Press Release: Constitutional Court's PAIA judgement in Brummer vs Minister of Social Development

The constitutional court today ruled in favour of Stefaans Brummer in the matter of Brummer v Department of Social Development. The court ordered that the 30 day limit, in which an applicant has to go to court to enforce their rights in terms of the Access to Information Act, is unconstitutional. Brummer applied outside of the 30 day period for records relating to the previous Minister of Social Development, Zola Skweyiya. The hearing involving the actual release of the records has been referred back to the High Court in the Western Cape for decision.

“We are extremely pleased with this decision. A major  bar to accessing records in terms of the Act has been removed by the court. We are disappointed that this matter has had to go to litigation – it is an expensive , time consuming remedy, and not open to most of the public in South Africa.” said Tilley, the CEO of the Open Democracy Advice Centre, Brummer’s attorney.

Alison Tilley
Open Democracy Advice Centre
Tel.No.: (021) 461 3096

Rhetoric vs reality: new democracies turn to ODAC

The Council of Europe has drawn up a draft resolution on whistleblower protection but there is still engrained distrust of ‘informers’ and huge disparities in law and practice across member states

WHEN 35 whistleblowing partners met in Prague this month to exchange perspectives and draw up draft best practice principles for a whistleblower protection policy in Europe, one thing became apparent. ODAC was the only ‘expert’ invited to participate from a new democracy.

Others were from high-profile organizations including the British charity Public Concern at Work, the American Government Accountability Project, the Council of Europe and the European Federation of Journalists.  [i]

While the United Kingdom is the model in this field of legislation as far as the Council of Europe is concerned, it was interesting to see that the author of the explanatory memorandum to the Parliamentary Assembly , Pieter, Omtzigt, began his paper with a quote from Richard Calland and Guy Dehn’s book Whistleblowing Around the World: Law Culture and Practice published by IDASA in 2004.

“Only if the good intentions of any law are matched by a change in culture can a safe alternative to silence be created,” the memorandum stated at the top – an indicator that ODAC is clearly punching above its weight.

The Committee on Legal Affairs and Human Rights in the Council of Europe believes that Europe still has much to learn from the United States, which was the first to legislate in this field, but it is to South Africa –the first country to adopt the UK model – that the TI chapters with less developed legislation seemed to turn during the two-day event seeing parallels and asking advice.

South Africa’s experience in implementing the British model is more relevant than ever to those countries drafting specific national laws. These countries, according to the Council of Europe’s expert, are Germany, Slovenia, Switzerland and Lithuania. It is of note that after the roundtable, Lithuania emailed its draft law to ODAC requesting feedback.

South Africa can take heart from the fact that there are also many countries in Europe with no specific legislation but varying degrees of protection in different laws. These are a mixture of old and new democracies, including: Austria, Bulgaria, Croatia, Cyprus, Estonia, Greece, Hungary, Italy, Moldova, Poland, Serbia, Slovakia, Sweden.

As Segejus Murajov, the TI partner director in Lithuania, said cynically ‘’there is no such thing as anonymous whisblowers’’.  Whistleblowing is a dangerous game in central Europe.

In the ensuing discussions between TI partners and roundtable experts on draft principles for whistleblower protection, it became apparent that South Africa was a good model for closing the gap between rhetoric and reality in the new democracies.

While South African had followed the UK model in drafting its law, implementation of the Protected Disclosures Act’s was far more relevant to emerging democracies seeking to develop a framework for protection and there were lessons to be learnt.

Cultural barriers where whistleblowers were seen as informers chimed with South Africans’ preconceptions of impimpis as did issues of capacity.

At least South Africa has good legislation in place and those found guilty of wrongdoing do not generally have direct links to the Mafia. South Africa has ‘disorganized’ corruption rather than the more ‘organised’ variety found in Italy, Latvia, Slovakia and Lithuania.

The case for South African ‘exceptionalism’ began to melt away although the political legacies of apartheid have to be mentioned from time to time for our young partners in central Europe to understand the reality and context of law in South Africa.

Even project partners from Ireland expressed surprise at the commonalities they faced at corruption within government and public perceptions of whistleblowing. The conflict between Northen and Southern Ireland has eroded a lot of trust and the country remains more divided than people imagine.

The outcome of all these discussions was both a draft of best practice whistleblowing principles and the consolidation of an informal network of extremely clever and friendly people to call on for advice.

ODAC is now part of an informal international whistleblowing network that can issue joint press statements and the ideas and recommendations that came from Prague workshops will be of great value to its work. For example, the suggestion that guidelines be drafted for journalists to help whistleblowers and whistleblowers to help journalists is an inspiring one.

