultation with the Magistrates Commission, either generally or in respect of a certain class of information, has jurisdiction to hear an appeal in terms of this Chapter and matters incidental to the right to access to information, in respect of-

1. a decision of the information officer of head of a governmental body contemplated in section 73 which has its office or, if the body has more than one office, its main office; or
2. a person that lodges an appeal in terms of section 73(1) or (4) or 74 and resides, carries on a business or is employed; or
3. an alleged contravention referred to in section 74 which has occurred or is about to occur,

in the area of jurisdiction of the designated Magistrates' Court.

77. (1) In a designated Magistrates' Court, an appointed officer shall preside over applications in terms of this Chapter.

(2) The Magistrates Commission must list and recommend magistrates, lawyers, academics or other suitably qualified specialists for appointment in terms of subsection (2) to the Minister.

(3) Appointed officers may be based in designated courts to which matters could be referred, or alternatively may move around the country in a circuit court arrangement.

78. (1) The Clerk of the designated Magistrates' Court must receive and hand the application to the appointed officer.

(2) An appeal in terms of section 73 will be determined according to the rules of procedure established in terms of section 75(2) that will include at least -

1. the exclusion of the standard rules of the law of evidence before an appointed officer;
2. notice of the appeal to the other party;
3. administration of an oath or affirmation before the appointed officer;
4. written or oral submission of evidence to prove or disprove any fact in issue with or without one or more witnesses to prove the claim;
5. provision for intervention by an amicus curia;
6. an inquisitorial procedure followed by the appointed officer in order to ascertain the relevant facts, and to that end may question any party of witness at any stage of the proceedings;
7. that the appointed officer has the discretion to permit any party to put a question to any other party or witness;
8. provision for direct referrals to the Constitutional Court by the appointed officer of issues concerning the constitutionality of relevant legislation;
9. provision that an appointed officer in a designated Magistrates' Court can rule on its own jurisdiction; and
10. that an appointed officer may conciliate or join certain matters with similar factual or legal questions, without conducting a full hearing on this issue, with the consent between the parties.

(3) Procedures and referrals in terms of this section shall be treated with urgency.

79. (1) An application in terms of section 73, or in any other legal proceedings in terms of the right to access to information, shall consider that an applicant has a right of access to -

1. any information held by the state; and
2. any information that is held by another person and that is required for the exercise or protection of any rights

and the appointed officer must justify a refusal or, in any other legal proceedings, the presiding officer must place the burden of establishing that -

1. the refusal of a request for access; or
2. any decision taken in terms of section 17(2), 18(1), 20, 21(1), 25(3), 52(12)(d), 65(5) or 71 of this Act,

is justified is on the party claiming that it is so justified.

80. (1) After considering all the written, oral and other relevant evidence before the appointed officer in respect of an appeal, the appointed officer may make an order that is just and equitable including -

1. confirming, amending, or setting aside the decision that is the subject of the appeal;
2. requiring from the information officer or head of the governmental body to take such action as the appointed officer considers necessary within a designated period;
3. where the appeal was against the refusal of an urgent request application or urgent appeal application, an order requesting access to that record in respect of which the application was made;
4. granting an interdict, interim or specific relief, a declaratory order or compensation;
5. refer a question of constitutionality of legislation to the Constitutional Court.

2. An order by the appointed officer shall have the same effect as a civil order from the Magistrates' Court.

(3) Decisions of the appointed officer may be taken on review or appeal to a court with jurisdiction.

(4) An appointed officer may make an order as to costs of an appeal he or she considered appropriate, taking into account the effect the application may have on the aim of open and accountable democracy.

(5) An order in terms of this section must have due regard to the desirability of a speedy and inexpensive resolution of the appeal.

(6) The appointed officer shall keep a record of the proceedings.

81. (1) An individual who wishes to lodge an appeal, but, because of illiteracy, poor literacy or a physical or mental disability, is unable to comply with this Chapter, may request the Human Rights Commission to assist him or her to so comply.

(2) If the Human Rights Commission is of the opinion that an important matter of principle is involved, the Commission may appear before the appointed officer as a party to an appeal.

(3) The Human Rights Commission may, on request, appoint a person to represent an individual who has lodged an appeal in terms of section 73(1) or 74.

(4) The Human Rights Commission must provide appropriate training to the appointed officers with the aim of effectively enforcing this Act.

82. (1) Despite any other provisions of this Act, any court hearing an application or an appeal against a decision to deny access may examine any record of a government body to which this Act applies, and no such record may be withheld from that court on any grounds.

(2) Such court may, subject to subsection (3), not disclose to any person, including the parties to the proceeding concerned -

1. any record of a government body which is required or permitted in terms of this Act to be withheld from disclosure; or
2. if the information officer of a governmental body, or the head of that body on internal appeal, in refusing to grant access to a record in terms of section 34(2) or 36(2), refuses to confirm or deny the existence or non-existence of the record, any information as to whether the record exist.

(3) If such a court considers it in the interests of justice, it may order the disclosure of such record or such information to any party to the proceedings concerned, and may, if it considers it necessary, order such a party not to disclose such a record or such information to another person.