Wri/idrc report

Transparency Provisions in Sectoral Laws

Our analysis in this section was predicated around the core research question of:

What information provisions are in Environmental and Natural Resource (ENR) laws?

Introduction

ODAC undertook a broad scale review of natural resource laws in order to investigate the sectoral support of access to information laws in the country. These laws are then underpinned by the access to information legislative regime addressed earlier.

Prior to our democratisation, the environmental governance sector was centralised and mechanistic. This was as much a reflection of the Apartheid governance machinery, as it was a result of the prevailing international perspectives on environmental governance. One of the most important aims of the legislative process has been to create a “decentralised, participative and co-operative” framework, epitomised in the National Environmental and Management Act (NEMA).³⁷ It is this inclusion as well as participation (an important component of modern understandings of sustainable development) that means several laws which are relevant to the environment directly deal with access to information as well. This is a necessary result of the interdependent relationship between access to information and public participation; a relationship that was echoed in the correlation between the Promotion of Access to Information Act and the Promotion of Administrative Justice Act mentioned earlier.

As a general reflection on the sectoral framework, Muller notes:

“Overall South Africa’s new environmental governance system attains a positive rating on the ‘good governance’ scorecard; capacity constraints and ineffective enforcement being the two notable exceptions. The implementation of environmental policy at the local level and the issue of ‘unfunded mandates’ needs to be addressed urgently as environmentally sustainable and integrated planning and development at the local level could very well ultimately determine the success or failure”.³⁸

Analysis

Contained in Annexure C, Templates 1-4 below are the results of the sectoral law reviews, which must be reviewed with the analysis as the majority of substance is contained within them. They are colour-coded for a quick visual reference.

Looking to the environmental laws, it is important to notice first the breadth of the legislative paradigm, in spite of attempts to create more cohesion and inter-departmental cooperation through NEMA. There are quite a few provisions which appear to deal with confidentiality and (when considering the number of types of provisions allocated) not that many that provide positively for release. This is a pattern which emerged throughout our research. While it is concerning, the research paper had hypothesised that this is a result of having a specific access to information law which is meant to be the chief legislative mechanism for ensuring release. However, it was necessary also to assess this view within a division of the historical origin of the different Acts for further clarity. We decided to consider the laws within three key periods: pre-1994 (as in originating from Apartheid government), post-1994 and pre-2000 (in other words, preceding PAIA and thus not having cognisance of it), and post-2000. The split was as follows:

It is clear then that most of the laws pre-dated PAIA, thus were unlikely to be able to consider PAIA as a means of information access. While the large number of pre-1994 laws would, in a rather self-explanatory manner, favour restriction over release – it is somewhat of an anomaly that the laws post-independence but pre-PAIA should err toward restrictiveness. However, it is worth noting (and is seen further under the case law analysis later) that there was a constitutional entrenchment of the right of access to information that was relied on at least once for direct access, which may have been contemplated by the legislature.³⁹

Certainly post-2000, the legislature appears to view access to information as a PAIA-issue and therefore does not necessarily advance specific access to information provisions sectoral laws in the belief that any lacuna is adequately dealt with by PAIA. This also explains the significant amount of yellow present in the environmental table. It is important to note, however, that NEMA also provides for additional protection for whistle-blowers in the environmental context through section 31, which is not accounted for in the table, but certainly contributes to the open government paradigm we are trying to investigate.

Interestingly, water has no provisions which restrict access to information. While this appears positive, it is probable also a result of the nature of information being dealt with in the water laws. Most of the restrictive provisions in other laws result from the commercial or safety associations of the information concerned. Water information, and its proactive disclosure, is a fundamental basic services issue that requires the maximisation of information release, also as an aid for public participation.

There is a dearth of laws dealing with land and land management issues. In many ways this is a result of the fact that land law straddles the public law and private law divide. With a Roman-Dutch law legacy, many aspects of land and land use have been dealt with in the common law – which means that public aspects of land law have required significant legislative intervention for regulation. Property law also has a strong legislative legacy dating from the beginning of the 20^th century. Looking at the laws themselves, there is a relatively positive trend of promoting public information. This may largely be a result of the need to have transparent land ownership and land use in order to foster commerce through private ownership and sale.

Mineral laws, perhaps unsurprisingly, average out at having the most restrictive provisions than the other sections. While this is a reflection of the sanctity of commercially related information that we often see in relation to this area, it also results from the presence of an additional type of information: the personal health information of mineworkers. The nature of mining present’s significant health and safety concerns for those that work on mines; hence a significant amount of personal information is collected in relation to such issues. These forms of information require particular protection (the bounds of such protection may change once the Protection of Personal Information Bill becomes law in South Africa). This is well-worth noting if we wish to dialogue with the Department on the matter.

Table: A comparison of the four laws used for requests

ATI Issue	National Environmental Management Act 107 of 1998	Water Services Act 108 of 1997	Housing Act 107 of 1997	Mineral and Petroleum Resources Development Act 28 of 2002
Government duty to collect information	N	Y	Y	Y
Government duty to keep records (e.g., registers)	N	Y	Y	N
Government duty to make information available to public	Y	Y	Y	Y
Company obligation to keep records	Y	Y	N	N
Company obligation to make information public	Y	Y	Y	Y
Confidentiality clauses	Y	N	N	Y
Established a crime and sanction for releasing confidential information	Y	N	N	N
Established a crime and sanction for NOT releasing information that is public	N	Y	N	N

Evaluation

The existence of PAIA in South Africa means that there is not a broad selection of laws with access to information provisions, in spite of a significant number of laws which govern the environmental sector. Sectoral laws undoubtedly can be used to forward access to information aims. As ODAC noted in its presentation at the United Nations Media Freedom Summit held in May 2012 in Tunisia, most comprehensive environmental laws in Africa include some ATI considerations. Further, most natural resource laws have some restrictions on access to information through provisions. Oil and minerals tend to have provisions which restrict access to information. This pattern, as seen above, has been reflected in South Africa’s laws – but the existence of our ATI-specific law is what makes our legislative environment peculiar and is the factor that most affected attempts to use the few sectoral laws that did exist. While the laws may, on average, relate to access to information laws, either promoting or negating the principle in their content, their consideration of access tends to be cursory. Few provide established procedures for accessing information, seemingly relying on the existence of PAIA to fill any gaps.