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South Africa: Court Strikes Blow for Free Media

Discussion in 'International Forum' started by Ex Spy, Aug 15, 2009.

  1. Ex Spy

    Ex Spy Senior Member

    Aug 15, 2009
    Joined: Jan 15, 2007
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    Written by Ernest Mabuza

    THE Constitutional Court ruled yesterday that a section of the Promotion of Access to Information Act - which allows a person refused access to information just 30 days to challenge the refusal in court - is unconstitutional.

    Access to information was crucial to accurate newspaper reporting and thus to imparting accurate information to the public, the court said.

    The court found that section 78(2) of the act violated the right of access to information and the right of access to court.

    In a unanimous judgment, Judge Sandile Ngcobo said access to information was crucial to the right to freedom of expression, which included freedom of the press and other media, and also freedom to receive or impart information or ideas.

    The case arose from a request that Stefaans Brümmer, a Mail & Guardian journalist, made to the Department of Social Development for information about a tender the department is alleged to have awarded to IT Lynx Consortium. Brümmer said he required this information in order to report accurately and properly in an article he was writing.

    The director-general refused the information. An appeal to the then minister, Zola Skweyiya , was also unsuccessful, in February 2007. Brümmer approached the Western Cape High Court for relief only in July 2007, after the 30-day limit required by section 78(2). In March, the high court refused to condone Bürmmer's noncompliance with section 78(2). But it declared the section unconstitutional as it did not give the person requesting information adequate time to approach a court for relief against a refusal.

    The matter was then sent to the Constitutional Court for confirmation of the unconstitutionality of the section.

    "As the present case illustrates, Mr Brümmer, a journalist, requires information in order to report accurately on the story that he is writing. The role of the media in a democratic society cannot be gainsaid," Ngcobo wrote in his judgment.

    Ngcobo said the media's role included informing the public about how the government was run, and this information might have a bearing on elections.

    "The media therefore has a significant influence in a democratic state. This carries with it the responsibility to report accurately. The consequences of inaccurate reporting may be devastating. Access to information is crucial to accurate reporting and to imparting accurate information to the public," Ngcobo said.

    Ngcobo ordered Parliament to enact legislation that prescribes a time limit consistent with the constitution, bearing in mind the right of access to court as well as the right of access to information.

    The court ordered that, pending the enactment of this legislation, a person wishing to challenge a refusal of access to information must lodge an application to court within 180 days of being notified of a decision of an internal appeal refusing access.

    Ngcobo said the 30-day limit did not afford those seeking information an adequate and fair opportunity to seek judicial redress. "They are left with too short a time within which to launch an application to court."

    Ngcobo said the public must have access to information held by the state. "Indeed, one of the basic values and principles governing public administration is transparency." The constitution demands that transparency "must be fostered by providing the public with timely, accessible and accurate information".