SUBMISSION BY ADV T Thipanyane: CEO –SOUTH AFRICAN HUMAN RIGHTS COMMISSION
14 November 2008
For Attention: Ms S Isaac
Researcher - Justice Portfolio Committee Parliament
Cape Town
Dear Sueanne
Submission by the South African Human Rights Commission on the Rules for the Magistrates Courts: PAIA
The South African Human Commission (Commission) is a chapter nine institution mandated by the South African Constitution to promote, protect and monitor human rights. One of these fundamental human rights is the right to access information which governed through the regulatory framework of the Promotion of Access to Information Act 2000 (PAIA).
The Commission both through its constitutional mandate and the PAIA based mandate is tasked with reform, monitoring and ensuring delivery of the right to access information to all South Africans.
The Commission welcomes the Rules by the Rules Board but records serious reservations on its implications for the right to access justice and for the primacy of the fundamental right to access information as regulated within the PAIA framework. While expanding the fora through which disputes may be resolved, key concerns remain.
The rules as they stand retain a level of complexity which will seriously impede the capacity of the majority of South Africans to assert their basic rights. The need for applications on notices, affidavits and service processes are but a few obvious examples of this.
These measures, while they maybe established and imperative to fair process in civil matters, will create unfair pressure on unsophisticated applicants. Many will feel the need to engage attorneys to assert their right. The resort to attorneys and legal aid processes will cause significant reluctance by the public to secure redress.
The Commission has consistently and ardently called for the capacitating of an Information Commissioner. Such an office will increase accessibility to resolution mechanisms quickly and cheaply, ultimately ensuring that the constitutional
guarantee of the right to access information is a credible and practical reality for the majority of the South African public.
The processes determined by the new proposed rules will be significantly more cumbersome for all parties. On an approximation of the time spent initiating litigation alone, parties will have spent approximately 45 further working days simply initiating litigation. This drags out the existing process in terms of PAIA approximately 90 days.
On the basis of statistics one can realistically project that the majority of the matters on application will not have a final determination at the end of the 45 days. Statistics supporting this argument have made the headlines and captured the attention of the media frequently. Some reports indicate that the backlog in the courts total almost 56000 cases.1 The Cape High Court, for instance, has a backlog of approximately two and a half years before cases are heard.2
The Projections for the magistracy must be significantly higher than those of our high courts, when one considers the volumes these courts process daily and the known challenges to our clogged systems at present.
Other issues which raise concern in the Rules are as follows:

  • The eight kilometre rule for service. This rule has serious implications for rural communities, vulnerable groups, and those without the means to cite the mandatory eight kilometre address provision.
  • The Ex Parte application time frame of 5 days is unduly lengthy and does not adequately address the situation where applications need to be brought in terms of public interest clauses of PAIA (s46 of PAIA).
  • Further objections are levied against subsection 80(3)(c), particularly where a court is seized with a matter engaging s30. This provision has negative implications for the competing rights to freedom of expression and public interest.

In a nutshell, although the Human Rights Commission welcomes and appreciates the steps taken by the Rules Board, there are still problematic and worrying provisions in the rules of procedure which need to be taken into consideration. The rules board has overlooked the practical realities encountered everyday by ordinary South Africans when going to courts.
In light of the statistical information evidencing backlogs and challenges for ordinary South Africans in seeking traditional forms of redress through the courts, the Commission urges the Committee to seriously consider the necessity for an Information Commissioner, reserving the courts as mechanisms of last resort.
Yours faithfully
ADV T Thipanyane: CEO – South African Human rights Commission