Contempt of Court Order Granted for Harassment of ODAC Whistleblower

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Mr. Motingoe was employed as the head of Legal Services at the Department of Infrastructure and Public Works in the Northern Cape.

He was originally suspended by the MEC on 22 November 2013. In 2013 Mr Motingoe made a protected disclosure regarding alleged irregularities of the HOD with the tender process of a civil construction work/project at the Theekloof-pass. Instead of receiving support for his disclosure, he was exposed to occupational detriment. He challenged this suspension as an unfair labour practice in the bargaining council. This was the subject of the arbitration award. The main part of the order of relevance to was:

The Respondents is hereby ordered to uplift the Applicant’s suspension with immediate effect (within seven (7) days) after receiving a copy of this award, and to reinstate the Applicant to his position as Director:  Legal Services and/or to a suitable alternative position under the supervision of the Chief Director:  Corporate Services.  The Applicant to report directly to the Chief Director:  Corporate Services pending the adjudication of the dispute referred to the Labour Court under case C373-14/judgement and/or pending the finalization of the disciplinary hearing.

The award clearly ordered the employer to uplift the suspension. This did not happen. Running concurrently with the arbitration process was the Labour Court process in which the client challenged both the suspension and the disciplinary inquiry as occupational detriments.

On 6 January 2015 the employer’s lawyers served with an application for leave to appeal against the labour court judgment. The next day (7 January) Mr. Motingoe was served with another suspension letter dated 12 January 2015, worded in virtually identical terms as the first. This time the suspension was signed by the head of department and no explanation was offered for this. Factually, instead of uplifting the suspension as ordered by both the arbitrator and the court, the employer issued another suspension without first annulling the first suspension on exactly the same terms (serious misconduct for the release of confidential information in contradiction of 2.7(2)(a) of the SMS Public Service Handbook).

The Department was not been granted leave to appeal.

What happened today

An urgent ex parte application for contempt of court was brought today in the Labour Court in Cape Town by ODAC on behalf of our clienf, Mr. Motingoe, for the gross contempt of court demonstrated by the re-institution of his suspension.  The order (see attached order) was granted by Judge Rabkin-Naicker, and a return date of 7 August has been set down when the HOD and MEC of Public Works in the Northern Cape must explain why they are not in contempt of court.

What this means
While the MEC and HOD will now have an opportunity to file reasons as to why the contempt of court order should not be granted, today was an important victory for the whistleblower - Mr. Motingoe. Our research has repeatedly demonstrated that whistleblowers are vulnerable to a variety of threats and harassment. The decision to continue the suspension of Mr. Motingoe by the Department of Public Works in the Northern Cape not only demonstrated a gross contempt for the court that gave the order, but also perpetuated the indefensible abuse of legitimate whistleblowers who seek to make disclosures (such as that made by Mr. Motingoe) for the furtherance of the public good.

Classification and Declassification Review Panel

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In June 2004 the then Minister of Intelligence Services, Lindiwe Sisulu, approved a report (commissioned in 2003) that comprehensively reviewed the system of classification and declassification of records in South Africa.

In May 2015, this report was released to the Open Democracy Advice Centre after a Promotion of Access to Information ACt request was submitted to the Department of State Security.

This significant and interesting report can be downloaded here.

Does reimagining Africa’s future include transparency and open government?

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By Kira-Leigh Kuhnert, Regional Advocacy Officer

The 25th World Economic Forum on Africa taking place in Cape Town this week will be bringing together regional and global leaders from government, business and civil society, including almost 200 youth leaders. The theme “Then and now – re-imagining Africa’s future” hints at a forum which will be grappling with, in a creative and considered way, the challenges which Africa is facing and charting a course towards a future that will ensure prosperity for all – or a privileged few.

The practice of good governance, transparency and access to information is a way in which the net of benefactors can be expanded from a privileged few. This is not a new concept, and the topic even makes it onto the programme for the three-day meeting. But will countries, after the WEF 2015 and its imagining exercise effectively address these issues?

Here South Africa has the opportunity to lead the continent. In October this year South Africa will become the lead chair of the Open Government Partnership (OGP). This is a multi-stakeholder initiative and ‘international platform for domestic reformers committed to making their governments more open, accountable, and responsive to citizens.’ [1] The OGP is unique in that it is a partnership between government and civil society. Together, countries can determine their path towards good governance and openness. This is done through national action plans, which are based on existing in-country plans, and not an imposed set of indicators. The OGP provides the practical element to the imagining process.