The fairytale-like setting was just the backdrop to a seminar that transcended contexts, assumptions and international boundaries and achieved results by finding commonalities between partners. As well as raising the international profile of ODAC, the best-practice draft principles agreed at the conference and informal network will provide a legacy. The minutes of the “Prague principles” will be reflected in future EU memoranda on convergence and policy directives.

New judgement for ODAC

Brummer v Department of Social Development. 

 In this judgment the court has considered the question of how long an applicant has to approach a court, after an application for access to information has been refused.

 In this case, a journalist asked the Department of Social Development for records that relate to a disputed tender process. The Court finds that the applicant should, in terms of the Promotion of Access to Information Act, have “come to court” within 30 days of being refused the information by the Department of Social Development.  This means the applicant should have served his application on the respondent within that period.

 The Court finds that the applicant did not do so, and did not provide a satisfactory explanation for the delay.  However, he suggests that the delay is not fatal, if the prospects for success on the application are reasonable.

 However, the Court then finds that the integrity of the judicial process may be compromised if a record, which a party to litigation intends to use in the litigation, is made available to the journalist before the trial is finalised. The Court says such disclosure “might create a huge risk of prejudice.” If there are reasonable grounds to think that prejudice might result then access should not be granted. The Court finds that such reasonable grounds exist, and that therefore the prospects of success of the application are not reasonable. The Court therefore does not condone the journalist’s serving his application on the respondent after the 30 days is up.

 However, the judge then proceeds to find the 30 day limit in and of itself unconstitutional. This finding of unconstitutionality is referred to the Constitutional Court for confirmation.

At that hearing, it will also be possible to lodge an appeal against the decision of the court as to whether or not condonation should be granted, or is required, given that the provision setting out the limitation on which condonation is based is unconstitutional.

South African Constitutional Court's forthcoming hearing on the Promotion of Access to Information Act

Biowatch finally makes it to the Constitutional Court
10 February 2009

On 17 February, Biowatch will appeal the costs order earlier granted against it by the Pretoria High Court at the Constitutional Court. This should be the final chapter in a long-standing legal battle over gaining access to information pertaining to the status of genetically modified crops in South Africa.

The legal battle began in 2002 when Biowatch served court papers on the Minister of Agriculture and others, demanding access to information as guaranteed by the National Environmental Management Act, the Genetically Modified Organisms Act, the Promotion of Access to Information Act and the Constitution.

The case was heard in 2004 in the Pretoria High Court and in February 2005, acting Judge Dunn ordered that Biowatch be given access to eight of the eleven categories of information listed in its request. He said that Biowatch had a constitutional right to the information requested, that access to the information was in the public interest and that Biowatch had been forced to approach the court for access to the information.

However, the Judge ordered that Biowatch pay the costs of Monsanto, a large supplier of seeds for genetically modified crops and agri-chemicals, which joined the court proceedings to oppose the application of Biowatch on the basis of confidentiality.

This was a devastating blow for Biowatch, which, as a small non-profit organisation cannot afford to pay the legal costs that were awarded to Monsanto. Apart from being contrary to customary practice (which is to award costs to the successful party and against the unsuccessful party), there was concern that the costs order would set a dangerous precedent, which might discourage litigation in the public interest by environmental watchdogs such as Biowatch.

At this stage the Constitutional Litigation Unit of the Legal Resources Centre (LRC) stepped in to represent Biowatch in an appeal against the costs order before a full bench of the Pretoria High Court. The majority judgement (Judge Mynhardt and Judge Molopo-Sethosa), handed down in November 2007, dismissed the appeal and ordered Biowatch to pay the additional costs to the appeal, a further devastating blow to Biowatch.

However Judge Poswa handed down a comprehensive minority judgment in May 2008, recommending that the costs orders against Biowatch be overturned. This judgment provided a basis for further appeal.

In September 2008, the Supreme Court of Appeal dismissed Biowatch’s application for leave to appeal against the high court order with costs.

In the Constitutional Court, Biowatch and the LRC will be joined by three other non-profit organisations: the Centre for Child Law at the University of Pretoria, Lawyers for Human Rights and the Centre for Applied Legal Studies, who have an interest in the outcome of the appeal. They have joined in the proceedings as friends of the court.

Achmed Mayet of the LRC said that the issue of costs in public interest litigation was an important constitutional principle. ‘It impacts on the constitutional rights of access to the courts, the environment and access to information, and if allowed to stand the court order of the court a quo will have a chilling effect on public interest litigation.

Rose Williams, of Biowatch said: ‘What started in 2000 as a seemingly simple request for information from the Department of Agriculture about the status of genetically modified crops, has resulted in a lengthy legal process with Biowatch fighting for its survival. This case is not only important for those acting in the interests of the environment, but for all other public interest bodies.’

