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Balancing and the limitation of rights in the South African Constitution 255
(a) A 30-day time bar on appeals to court against a refusal of a request for
access to information is a limitation of the right of access to court and the
right of access to information. 17
(b) The right of access to court is important; it is ‘foundational to the stability of
an orderly society’. 18
(c) The right of access to information is also important; the ‘importance of this
right too, in a country which is founded on values of accountability,
responsiveness and openness, cannot be gainsaid’. 19 The right is fundamental
to the realisation of other rights such as freedom of expression. 20
(d) Time-bar provisions are important, avoiding delays in litigation that
hamper the interests of justice. 21 They give effect to practical considerations that
arise with the passage of time between the occurrence of the cause of action and
the litigation: lost evidence, disappeared or forgetful witnesses. They seek to
reduce the costs and burdens associated with responding to litigation long after
the fact that give rise to it.
(e) Accordingly, in previous decisions, the Court has upheld time bars
as constitutional, but only if they nevertheless provide a litigant an adequate and
fair opportunity to bring an application to court. 22
(f) In access to information litigation against the state the usual
considerations motivating time bars are not present or are only minimally
present. The litigation is about a record in the possession or under the control
of the state and the evidence of witnesses is seldom required. There is little
burden in preserving a contested record until the litigation is completed. 23
(g) The experience of litigants and reference to comparable legislation suggest
that the 30-day limit in the Promotion of Access to Information Act is too short
to provide an adequate and fair opportunity to bring an appeal against refusal of
access to court. A six-month limit would serve the interests of the state but
would not unduly restrict access to court by an aggrieved requester.
In the scheme above it is only holdings (b), (c) and (d) that constitute a
balancing enquiry properly so-called, an enquiry into whether the purposes
served by time bars can justify the limitation of the rights of access to court
and access to information. The operative part of this particular decision is
however holdings (e) and (g), which result from an enquiry into means and
ends. In the end, the time bar is found to be disproportionate in the sense that
a thirty-day limit does more harm than it needs to. A six-month limit on the
other hand would achieve the beneficial purposes of a time bar with a
comparably less severe limitation of the rights.
17 Brümmer (n 15 above) 57. The time bar is imposed by sec 78(2) of the Promotion of
18
Access to Information Act 2 of 2000.
Brümmer (n 15 above) 61 quoting Chief Lesapo v North West Agricultural Bank 2000 1 SA
409 (CC) 22.
19
Brümmer (n 15 above) 62.
20 Brümmer (n 15 above) 63.
21 Brümmer (n 15 above) 64.
22
Brümmer (n 15 above) 52.
23 Brümmer (n 15 above) 65 - 66.