South African public administration in the apartheid era was characterised by secrecy and restrictive measures to prevent or limit the public and the media from gaining access to and disseminating information held by government institutions. This state of affairs led to abuse of power, human rights violations and corruption. In the new constitutional dispensation, however, great emphasis is placed on transparency and openness - as is clear from various provisions of the Constitution. The Constitution provides inter alia for the right to access to any information held by government institutions. In order to give effect to this right, a so-called Open Democracy Bill was drafted which represents a significant milestone in South African legislative history.

In this article the major features of the Open Democracy Bill and its implications for South African public administration are outlined with specific reference to the key components of the Bill. Attention is also devoted to steps that should be taken to ensure the successful implementation of the Bill once it is passed by Parliament. Such steps include the inculcation of a democratic culture among South Africans who are generally unfamiliar with instruments for holding government accountable. Finally the objections most frequently raised against the proposed legislation are examined and proposals made on how to overcome these.

Open and accountable public administration is one of the core values enshrined in the South African Constitution. This is reflective of an overall commitment to greater openness and transparency in government, as opposed to the secretive and unresponsive culture which characterised the public administration of the apartheid regime. In order to give effect to an aspiration of a truly free and open democracy, a so-called Open Democracy Bill was drafted and prepared for submission to Parliament. This article starts out by outlining the general context in which the abovementioned Bill and what it tries to achieve, should be understood. It then goes on to provide the background to the South African situation, indicating the need and constitutional requirement for a piece of legislation of this nature. This is followed by a description of the main features of the Bill and a brief commentary in each respect. Attention is also paid to steps that should be taken to ensure the successful implementation of the Bill once it is passed by Parliament. Finally the objections most frequently raised against the proposed legislation are examined, and proposals made on how to overcome these.

The penetration of public administration into almost every sphere of life means that public officials, endowed with wide discretionary powers, take decisions on a daily basis which may adversely affect the lives of citizens. Within this context, it is possible for public officials to abuse their powers or to exercise them in an arbitrary fashion, thereby infringing on the interests and fundamental rights and freedoms of individuals. In order for citizens to be able to hold public officials accountable for their actions and decisions, greater openness and transparency are necessary in respect of the day to day activities of public officials. The notion is that openness and transparency, unlike secrecy, are not conducive to abuse of authority and arbitrary decision making and that they afford the citizen the opportunity to ensure that fair and equitable treatment prevails in all dealings with public officials. However, an open and transparent system presupposes that the information required in order to hold public officials accountable and to enforce the individual's fundamental rights, should be readily accessible. It is therefore possible to establish a direct link between transparent and accountable public administration on the one hand and access to information on the other hand. This link is explicitly recognised in section 195 of the Constitution Act of the Republic of South Africa, 108 of 1996, which deals with basic values and principles governing public administration. Section 195(1)(g) provides as follows:

"Transparency must be fostered by providing the public with timely, accessible and accurate information."

Before attention is devoted to the proposed legislation which aims to give effect to the abovementioned principle enshrined in the Constitution, a brief background sketch on the South African situation is necessary.

The apartheid regime and its public administration were characterized by secrecy and restrictive measures to prevent the public and the media from gaining access to and disseminating information held by government institutions. Such restrictions were contained in numerous acts of Parliament and in regulations promulgated by the executive. The Protection of Information Act, 84 of 1982, provides the best example of legislation in terms of which several restrictions were placed on the public's right to information. This act, along with numerous other pieces of legislation (including the emergency regulations) for example prohibited publication of information regarding prison administration and police and defence force action (Schwella 1989:41). These and other measures created the ideal climate for abuse of powers and gross human rights violations in these three government spheres - as is evident from testimonies and revelations delivered before the Truth and Reconciliation Commission.

