By Vinayak Bhardwaj
The release of the “Nkandla files” reported in last week’s Mail & Guardian was the product of a long battle against a fast-calcifying culture of secrecy in our public bodies. Through bureaucratic delays, misinterpretations of the law and the overuse of “national security” as a basis for non-disclosure, public and private bodies continue to thwart the public’s right to know.
In releasing the documents, Public Works Minister Thulas Nxesi signed a supplementary affidavit refuting his earlier claim that the requested documents were so replete with security-sensitive information that they could not be disclosed without compromising the security of President Jacob Zuma. This volte-face, won at a considerable expense in legal costs, nonetheless marked a victory for access to information and for the Promotion of Access to Information Act (PAIA) itself.
While it remains to be determined whether the released documents comply fully with the original request submitted by amaBhungane, it is clear that the reasons for withholding the information were largely baseless. It is further evident that the current attempts to withhold the “Top Secret” task team report cannot possibly be justified purely by national security concerns.
In a report titled “Paper Wars”, the South African History Archives (Saha) conducted a detailed assessment of the state’s compliance with PAIA requests. Its findings are concerning.
In 2012, out of 159 requests submitted to various public and private bodies, 102 were refused outright or received no reply. Tellingly, of the 79 requests Saha submitted over the period 2001-2011, 16 were refused on security-related grounds. However, when Saha appealed against seven of the 16 refusals, four were overturned in full or in part.
This reflects a growing culture of secrecy across state bodies, of which the high-profile Nkandla case was by no means an unusual example. Thus almost all PAIA requests received are settled after court proceedings have been instituted.
And even then, the attempt to extract information is never entirely successful. For over four years, M&G media has been locked in a battle to obtain the report into the 2002 Zimbabwe elections prepared by Justices Sisi Khampepe and Dikgang Moseneke. Having successfully won four court cases, the documents continue to elude this newspaper with no apparent legal basis. The report remains classified.
As Saha and others have noted, the general trend towards PAIA compliance typically entails delayed responses, in the rare event that a response is received.
No reasons are offered when a request for information is refused. There is an unreflective “knee-jerk” rejection of requests for information, forcing applicants to resort to litigation in order to secure information via the legislation. And in most instances, the resistance to the request for information is often withdrawn once court action has been instituted, typically on legal advice that there is no basis for non-disclosure.
Taken together, these cases reveal a state struggling to uphold the standards of openness and transparency that our Constitution demands.
In amaBhungane’s court papers, advocate Wim Trengove noted that the original refusals by the department of public works, relying on apartheid-era laws such as the Protection of Information Act and the National Key Points Act, overlooked the fact that PAIA overrules these laws.
The department ignored the internal appeal launched by amaBhungane against its decision, which eventually forced us to go to court. Only on reaching court did the department present its security-related arguments for non-disclosure.
Discharging its constitutional duties only under duress of legal proceedings reflected what Trengove described as a “disdain for the law”. Such disdain has far-reaching consequences.
It is vital to recognise that access to information is crucial for the exercise of the rights enshrined in South Africa’s Constitution. In the concluding chapter of “Paper Wars” historian Verne Harris remarks: “Under apartheid, freedom of information was one of many strangers. And it remains so. The call of justice is to embrace this stranger and to offer it whatever hospitality we can muster.”
Buried somewhere in the 12 000-page trove of documents is an echo to that call.
Vinayak Bhardwaj is the advocacy coordinator of the M&G Centre for Investigative Journalism (amaBhungane).