For information on this case please go to  http://www.biowatch.org.za/main.asp?include=docs/courtcase.html 

Rules for Magistrates Courts will extend PAIA jurisdiction to the Magistrates Courts

Further extension on PAIA rules

Judicial MaJudicial Matters Amendment Bill [B48 - 2008]

 Re: Amendment of the Promotion of Access to Information Act  

From 2001 to 2008 disputes around PAIA have only been resolved in High Court. This primarily because there are no rules dealing with PAIA in the Magistrates Court. Thus a cheaper route for litigants has been closed ever since the introduction of the Act. Originally, the Rules board were supposed to make rules 12 months after coming into operation of the Act, which would have been 9 March 2002. An amendment in Judicial Matters Second Amendment Act 55 of 2003 gave the Rules Board an extension, and said that these rules must be made by 31 March 2005.   Now there is an amendment to allow the Rules Board another extension. This will mean that it will have taken seven and a half years after the commencement of the section to make rules.   

"27. Section 79 of the Promotion of Access to Information Act, 2000, is hereby amended by the substitution for the words preceding paragraph (a) of subsection (1) of the following words:   ‘‘The Rules Board for Courts of Law, established by section 2 of the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985), must [within four years after the commencement of this section], before 31 December 2008, subject to the approval of the Minister, make rules of procedure for—’’."

The Rules Board in fact advises that they made the PAIA rules in 2005. They were sent to the Minister for her approval and tabling in parliament on 28 April 2005. The rules were sent back to the Board with queries by Departmental officials on a number of occasions. In June 2006, the Minister approved the rules and tabled them in parliament on 23 June 2006. The rules were withdrawn on 24 June 2006 to allow the Minister more time to consider them. On 6 February 2007, the Rules Board met the Minister and Deputy Minister to discuss the reasons for the withdrawal of the rules, amongst other matters. The Rules Board met with Departmental representatives on 13 April 2007 to discuss the objections to the rules. The Rules Board set up a committee to consider the Department's objections. The committee met on 5 July 2007 and 25 August 2007 to redraft the rule. On 13 September the final rule was sent to the Minister. The resultant PAIA rules were approved by the Minister in February 2008 and tabled in parliament on 19 February 2008. We urge the Committee to end this farce, and not extend the deadline for passing the rules, but simply address the content of the Rules, which have been tabled.

Open Democracy Advice Centre2008  

Submission on the Companies Bill (B61-2008)

SUBMISSION IN RESPECT OF COMPANIES BILL By Open Democracy Advice Centre, an NGO6 Spin Street, Cape TownPh.021x4613096Contact person Lorraine Martinlorraine@opendemocracy.org.za 

This submission pertains to the whistleblowing provisions of the Companies Bill as found in S159.

RE : S159 (3) (a)

It is welcomed that there is a long list of people and organizations that can receive the disclosure.  It would be good to also include trade unions and professional bodies.  For ordinary individuals some of the individuals and organizations mentioned may seem too remote.  The inclusion of  trade unions and professional bodies would serve the purpose of creating the potential for disclosure to bodies which are a step removed from the company.  They are also most likely to be informed about the contravention by their members.  We would like to see the inclusion of trade unions and professional associations in this section given the range of potential whistleblowers concerned.

RE:S159(3)(b)

The words “reasonably believed” should be replaced by “reasonable grounds to suspect”.  The test of reasonable grounds to suspect is less arduous than reasonably believed.  The “reasonable belief” sets the threshold for protection too high.  The term “reasonable grounds to suspect” has enjoyed considerable attention by our courts.  In R v Van Heerden  1958 (3) SA 150 (T) at 152 E, Galgut AJ as he then was, stated that : “these words must be interpreted objectively and the grounds of suspicion must be those which would induce a reasonable man to have suspicion.”

The “reasonable suspicion test” provides more protection for the whistleblower than the requirement of a “belief” reasonably held.  A reasonable suspicion never involves certainty as to the truth.  From its very nature a reasonable suspicion cannot result in a definite and unequivocal state of mind which excludes any other possible answer.  Since suspicion is based on conjecture it can never point unerringly and exclusively in a particular direction only (See S. v Ganyu 1977 (4) SA 810 (RA) at 813 C – E).  The test therefore militates towards encouragement of disclosure of concerns and supports the notion of creating a culture of openness.

RE : S159(4)

Considering a trade union to be a primary whistleblower may complicate issues of confidentiality.  

IDENTITY PROTECTION

The Bill should provide identity protection to whistleblowers. Although S159 (7)(a) does include the word “confidentially the Bill should include a clause which states that the recipient of the disclosure should not reveal the identity of the whistleblower without his/her written permission.

