MOGOENG CJ
a breach of a duty of confidence owed to a “funder” in terms of an agreement.48
Possible legal action for breach of a duty of confidence owed to a third party in terms
of an agreement could justify denial of access to information.49 In some respects,
PAIA offers mandatory protection of the privacy of third parties.50
[68]
All of the above highlight PAIA’s inconsistency with the constitutional
obligation to avail information on private funding to all who need it in a reasonable
manner. In sum, PAIA is deficient because it does not provide that: (i) information on
the private funding of political parties and independent candidates be recorded and
preserved; (ii) it be made reasonably accessible to the public; and (iii) independent
candidates and all political parties are subject to its provisions.
Additionally, it
suffices to say that no compelling reasons exist to justify these limitations.
What is to be done?
[69]
The right of access to information read with the entitlement to exercise or
protect the informed right to vote, and the State’s section 7(2) obligation to respect,
promote and fulfil the rights in the Bill of Rights, implicitly demands that information
on the private funding of political parties and independent candidates be recorded,
preserved and made reasonably accessible to the public.
[70]
Part of what stands in the way of making information reasonably accessible to
voters in terms of PAIA is the laborious procedure to be followed51 and the fees
actually or potentially payable by the requester of the information.52 It does not help
much that this crucial information could only be freely accessible at the discretion of
the Minister.53 Reasonable access should be institutionalised. It is not to be subject to
48
See sections 37(1)(a)-(b) and 68 of PAIA.
49
See section 65 of PAIA.
50
See sections 34 and 63 of PAIA.
51
See section 53 of PAIA.
52
Section 54 of PAIA.
53
See sections 51(4) and 54(8) of PAIA.
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