Extract from a Legal Opinion prepared by Paul Farlam of the Cape Town Bar for the Open Democracy Campaign Group dated 14th September 1999

No law is passed

3. Pending the enactment of the legislation envisaged in section 32(2) of the Constitution, the right in section 32(1) is (in terms of Item 23(2) of Schedule 6 of the Constitution) suspended. In its place is the right set out in item 23(2)(a) of Schedule 6, which is substantially the same as the access to information right in the interim Constitution (Act 200 of 1993).

4. Item 23(1) clearly states that the legislation envisaged in section 32(2) must be enacted within three years of the date on which the new Constitution took effect (i.e., by February 2000). Item 23(3) expressly provides that if the legislation mandated by section 32(2) is not enacted within the three year period, then section 32(2) shall lapse.

5. Thus, if no law on access to information is passed in the current parliamentary session (and consequently no such law is passed prior to the expiry of the stipulated three year period), section 32(2) will automatically fall away.

6. But does this mean that section 32(1) of the Constitution will immediately come into force?

7. Some doubt has been expressed on the basis that Item 23(2) of Schedule 6, by virtue of which the provision is currently suspended, does not specifically say that section 32(1) revives after three years. Rather, the clause states that section 32(1) is suspended (with wording of section 32(1) being deemed to correspond in general terms with the interim Constitution's equivalent right) "until the legislation envisaged in sections 32(2)...of the new constitution is enacted". Therefore, it is suggested, the transitional clause enumerated in Item 23(2) - which contains no reference to the access to information held by private persons - will continue to exist in the absence of such legislation (and thus continue to define the right to information in a more restrictive way).

8. The doubts and fears alluded to above are, however, unfounded. There are three reasons for concluding that, even if the legislation envisaged in section 32(2) is not enacted within the stipulated time period, the section 32(1) right automatically comes into operation on the expiry of the three year time period provided for in items 23(1) and 23(3) of Schedule 6.

9. Firstly, this is how the Constitutional Court itself interpreted the transitional arrangements put in place by item 23 in the First Certification Judgment, In re: Certification of the Constitution of the Republic of South Africa, 1996 1996 (10) BCLR 1253 (CC) at section H (at 1291C-1292G; paras [82]-[87]). In this regard, it is worth reiterating that, at paras [42] and [43] of the First certification judgment, the court emphasised that:

"a future court should approach the meaning of [a particular provision of the 1996 Constitution] on the basis that the meaning assigned to it by the Constitutional Court in the certification process is its correct interpretation and should not be departed from save in the most compelling circumstances. If it were otherwise, an anomalous and unintended consequence would follow. A court of competent jurisdiction might in the future give a meaning to the relevant part of the [Constitution] which would have made that part of the [Constitution] not certifiable ... at the time of the certification process."

This interpretive maxim has particular resonance in the present situation because, if the Constitutional Court had adopted a reading of the section 32/Item 23 arrangement on the lines suggested in paragraph 6 above, then it would not have been able to certify that this part of the Constitution complied with the Constitutional Principles - something that is set out in paragraph 10 below.

10. The relevant dicta of the Constitutional Court in paragraphs [82] to [87] of the First Certification Judgement will not be quoted here. Instead they are annexed to the back of the memorandum. What is clear, however, is that the Constitutional Court understood that section 32(1) would come into effect after three years, at the very latest. This is therefore, how section 32(1), read with Item 23 of Schedule 6, must be interpreted.

11. The second reason for concluding that section 32(1) must come into effect after a maximum of three years is that an indefinite suspension of the section 32(1)(a) right would have meant that the section 32/Item 23 scheme did not comply with the requirements of Constitutional Principle IX ("CPIX"). (CP IX stated that "Provision shall be made for freedom of information so that there can be open and accountable administration at all levels of government"). CP IX required that the Constitution provide for access to information in order to ensure and facilitate open and accountable government. Access was not permitted to be restricted to situations where it was needed for the exercise of a right. Therefore, if the suspension of the section 32(1) right had not been restricted to a fixed, and relatively short period under Item 23(1) this wold not have satisfied the requirements of CPIX ("First Certification Judgment at 1291H-I). This is therefore, not an interpretation that should, or could, be adopted at the present time.

12. The third reason for reaching the conclusion outlined above is that the alternative reading would result in an absurdity - something that should always be avoided when construing legislation. The absurdity would be this: Item 23(2) suspends the operation of the section 32(1) right until the legislation envisaged in section 32(2) is enacted. But, after three years, such legislation can never be enacted. Therefore section 32(1) would never come into effect, something that would surely never have been intended as (I) section 32(1) is a fully-fledged constitutional provision that can only be amended with difficulty, and (ii) Item 23 is clearly intended merely as a "transitional provision". Therefore, the alternative reading cannot be adopted for this reason as well.