INJUNCTION ORDERS

The courts should be able to give interdictory relief it they are satisfied that a person has taken or intends to take detrimental action against a person in reprisal for having made a protected disclosure.

Call for Golden Key Award Nominations

OPENNESS & RESPONSIVENESS AWARDS

"GOLDEN KEY AWARDS 2008"

The South African Human Rights Commission (SAHRC) in partnership with the Open Democracy Advice Centre (ODAC) are calling for nominations for the 2008 Openness & Responsiveness Awards, known as the "Golden Key Awards". Nominations are open to the media, government, business structures, civil society formations and the public. Anyone can make a nomination. Members of the public, NGOs and government officials are encouraged to nominate any government department (including their own) as well as individuals for the Awards.

These awards aim to recognize public institutions as well as individuals that have done exemplary work in promoting openness in the public sectors. These are institutions/individuals that have nurtured positive sentiment towards transparency and have set up enabling organizational systems & procedures that promote proper compliance with the provisions of the Promotion of Access to Information Act. The organizations and individuals honoured with these awards would have shown conscious respect of the national aspiration for an open, transparent and people-centred democracy as embodied in Section 32 & 33 of the Constitution, the Promotion of Access to Information Act and Principles 5 & 6 of Batho Pele.

WHO CAN BE NOMINATED?

· All public institutions in the national, provincial and local government spheres

· Parastatals, statutory bodies and all courts

· Deputy Information Officers designated as such in terms of the Promotion of Access to Information Act (PAIA)

· Journalists who have engaged with the PAIA

· Organisations and individuals who have used and promoted the use of PAIA

HOW CAN YOU MAKE THE NOMINATION?

· A nomination form will be made available on request. Please call 0800 52 53 52 or 021 467 3096 for a copy of the form and for further information

· Nominations can be faxed to (021) 461 3021 or e-mailed to Awards@opendemocracy.org.za

CATEGORIES OF AWARDS

Catergory 1: Golden Key Award (Public Institution) – for promotion access to information and full implementation through crafting of enabling policies and organizational procedures. (Awards included a trophy & a certificate)

Category 2: Golden Key Award for a Deputy Information Officer that has performed well in execution of his/her duties in terms of PAIA. (Award includes a trophy, Certificate and a R10 000 cash prize) 

Category 3: Golden Key Award for an organization/a member of the public that has championed the Right to Know through effective use of PAIA. (Award includes a trophy, Certificate and a R10 000 cash prize for an individual requestor)

Category 4: Golden Key Award for a journalist that has engaged with PAIA either by covering the developments on the Act itself and its usage, or by using it for investigative purposes. (Award includes a trophy, Certificate and a R15 000 cash prize)

CLOSING DATE FOR NOMINATIONS

29 August 2008

Resolutions of the third National Anti-Corruption Summit

 We are very pleased to send you the Resolutions of the third National Anti-Corruption Summit, 5 August 2008, and draw you attention to C3: the reform of whistleblowing law, and A2, dealing with transparency in party funding. 

The third National Anti-Corruption Summit, hosted by the National Anti-Corruption Forum (NACF) from Monday, 4 August 2008 to Tuesday, 5 August 2008 in Ekurhuleni, adopted the resolutions below:

We the delegates drawn from various sectors of South African society attending the third National Anti-Corruption Summit at Birchwood, Ekurhuleni on 4 and 5 August 2008;

Building on the outcomes of the two previous National Anti-corruption Summits;

Cognisant of the central role of strong leadership in the fight against corruption;

Affirm fundamental significance of a National Integrity System in the fight against corruption in South Africa;

Respect our Constitutional values and institutional arrangements as the basis of the South African National Integrity System;

Recognise that South Africa has acceded to the United Nations (UN), African Union (AU), Southern African Development Community (SADC) and Organisation for Economic Co-operation and Development (OECD) international legal instruments on anti-corruption;

Recognise the progress made in the first 15 years of democracy and freedom towards a comprehensive national anti-corruption programme;

Noting that corruption undermines the democratic ethos and principles of our Constitution while eroding the social contract between citizens and the state;

Reaffirm the importance of inter-sectoral collaboration in the spirit of ubuntu;

Condemn the practice of price fixing and related issues;

Recognise the centrality of education in laying the foundation for an ethical society and success in combating corruption and the critical need for society to support education;

Call for the values of the National Integrity System to permeate the structures, practices and principles of the state, business and civil society sectors; and

Recommit ourselves at an individual level and call on all others to commit themselves to the process of moral regeneration and adherence to a value system of ethical conduct.

