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Chairperson, members of the legal and business fraternities, ladies and gentlemen,

Good morning and thank you for inviting me to address you today on an important and standard-setting piece of legislation.

The adoption of our Constitution was the most important step in setting South Africa on a new path toward clean and transparent governance. Our Bill of Rights determines, for all South Africans, their inalienable right to justice and fair dealing. And in regard to access to information, Clause 32 of the Bill of Rights stipulates:

"First, that everyone has the right of access to -
a) any information held by the state, and
b) any information that is held by another person and that is required for the exercise or protection of any rights; and second, that national legislation must be effected to give effect to these rights and that such legislation may provide for reasonable measures to alleviate the administrative and financial burden on the state. "

So, this Act - the Promotion of Access to Information Act - as Minister Penuell Maduna said before Parliament at the Bill's second reading, adds a concrete dimension to the cornerstone of our constitutional democracy. It adds to the firm foundation we are building in our pursuit of equity and the rule of law. And, importantly, it recognises the need to maintain a balance between competing rights in the Bill of Rights and above all takes into account the need for good governance, privacy and commercial confidentiality.

While giving effect to Section 32 of the Bill of Rights, the spirit of the Act is clearly captured in its preamble when it states that the aim of the legislation is to:

"foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information and actively promote a society in which the people of South Africa have effective access to information to enable them more fully to exercise and protect all of their rights."

I recognise, of course, that the Act, during its long passage through the machinations of early drafting - you will recall that it was originally conceived as part of the Open Democracy Bill - was a source of concern for many.

More recently, however, the purpose and form of the Act has been the subject of praise from various quarters. Worries remain, though they have to do more with the establishment of the processes through which the Act is effected, rather than with the Act itself. And, as always, when government pushes the edge of the envelope of transition, the support and assistance of the private sector, both in the legal fraternity and within business, is welcomed.

For example, Idasa's Open Democracy Advice Centre was established very early on to support civil access to the Act once it became law. Johnny de Lange, the chairperson of the National Assembly's Portfolio Committee on Justice and a chief architect of the Act, described the Idasa initiative as an important partnership designed to make vital legislation work. He defended the broadening of the legislation to both the public and private sectors, noting that some companies control budgets larger than those of any of South Africa's provinces. Their business decisions therefore must have a significant impact on the public.

Turning to those processes, it is upon the Human Rights Commission that the early bulk of the workload has fallen. The HRC is responsible, among other things, for the establishment of a guide for the use of the Act, including details on information officers, the legal remedies available to those seeking information, monitoring the implementation of the Act, reporting on it and making recommendations to Parliament.

While the Commission's work is intended, in principle, to attend to the needs of public bodies, we should recall that the Bill of Rights is a powerful instrument, operating not only vertically, in a silo as you might say, between government and individuals; it also operates horizontally, that is, between the private sector and individuals. Therefore it seems only reasonable, doesn't it, that the measures that we set for Government to achieve transparency and good governance should apply equally to the private sector.

Here of course lies another area of concern. Legislated access to information, both in the public and private sectors sounds wonderful if said fast. Public interest organisations, lawyers and law firms are likely to make frequent requests for information under the provisions of the Act - whether for their own research and related purposes or on direct behalf of their clients.

But while the provisions relating to access to information held by public bodies have generally been hailed as important developments, clearly not everyone is comfortable with the extension of this obligation to private bodies. A legal recognition of access to privately held information is, in my view, as significant as the constitutional recognition of the need for reasonable access to information held by the state.

Incorrect information held by a private company such as a credit bureau or an insurance company could have as devastating an effect on an individual as any negative information in the hands of a government institution. Every citizen therefore requires a recourse that would enable her or him to firstly access this information and secondly to correct it.

I also believe that the other side of the coin - the protection of legitimately confidential information, for example to maintain a genuine competitive edge - has been adequately protected. This is important to understand. Very wide-ranging limits to the right to request information also exist for the public sector. Doubtless, as the Mail & Guardian said at one time (Dear me, am I really quoting from the M&G?) there are sound reasons for those restrictions to exist, but, and I quote:

"...this should not detract from the aim of the new law - to give citizens the right to information. "

I wonder how many here have, in fact, read Clause 36 of the Act. Headed "Mandatory protection of commercial interest of third party", this Clause starts out by providing that, and again I quote:

"Subject to subsection (2), the information officer of a public body must refuse a request for access to a record of the body if the record contains (a) trade secrets of a third party "

... and it goes on with much more besides.

