South Africa: Time limit to challenge denial of information in court
The South African Constitutional Court declared that a 30-day the time limit to challenge denial of information in court is unconstitutional and found that around 180 days would be the appropriate limit that would protect everyone's right to access information.
Conrad Stefaans Brümmer v. the Minister of Social Development and Others
August 13, 2009, the South African Constitutional Court ruled in favour of Mr. Brümmer, a journalist of the Mail & Guardian newspaper in a case challenging the 30-day limit to lodge a court challenge after a failed application for information.
Mr. Brümmer made a request to the Department of Social Development for information about a tender the department is alleged to have awarded to IT lynx Consortium. Brümmer claimed he required the information in order to report accurately and properly in an article he was writing.
The Mail & Guardian reported in 2005 how state oil company PetroSA irregularly paid R15-million to Imvume Management, which had close ties to the African National Congress. About R11-million of this public money allegedly found its way into the ANC’s 2004 election fund.
When Mr. Brümmer’s request was denied and an internal appeal was unsuccessful, he turned to the Cape High Court for relief. However, his application to the High Court was made after the 30-day limit, set out by the Promotion of Access to Information Act, Article 78(2). The applicant submitted that the time limit violates his rights of access to court as well as access to information guaranteed by the Constitution.
The High Court accepted the claim of unconstitutionality of the 30-day limit and held that section 78(2) was unconstitutional in that it does not give a person who is refused information adequate time to approach a court for relief. It therefore declared section 78(2) unconstitutional and referred the matter to the Constitutional Court for confirmation.
Amicus briefs were presented by the South African History Archives Trust (SAHA) as well as the South African Human Rights Commission.
Judge Sandile Ngcobo, in an unanimous judgment, upheld the conclusion by the High Court. He held that a person who seeks to challenge the refusal of access to information must be afforded an adequate and fair opportunity to do so. He further declared that access to information is crucial to the right to freedom of expression, which includes freedom of the press and other media, and also freedom to receive or impart information or ideas.
Ngcobo said the public must have access to information held by the state. Indeed, one of the basic values and principles governing public administration is transparency. The constitution demands that transparency must be fostered by providing the public with timely, accessible and accurate information.
The Constitutional Court ordered the Parliament to enact legislation that prescribes a time limit that is consistent with the Constitution, bearing in mind the right of access to court as well as the right of access to information. He ordered that pending the enactment of this legislation, a person who wishes to challenge the refusal of access to information must lodge an application to court within 180 days of being notified of a decision of an internal appeal refusing access to infromation. He added that this period of 180 days should be flexible in the sense that courts should be empowered to condone non-compliance with the 180-day time limit where the interest of justice requires it.
The full judgment can be found here.
 Conrad Stefaans Brümmer v. the Minister of Social Development and Others, CCT 25/09. The summary was drafted based on Media Summary of the Constitutional Court of South Africa, an article in the Mail & Guardian dated August 13, 2009, Constitutional Court Rules for M&G, and an article in Business Day from August 14, 2009, South Africa: Court Strikes Blow for Free Media.