SAHA, with the PAIA Civil Society Network (PAIA CSN), recently provided submissions on amendments proposed by the Rules Board for Courts of Law, aimed at bringing uniformity to the Court rules in all courts, including Magistrates' courts, for litigation relating to access to information requests in South Africa.
In summary, these Proposed Amendments to the Rules of Procedure for Application to Court in Terms of the Promotion of Access to Information Act, 2000 (Act 2 of 2000) (PAIA) place greater reliance on the Rules Regulating the Conduct of Proceedings of the Magistrates' Courts of South Africa (Magistrates' Court Rules) and the Uniform Rules of Court, with the expectation that this will bring greater uniformity, and hence compliance, with those requirements.
The Rules Board has proposed those amendments, in part, on the basis that "different procedures are only likely to cause problems to applicants, and give respondents an opportunity to raise dilatory or obstructive defences".
However, SAHA warns that these proposed amendments, whilst commendable on paper, may just amount to empty promises, without additional efforts to remove the current impediments to commencing a PAIA application in the Magistrates' Court.
In an environment where PAIA litigation is the only mechanism for appeal against decisions of private bodies, and there has been a substantial increase in deemed refusals by public bodies, all efforts to remove obstacles to applicants bringing PAIA applications before the Courts are vital to strengthen openness and transparency in South Africa.
This is particularly important in a context where the PAIA CSN 2013 Shadow Report has noted that there has been a decrease in the full release of records requested by information holders - from 35% in 2009, to 22% in 2011, and now down to an all-time low of 16% for the 2012 / 2013 reporting period. Additionally, the PAIA CSN Shadow Report notes that refusals of requests for access are on the rise, with 66% of initial requests refused and a substantial increase in deemed refusals at 54% of all requests submitted in the reporting period (excluding those that were still pending at the end of the reporting period).
In this environment, and having regard to the underlying reasons for uniformity in the rules of Courts, SAHA and the PAIA CSN have made submissions that reflect general satisfaction with the proposed arrangements which are expected to provide practical and well understood rules that can otherwise act as a barrier to individuals, communities and civil society, in realising their Constitutional right of access to information.
However, SAHA and the PAIA CSN, continue to call for greater public information about the Magistrates that have been trained and designated to undertake PAIA litigation in the Magistrates' Court.
"The ability to challenge PAIA refusals quickly and more affordably through the Magistrates' Courts has been an option available, in theory, since late 2009. However, the effectiveness of that legislative amendment and the extent to which it actually makes access to justice more accessible for the average South Africa remains highly questionable, when the information and availability of which Magistrates have been trained and are able to hear PAIA-related cases has not been made public.
Bringing uniformity to the PAIA Rules in all Courts will only strengthen the constitutional right of access to information in South Africa if PAIA applications can, in practice, be made in all Courts, including the Magistrate's Courts," Catherine Kennedy, SAHA Director said.
Should your organisation wish to join other civil society groups that champion the release of documents under PAIA, please write to SAHA at foip@saha.org.za and we can assist you to make an application to join the PAIA CSN. SAHA currently acts as the Secretariat for the PAIA CSN.