We therefore resolve as follows:

A. Ethical practices in social and economic life

1. That the National Anti-Corruption Forum (NACF) establishes a task team to urgently consolidate and articulate the National Integrity System.
2. To call on political parties and parliament to expedite the regulation of transparency in party political funding and to consider a sanctions mechanism.
3. To urge political parties in all three spheres of government to disclose their business interests.
4. To continue to strengthen monitoring and accountability mechanisms with respect to all tender processes in the public sector.
5. To support the swift regulation of post public sector employment for all elected and appointed public officials and its implementation.
6. To strengthen the current system of disclosure of interests for all elected and appointed public officials.
7. To develop systems of disclosure of interests for business and civil society. 
8. To support legislative and other measures to ensure that companies found guilty of offences of price fixing, market allocation and collusive tendering are prohibited from state tenders for a determined period.
9. To strengthen the enforcement provisions of the Competition Act including holding individuals accountable for price fixing, market allocation and collusive tendering.
10. To urge the business community to investigate self-regulating mechanisms to improve ethical conduct in practice.
11. To reaffirm that ethics must be infused in all aspects of the education system including the curriculum at all levels.
12. To reaffirm that schools of Business and Public Management must provide courses on professional ethics and anti-corruption. 
13. To call for the strengthening of the institutional capacity of the private sector to detect and prevent corruption. 
14. To complete the implementation of continental and international anti-corruption legal instruments and promote the enforcement thereof in national law.

B. Strengthening accountability, co-ordination and oversight

1. To strengthen anti-corruption bodies and improve coordination among them. 
2. That all allegations of corruption must be investigated and prosecuted without fear or favour, in accordance with past and present anti-corruption legislation. 
3. To reaffirm that sectors and professional bodies must adopt sector and profession specific codes of conduct and/or ethics as well as a training and communications regimes to support their application.
4. That the private sector must mainstream anti-corruption practices and report on them in annual reports in an accessible and transparent manner.
5. To promote national anti-corruption values and interests continentally and internationally.
6. To call for improved financial accountability and transparency of civil society organisations.
7. To strengthen the powers of oversight bodies for the business sector and promote co-ordination of their activities.
8. To promote the National Anti-Corruption Hotline and support the further development of capacity to respond to reported corruption.

C. Access to services through participatory governance

1. That all state entities improve service delivery through inter alia eliminating corrupt practices, encouraging whistleblowing and complying with the National Integrity System. 
2. That services are offered to all citizens equitably and fairly. 
3. That the NACF supports the urgent finalisation of the review of the Protected Disclosures Act and initiates a national conversation on building a culture of whistleblowing.
4. That participatory governance must be promoted to ensure that corruption and the abuse of power are addressed at the site of service delivery. 
5. To implement effective anti-corruption communication and awareness programmes at community level, within the business sector and across civil society.
6. That public officials in all spheres of government must be trained in ethics, conflict of interest principles, constitutional and administrative law and the principles of Batho Pele.

D. National Anti-Corruption Forum

1. That all three sectors must fully commit and take ownership of the NACF and the chair must rotate. 
2. To strengthen the NACF and undertake a review of institutional arrangements including the role of leadership, composition, expanded participation and whether or not the NACF should become a statutory body.
3. To call on universities and professional bodies to expand their participation in the NACF.
4. That the NACF promotes dialogue within the sectors.
 
For more information, contact:
Professor Richard Levin
Cell: 083 320 4129 (Government)

Alison Tilley
Cell: 083 258 2209 (Civil Society)

Vic Van Vuuren
Cell: 082 882 1759 (Business)

Issued by: Department of Public Service and Administration on behalf of Government, Business and Civil Society 
5 August 2008

Protection of Information Intelligence Committee Submission 2008

The Draft Protection of Information Bill has provoked debate in both the media and civil society.

ODAC has responded to the invitation of the Committee and compiled a detailed analysis of the Bill as currently worded, highlighting its successes, limitations and conflicts with the existing access to information regime. 

New draft official secrets bill described as ’incoherent’

Access to information activists the Open Democracy Advice Centre (Odac) has described SA’s new draft official secrets legislation as incoherent and likely to cause even more confusion in dealing with classified information from the state.

The Protection of Information Bill, tabled in Parliament earlier this month, will create four categories of information: valuable, sensitive, commercial and personal. The first category has to be preserved and the last three must be protected from disclosure. Once information is declared sensitive then it can be classified as confidential, secret and top secret.

If the bill is approved in its present form it will be a crime punishable by a prison term of up to five years to have possession of, or disclose, classified information. It has been suggested that a public interest defence against prosecution be introduced to protect bona fide investigations into state illegality.

Odac CEO Alison Tilley said last week that for the bill to pass muster with the constitution it could only put in place measures to limit the access to information “to the extent that is reasonable and justifiable in an open and democratic society”.