There are numerous possible grounds for refusing access. The requestor will have to comply with a variety of requirements, including in many cases the need to prove the public interest in disclosure. The courts will often, of course, be the arbiters of the limits of freedom of access and eventually we will have the luxury of a body of case law to guide us. I do hold, therefore to my claim that the Act is not and can never be a licence to obtain secret or confidential information capriciously, nor even vexatiously.

At the outset I must add that an additional and important requirement is set for access to information held by any person other than the state. The information must be required for the protection and exercising of a right such as during retrenchment or wage negotiation processes. Undoubtedly there will be an increasing demand for access to information by employees.

There can be no doubt that the promulgation of this Act has highlighted the right to access to both State and privately held information as an important right. In terms of section 32 of the Bill of Rights in the Constitution, every person has the right of access to any information held by the state and any information held by another person when that information is required to exercise or protect any rights.

Considering our not so distant past, one would understand the lack of complete faith in the self-regulating accountability of the state. The Act therefore constitutes a clean break with practices of the successive apartheid governments that were so often secretive. In most cases this secrecy had a profound impact on the lives of the majority of citizens in this country. As the new government we had no choice therefore but to ensure that we create conditions that would allow citizens full and democratic participation in the governance process. We have an obligation to make rights enshrined in the Constitution real! Making access to information possible is about making a basic right real. Realising rights for the majority of our citizens is now our foremost preoccupation.

The citizenry has a right to know how government departments and state organs function and how decisions taken by government may directly or indirectly affect their lives. The free flow of information between the State and its citizens supports participation in our representative form of democracy. People are able to engage in public debate, offer alternatives to proposed and official government policies and also influence decisions that affect them. But they must be informed - they must have access. The right of access to information is a basic right that is necessary to ensure that democracy flourishes.

The Promotion of Access to Information Act constitutes a decisive break from a culture of secrecy to a constitutionally protected culture of openness and democracy. As I have said, there are a number of justifiable limitations to access to information when it comes to private bodies. Indeed, the Act also identifies aspects of the workings of public bodies that may be protected. These limitations are aimed at the reasonable protection of, for example, matters regarding international relations and, in the private sector, of privacy and commercial confidentiality. However these rights cannot be seen in isolation; they must also be weighed against and balanced with other rights.

The Act therefore is aimed at empowering both natural and juristic persons to engage their right of access to information. However, I believe the challenge to all of us is to make the legislation accessible to all South Africans, whether to protect their own rights or to drive development. University of Cape Town public lawyer Saras Jagwanth maintains that information is necessary to pursue rights such as the socio-economic rights contained in Chapter 2 of the Constitution. In this way the right to access information has an enabling mechanism. In this context the new law should be seen as an instrument of social change.[1]

We need to make this Act work through educating our people about what it means to them. Without knowing how to engage the right of access to information, the right is meaningless. We will only succeed in our task if we manage to close the gap between ambitious, legislative measures and tangible implementation and delivery on the ground.

The trilogy of equity legislation enacted last year and of which this Act is a part, provides strong mechanisms to ensure equality before the law. The Promotion of Administrative Justice, the Promotion of Access to Information and the Promotion of Equality and Prevention of Unfair Discrimination Acts compel us to focus on reconstruction and development programs and actions that benefit the victims of unfair discrimination.

At times our campaign of pro-active restorative legislation swamps our administrative capacity. The need is simply greater than the resources at hand. For example some of you here will be concerned that the current state of archiving of records, of document identification and retrieval, may initially prove inadequate to the efficient operation of this Act. Practically speaking, this may be true - indeed, it may even be true in the private sector. But I think we all believe that the need for the Act is real. And so we have introduced the legislation and in so doing have given further impetus to the need to establish the service requirements of a true democracy.

You will be aware that the Act came into operation in March 2001. However, some sections were held back giving those affected by the legislation additional time to prepare for implementation. The President has since determined that these remaining sections would become effective on 15 February this year.

Public bodies are, in terms of section 14 of the Act, required to compile a manual containing information on its structure and functions. The deadline for these manuals is 15 August, 2002. The Department of Justice is in the process of completing a blueprint for the production of manuals. This template will be used as a guide by other government departments to prepare their own manuals. And in closing, I am going to surprise you by quoting once more from the Mail and Guardian newspaper. Not quite a year ago, the M&G had this to say about this Act:

"The future of the Promotion of Access to Information Act will be determined by the extent to which it signals and provokes a change in societal culture. The owners of and holders of information must be prepared to overcome a heritage of secrecy and embrace a new spirit of openness. That would be in keeping with both the conceptual underpinning of the new law and the spirit of the information age. With this new law in force, we must make use of the opportunities it presents: it must not gather dust. "

Thank you for this opportunity.

[1] The Mail & Guardian, March 21, 2001

Issued by the Deputy Ministry of Justice and Constitutional Development