ANDREW TRENCH: Constitutional Court will not rescue us from a culture of concealment

The Constitutional Court’s reserved judgment on media access to the tax return records of public figures such as former president Jacob Zuma is critically important, but the issues in this case speak to more than the law.

Brought by the Financial Mail and investigative reporting outfit amaBhungane, the case is profoundly important to people like me who believe passionately in access to the information that enables our rights as citizens in a constitutional democracy. Yet it is opposed with apparently equal fervour by public servants who try to deny us these rights.

As a former editor I have first-hand knowledge of the gutter fight that is involved in journalists trying to use the Promotion of Access to Information Act to source material for their public interest reporting. But I also know what it feels like to try exercising these rights as a citizen, because our access to information legislation is law for everyone — it is not a media law.

While on paper the Promotion of Access to Information Act might appear to encourage a culture of openness and co-operation, the reality is the opposite. Officials who deal with access requests appear more adept at exploiting any loophole they can find as they twist themselves into pretzels to avoid opening the door to the information we desire.

I followed a story some months ago in which the department of communications & digital technologies was being ridiculed for launching a domestic “app store”, which local commentators described as something that looked like “a grade 8 IT project”.

Communications & digital technologies minister Khumbudzo Ntshavheni launched the “DigiTech marketplace” on World Telecommunications & Information Society Day in May, claiming it would allow “users to browse and download apps developed across operating systems”.

Except it contained not much more than a few YouTube videos. Coincidentally, at the time of writing the site is broken, with a “parse error” on the landing page at digitech.gov.za. Such is its professional execution.

Fascinated at how this could be built and launched with such fanfare by the ministry I filed an access to information request in which I asked for records that “evidence the project plan, business case and technical requirements for the development of the digitech.gov.za website”.

It is important that we understand the entire process of how this abomination came to exist, how it was approved and who was responsible. That is surely my right as a citizen?

My request was filed in May. A month later the department reverted with a 10-day extension on the 30-day deadline as it was apparently still searching for the records. Three weeks later it sent a letter saying it did not have any of the records after all, and that it was being sent to the State Information Technology Agency, which built the platform.

I have heard nothing further, and since I am only a bloke on the street I do not have the financial and legal resources to fight this obstructionist behaviour. Our access to information law exhorts the official dealing with a request to do all in their power to enable access. I have yet to encounter this.

I have another request in with the SA Police Service as I am interested in the staffing and resources of various police stations. That request is also being repeatedly kicked down the road with requests for 30-day extensions. I am not holding my breath that anything will come of it.

Ask anyone else who is active in access to information requests, whether as a journalist, member of civil society or citizen, and you will hear similar stories. Successful applications are by far the outliers rather than the norm — an outcome that is surely the very opposite of what the drafters of our law imagined.

This is another reason our country is experiencing a crisis of crookery and corruption. The rot runs deeper when it is allowed to lurk in the shadows. Every public official who denies a request for access to information is enabling a culture in which corruption thrives, which has cost our country hundreds of billions of rand, shattered institutions and decimated public confidence in government.

Arrange access

It need not be so. Several years ago, I was fortunate to be invited on a trip to Stockholm, Sweden, where I, another journalist, a government minister and senior SA civil servants were immersed in Sweden’s culture of transparency.

After a talk at the Swedish environmental agency the young official who was presenting on the subject invited us to ask the receptionist for copies of his payslip. The thought of this seemed so outrageous that we all laughed. But we did, and within minutes the receptionist (not some high-ranking director) had arranged for the records and we were able to see the earnings and deductions of our recent host.

In Stockholm you can walk down the street and ask any public official to arrange access to a record for you. There is no filling in of forms, no payment of fees or justifying your request. You do not even have to ask an official in the department that has the record. They will get it for you regardless.

Can you imagine if that were the case here? Would state capture, the looting of Public Investment Corporation funds and the crippling of municipalities have occurred had our attempt at access to information law translated into a culture of real transparency?

Alas, it has not panned out that way. And so we wait to see if the Constitutional Court will do right by us. No doubt it will, but even so, I fear it will do little to change the culture of obstructionism that is the reality for those who would shine a light as active citizens on the affairs of our public officials and institutions.

Correction: August 31 2022
A previous version of this article referred in error to digitech.co.za instead of digitech.gov.za.

• Trench, a former editor of News24, The Times and The Witness, is owner of communications and technology consultancy Trenchant Media Solutions.