A Worrying Tale: Information access in South Africa

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By Gabriella Razzano

On 28 September 2015, the world will be celebrating Right to Information Day. As transparency evangelists, ODAC will be trumpeting the horn of excitement for the day. However, as we count down, we though it would be a good time to reflect on the 3 key takeaways as details from our recent report on how the everyday person might experience trying to access information in South Africa:

1. People may know about PAIA, but they don't use it

81% of those questioned in the research knew about the Promotion of Access to Information Act (PAIA), but only 24% have made requests. This is in some sense a result of our audience, but also speaks to how intimidating processes involving "legalease", and direct engagement with government, can be.

2. Peoples perceptions of accessing information aren't positive

Popular negative perceptions about trying to get information from government included: a belief they would not get a response, and potential delays. An interesting complaint from one particular subsection of the group was that they weren't sure what to ask! In some sense, this is a failure of information activists. The message of how information can be used to solve your problem should be one we preach loudly and clearly. 

3. The glimmer of hope: once you use it, you're hooked!

Interestingly, those who do eventually use PAIA to access information use it frequently, in that 39% of users have made three or more requests. This is positive - but not a surprise when you consider the amazing ability access to information has to empower people. Its about enhancing dignity - if people know what to ask, and how to ask it, they become actors in their governing! We should be remembering this as we seek to spread the word on the power of information and transparency.

Download the report here

Download a simple infographic on how to use PAIA here

 

Pratley "stick with" our whistleblower!

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In a moving, and unusual, occurrence Pratley Engineering South Africa have issued a letter of congratulation to our whistleblowing client Mr Motingoe ahead of the court hearing this Friday 7 August at the Labour Court. The hearing will hopefully confirm that the MEC and HOD of Public Works in the Northern Cape have continually and maliciously been in contempt of court by failing to reinstate him after his brave act of whistleblowing. The private sector have often been silent on the importance of whistleblowing - in spite of the obvious benefits it poses for curbing corruption and risk management, which makes the letter highly unusual. More important, and as our research has comprehensively demonstrated, whistleblowers often travel a lonely and dangerous path while doing the right thing - we welcome all the support we can get for Mr Motingoe along this difficult, but just path!

 

Contempt of Court Order Granted for Harassment of ODAC Whistleblower

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Background

Mr. Motingoe was employed as the head of Legal Services at the Department of Infrastructure and Public Works in the Northern Cape.

He was originally suspended by the MEC on 22 November 2013. In 2013 Mr Motingoe made a protected disclosure regarding alleged irregularities of the HOD with the tender process of a civil construction work/project at the Theekloof-pass. Instead of receiving support for his disclosure, he was exposed to occupational detriment. He challenged this suspension as an unfair labour practice in the bargaining council. This was the subject of the arbitration award. The main part of the order of relevance to was:

The Respondents is hereby ordered to uplift the Applicant’s suspension with immediate effect (within seven (7) days) after receiving a copy of this award, and to reinstate the Applicant to his position as Director:  Legal Services and/or to a suitable alternative position under the supervision of the Chief Director:  Corporate Services.  The Applicant to report directly to the Chief Director:  Corporate Services pending the adjudication of the dispute referred to the Labour Court under case C373-14/judgement and/or pending the finalization of the disciplinary hearing.

The award clearly ordered the employer to uplift the suspension. This did not happen. Running concurrently with the arbitration process was the Labour Court process in which the client challenged both the suspension and the disciplinary inquiry as occupational detriments.

On 6 January 2015 the employer’s lawyers served with an application for leave to appeal against the labour court judgment. The next day (7 January) Mr. Motingoe was served with another suspension letter dated 12 January 2015, worded in virtually identical terms as the first. This time the suspension was signed by the head of department and no explanation was offered for this. Factually, instead of uplifting the suspension as ordered by both the arbitrator and the court, the employer issued another suspension without first annulling the first suspension on exactly the same terms (serious misconduct for the release of confidential information in contradiction of 2.7(2)(a) of the SMS Public Service Handbook).

The Department was not been granted leave to appeal.

What happened today

An urgent ex parte application for contempt of court was brought today in the Labour Court in Cape Town by ODAC on behalf of our clienf, Mr. Motingoe, for the gross contempt of court demonstrated by the re-institution of his suspension.  The order (see attached order) was granted by Judge Rabkin-Naicker, and a return date of 7 August has been set down when the HOD and MEC of Public Works in the Northern Cape must explain why they are not in contempt of court.

What this means
While the MEC and HOD will now have an opportunity to file reasons as to why the contempt of court order should not be granted, today was an important victory for the whistleblower - Mr. Motingoe. Our research has repeatedly demonstrated that whistleblowers are vulnerable to a variety of threats and harassment. The decision to continue the suspension of Mr. Motingoe by the Department of Public Works in the Northern Cape not only demonstrated a gross contempt for the court that gave the order, but also perpetuated the indefensible abuse of legitimate whistleblowers who seek to make disclosures (such as that made by Mr. Motingoe) for the furtherance of the public good.

Classification and Declassification Review Panel

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In June 2004 the then Minister of Intelligence Services, Lindiwe Sisulu, approved a report (commissioned in 2003) that comprehensively reviewed the system of classification and declassification of records in South Africa.

In May 2015, this report was released to the Open Democracy Advice Centre after a Promotion of Access to Information ACt request was submitted to the Department of State Security.

This significant and interesting report can be downloaded here.