Litigation

Posted in Legal

ODAC conducts test case litigation i.e. ODAC involves itself with litigation on the PDA and PAIA with an interest in setting Jurisprudential precedent and at the same time giving content to various provisions in these statues that – to date – remain ambivalent or ill defined. Further ODAC endeavours with its test case litigation to give content to the Right to Know and effect to Socio economic rights of communities.

 Below is the list of active cases currently on ODAC’s file. All the cases are at different legal stages.

  1. FORTUIN versus MINISTER OF SCIENCE & TECHNOLOGY
    • To expose the Department’s non –compliance with its own internal regulations and thereby expose corruption.
  2. BRUMMER versus MINISTER OF SOCIAL DEVELOPMENT & WELFARE
    • To obtain the correspondence that will expose a corrupt relationship between IT Lynx Consortium and the then Minister
  3. MOJALEFA MURPHY versusNATIONAL RESEARCH FOUNDATION
    • To obtain the report of an internal investigation conducted whilst client was employed with Respondent and in so doing clear his name and render him more employable.
  4. MALCOLM LANGFORD & CALS versus JOHANNESBURG WATER PTY LTD
    • To obtain research data in order to assist client with formulating policy for local government regarding water usage.
  5. ROBERTSON ABATTOIR versus COMMERCIAL STEVEDORING AGRICULTURAL & ALLIED WORKERS UNION (CSAAWU)
    • ODAC are representing CSAAWU in an application brought to interdict them from complaining about alleged unlawful labour practices at the abattoir.

PAIA Requests

Posted in Legal

ODAC have been at the forefront of utilising the Promotion of Access to Information Act 2 of 2000 (PAIA) since the inception of the law. Through our experience, we can now advise members of the public on how to best submit a request. Further, we are forwarding access to information through the development of an online portal for making such requests - read more about our askAFRICA project here. You can download your own copy of the PAIA Act here.
 
If you wish to make a request for information from a public body, you will need to do so on a PAIA Form A. If you wish to make a request to a private body, you will need to do so on a Form C. And if you want to submit an internal appeal against a refusal for information by a public body, you will be prescribed to submit a Form B. We are currently in the process of developing an easy "how to guide". You can download the necessary forms for making a request here:

You can download our SIMPLE infographic on how to make a PAIA request in 8 simple steps here.

We also have a simple guide on how to implement PAIA request processes within your organisation (that can also assist individual requesters).

For years ODAC have been promoting the use of the Promotion of Access to Information Act 2 of 2000 (PAIA). This work has involved not only encouraging members of the public to use the Act, but also using it ourselves in the strategic pursuit of transparency. We have accomplished some great successes with PAIA - yet it is only know that we are sharing our best practices on implementing PAIA within your own organisation, to encourage other actors to engage more readily with the Act as well.

Our motivation for doing so is quite straightforward: we believe that, the more departments are forced to engage with PAIA through requests, the more likely it is they will implement systems to deal with PAIA that will eventually lead to more effective and responsive behaviour. The Guide is short and pragmatic - but we hope are brief attempts to outline some best practice will encourage other organisations to engage in an act we believe to be of immense public good.

Download the implementation guide here.

Parliamentary Lobbying

Posted in Legal

Introduction

A significant area of ODAC's activities is parliamentary lobbying for the pursuit of improving the transparency environment, particularly within South Africa. While originally our mandate was to work on the Promotion of Access to Information Act, the Protected Disclosures Act and the Promotion of Administrative Justice Act, it soon became apparent that for an effective intervention that improves transparency as a whole, we would need to focus on broader threats to transparency that may arise from laws outside those three.

Submissions

Submission made to the Ad Hoc Committee on the Protected Disclosures Act Amendment Bill

Submission made to the Ad Hoc Committee on the Qui Tam Provisions (Protected Disclosures Act)

Submission made to the Department of Justice on the Hate Speech Bill

Submission made to the Film and Publications Board on the Film and Publications Board Regulations

Case Study: Victim Empowerement (VEP) – Road to Justice

ODAC, alongside the Rape Crisis Cape Town Trust and the Women’s Legal Centre are spear-heading a campaign for the adoption of a Victim Empowerment Legislation in South Africa. The Rape Crisis conducted a feasibility study on behalf of the United Nations Development Programme to consult with sector stakeholders and the South African Treasury on the feasibility of a Victims Empowerment Legislative Act.

The study assessed the cost-benefit propositions of services to victims of crime, proposed a strategy for mobilizing support of government and parliamentary stakeholders to adopt such an Act. It is postulated that one of the major problems encountered by the different governmental departments working on victim empowerment (VE) is that victims-related legislative and policy provisions are scattered in a range of different legislations and policy documents.   At present, there is no comprehensive legislation that specifically targets and addresses the specific needs of victims of crime. The existence of a single or explicit line budget for implementation of victim-related services as an effective mechanism for coordination support to victims of crime also doesn’t exist.

