Freedom of Information: A Comparative Legal Survey - Federation of ...

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S outh Africa
Introduction
The 1996 Constitution of the Republic of South Africa not only guarantees the right to access information
held by the State, but also to acces information held by private bodies which is necessary for the exercise
or protection of any right. 242 The Constitution also specifi cally requires the government to pass a law giving
effect to this right within three years of its coming into force. 243 This is an extremely practical provision, which
forced the government to adopt legislation in a timely fashion, something it did just within the deadline.
The enabling legislation, the Promotion of Access to Information Act (RTI Law), came into effect in March
2001. 244 This is one of the more progressive right to information laws in the world, no doubt a refl ection of
the profound mistrust of government the apartheid era instilled in people. It has very strong procedural
guarantees, as well as a narrowly crafted set of exceptions. A major shortcoming of the South African Law
is that it does not provide for an administrative level of appeal. As a result, if requests are refused by public
bodies, only courts can review this. It also essentially lacks any proactive obligation to publish, something
which has received extensive attention in some of the more recent right to information laws and which is
an important complement to request-driven access.
At least as importantly, implementation has been weak. One study suggests that 62% of requests are
met with a ‘mute refusal’ or simply no answer, the highest for any country in the study where a right
to information law was in force. 245 The study notes that in terms of compliance (i.e. actual provision of
information in response to requests), South Africa had “by far the lowest score of the seven monitored
countries with freedom of information laws.” 246 This receives some corroboration from the 2005-2006
Annual Report of the South African Human Rights Commission, which notes with concern: “The number
of public bodies submitting section 32 reports [on their performance under the Law] continues to remain
low with a decrease in the number of reports received compared to the previous reporting period.” 247 It is
clearly a problem if public bodies do not even fulfi l clear, highly visible and offi cially monitored statutory
obligations like reporting.
The Right of Access
The right of access to public records is set out in section 11(1) of the RTI Law, which provides that an
applicant (referred to as a requester) must be given access to a record if he or she complies with the
procedural requirements set out in the Law and the record is not covered by an exception. The right to
access information held by private bodies is set out in section 50(1) of the Law and is substantially identical
to the right defi ned for public bodies, with the important difference that it is only engaged where the
information is required for the exercise or protection of a right. This Chapter focuses mainly on the right of
access in relation to public bodies; the Law contains parallel, and very similar, provisions regarding access
to information held by private bodies.
Fairly detailed ‘objects’ for the RTI Law are set out in section 9. These include: giving effect to the
constitutional right to access information, subject to justifi able limitations, including those “aimed at the
reasonable protection of privacy, commercial confi dentiality and effective, effi cient and good governance”;
giving effect to the constitutional obligation to promote a human rights culture, including by allowing public
bodies to access information held by private bodies; establishing practical mechanisms to give effect to the
right of access “as swiftly, inexpensively and effortlessly as reasonably possible”; and generally promoting
transparency, accountability and good governance, including through public education.