Issued by Sonia Twongyeirwe on behalf of the FW de Klerk Foundation on 26/06/2025

Introduction

The FW de Klerk Foundation’s 2024 Human Rights Report Card offers a comprehensive assessment of the state of fundamental rights enshrined in the South African Constitution. Among these is the right to access information entrenched in section 32 of the Constitution. This right guarantees everyone access to information held, not only by the Government, but also to information held by a private actor that is required to protect or exercise other rights.

PAIA’s Role

The subsidiary legislation giving effect to the right giving Access to Information is the Promotion of Access to Information Act, 2000 (“PAIA”). It outlines that access to information is important for transparency and accountability. It acts as a fundamental buttress to our democracy as the exercise of other rights is dependent on it. Then there is the Protection of Personal Information Act, 2013 (“POPIA”), that protects personal information processed by public and private bodies by prescribing certain minimum conditions that must be met. Compliance with both acts is monitored and enforced by the Information Regulator.

Positive Developments

In 2024, the Information Regulator issued an enforcement notice against the State Security Agency for non-compliance with PAIA’s reporting requirements. It was also investigating companies such as Meta, Google and TikTok.

Negative Developments

Parliament revived the Protection of State Information Bill, which aims to protect sensitive state information, on 25 July 2024. This means that Parliament will now reconsider it. The Bill became infamously known as the Secrecy Bill, due to its overbroad definitions, draconian criminalisation of receiving information, the absence of a public interest defence and its application to all organs of state.

Despite being passed by both Parliament’s houses, at the end of 2013, the Bill was never signed into law. In mid-2020 President Cyril Ramaphosa sent the Bill back to Parliament for reconsideration, in terms of section 79(1) of the Constitution. He set out his concerns regarding its unconstitutionality in a letter to the then Speaker. His concerns included, inter alia, the Bill’s infringement of the rights to receive information and impart ideas and to access to information held by the state (sections 16(1)(b) and 32(1)(a) of the Constitution).

Conclusion

The Parliament’s revival of the Secrecy Bill infringed on the right to access to information by attempting to conceal the actions of the State that inevitably affect the public. However, the Information Regulator’s actions enforced the PAIA by investigating both State Security Agencies and private companies such as Meta and Tiktok. Both reveal the critical role the right to access to information plays in South Africa’s democracy. As the country navigates the tension between national security and public transparency, it remains essential that legislative reforms align with the Constitution’s guarantees to ensure that the right to access information is not only preserved, but strengthened. For more information on the health of this important right, see the FW de Klerk Foundation’s 2024 Human Rights Report Card.