Volume: Volume 22 - 2018
Article type: Refereed article
Author/s: Klaaren, Jonathan
Transparency and opacity are mutually supported and nurtured within a constitutional democracy. From such a perspective, the decision of the Constitutional Court of South Africa in the My Vote Counts case represents one interpretation of constitutional authority to enforce the right of access to information. The case is a lost opportunity to begin a respectful dialogue between the judiciary and the legislature over the shape and content of information security and disclosure laws. The right of access to information is best read in its original context with a Schedule item of the interim Constitution to provide for a once-off duty to pass information disclosure legislation of some type, and thereafter to continuously signal the degree of deference due to Parliament by the judiciary in reviewing Parliament's legislative choices in enforcing the right of access to information. In this view, with regard to the right of access to information and the right to just administrative action, the judiciary owes Parliament a degree of deference with regard to its legislative choices especially on the matter of appropriate institutional design (the enforcement mechanism) to give effect to the rights. Instead, the My Vote Counts majority too quickly adopted an interpretation mandating the passage and maintenance of a field-covering and exclusive piece of national legislation in order to give effect to the right of access to information, understandably reasoning from existing administrative law jurisprudence. While such a choice may be appropriate with respect to the mandated exclusive judicial review mechanism in administrative law in part for reasons of constitutional structure, such a choice would not be appropriate in the field of access to information where Parliament has made a different choice. It does not make good institutional and pragmatic sense that disclosure of information occur only through a request for information made in terms of the national access to information legislation; and the Constitution mandates no structure such as the courts to underpin such a rule. In conclusion, two other avenues of enforcement of the right of access to information horizontal application and provincial enforcement through legislation are explored.
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