COMMITTEE FOR PRIVATE DATA BASE USERS

MEMBERS
Banking Council of SA
Consumer Credit Association
Credit Bureau Association
Direct Marketing Association
Furniture Traders' Association
Life Offices' Association
SA Insurance Association

1. This Committee, which represents the above umbrella bodies, previously submitted written comment on the bill [dated 7 August 1998] and has nothing to add in relation to the bill as it now stands.

2. However, at the Justice Portfolio Committee Hearings in March 1999 a number of organisations raised the issue that the bill gives only partial effect to the requirements of section 32 (1) (b) of the Constitution. At least one of these organisations went to the trouble of drafting an expanded bill and included new provisions allowing for wide access to information held by private bodies [other than only to a person's own information - which is covered by the existing bill]. It is therefore clear there is move to expand the scope of the current bill accordingly.

3. In addition to the view that the bill was lacking in this way, the opinion was also advanced by a number of organisations that to meet the requirements of clause 23 of schedule 6 to the Constitution, an expanded bill has to be enacted before 4 February 2000.

4. At the Idasa conference on the bill in July 1999, two overseas academics who specialise in this field pointed out that if the bill was expanded as suggested, South Africa would be the first country to have such legislation. Emphasising that it is a very complex issue which other countries have steered well clear of, one of the academics "wished us luck". Regarding the matter of giving only partial effect to the constitutional requirement, a prominent local constitutional lawyer, Professor Marinus Wiechers. said at the conference that he disagreed with the interpretation offered and that the current bill satisfied constitutional requirements.

5. The current bill has been developed over four years and, from the private sector's point of view, is generally acceptable - and more importantly, workable. It gives people rights to information they have never before had under legislation, and gives business ground rules which were also previously lacking.

6. We therefore submit that it would be retrogressive for enactment to be delayed

- very possibly for another four years - due to the complexity of the issues to be included. An even worse scenario would be an attempt to rush an expanded bill through parliament in the next couple of months. These sentiments are endorsed by Business South Africa.

7. We have taken legal opinion on the views expressed regarding the bill's constitutionality and the deadline issue and attach a copy as part of this submission. You will note from Mr Brian Cunin's opinion that he believes the organisations who raised the doubts set out in clauses 2 & 3 above are mistaken, and that there is no valid reason on those grounds for delaying enactment of the bill in its current form. We have asked him to be available in person at the public hearings to explain how he reached these conclusions.

ROWAN HAARHOFF

Committee chairman

29 September 1999

1. The Open Democracy Bill is in the process of being drafted with the view to providing for public access to information held by governmental and private bodies.

2. Section 23 of the Interim Constitution of 1993 established the right to access to information in South Africa, by providing that every person shall have the right of access to all information held by the state or any of its organs at any level of government in so far as such information is required for the exercise or protection of any of his or her rights.

3. Being an Interim Constitution, negotiated before South Africa's first democratic elections, all political parties, wanting to ensure that the elected party or parties would not have a free hand to write their own Constitution, agreed to certain Constitutional Principles on which the New Constitution would be based. These are recorded in Schedule 4 of the Interim Constitution. Constitutional Principle IX deals with Freedom of Information. In terms thereof, the Access to Information Constitutional Principle which has to be entrenched in South Africa's supreme law, is that provision be made for open and accountable administration at all levels of government.

4. It was common cause prior to the 1994 elections that section 23 of the Interim Constitution, as quoted in paragraph 2 above, did not satisfy the principle of ensuring open and accountable administration at all levels of government. This could not be achieved by limiting the right to information in so far as such information is required by a person for the exercise or protection of any of his or her rights.

5. To give effect to Constitutional Principle IX, the drafters of the Constitution of the Republic of South Africa, Act 108 of 1996, changed the wording of the Access to

Information clause, section 32, to read: 1(a) Everyone has the right of access to any

information held by the state. The Constitutional Court has subsequently found, in its Certification Judgement, that section 32(1) does in fact satisfy the Constitutional Principle of open and accountable administration at all levels of government.

6. In section 32, the drafters of the 1996 Constitution went further than merely satisfying the requirements of the Access to Information Constitutional Principle. Section 32(1)(b) entrenches the right of access to any information that is held by another person and that is required for the exercise or protection of any rights. This establishes horizontal application of the right and relates to private information. Section 32(1)(b) has nothing td do with open and accountable government administration.

