Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The South African Constitutional Court held that a 30-day legislative time limit for parties who wish to challenge a denial of a request for information in court was an unjustifiable limitation to the rights to access to court and to access to information. Accepting the arguments from a journalist and a non-governmental organization appearing as amicus curiae that the time period was unreasonable, the Court referred the matter back to Parliament to amend the unconstitutional provision, and ordered that a 180-day limit would apply in the interim.
This case analysis was contributed by Right2Info.org.
Stefaans Brümmer, a South African journalist, made a request under the Promotion of Access to Information Act, 2000 (PAIA) to the Department of Social Development (the Department) for information concerning a business tender the Department allegedly awarded. The Director-General of the Department refused Brümmer’s request, stating that the information sought related to ongoing civil litigation, and that publication of the information by the media could “prejudice or impair the fairness of the trial” (para. 4). Brümmer appealed the Director-General’s decision to the Minister of Social Development, who also refused the request for access to information on the same grounds. The Minister made reference to section 39(1)(b)(iii)(e) of PAIA which permits the refusal a request if there is a reasonable expectation that the disclosure of the information would prejudice the investigation of a contravention of the law, lead to the identification of a confidential source, or result in the intimidation of a witness.
Brümmer then filed an application before the Western Cape High Court under section 78(2) of PAIA. However, Brümmer had brought the application out of the window of 30 days following the refusal of the request as required by section 78, and so sought condonation from the High Court for the late filing. The Minister argued that Brümmer should have brought the application under section 77 which sets a time limit of 60 days following the refusal, and argued that the High Court did not have the power to order a condonation for late filing. This triggered a constitutional challenge on the grounds that if the Court held that it was not empowered to condone the late filing, section 78 constituted an infringement of the right to access to justice (para. 8).
The High Court held that it did have the power to condone late filing, but that it would not do so in the present case as Brümmer had not provided a satisfactory explanation for his delay and that the matter had little prospect of success (para. 10). However, the Court also found that section 78 was unconstitutional as “the 30 day limit was grossly inadequate and therefore limited the right of access to court and … this limitation was unjustifiable under section 36(1) of the Constitution” (para. 11).
The matter was then referred to the Constitutional Court for confirmation of the finding of unconstitutionality. Brümmer also appealed the High Court’s refusal to grant condonation of his late filing. At the Constitutional Court, the South African History Archives (SAHA) and the South African Human Rights Commission were admitted as amici curiae.
Ngcobo J delivered the judgment of the unanimous Court. The central issue before the Constitutional Court was whether (if section 78 was the sole provision governing the right of access to court to challenge refusals to provide information) the 30-day time limit was constitutional (para. 35).
Brümmer argued that section 78 governs access to court and that section 77 only establishes the information that a public entity must provide to the requestor of information if that request is refused. He submitted that sections 77 and 78 “prescribe different time limits for launching applications to court”, but that as section 77 is concerned solely with the refusal from the public entity, it does “not purport to set time limits for launching applications to court” (para. 39). Brümmer argued that section 78 infringed the rights of access to court under section 34 of the Constitution, and to access to information under section 32 (para. 48).
The Minister argued that sections 77 and 78 both governed applications to court: section 77 applies where there is no third party involved (that is, only the requestor and the public body) and section 78 applies when notice has been given to a third party. The Minister maintained that there was no conflict between the two provisions (para. 40). He also submitted that there was no infringement of constitutional rights by the 30-day time limit, and that, even if there was an infringement, it was justified under the general limitations clause in section 36 of the Constitution (para. 48).
The amici argued that the time restraint infringed the rights to access to information and to access to court (para. 48).
Ngcobo held that there was a conflict between sections 77 and 78 and that the “two provisions are incapable of being harmonised” (para. 45). He held that section 78 is the provision that governs applications to Court and that as the purpose of section 77 “is to deal with the manner of handling internal appeals and communicating decisions on internal appeals to requestors and third parties” it cannot be considered to have the primary purpose of dealing with court applications (para. 46).
Having found that section 78 governs applications to court, Ngcobo then assessed whether the 30-day time limit within that provision was constitutional. Ngcobo noted that the 30-day time limit constitutes a time bar, and that time bars exist to prevent delays which can hamper justice and so are not automatically unconstitutional (paras. 51-52). However, he noted that “[w]hether a time bar provision is consistent with the right of access to court depends upon the availability of the opportunity to exercise the right to judicial redress” (para. 51).
Ngcobo explained that the question to be answered was whether the opportunity that the time bar created was sufficient, judged by “the steps that a requestor who has been unsuccessful in an internal appeal would have to take before launching an application in court” (para. 52). The steps to be taken are: “to consider the reasons for refusal of access to information” and then “to seek legal advice on prospects of success” (para. 53). Ngcobo made special reference to the arguments put forward by SAHA based on their experience of their difficulties in launching legal proceedings following refusals for access to information within the 30-day limit (para. 54). Ngcobo held that “[i]f an NGO faces these difficulties in meeting the 30 day limit, I think it is fair to expect that individuals will have even greater difficulty in complying with this time limit” (para. 55). He noted that NGOs and individuals “have a critical role to play in ensuring that our democratic government is accountable, responsive and open” and that they “must be encouraged and not obstructed in carrying out their civic duties” (para. 55).
Accordingly, Ngcobo held that the application of section 78 meant that “many of the requestors whom it hits are not afforded an adequate and fair opportunity to seek judicial redress” (para. 56), and that it was therefore a limitation to the rights of access to court and of access to information (para. 57).
Ngcobo then examined whether the limitation was reasonable and justifiable in an open and democratic society, as required by section 36 of the Constitution. In this limitation analysis he highlighted the importance of the right to access to information and explained that in order to give effect to the foundational values of accountability, responsiveness and openness “the public must have access to information held by the state” (para. 62). He added that access to information is “fundamental to the realisation of the rights guaranteed in the Bill of Rights” (para. 63), and linked it specifically to the right to freedom of expression. Ngcobo spoke about the importance of the press in informing the public of how the state and democracy are operating, and noted that “[a]ccess to information is crucial to accurate reporting and thus to imparting accurate information to the public” (para. 63). Ngcobo weighed the importance of these rights with the concerns that time bars are supposed to address – availability of witnesses and increasing costs – and noted that in access to information cases these concerns were not relevant (paras. 65-66). He also compared the time bar in section 78 to other similar legislative provisions, and noted that it was far shorter than in other, comparable provisions (para. 68). Ngcobo stated that “there is no reason why people who seek information should be compelled to act more swiftly than other litigants” (para. 69).
Ngcobo held that the limitations on constitutional rights that the 30-day time limit imposed were not reasonable and justifiable and that the provision was therefore unconstitutional (para. 70). He ordered that an interim time limit of 180 days (which would apply to all pending and future applications for access to information) be applied in the time before Parliament amended section 78 (para. 80). Ngcobo also referred Brümmer’s case back to the High Court for a full determination on the merits (para. 84).
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