Two sections of the Promotion of Access to Information Act are contradictory and therefore unconstitutional, lawyers for Mail & Guardian journalist Stefaans Brümmer argued in the Constitutional Court on Tuesday.
The application was brought by Brümmer after he was denied information regarding the so-called Oilgate scandal by the Social Development Department.
Brümmer had requested information regarding communication between former social development minister Dr Zola Skweyiya, a consortium called IT Lynx and the finance minister.
He had wanted to establish whether Skweyiya had knowledge that Imvume Management head Sandi Majali or one of his companies was part of IT Lynx, which had demanded the implementation of a tender in the belief it had been awarded to it.
The M&G reported in 2005 how state oil company PetroSA irregularly paid R15-million to Imvume Management, which had close ties to the African National Congress. About R11-million of this public money allegedly found its way into the ANC’s 2004 election fund.
After the publication of these reports, IT Lynx launched an action in the Pretoria High Court against the State Information and Technology Agency (Sita) and the minister.
It was intended to force them to implement a tender awarded to IT Lynx, or to pay damages amounting to almost R150-million, plus interest and costs.
Brümmer approached the court to gain access to the information on July 25 2007 after being denied the information on December 22 2006, well after a 30-day period to launch such an application had expired.
Section 78 (2) of the Act gives an applicant 30 days to launch such an application, while Section 77 (5) gives the applicant 60 days.
Brümmer apparently received a copy of the appeal decision only on February 2 2007.
Brümmer’s legal team was asking the Constitutional Court to decide whether he should have been allowed to challenge being refused access to the information — even though he did not comply with the 30-day requirement, and whether the 30-day limit was unconstitutional as it did not afford people who wished to challenge a refusal adequate time to approach the court.
Brümmer was supported by submissions by the Human Rights Commission and the South African History Archives.
The Cape High Court found that Section 78(2) of the Act was unconstitutional as it did not give the person requesting information adequate time to approach a court for relief against refusal of access to information. Brümmer was asking the Constitutional Court to confirm this order.
The minister was opposing both the confirmation of the order, as well as the application for leave to appeal. — Sapa