Is fighting corruption and using new technology to strengthen governance is something we can imagine for Africa’s future? I can, I just hope that others can too.

[1] Open Government Partnership website; Accessed 1 June 2015

No, you're vexatious.

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By Gabriella Razzano

A refusal ground lies buried in the Promotion of Access to Information Act (PAIA) that permits public bodies to refuse a request for information if they believe it to be “manifestly frivolous or vexatious”. In using this ground for refusal, I believe a public body often reveals its own gross failings, rather than those of the requester – and we have just been exposed to such a case in point by the City of Cape Town.

ODAC have been approached by the Delft Integrated Network, a community group focused on combating social issues in the Delft area, to assist with a PAIA request refused by the City of Cape Town at both the appeal and request stage on the basis they deemed it to be ‘vexatious’. The foundation for that refusal was as follows:

“We consulted with the relevant department to whom this request relates and they advised that the records which you requested have been provided to you. According to the department, you were part of the Project Steering Committee and had access to all the information which you were requesting”.

The request was sent by a Mr Louw on behalf of the Network – he had, in his individual capacity, been a member of the Project Steering Committee (though had declined to attend some sessions when the process degenerated). So how can we best unpack the City’s reasoning? The first thing to note is that there is an obvious difference to claiming someone has records (sentence one) and saying someone has access to records (sentence two). That I have access to buying ibruprofen, doesn’t mean I have ibruprofen in my purse. Further, there is an obvious difference to a single person having access to something – as opposed to a group of people. That Mr Louw may have had an opportunity to access documents before, doesn’t mean the community of Delft are excluded from access to those documents for the rest of time. More importantly perhaps, it should be obvious that ‘access’ does not equate to ‘possession’.

When I look at the nature of the first request it’s clear to me that the request was very broad – and I think this is probably what the City is actually responding to. However, its breadth reveals another flaw – can the City legitimately argue that the requester’s had access to every single document listed? Their blanket application of the refusal to the request sheds doubt on the level to which they applied their mind to the particulars of each record sought.

And why am I unpacking the facts so cautiously? Because I think we need to be very careful about allowing this kind of refusal ground to be readily used. A recent post on a United Kingdom-based blog on public administration noted that refusing access on the basis of a request being vexatious could be an evasive measure taken by public servants to write off their responsibilities to the public and avoid complaints. This is not to say vexatious refusals are never with a basis – there is obviously a need to prevent the abuse of a progressive law to harass public agencies.

But what does frivolous or vexatious mean in the South African Act? Klaaren and Currie (2002) note that its meaning in this context is “indicating a desire to prevent misuse of the Act, an abuse of the rights granted by the Act for purposes others than those that the Act seeks to achieve”. Looking at our case then, knowledge that a requester already holds the records could potentially be envisioned as an abuse of the Act (a dicta to this was seen in a decision by the Irish Information Commissioner Mr ABK and the Eastern Health Board, Case 9901). However, it is clear from their own refusal that they are not alleging possession – they merely claim an individual within the group of applicants potentially had ‘access’. When we consider that the main motivating impetus behind the Act is to make records accessible by the public in its entirety, attempts to obtain possession for public disclosure of the information would surely never be determined as ‘vexatious’? Certainly, attempts to demonstrate that the request was manifestly vexatious would immediately be rebutted by the blanket nature of the refusal, which failed to break down all the records requested, and precisely how the office can be sure the requester’s had access to each record in and of itself.

And for me there is an even more profound problem: I suspect the City have failed to meet their duty to assist requesters as demanded by section 19. The Delft Integrated Network is a community struggling to find answers. They attempted to articulate their questions as best they could; they paid their request fees; they went through the process of following up their requests and seeking outside extra assistance; and complied fully with the requirements when they submitted their internal appeal. And they were met with a blanket, and seemingly inappropriate, refusal that implies strongly that the sole reason for refusal was that the request was simply not ‘perfect’ enough.

If this is the attitude taken by public agencies, what hope is there ever that the broader public will be able to use PAIA to request information without legal assistance? Because we are most concerned with the needs of the community, I have taken a practical decision to assist in the resubmission of a request that is a bit more ‘refined’ in the hopes of getting the information needed.  Regardless, application of the Act by agencies in a manner that focuses on form over substance is a slap in the face of the original ambitions to empower all citizens that motivated the passage of PAIA. If vexatious means causing unnecessary frustration and worry, then I think I know who was vexatious in this story – and it wasn’t the Delft Integrated Network.