7. The drafters also decided to include a sub-section 32 (2), which again was not essential for the purposes of the Access to Information Constitutional Principle. Furthermore, section 32(2) has no impact on the substantive right to access to information entrenched in subsection (1). It is merely a directive to the National Legislature to enact legislation to give effect to the right to access to information. The words "give effect to the right" in 32(2) do not mean that the right to access to information in 32(1) is dependent upon the legislation envisaged in 32(2). Had that been the intention, the legislative measures in 32(2) would have been mandatory, which is not the case. (See paragraph 10 below). These words must have been intended to mean: to facilitate the implementation of the right to access to information.

8. Finally, the drafters must have been of the view that application of section 32(1) would be difficult for the Constitutional Court without legislative guidelines. That explains why they decided to suspend, for 3 years, the operation of section 32(1) as it reads in the Constitution of 1996, pending the enactment of the legislation envisaged in 32(2). This suspension is provided for in section 23(2) of Schedule 6 - the Transitional Arrangements - of the 1996 Constitution. It stipulates that until the legislation envisaged in section 32(2) is enacted, section 32(1) must read verbatim as the access to information section in the Interim Constitution. (See the wording in paragraph in 2 above) In other words, in spite of the enactment of the 1996 Constitution, the new provisions relating to access to information in section 32(1), have to date not been in operation and there is therefore, at this moment no constitutional right to access to private information.

9. However, the drafters of the New Constitution of 1996 did not give Parliament an indefinite period in which to legislate. Sections 23(1) and (2) of Schedule 6 -Transitional Arrangements - give the National Legislature 3 years from the date on which the New Constitution took effect, to enact the envisaged legislation, after which section 32(2) lapses.

10. What is the status of section 32(1) after the 3 years have lapsed? The drafters of the 1996 Constitution intended a new provision for access to information. In fact a new provision was not negotiable, given the contents of Constitutional Principle IX and the inadequacy of the Interim Constitution's provisions in this regard. The only logical interpretation must be that section 32(1) comes into effect after the 3 years have expired, irrespective of whether or not the Legislation envisaged in 32(2) has been enacted. This interpretation is supported by the Constitutional Court in its Certification Judgement. One of the issues it was required to pronounce upon was whether Section 32 satisfied the requirements of Constitutional Principle IX. The Court concluded that although for the first 3 years or until the Legislation envisaged in 32(2) had been enacted, i.e. during the suspension of 32(1) while the old wording remained on force, the Constitution did not satisfy C P IX, thereafter it would, because section 32(1) satisfied Constitutional Principle IX. The Court concluded that irrespective of compliance with 32(2), section 32(1) would be the Constitutional provision relating to access to information, at the latest after 3 years.

11. Bearing in mind the above, what is the validity of the objection that the Open Democracy Bill only gives partial effect to section 32(2) because the sections in the Bill dealing with private information are too narrow and, therefore, it has to be amended, otherwise section 32(1) will not become operative with the result that access to private information will not be a Constitutional Right?

With respect, those who voice the above objection have misinterpreted section 32 of the 1996 Constitution read together with Schedule 6 - the Transitional Arrangements and the Certification Judgement. The flurry around so called partial compliance is a non issue. There is no absolute duty on the National Legislature to enact the measures envisaged in section 32(2). The words "must be enacted" in 23(1) of Schedule 6, refer to the 3 year period. If that were not the case, 23(3) would not have provided for the eventuality of non enactment and the lapsing of section 32(2) of the 1996 Constitution.

Furthermore, who decides what constitutes total compliance? The fact that parliament thinks that legislation complies partially or totally with an objective set for it, does not mean that parliament is correct in its assessment. Can it ever be said that there has been total compliance? Law is not static and it is conceivable that new legislation may have to be enacted regularly in order to adapt to an ever changing world, for as long as section 32(1) remains part of our Constitution.

12. In conclusion, the future force and validity of section 32(1) is not affected in any way by whether parliament enacts no legislation, some legislation or extensive legislation to give effect to the right to access to information. The only difference is the extent to which the Constitutional Court will have to provide its own guidelines in giving effect to the right: The less legislation, the greater the burden on the Court. If the Open Democracy Bill becomes law in its current form the Constitutional Court, rather than parliament, will have to interpret and decide what the words" any information that is held by another person", mean. It is conceivable that parliament intentionally refrained from attempting to give meaning to those words because of the possible implications, being of the view that Constitutional Court Judges are better equipped to do so.

13 It would seem to me that all the questions detailed in my brief have been answered. It is, however, conceivable that this opinion may raise other questions. I am, therefore, faxing it to you in advance of our meeting on Friday so that you are able to prepare, if necessary, and we will then be able to have a meaningful discussion.