Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
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The High Court, Eastern Cape Provincial Division, of South Africa held that the Constitution protected a person’s right to information that is “reasonably required” for the exercise or protection of any of his or her rights. The applicants requested access to copies of official documentation pertaining to a proposed steel mill that if constructed, they believed would be environmentally undesirable and reduce the value of their own property; the Minister of Environmental Affairs and Tourism voluntarily released the documents, but maintained that the applicants had no right to them. The Court found that the applicants had a reasonable claim on the documents, which were necessary in exercising their right to oppose the rezoning that would allow the steel mill to be built, and that the Minister was therefore obligated to release them.
This case analysis was contributed by Right2Info.org.
The Saldanha Steel Company proposed to build a steel mill on a portion of farmland near the Langebaan Lagoon and applied for a rezoning of the land with the Minister of Environmental Affairs and Tourism (the Minister). The W Trust owned a parcel of land across the lagoon from the steel mill site. Van Huyssteen, as trustee, and two other trustees opposed the rezoning on the grounds that the mill would be environmentally undesirable and would devalue the trust property. Relying on Section 23 of the Constitution, they requested access to copies of all documentation relating to the proposed steel mill.
The Minister voluntarily made the documents available before the hearing. However, in the present case the Minister contested that even though he disclosed the documents, the trustees did not have a right to them. Consequently, he argued that the trustees were not entitled to have their costs in seeking the documents paid.
The Court held that Section 23 of the Interim Constitution (which was retained as section 32 of the current, 1996 Constitution) provides that “every person shall have the right to access 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.”
The court emphasized that the word “required” had been interpreted to mean “reasonably required” in Nortje and Another v. Attorney-General, Cape, and Another 1995 (2) SA 460 (C) (1995 (1) SACR 446). The court thus ruled that, under Section 23, the applicants reasonably required the rezoning documents filed with the Minister for the purpose of protecting their rights to the trust property. The property value was potentially threatened by the proposed mill, and the documents were necessary to exercise the trustees’ rights to object to the rezoning. Consequently, the court ordered the Minister to pay the applicants’ costs in seeking the documents.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision emphasizes that the right to procedurally fair administrative action under section 24(b) of the Constitution is a generous one and should not be given a narrow legalistic meaning. It also recognizes the greater fairness of an investigation that allows testimony on oath, interrogation, publicity and the right to subpoena over a tribunal without these powers.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision of the Eastern Cape Division of the High Court is not technically binding binding on a High Court of another Division but in practice has strong persuasive force.
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