Freedom of Information and Access to the Courts
Brümmer v Minister for Social Development and Others (CCT 25/09) [2009] ZACC 21 (13 August 2009) On 13 August 2009, the Constitutional Court of South Africa handed down a decision regarding the rights of access to court and access to information. The Court determined that, in certain circumstances, statutory time limitations for the filing of appeals may be unconstitutional.
Facts
Mr Brümmer, a journalist, applied under the Promotion of Access to Information Act 2000 (PAIA) for access to certain records held by the Department of Social Development. The documents related to a government tender, the award of which was the subject of litigation. The Department of Social Development refused access to these documents. Mr Brümmer appealed this decision to the Minister for Social Development, but his appeal was also rejected.
Section 78(2) of the PAIA provides for a further appeal to the courts, but specifies that such application must be made within 30 days.
Mr Brümmer instituted review proceedings in the High Court well after the 30 day time bar had expired. He sought, among other things, an order setting aside the decision to refuse access to the records, and an order condoning his non-compliance with the 30 day time bar for filing appeals to the court.
The High Court held that it had the power to condone non-compliance with the statutory time frame for appeals, but declined to do so, on the basis that Mr Brümmer had not provided an adequate explanation for the delay.
Mr Brümmer appealed to the Constitutional Court of South Africa and challenged the constitutional validity of the 30 day time limitation on the basis that it limited his right of access to the court (s 34 of the South African Bill of Rights) and also limited his right of access to information (s 32 of the Bill of Rights).
Decision
Justice Ngcobo delivered a judgement with which the other Constitutional Court judges concurred.
His Honour noted that time bars limit the right to seek judicial redress, but said that they serve an important purpose in preventing inordinate delays that may be detrimental to the interests of justice. As such, he noted that not all time bars would be inconsistent with the Constitution.
Justice Ngcobo set out a two stage test for determining the constitutional validity of time bars, namely that the time bar:
- must provide the potential litigant an adequate and fair opportunity to seek judicial redress for a wrong allegedly committed; and
- must allow sufficient and adequate time between the cause of action coming to the knowledge of the claimant and the time during which the litigation may be launched.
Further, he noted that the existence of the power to condone non-compliance with a time bar would not necessarily save a provision from being deemed unconstitutional where the time bar did not provide the potential litigant with sufficient opportunity to launch an appeal.
His Honour said that, in determining if the provision allows a potential litigant a sufficient and adequate time within to launch their court action, it is necessary to consider the steps that the potential litigant must take prior to launching their application in court. Justice Ngcobo said that, in PAIA applications, these steps include:
- assessing the reasons for refusing access to the information requested;
- seeking legal advice on the prospects of success of court action; and
- raising funds for litigation.
Justice Ngcobo referred to the submissions of the South African History Archives Trust (SAHA), which had intervened in the Brümmer proceeding as amicus, and noted that SAHA had made over 1000 PAIA applications for information from various government departments. From these, SAHA made 11 applications to court, and each of these were filed outside the 30 day time bar.
His Honour considered the evidence of SAHA to be illustrative of the circumstances that would confront the ordinary litigant and, in the circumstances, he held that the PAIA’s 30 day time bar did not afford potential litigants a sufficient and adequate time within which to launch their court action. Justice Ngcobo did not consider that the power of a court to condone non-compliance with the time bar saved the provision.
Accordingly, he held that the 30 day time bar limited the right of access to the court and also limited the right to access information.
His Honour considered the justification for the time bar to determine if it provided a reasonable and justifiable limit on the right to access the court and the right to access information. Justice Ngcobo noted that, ‘where justification rests on factual or policy considerations, the party contending for justification must put such material before the court’. He said that the benefits of the time bar must then be balanced against the importance of the relevant right.
Justice Ngcobo said:
…access to information is fundamental to the realisation of rights guaranteed in the Bill of Rights …Mr Brümmer, a journalist, requires the information in order to report accurately on the story he is writing. The role of the media in society cannot be gainsaid. Its role includes informing the public about how our government is run, and this information may very well have a bearing on elections. … But at the same time the importance of time bar provisions cannot be denied. Delays in ligation hamper the interest of justice. Documents may be lost. Witnesses may disappear. Memories of witnesses may fade.
However, on the facts of this case, Ngcobo J considered that the limitations on the right to access the court and to access information were not reasonable. His Honour noted that the documents in question were held by a public body and that in such cases it would be uncommon for a witness to be called. His Honour did not see any financial or other burdens on the government department arising from the imposition of a more reasonable time limit for the filing of court proceedings, and noted that other statutes granted a potential litigant more time to consider their options.
Accordingly, His Honour held that the time bar in the PAIA imposed an unreasonable limit on the right to access the courts and to access information. The Court imposed a 180 day time bar as an interim measure whilst the Parliament re-considered the appropriate time bar to be imposed.
Relevance to the Victorian Charter
Section 24 of the Victorian Charter of Human Rights and Responsibilities protects the right to a fair hearing, while s 15 enshrines the right to freedom of expression, including the right to receive and impart information. The South African Constitutional Court’s discussion on how statutory time bars may limit the right of access to the court may be relevant Victorian statutes which prescribe a time limitation for the filing of proceedings, particularly cases which relate to freedom of and access to information.
The decision is available at http://www.saflii.org/za/cases/ZACC/2009/21.html
Victoria Edwards is on secondment to the Human Rights Law Resource Centre from Freehills