In light of past events, it is not surprising that in the new dispensation, great emphasis is placed on openness and transparency. The groundwork to accomplish this, was laid with the inclusion in the Interim Constitution of various provisions of which the right to freedom of information, freedom of the press and administrative justice are most important. Section 23 made provision for the right to access to all information held by the state to the extent that such information is required for exercising or protecting any of an individual's rights. The latter qualification was removed, so that section 32 of the Constitution Act, 108 of 1996 (hereinafter referred to as the "1996 Constitution") provides merely for the right of access to any information held by the state. Whereas the right to freedom of information in terms of the Interim Constitution applied only vertically between state and individual, the 1996 Constitution also makes provision for the horizontal application of this right (between individuals and private persons, including legal persons) (Lötz 1997:274). In accordance with section 32(2) of the 1996 Constitution, national legislation must be enacted to give effect to this right. Such legislation must be enacted within three years of the date on which the Constitution came into effect (that is, before 4 February 2000). Until the envisaged legislation is enacted, section 32 is to be regarded as to read essentially as section 23 of the Interim Constitution.

In 1994, even prior to the coming into effect of the 1996 Constitution, a task group under the auspices of the Office of Deputy President, Thabo Mbeki, was appointed to draft such legislation. The work of the task group (which included a series of public consultations) culminated in the Open Democracy Bill (ODB) which was approved by cabinet in June 1997. After cabinet approval it was, however, realised that since the Bill would also apply to local government, it had to be published for public comment (a process which in actual fact had to be completed before submission to cabinet) (Van Schoor 1998). This is in accordance with section 154(2) of the 1996 Constitution which stipulates that draft national or provincial legislation that affects the status, institutions, powers or functions of local government, must be published so as to enable local government and other interested persons to make presentations with respect to the proposed legislation. The Bill was published in the Government Gazette of 18 October 1997 and after bringing about amendments based on the comments received, was once again submitted to cabinet (Van Schoor 1998). After cabinet approval the Bill was finally tabled in the National Council of Provinces in July 1998 - just to be withdrawn again. It was decided that certain parts of the Bill required more work in order to ensure its effective application once it became law (Calland 1998:2,6). The results of the latest deliberations are not yet available and this article will therefore focus on the content of the Bill as approved by cabinet.

What is noteworthy about the ODB, is that it does not merely deal with freedom of information, but also includes components on aspects such as personal privacy and whistleblower protection, which in other countries have been dealt with by separate legislation (Gumbi et al. 1995:On-line). In the following section an attempt will be made to outline the major features of the ODB. Due to space confines, it is not possible to explore all aspects of the Bill in detail. A brief commentary on the main features will therefore have to suffice.

The key objectives of the Bill are outlined in section 3 of the draft:

The above objectives also constitute the three main components of the ODB, which will be elaborated upon in the following paragraphs.

The envisaged Open Democracy Act does not merely aim to ensure that certain information be made available on request, but will also compel government institutions to proactively disseminate information under their control (Van Wyk 1995:12). In terms of section 6 of the Bill, all government institutions must, within a period of 12 months after promulgation of the Act, publish a manual containing information on inter alia -

The final draft of the ODB has been criticised for the removal of the clause which required government institutions to publish information on the decision-making guidelines used in reaching decisions which confer rights or privileges or impose obligations or penalties on persons (The Freedom of Expression Institute 1997:On-line). Three primary legal and constitutional arguments, as identified by Klaaren (1997:On-line) are used to justify the publication of binding internal directives and decision-making guidelines (as opposed to those that are merely interpretative in nature).

The first argument stems from the right to access to information as contained in section 32 of the Constitution. Klaaren maintains that this right was in fact designed to "unearth and bring to light exactly the type of 'secret law' that non-published but binding guidelines constitute." This argument is supported by the general notion that section 32 places a positive duty on the state to provide information. It is not sufficient to merely respond to a request for information (including those relating to binding directives and guidelines) - the state should instead make it publicly available of its own accord (Klaaren 1997:On-line).

The second argument is based on section 33 of the Constitution which provides for the right to lawful administrative action. The view is held that administrative action (including the performance of quasi-judicial functions such as conferring a right/privilege or imposing an obligation/a penalty), cannot be regarded as being lawful if binding decision making guidelines are not publicly available (Klaaren 1997:On-line). The third argument relates to the limitation clause (section 36(1) of the Constitution). In terms of this clause the rights contained in the Bill of Rights may be limited only in terms of a law of general application. The use of a decision-making guideline by a government institution in order to invoke such limitation would require proof that the guideline in question can be regarded as a "law of general application". If the guideline was not published, in other words, if it had not been accessible to all citizens, it would fail to meet with the requirement of "general application" (Klaaren 1997:On-line). In light of the preceding arguments, it seems that government would be well-advised to publish binding directives and guidelines as applicable in the respective government institutions. Since the Bill has as yet not been formally approved by Parliament and seeing that there is still time left before the constitutionally imposed deadline of 4 February 2000, serious consideration should be given to the inclusion of a clause which places an obligation on government institutions to publish binding directives and guidelines.