“The bill is an important step in bringing the practice around information in line with the constitution. We have made submissions that unfortunately the draft bill in front of Parliament does not meet the standard of creating limits on access to information that are reasonable and justifiable in an open and democratic society.

“The bill sets up a parallel, incoherent regime for refusing access to information, in addition to the Promotion of Access to Information Act, and for classifying such documents that are refused. The provisions in the bill which attempt to harmonise the legislation cause more confusion, rather than solving the problem,” Tilley said.

Rather than having two laws competing with one another — the Protection of Information Act and the Promotion of Access to Information Act — it would be better to harmonise the two pieces of law, she said. This would mean that information that was exempt from disclosure in the promotion of access act would then become subject to the system of classification.

Wyndham Hartley
Business Day

ACCESS TO INFORMATION - A COSTLY EXERCISE

GAINING ACCESS TO STATE INFORMATION REMAINS DIFFICULT, LENGTHY AND COSTLY - GOVERNMENT MOVES TO KEEP ITS DOCUMENTS SECRET AREN'T WORKING . OF TEN REQUESTS FOR INFORMATION THE GOVERNMENT HAS CHALLENGED IN COURT UNDER THE ACCESS TO INFORMATION ACT , IT HAS LOST EVERY ONE.

ODAC's investigation into housing 'lists' continues: City denies housing list a fairytale

ODAC's investigation into housing 'lists' continues: City denies housing list a fairytale 

 ODAC, in its housing campaign, continues to work towards transparency around the allocation of resources. In this exchange, originally published in the Cape Times, we argue that the 'housing list' is in fact not how houses are allocated, and that it is purely a database. The Manager of Housing for the City replies.

Government's 'housing list' only mythical 

    March 11 2008 at 03:16PM 
 
The people evicted from Delft are the last in a long line of communities to fall victim to the confused and untransparent process by which houses are allocated. Many of those evicted claimed to have been on the "housing list" of the council for many years.

Tension is now rising because they claim people who have been on the "list" for a shorter time have received housing, and they have not. This mythical "housing list" is at the centre of many beliefs and opinions, strongest of which is that if you are on the list you will get a house, and you will get that house in the order in which you, and others, appear on the "list."

This is a convenient fairytale, and very far from the truth. As an NGO involved in getting information for people about housing, the Open Democracy Advice Centre says that there is no "housing list", as people understand the term. So what actually happens around the allocation of housing in Cape Town?

We understand the process as follows. First, you can register for a house through the municipality. If you meet the criteria, you will be put on a database of people who want housing. If there is a project, like the Delft one, you then get moved from the database to the list of individuals who will receive houses. This is done by the allocations committee, headed by the City of Cape Town.

Also represented on that committee are national government, and provincial government. Thubelisha Homes is the project manager and they get the list of individuals who are going to be given houses.

If you are registered in this way, you are generally not consulted during the process.

You can also form a group of people who qualify for homes, as part of the People's Housing Process. You then go to Thubelisha, and ask that they develop a particular area. They will then liaise with local government, and the province, and screen the applicants.

So, let us assume there is money for 250 houses in a particular area. If your People's Housing Process committee goes to Thubelisha, and negotiates with them, and Thubelisha has land available that is appropriate for housing, they will then put the 250 people who qualify on this "list" of that project. That is when you are on the list. Then you really can expect a house. That budget will then be exhausted, and only replenished in a new financial year.

If you are merely registered, it does not mean you are on the list. You only make the transition to a list for a particular project once you have been chosen by the allocation committee. They choose in terms of criteria, like 80 percent for a project from Joe Slovo and 20 percent from the backyards. Then you are on the "list". These criteria are not generally published.

The process is complicated by the role of councillors. They should be ensuring fair delivery from officials. In some cases, however, they take on the official's role, in that they say who must get on the list, and who not. They even suggest to people that they move to informal settlements, to get priority on a real list.

The complaint that there are people who have been in the Cape for less time than others, and get houses sooner, is therefore quite genuine.

The lack of transparency around who is chosen and why, is a cause of a great deal of the conflict on this issue. This conflict plays into racial tensions and xenophobia.

This story is not unique to the Western Cape. In eThekwini people will show you their "receipt" for their registration on the database for a house. They will tell you firmly that they are going to get a house. This receipt also does not mean that they qualify for a particular project. It can't, because different projects have different qualification criteria. It just means you are on the database. How long you have been on the database is not a criterion for getting a house.

We have seen real housing lists. They take an enormous amount of effort to get out of your average municipality. They have names, ID numbers and erf numbers on them. They relate to specific projects. Being on the database is not the equivalent of being on a list.

