Brümmer v Minister for Social Development and Others

Mr Brümmer, a journalist, requested access to government records held by the Department of Social Development relating to a tender (Tender 82) for a grant administration system. The Director-General refused the request on various grounds, including that the information was subject to civil litigation and disclosure could prejudice the trial under section 39(1)(b)(iii)(ee) of PAIA. An internal appeal to the Minister was also unsuccessful. The applicant then instituted review proceedings in the Western Cape High Court under section 78(2) of PAIA, which prescribes a 30-day limit for applications to court. His application was brought after the 30-day limit had expired, so he also sought condonation. The High Court held it had power to condone non-compliance but refused condonation on the merits, finding inadequate explanation for delay and no prospects of success. However, at the applicant's invitation, the High Court went on to declare section 78(2) unconstitutional for imposing a time limit that was "grossly inadequate" and thus limiting the rights of access to court and access to information.

• Which provisions of PAIA govern applications to court to challenge refusal of access to information: section 77(4) read with section 77(5)(c)(i) (60 days) or section 78(2) (30 days)?
• Is the 30-day time limit in section 78(2) consistent with sections 32 (access to information) and 34 (access to courts) of the Constitution?
• If section 78(2) is unconstitutional, what is the appropriate relief?
• Does section 78(2) also limit the freedom of expression rights in section 16 of the Constitution?

1. The South African Human Rights Commission was admitted as amicus curiae. 2. Leave to appeal directly to the Constitutional Court was granted. 3. The High Court's order refusing condonation was set aside. 4. The words "within 30 days" in section 78(2) of PAIA were declared inconsistent with sections 32 and 34 of the Constitution. 5. The declaration of invalidity was suspended for 18 months to allow Parliament to cure the defect. 6. As an interim measure, the 30-day period was replaced with 180 days from when the requestor receives notice of the decision, with courts having power to extend or condone non-compliance. 7. The periods in section 77(5)(c) were also read as 180 days pending legislative amendment. 8. The matter was remitted to the Western Cape High Court for determination of the merits by another judge. 9. The respondents were ordered to pay the applicant's costs including costs of two counsel in both courts.

1. Section 78(2) of PAIA, not section 77(5)(c), governs applications to court challenging decisions on internal appeals, as section 78 forms part of Chapter 2 specifically dedicated to court applications and is the primary provision governing such applications. 2. To pass constitutional muster, a time bar provision must afford a potential litigant an adequate and fair opportunity to seek judicial redress. The inquiry turns on the availability of the opportunity to exercise the right to judicial redress. 3. The 30-day limit in section 78(2) does not provide an adequate and fair opportunity to seek judicial redress considering the practical steps required (legal advice, securing funding, preparing papers), and therefore limits the rights of access to court (section 34) and access to information (section 32). 4. The existence of a power to condone non-compliance does not cure an inadequate time limit - what matters is the availability of a real and fair opportunity to exercise the right to seek judicial redress. 5. The limitation imposed by the 30-day period is not reasonable and justifiable under section 36(1), particularly where: (a) applications under PAIA rarely involve witness evidence so concerns about fading memories and disappearing witnesses have less force; (b) no evidence was provided of significant administrative or financial burdens imposed by a longer time limit; and (c) other statutes dealing with state accountability (like PAJA) provide significantly longer periods (180 days).

1. The Court noted that applications under PAIA involve access to existing documents held by the state, so litigation will seldom involve witness evidence, making concerns about fading memories and disappearing witnesses less applicable than in other contexts. 2. The Court observed that the role of the media in a democratic society is of undeniable importance, as they bear an obligation to provide citizens with information and a platform for exchange of ideas crucial to democratic culture. Access to information is crucial to accurate reporting. 3. The Court drew attention to the conflict between sections 77(5)(c) and 78(2) which prescribe different time limits, and recommended that when Parliament amends section 78(2), it should harmonize it with section 77(5)(c) to avoid continued conflict, as this may infringe the rule of law. 4. The Court noted that public bodies should, when refusing access to information, identify specific documents and provide clear, concise reasons for refusal rather than blanket refusals, but declined to issue formal guidelines on this issue as it concerned the merits of the case which were remitted to the High Court. 5. The Court emphasized that litigants should not be allowed to "blow hot and cold" - it is impermissible to ask a court to apply provisions of a statute and then, if this yields adverse results, ask the court to declare the statute unconstitutional. The proper course is to first determine constitutionality. 6. The Court observed that the order refusing condonation was rendered an academic exercise once the High Court concluded that section 78(2) was unconstitutional - the proper course would have been to first consider constitutionality, and if the provision was found unconstitutional, not to consider condonation at all.

This is a landmark judgment on access to information in South Africa. It established that time limits for exercising constitutional rights must provide an adequate and fair opportunity to do so, and that the power to condone non-compliance does not cure an inadequate time limit. The judgment emphasized the fundamental importance of access to information in a constitutional democracy founded on accountability, responsiveness and openness, and its role in enabling other rights such as freedom of expression and freedom of the press. The Court recognized the practical difficulties faced by individuals and NGOs in bringing applications under PAIA, including the need to obtain legal advice, secure funding, and prepare documentation. The judgment also clarified the interaction between sections 77 and 78 of PAIA and highlighted a legislative drafting issue where these provisions conflicted. The interim remedy of 180 days set a standard that influenced subsequent legislative reform. The case demonstrates the Court's willingness to suspend declarations of invalidity to allow Parliament to cure constitutional defects, while also providing interim relief to protect constitutional rights.