Further attention will now be devoted to other provisions of the ODB that relate to the public's right to access to information held by government institutions:

In terms of section 4 of the ODB each government institution will have to appoint an information officer and deputy information officers. These officers will form the vital link between the citizen and government institutions and will play a crucial role in realising the objectives of the ODB. In terms of section 15(1) they will have to render assistance to any person wishing to request information so as to ensure that the request form is completed correctly and the required particulars provided. In instances where requests are made orally (due to illiteracy or a physical disability) it is the responsibility of the information officer to put the request in writing in the prescribed form and to provide a copy thereof to the requester (S. 14(4)). Where it is clear that the requested information is held by another government institution, the information officer must transfer the request to the relevant institution within 14 days of receipt of the request (S. 16(1)).

A person whose request to access to information has been granted, will only be given access to such information if the prescribed fee (if any) has been paid. Regulations will have to be promulgated to determine access fees, taking into consideration the cost of making a copy of a record or transcription of the contents of the record and the time required to search for and prepare it for disclosure (S. 25(1) & (2)).

Predictably, the ODB contains a lengthy list of grounds on which requests for information may be refused. A request may be refused if, among others -

The above-mentioned grounds for refusal correspond to a large degree with those in countries such as New Zealand, Canada, Australia and the US where legislation governing access to information is in place.

In all countries individuals are compelled by legislation to submit to government information of a personal nature (eg on income and health). The collection, storage and retrieval of such information has been greatly facilitated by computerisation. At the same time, however, opportunities for inappropriate, unauthorised or illegal access to and use of personal information have increased. Within government institutions the danger exists that officials can, through computer linkage, gain access to personal information not required for the performance of their duties. It is possible that information gained in this manner, and which may be irrelevant to the question at hand, or which may not accurately reflect the current situation, could be used to take a decision which could adversely affect the life of the person concerned. This constitutes a violation of a person's right to information privacy, including the right to prevent information from being used without consent for a purpose other than the one for which the information was initially collected (Sing & Bayat 1992:80-83).

In order to prevent or minimise such an undesirable state of affairs, the ODB contains a section on the protection and correction of personal information held by government and private institutions. For the purposes of this article, attention will only be devoted to the stipulations which pertain to government institutions. Section 55 stipulates that a record of a government institution containing personal information may not be used by the institution without the consent of the individual to whom the information pertains, except -

In accordance with section 57(1), personal information may be disclosed among

others -

It is the responsibility of the head of a government institution to keep a register of any use made by the institution of personal information and of any use or purpose for which personal information is disclosed (S. 60(10)).

In terms of section 53 a person may request the correction of inaccurate information held by a government institution. The information officer must decide whether the information identified is indeed inaccurate and if that is the case, must amend, supplement or delete it and notify accordingly other government institutions to whom the inaccurate information was supplied. In this manner a situation where inaccurate information is taken into account in the making of decisions, can be prevented.

Usually the people who are best acquainted with corruption, maladministration and unlawful practices in government institutions, and therefore ideally placed to draw attention to such wrongdoing, are themselves public officials. However, conscientious officials who might wish to complain about such conduct are often deterred from doing so by a legal obligation of confidentiality, or by a fear of reprisals. By safeguarding officials from such consequences through the whistleblower protection component in the ODB, recognition is given to the indispensable role of those who speak out against misconduct in the promotion of accountable and efficient government and administration (Gumbi et al. 1995:On-line).

In terms of section 63(1) of the ODB public officials who act in good faith and disclose information about contravention of the law, corruption, dishonesty or maladministration in a government institution, cannot be held civilly or criminally liable and may not be subjected to disciplinary action. However, the protection awarded in terms of section 63(1) only applies if the official -