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OPEN DEMOCRACY BILL (B67-98)
Appendix to Submission [OPD15d]
Excerpts from the First Certification Judgement of the Constitutional Court
In its First Certification Judgement, In re: Certification of the Constitution of the Republic of South Africa, 1996 1996 (10) BCLR 1253 (CC) the Constitutional Court ruled unambiguously regarding the consequences of a failure to enact the legislation envisaged in section 32(2) of the Constitution before the three year deadline imposed in schedule 6, section 23.
The Court made the following determinations:
- The interim right given in schedule 6, section 23(2)(a) does not comply
with the requirements of Constitutional Principle IX. (Section H, paragraph
[83] at 1291H.) Constitutional Principle IX stated that the final Constitution
must make provision for “freedom of information so that there can be open
and accountable administration at all levels of government.”
- Given that the right of access to information is not considered to
be a “universally accepted fundamental human right”, it was reasonable
for the legislature to suspend section 32(1) for a period of three years
to enable the drafting and enactment of legislation laying down “the practical
requirements for the enforcement of the right and the definition of its
limits”. The court clearly linked the notion of “reasonableness” with the
understanding that the period of suspension had a fixed point of termination.
It further noted that three years, seemed “a long time”, even if reasonable
given the complexity of drafting the envisaged legislation. This implies
any further extension of the period of suspension--especially an indefinite
suspension--would be viewed as unreasonable and therefore a violation of
Constitutional Principle IX. (See Section H, paragraphs [84] - [87] at
1292A.)
- “If the legislation is not passed timeously the general but undefined
right as formulated in NT 32(1) will come into operation. ... Although
NT 32(1) is capable of being enforced by a court--and if the necessary
legislation is not put in place within the prescribed time it will have
to be--legislative regulation is obviously preferable.” (Section H, paragraph
[86] at 1292E. Note that this passage echoes a similar interpretation in
paragraph [83] at 1291G.)
This information is produced by the Public Policy Liaison Office of the South African Council of Churches. The Public Policy Liaison Office monitors and analyzes key public policy issues under consideration by parliament and government ministries, alerts government to the concerns of the SACC, and assists people of faith to be more familiar with and involved in public policy debates.
Public Policy Updates are available via e-mail. To be added to or dropped from the e-mail distribution list, please write to liaison@sacc.org.za.
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