PAIA ‘flawed’ for people asserting their rights

SHEREE BEGA

THE Promotion of Access to Information Act (PAIA) is meant to give effect to the Constitutional right of access to information, but it is “flawed”.

“Communities should be able to access information about the operations affecting them without submitting long, laborious, costly and time-consuming applications,” said Sithuthukile Mkhize, an attorney at the Centre for Applied Legal Studies, in a statement yesterday.

On Monday members of the Umgungundlovu community of Xolobeni will appear in the Pretoria High Court, asking that all mining-affected communities be given access to the mining rights applications of operations that may have an impact on them.

The centre, which has been admitted as a friend of the court in the matter between community, the Department of Mineral Resources and Transworld

Energy and Resources, said it will be arguing that the current process for requesting access to information may impede communities from exercising their rights.

In 2015, leaders of the Umgungundlovu community became aware of a mining rights application made by Transworld Energy and Mineral Resources to mine titanium deposits discovered around Xolobeni in the Eastern Cape, where the community lives.

“Concerned about the impact of the proposed mine on their way of life, the community sought access to the mining rights application.

“When they could not access the documents from either the company or the state, they approached the court in line with the PAIA.

“Since then, the community has been provided with a redacted version of the documents.”

The Xolobeni community had secured a groundbreaking victory for all communities affected by mining when the Constitutional Court upheld their right to say no to mining operations in their area and to decide their own developmental path.

“The community leaders are now asking the court to ensure others are given the same opportunity, to ensure all mining-affected communities are able to freely access information about the mining operations that may impact them.

“The centre supports the argument that mining rights applications should be public documents.

“We argue that, according to PAIA, these documents should be made automatically available, and that the current process for requesting access to information is flawed and places an unfair burden on communities.”

It hoped to further assist the court by presenting evidence from reports by civil society organisations on the difficulties communities face in accessing information under PAIA, especially in the mineral and metals extraction industry.

Research conducted by the Centre for Environmental Rights demonstrated the low success rate of PAIA applications made to the Department of Mineral Resources and private bodies in the mining industry, said the centre.

The matter raised important questions concerning access to information, self-determination and sustainable development.

“We submit that access to information serves as an integral gateway for communities and civil society organisations to access information relating to a range of rights and issues.

“Furthermore, the realisation of the constitutional rights to a healthy environment is dependent on the ability of individuals, communities, civil society organisations and companies and decision makers to access information about the state of the environment and the impact of human activities,” it said in its heads of argument.

From its experience, it had found that information officers often had low levels of familiarity with PAIA and very low capacity to deal with requests.

“The requests submitted to public bodies are often not responded to within the statutory time frames, the result of which are deemed refusal in terms of section 27 of PAIA. This is a similarly shared experience for Corruption Watch.”

The case was a good indication that PAIA processes are abused by decision makers. “This is so because the fact that the TEM gave the applicant access to information post these proceedings being launched is an indication of the lengthy and costly exercise that the applicants would need to go through before their constitutionally protected rights are adhered to.

“This is more prejudicial to the average man who is protected under the law but has no means of realising this protection.”