As part of our preparation and efforts to assist the South African government in the fulfilment of their OGP commitments, ODAC has undertaken multi-stakeholder engagement with civil society members and groupings focussing on transparency. These consultations have resulted in an overview of the current transparency environment in South Africa entitled: “TRANSPARENCY IN SOUTH AFRICA: A civil society review to facilitate South Africa’s Open Government Partnership Interventions”.
You can download this document from the newly established South African civil society OGP monitoring website, here.

For ODAC, this document and the website serve as the fundamental starting points for our continued engagement in the Open Government Partnership. Our Director, Alison Tilley, has just completed offering her exceptional expertise in transparency at the OGP conference (Brasilia), to assist in the monitoring of South Africa’s OGP commitments. We anticipate that this will be an exceptionally important forum moving forward for furthering open government in South Africa, while providing accountability and guidance.

ODAC would like to announce the release of the latest survey of public opinion in regard to whistleblowing for 2011, as prepared for by Ipsos Markinor. ODAC has been commissioning this annual survey since 2006 to monitor the public perceptions of whistleblowers and access to information, in order to properly inform our evidence-based advocacy.

Our Ipsos Markinor survey results for 2011 show that there has been a significant change in statistics from previous years in regard to whether South Africans believe whistleblowers should be protected – the former figure in 2010 of 69.6% has jumped to a convincing 87.5% in 2011 of those who believe that whistleblowers should be protected. Further, almost 20% of those polled stated they have blown the whistle themselves which is a positive reflection on citizens taking the civic responsibilities seriously.

Gabriella Razzano, the researcher at ODAC, said: “Although we are encouraged in this change of attitude in South Africans, the truth is that current laws aren’t enough to protect whistle-blowers locally. Citizens themselves note that these protections are not enough and this is an obvious conclusion when read alongside the startling figure that states that, between public and private sector corruption, South Africans lose in excess of R100 billion annually. This figure is more than the South African government was able to contribute to social grants in total for 2011.”

The results are all the more pertinent given the increasingly dangerous physical environment in which whistleblowers have to negotiate in South Africa. Currently under wya, for example, is the murder trial of the whistleblower Moss Phakoe in the North West High Court (it is believed he was assassinated by former executive mayor Matthew Wolmarans and associates for blowing the whistle on corruption in Rustenburg). With the risks being so high, it unsurprising that only 29.9% of respondents believe that the Protected Disclosures Act adequately protects whistle-blowers - it offers, after all, nothing more than labour protections were it is literally the lives of whistle-blowers that require preservation.

The results are clear. South Africans believe that whistle-blowers are an essential part of the South African societal fabric. In a country where it is believed a quarter of state expenditure is lost through overpayment and corruption, access to information and the protection of whistle-blowers are essential democratic tools for improving transparency. ODAC calls on the government to use 2012 as the year to reform and improve on protections for whistle-blowers, or risk losing legitimacy in the eyes of its citizens.

• The State of Whistleblowing: 2011

ODAC continues to engage government on the Protection of State Information Bill. Since the revised Bill was first reintroduced in Parliament in 2010, ODAC has sought to study the Bill in detail, as well as offer constructive criticism and suggestions on its drafting. Whilst we acknowledge that there have been significant improvements on the Bill, thanks in a large part to active civil society engagement, the Bill is still deficient in several key ways:

• While the application of the Bill has been curtailed, the power of the Minister to opt-in agencies into its application should be more limited.
• A reverse onus is contained in the offence created in section 43.
• A public interest defense is necessary because, unusually, offences extend to the general public.
• The inadequacy of whistle-blower protections in cases of non-employees.
• Criminalising mere possession of state insecurity information contravenes international principles.
• The inclusion of economic, scientific and technological information is potentially problematic.
• The public cannot approach the Classification Review Panel for any reason and recourse in terms of the Bill lacks adequate independence and accessibility.
• The Bill does not adequately align with PAIA, either procedurally or substantively.
• The burden on the National Archives is too heavy.

ODAC would encourage those looking at the latest draft of the Bill to try and engage in particular with subsection 1 (5) and its potential negative impact on the Promotion of Access to Information Act 2 of 2000. The final version of the Bill, as it now stands, is accessible here.

At the invitation of the National Council of Provinces, ODAC have made a submission on the continued concerns in regard to the Bill.

• ODACs Submission on the Protection of State Information Bill (in the National Council of Provinces)

As per Government Notice No. 34914, the Department of Justice has extended an exemption which means that, generally, a company will not be required to submit an information manual in terms of section 51 of PAIA (including, according to the SAHRC, non-governmental organisations).

However, if a private entity is not a private company as defined in section 1 of the Companies Act, 2008 or operating in a certain sector with over 50 members/with a specified turnover, such an entity will have to submit their manual. To see what types of private entities the exemption has not be granted to, you can review the Government Notice here: GN 3419.

The delay in the publication of this extension, and the uncertainty which persists for many private entities in relation to PAIA, has meant that ODAC will be developing a web page for information officers of both public and private bodies to provide them with a centralised source of information on how they can ensure PAIA compliance in their organisations. The page is aptly called “Information Officers” and will be under continuing development over the next few months.

The Open Democracy Advice Centre today raised further concerns in relation to the statement put out by Cabinet on Thursday of last week (24 November 2011) dealing with the assessment of the judicial system.

“We note with concern that the cabinet wish to assess that the judiciary conforms to the transformation mandate as envisaged in the Constitution. Cabinet misconceives its role in this matter – in terms of the separation of powers, Cabinet and the Executive can only assess whether they, the executive, have complied with the rulings of the Court. The court interprets the transformational role of the constitution, and the executive implements that interpretation in the way it sees fit.” said Alison Tilley, Executive Director of ODAC. 

“We call on cabinet to reconsider this assessment, and ensure that its terms are constitutional. If they are not, then the executive is acting ultra vires, or beyond its lawful powers.”

Cabinet announced its intention to assess the transformation in the judicial system last week. A range of civil society organizations have cautioned that such an assessment would breach the principle of separation of powers, and should approached with great caution. 

ODAC Communication