Mail & Guardian journalist Stefaans Brümmer’s arguments this week on the constitutionality of sections of the Promotion of Access to Information Act may result in a change in the Act.
Brümmer approached the high court in 2007 after being denied information, related to the M&G‘s Oilgate exposé, by the department of social development. The matter wound its way up to the Constitutional Court, which heard argument on Tuesday.
The court considered whether Section 78(2) of the Act, which gives a person denied access to information by a state entity only 30 days to approach the courts, violated the constitutional right of access to the courts.
The information Brümmer had demanded from the department under the Act included correspondence between former social development minister Zola Skweyiya, his then counterpart at finance, Trevor Manuel, and a consortium called IT Lynx.
According to Brümmer’s court papers, he wanted to establish whether Skweyiya knew that Imvume Management’s Sandi Majali had invested in a consortium called IT Lynx at a time that IT Lynx was demanding that Skweyiya “give” it an information technology contract it claimed it had been awarded.
At about the same time that IT Lynx was demanding the contract, Majali/Imvume paid R65 000 towards renovations at Skweyiya’s home – a payment the M&G first exposed in the Oilgate scandal, which centred on Imvume’s transfer of R11-million state oil money to the ANC.
Brümmer approached the high court to gain access to the information on July 25 2007 after the department, and then Skweyiya himself on internal appeal, denied him the information sought.
According to his papers, he received notification of Skweyiya’s refusal on February 2 2007, meaning he went to court well after the 30-day limit prescribed by Section 78(2) of the Act had expired.
In March this year the high court refused to condone Brümmer’s non-compliance with Section 78(2), but also declared the section unconstitutional as it did not give an applicant sufficient time to approach the courts. The matter was then sent to the Constitutional Court for confirmation of the constitutional finding, which may open the way for Brümmer to access the information after all.
Brümmer was supported by the Open Democracy Advice Centre. Submissions by the Human Rights Commission and the South African History Archive, which appeared as “friends of the court”, supported Brümmer’s argument that the 30-day limit was unreasonably short and unconstitutional.