13. It is also worth noting that all the text books that discuss the bill of rights (as well as an article such as Justine White's contribution to the 1998 South African Journal on Human Rights) appear to regard the section 32(1) right as coming into effect on the enactment of the legislation contemplated by 32(2) or the expiry of three years, whichever is the earlier. This is only to be expected in the light of the Constitutional Court's pronouncements in the First Certification Judgment.

14. To conclude then: if no law is passed within three years, (I) section 32(2) falls away and (ii) the section 32(1) right is automatically triggered.

A law that partially protects the right in section 32(1) is passed

15. On the basis of the analysis in the previous section, it is clear that no matter what legislation is passed, and no matter what the extent of the compliance with section 32(1), the right in section 32(1) will come into force in its entirety at the latest by February 2000.

16. It is not however, as clear whether part of section 32(1) can come into effect prior to that date, as a result of the enactment of legislation giving effect to that right.

16.1 On one hand, it could be argued that there is no reason why the right in section 32(1) could not be given effect to on a piecemeal basis. For, the term "national legislation" can, in terms of section 239 of the Constitution, include more than one law. So, section 32(1) could be given effect to by more than one parliamentary statute, or an act of Parliament and subordinate legislation. And these could be enacted at different times.

16.2 On the other hand, one might contend that, although legislation can be enacted at different times to give effect to the right, until all such legislation is enacted (or until the three year period expires), the section 32(1) right remains suspended. The practical effect of this would be that, if such legislation is wider than the provision in Item 23(2)(a), one could claim access to information under the statute that was not previously available in terms of Item 23(2)(a); although one could not demand more information than is permitted by the statute in terms of section 32(1).

17. The view expressed in paragraph 16.2 above is in my opinion to be preferred. It is not, however, obviously the better view. In any event, the situation that would exist on the enactment of the ODB in its current form involves a further twist. For, the ODB, according to its own Preamble and Explanatory Memorandum, only gives effect to part of section 32(1)(b) (and which may well not give effect to the whole of section 32(1)(a) as a result of the blanket exclusion given to the Cabinet). Thus, could part of section 32(1)(b) come into effect on the enactment of the ODB, and would the ODB even trigger the application of section 32(1)(a)?

18. Whichever of the views expressed under paragraph 16 above one favours, there can surely be little doubt that part of section 32(1)(b) (or most of section 32(1)(a)) cannot come into effect prior to February 2000. Either the whole of section 32(1)(b) is activated, or none of it is. Consequently, one would, after the enactment of the ODB in its current form only have access to information held by non-governmental parties in accordance with that statute. And one might well be confined to the four corners of the statute when requesting access to information held by the state.

19. Fortunately, the above discussion is in an important respect largely academic. For, as mentioned above, whether or not section 32(1) is activated by any legislation enacted in the current parliamentary session, section 32(1) will be of full force and effect from February 2000.

20. But there still remains the question of whether legislation like the ODB which only gives partial effect to the section 32(1) right will have the status of 32(2) legislation if, by the end of the three year period, the whole section 32(1) right has not been given effect to by national legislation. Again the question is a difficult one, and therefore one which can not be answered with any confidence.

21. My view is that if the legislation does not give full effect to the right in section 32(1) it will not be section 32(2) legislation. However, such legislation will still be accorded considerable deference by the Courts due to the complexity of the area and the need for clear and detailed rules. The courts will be reluctant to stray beyond the legislation in areas in which the legislation purports to give effect to the section 32(1) right, and even more reluctant to declare a section of that right an unconstitutional limitation of the right of access to information. Where there is clearly a lacuna in the legislation, though, the Courts will step into the breach until such time as there is legislation regulating that area.

A law is passed granting full access to privately-held information

22. On the enactment of such legislation, the whole of section 32(1) would immediately come into effect if such legislation was actually legislation envisaged by section 32(2). The Courts would have the final say on this point and thus on the classification to be accorded to the legislation. When considering this issue, the Courts should not, and almost certainly will not, confine themselves to what the drafters (and Parliament) say the legislation gives effect to. The Courts should examine the legislation for themselves, in the light of their understanding of the ambit and scope of the section 32(1) right.

23. If the legislation is in fact section 32(2) legislation, then in my opinion the section 32(1) right will be little utilised while the legislation is in place. The purpose of the section 32(1) right will be to prevent the repeal of the legislation or parts thereof (or to fill the gap in the event of such repeal). Therefore, the content of the section 32(1) right will not forever be determined by the content of the national legislation that gives effect to it in terms of section 32(2).