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

Article by Gabriella Razzano a Legal Researcher at the Open Democracy Advice Centre.

Today 22 November 2011 marks “Black Tuesday”, as the Protection of State Information Bill is put to vote before the National Assembly. The intentions of the ruling party have been clear: all ANC MP’s have been summoned to appear in Parliament and will be voting in favour of the Bill. Any possibility that the Bill will not be passed in its current form has essentially dissipated.

The South African government is one of the founding members of the Open Government Partnership, as of 20 September 2011. President Zuma in his address celebrating the Partnership stated: “The South African Government is therefore unambiguously committed to espousing the principles of open governance”. The position is a simple one – however the drafters of the Bill chose to defend the Bill, it is clear that it does not maximise open governance as much as it could. The SA government’s position is thus clearly ambiguous. As the Declaration itself states “…open government is a process that requires ongoing and sustained commitment”.

Our government’s obligations did not end when the Protected Disclosures Act and the Promotion of Access to Information Act were passed. In fact, as ODAC has repeatedly stated, the attempt to rely on these Acts to forward the Bill in its current form ignores our sustained feedback that these open government laws have been poorly implemented and have several unassailable shortcomings that cannot serve as adequate protections against the potential abuse of the Bill once it is passed into law.

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Article first appeared on the Diamond Fields Advertiser by Sandi Kwon Hoo

The Open Democracy Advice Centre (ODAC) has encouraged whistleblowers to expose corruption in the workplace, despite there being gaps in legislation protecting those who expose wrongful acts. An anti-corruption workshop was held for Cosatu and its affiliates at the Protea Hotel yesterday (7 November 2011) to inform union members of unfair labour practices that could affect whistle-blowers such as dismissals, intimidation and harassment.

ODAC facilitator, Ghalib Galant, said Cosatu, as the largest labour federation, had taken a strong stance against corruption and would be launching its corruption watchdog this month. He said that disclosures made under the Labour Relations Act, protected whistle-blowers if something “untoward” happened to them.

Galant explained that whistleblowers had grounds to seek relief from the Chamber of Conciliation, Mediation and Arbitration (CCMA) and the Labour Court in the event that they were dismissed. He indicated that an unfair dismissal included a forced transfer to another department, demotions, refusal of a promotion or reference letters. “If the employee continues to be harassed in the workplace after reporting a crime, it is up to the employer to take up the matter.” He added that the Act covered sexual harassment in the workplace, unfair gender discrimination, and unfair promotions. “It applies to the reporting of criminal activities in government, the private sector and NGOs as well as the flouting of health, safety and environmental regulations.” Galant advised whistle-blowers to report any criminal behaviour to their lawyer, employer, local MEC, cabinet minister, Office of the Public Protector, the Auditor-General, or any regulating authority “If all else fails, whistle-blowers are protected if they disclose this information to the media.” He said that the ODAC could also assist.

“We encourage people to take responsibility and to expose acts of corruption and hold officials accountable so that there is less of a chance that it will fester.”

 A three-metre high whistle launched National Whistleblowing Week, an initiative of the Open Democracy Advice Centre (ODAC). The week was launched today (17 October 2011) in Church Square, Cape Town at 12 noon.

Members of the public will add their voice to the campaign by taking a whistle from the public art installation, which was designed by street artist Mak1One. Whistleblowing Week will be concluded with a more serious roundtable discussion on 20 October 2011 at Wits University in Johannesburg.

Focusing on the Secrecy Bill and its impact on whistleblowing, the panel for this event, will include the Public Protector, Advocate Thuli Madonsela, former high profile whistleblower Mike Tshishonga and Executive Director of ODAC Alison Tilley.

The main aim of the week is to create a platform to educate South Africans on how to blow the whistle safely through the correct legislative procedures. “Corruption and fraud costs South Africans in excess of R1 billion each year. It is eating at the very fabric of our society,” says Tilley.

“With uncertainty over the proposed secrecy bill and the impact this will have on access to information, the current legislation protecting whistleblowers is under an enormous threat,” says Tilley. “National Whistleblowing Week could not have come at a better time in South Africa.”

END