Flowing from the findings in this study, we have decided to take the initiative to launch a campaign for the adoption of this legislation. To achieve this, we have identified a number of key stakeholders that will constitute the core group of the campaign. A strategy planning meeting in Cape Town is proposed to bring all these stakeholders together to develop a suitable approach.

Victim Empowerment Legislation Road Map Report – the Road to Justice

Services

Posted in Legal

Nature of Services

ODAC's expertise (both internationally, regionally and locally) is available for hire through consultancies. If you would like to esquire about utilising ODAC's services, This email address is being protected from spambots. You need JavaScript enabled to view it. .

Our specific services include:

  • research consultancies
  • policy advice
  • strategic litigation advice
  • legal training
  • policy training

These services fall within the thematic areas of access to information (and the Promotion of Access to Information Act); whistle-blowing (and the Protected Disclosures Act); open government and open data, and other transparency-related issues including issues that relate to privacy.

Some examples of previous legal services we have provided are detailed below.

PAIA Law Clinic

Freedom of Information (FOI) Clinic in conjunction with the University of the Western Cape   

 Clinical legal education:

Venue: University of the Western Cape

Lecture Lesson Plans:

Access to Information Lecture Lesson Plan 1

Access to Information Lecture Lesson Plan 2

 Two lectures were given in relation to the promotion of access to information action.

BACKGROUND INFO on FOI Clinics

Freedom of Information (FOI) Clinic South Africa
Ten years after the enactment of the Promotion of Access to Information Act (PAIA) in South Africa, it is an unfortunate reality that the level of usage and awareness of this Act is dismal. In comparison to similar open democracy legislation, the Promotion of Administrative Justice Act (PAJA), where heavy jurisprudence is in abundance, litigation in the area of access to information is scant. The use of PAIA in the courts is however bound to increase.  This is particularly likely since, in an important recent development, the courts in which PAIA may be used have been significantly expanded.  A sigh of relief went up from access to information advocates across South Africa when, on 9 October 2009, rules of procedure were promulgated that set down the standards by which PAIA requests could be enforced in the Magistrates’ Courts.  

These rules fulfilled the last of the conditions necessary to enable enforcement of PAIA in the courts far more accessible to the majority of the national population than the High Courts.   The rules came into operation on 16 November 2009.  
While the operation of these rules is laudable, a vital question needs to be posed. To what extent can PAIA be used to fulfill its mandate of assisting the people of South Africa to realize their socio-economic rights? Writing not in respect of access to information generally but rather in respect of its utility in the achievement of socio-economic justice, Mukelani Dimba has discussed the role of PAIA litigation.   Drawing on the argument of Saras Jagwanth that access to information primarily plays an instrumental role in the achievement of socio-economic rights; Dimba sees access to information as a necessary aid for either social mobilisation or for litigation in order to enforce socio-economic rights.  

Aside from litigation however, there is the need to first educate and promote awareness of the Act among the citizenry and such platform needs to be extended from civil society alone to include universities and the legal profession. There is no better place to target the legal profession other than through aspiring lawyers who can assist people in realizing that they can enforce their rights through the use of PAIA without any or minimal assistance. It is high time we collectively responded to the question posed to freedom of information stakeholders that given the continued state reliance upon and rolling out of the judicial enforcement model, how can stakeholders interested to effectively implement the right of access to information most effectively complement and supplement enforcement through the courts? One of the answers to this question would be to widen the pool of information champions who can assist people in making information requests and educate people on how to use this Act independently.

In a bid to expand the pool of champions of freedom of information in South Africa and increase the level of education and awareness of the legislation, the Open Democracy Advice Centre wishes to set up a Freedom of Information Clinic in an existing Law Clinic in a University.
 

Legal

Posted in Legal

In realising our mission of assisting people to be able to realise their human rights in general, and their socio-economic rights in particular, our legal expertise is mainly utilised through consultancies and our prolific parliamentary lobbying campaign on various transparency issues. We also provide some assistance on PAIA-related issues (and training) when project-related, and may engage in test case litigation on an ad hoc basis, if specific funding allows us to do so.  Frequently, we offer other organisations with our expertise after we have referred strong strategic cases, We have recorded significant successes in recent times in the area of strategic litigation. These includes the nullification of S 78(2) of PAIA by the Constitutional Court for its unconstitutionality in terms of the period for appeal to a court; and the first usage of S 80 of PAIA by any requester of information to place disputed documents for disclosure in the custody of a Court.