As housing delivery has advanced, the question of how to ensure fairness between individuals, especially in cities, has become more pressing. The history of the "list" in a city like Cape Town goes back well before the advent of democracy. The tale of the list has become almost oral tradition in some communities, and we have not seen a concerted effort to explain to these communities how housing is in fact dealt with.

It is also very difficult to say whether the housing allocation policy is fair in practice. This is not because we know that it is unfair, but because it is not transparent. It does seem reasonable to observe that priority in the allocation of housing has been given to those who are organised, and who complain effectively about their lack of housing, and who demand information about the process of delivering housing to them.

This should be the way forward for communities, who should be demanding information about where they stand in the process. These demands should be responded to quickly. People's frustrations should not be allowed to reach the point that they feel that they can only make their voices heard by breaking the law, putting themselves and their families at risk.

Tilley is CEO of the Open Democracy Advice Centre and Pietersen is its housing information fieldworker.

This article was originally published on page 9 of Cape Times on March 11, 2008 

City's housing list is not a figment of the imagination

March 14, 2008 Edition 1

While the headline "Government's 'housing list' only "mythical" (Cape Times, March 11) refers to all spheres of government, the City of Cape Town's "housing list" is no "fairytale" or figment of the imagination.

It is called the City of Cape Town's integrated housing database and contains approximately 300 000 registered applicants for housing opportunities.

While the city estimates that the total demand for housing is of the order of 400 000 houses, there are more than 100 000 people living in informal settlements who are not registered on the housing database but remain part of the city's total housing demand.

This integrated housing database contains the applicant's and spouse's personal details, identity numbers, marital status, current address and employment details, etc.

The term "housing database" must not be confused with project lists.

Project lists are area subsets of the housing database extracted according to predetermined selection criteria for a specific project. From this project list the beneficiaries are selected according to the national housing subsidy qualification criteria and in strict date order.

There are also final beneficiary lists generated by the provincial Housing Department's subsidy section when they approve beneficiaries for a specific housing subsidy project.

The term "registration" means that the person is registered on the city's housing database and each applicant has been issued with a registration number. This does not necessarily mean that they are on either a project list or final beneficiary list or even qualify for housing in terms of the national housing policy subsidy schemes.

The length of time applicants are on the housing database is partly dependent on the applicant's choice of where they wish to be accommodated. For example, if an applicant wants a house in a sought-after, built-up area such as Athlone, Grassy Park or the Bo-Kaap, it will take much longer for them to be accommodated.

In terms of the city's housing allocation policy adopted in 2004, no person, community organisation or councillor is permitted to be involved in submitting names for a project or removing names from a project or beneficiary list.

In terms of transparency: the city has a website where interested persons can enter their name and identity number, and the system will confirm whether they are on the housing database with their registration number and application date. The web address is www.capetown.gov.za/housinglookup

In November 2007 the city introduced a dedicated e-mail address, housingdb@ capetown.gov.za, which is directed to the housing database administrator to answer any housing database related queries. This facility has been well used.

Also in November 2007, the city introduced an SMS facility which enables contact to be made with applicants who do not have fixed addresses, but who do have cellphones, such as those applicants living in informal settlements.

The article, unfortunately, creates more heat than light by not clearly differentiating between city, provincial and national housing projects.

Litigation at ODAC - the Pollsmoor whistleblower case

Paul Theron is first and foremost a physician. Practising medicine for over thirty-three years, Dr. Theron has provided health care to countless patients from all sectors of society. From 1985 to 1999, Theron had a private practice in Wynberg, while fulfilling his duties as a part-time district surgeon for the Department of Health. For ten years, Theron served at Medium A, Pollsmoor Prison as a state employee; but in July 2007, Theron’s practice was suspended—he was no longer permitted to serve the Pollsmoor prisoners.

The Department of Health’s decision to suspend his employment followed Theron’s disclosure of the prison’s unsatisfactory healthcare system to governmental bodies. Thus, Paul Theron is also a whistleblower. He notified governmental bodies of Pollsmoor’s substandard healthcare system, and hence the danger to the health of the prison population. But thereafter, Theron faced "occupational detriment", which is how the Protected Disclosures Act describes harassment when you blow the whistle. In this newsletter we briefly recount Theron’s experience as a whistle blower, how it nearly robbed him of his professional identity, and how South Africa’s whistleblowing legislation can be used to protect whistleblowers against occupational detriment.

The healthcare crisis of Pollsmoor prison was the result of structural changes within South Africa’s healthcare system and the prison itself. In 1998, the Department of Health’s infrastructure altered: the Chief and full-time district surgeons were phased out; the new healthcare system placed a greater burden on part-time surgeons, such as Theron, while delivering less services to patients. Theron’s hours at Pollsmoor continued to climb, from 6 hours a week in 1997 to 5 hours a day—the maximum hours allotted to a part-time practitioner. Furthermore, in 1998, Medium A of Pollsmoor prison converted from an adult sentenced prison to a juvenile admission centre; such that, the numbers of Medium A inmates rose from 1500 to 2500, and continued to increase thereafter. Overcrowding, breakdown of facilities, and consequential poor sanitation—all risk factors for contagious disease. These conditions bred an unprecedented incidence of TB and an increasing prevalence of HIV and renal failure. The prisoner population had transformed from a stable population to a sick one, and the medical team could not keep up.

Theron blew the whistle on these unlivable conditions and the inadequacy of the health services in providing relief. In response to the media pressure generated by Theron’s disclosure Skosana, the former Minister of Correctional Services, ordered the formation of a “multi-disciplinary task team” to report on Medium A's conditions and solutions . Unfortunately, the task team was short-lived— running five months, from July 2000 to November 2000. At the outset, weekly reports were sent to the Minister, but the task team never received a response of any kind; and as a result, no reform was possible.

In January and April 2007,  respectively, Theron reported his concerns to the Inspecting Judge and the Portfolio Committee of Parliament. Following several failed attempts to address these concerns to Minister Skosana, Theron resigned from the task team, seeing no possible route for recourse.

Meanwhile, the influx of prisoners continued without medical screening or receiving adequate health care. Because no changes were implemented to address the findings of the task force— principally, the inadequacy of available medical resources—the prison conditions exacerbated. Most significantly, the issue of understaffing was not adequately handled.

On July 20th, approximately two months following the inspection of Pollsmoor’s health status by the inspecting judge and by Parliament, Theron’s practice was suspended at Pollsmoor by the Western Cape Department of Health. Subsequently, Theron was sued for defamation and a claim of R500000 was lodged against him by the Correctional Services Minister Ngconde Balfour, and was informed of a disciplinary hearing that would determine the future of his employment. The charge of defamation referred to a letter Theron wrote to the DCS, regarding Andries Slinger's suspension, in which Theron challenged the suspension and questioned the DCS management for not allocating sufficient resources to deliver adequate, timely care.  Andre Slinger was the hospital manager and head of nursing who went with Theron to see the Portfolio Committee in Parliament.

Theron sought advice and ODAC agreed to represent him. Advocates Colin Khanowitz and Graham Leslie agreed to act as counsel.

On September 11th, Theron brought an application against the Department of Health at the Cape Town Labour Court, asking for his suspension to be ended. Theron argued that his supension was caused by blowing the whistle in that he made a disclosure to Justice Erasmus and to the Portfolio Committee of Parliament with the aim of improving Pollsmoor healthcare. He was suspended from his duties for having made this disclosure. Disciplinary procedures afainst him had begun.  Theron successfully challenged the suspension; but upon returning to work, he was informed that DCS had written a letter to the Department of Health, indicating that Theron’s services were no longer needed at Pollsmoor. He was ordered to transfer to a community health centerat Lotus River.

The DCS and Department of Health did not reply to Theron’s requests for a copy of their correspondence, regarding his suspension or transfer.  Theron launched an application against DCS and the Department of Health,claiming reinstatement on an interim basis. On December 7th, Justice Hermann Niewoudt granted Theron an interim order,allowing him to return to work at the prison, on the grounds that Theron's employer "attempted to discipline the applicant for communicating with the inspecting judge and portfolio committee". Niewoudt’s judgment is important because it substantiated Theron’s claim that he faced occupational detriment for blowing the whistle, and furthermore it set an important precedent for applying whistleblowing legislation in similar cases.

Yet, the legal proceedings did not resolve the matter. DCS appealed Niewoudt’s interim order, and charged Theron with contempt of court for, they argued, not complying with the order to transfer to Lotus River while their appeal was heard. Meanwhile, Theron brought an application against DCS, arguing they were in contempt of the order. The four applications were heard together. Both contempt applications were withdrawn by agreement. The appeal application, and the application to have the interim order implemented were argued.While judgement was awaited, the parties settled the case. Theron was offered similar work in a hospital, which he accepted.

In conclusion, Theron’s concerns initially lay with his patients at Pollsmoor Prison. The healthcare crisis of Pollsmoor Prison is evidence of his concerns. He spoke out, and found a department unwilling to consider the truth of his allegations. Instead they focused on his challenge to them, and decided to try and shoot the messenger. Theron remains employed,  protected by Act, and his lawyers. The prisoners? They have seen some small improvements following on Theron's interventions. But Correctional Services have lost a doctor who was willing to risk his job for his patients. Unless we see a culture change around valuing whistleblowers, we will continue to see harassment of whistleblowers.