CHAPTER 3 INFORMATION COURTS Establishment of Information Courts 98. (1) There shall be an Information Court attached to each provincial or local division of the Supreme Court. (2)(a) The Judge President of a provincial division of the Supreme Court shall designate a judge or acting judge to preside in the Information Court of the provincial division and in the Information Court of any local division within the area of jurisdiction of which the provincial division exercises concurrent jurisdiction, for such period [of time] as the Judge President may determine[s]. (b) When the Judicial Service Commission established by section 105(1) of the Constitution makes recommendations regarding the appointment of judges of a division of the Supreme Court in terms of section 105(2)(a) of the Constitution, it shall have regard to the need to have one or more judges with specialist expertise in relation to matters under this Act available in that division for designation under paragraph (a). (3) Any officer (including a registrar, an assistant registrar, a sheriff, deputy sheriff or an interpreter) exercising powers or performing duties in relation to a provincial or local division of the Supreme Court shall, insofar as consistent with the other provisions of this Act, have the same powers or duties in respect of the Information Court established by subsection (1) for that division. (4)(a) An Information Court may, if the Court considers it expedient to do so, appoint one or two assessors who in the Court's opinion have experience in the administration of justice or skill on any subject relevant to its proceedings, to assist the Court in an advisory capacity in respect of the matter for which they are appointed. (b) Assessors appointed under paragraph (a) shall receive such remuneration and allowances as the Minister of Justice, with the approval of the Minister of Finance, from time to time determines. Appeals to Information Court 99. (1)(a) If a person has been unsuccessful in - (i) an urgency application referred to section 18; or (ii) an internal appeal to the head of a governmental body or in an urgency application under section 88, he or she may appeal against the decision to an Information Court having jurisdiction. (b) An appeal under paragraph (a) shall be lodged - (i) within 30 days; or (ii) if notice to a third party is not required by section 104(1)(b) or (2)(b)(ii), within 60 days, after the person concerned has been notified of the decision of the head of the governmental body. (2) The State may appeal to the Information Court having jurisdiction against a decision of - (a) the information officer of a governmental body contemplated in section 84; or (b) the head of a governmental body on internal appeal, (whether or not the decision is made pursuant to a recommendation by the Public Protector under section 95) to grant a request for access to a record that may be withheld from disclosure under section 33(1), 34(1) or 36(1) within a period of 30 days after the decision has been notified to the requester or appellant (as the case may be). (3) The Commission may appeal to the Information Court having jurisdiction against a decision of - (a) the information officer of a governmental body contemplated in section 84; or (b) the head of a governmental body on internal appeal, (whether or not the decision is made pursuant to a recommendation contained in a request made by the Public Protector under section 95) within a period of 30 days after the decision has been notified to the requester or appellant (as the case may be). Applications to Information Court 100. (1) Where -_ (a) a contravention or threatened contravention of a provision of Part V or VI is alleged, a person may - (i) in the case of an alleged contravention that has occurred, within 60 days after that contravention has occurred; or (ii) in the case of an alleged threatened contravention, before that contravention; or (b) the unreasonable exercise of a discretion conferred by or under Part V or VI is alleged, within 60 days after the relevant decision has been taken, apply to an Information Court having jurisdiction for such relief as is appropriate, including an interdict, interim or specific relief, a declaratory order, compensation for harm. (2) For the purposes of subsection (1), "harm" shall include loss, detriment, injury, adverse effect on the individual's rights, benefits, privileges or obligations and significant loss of dignity, humiliation or injury to feelings. Extension of period within which appeal or application may be lodged 101. The period within which an appeal or application may be lodged may, upon good cause being shown, be extended by an Information Court having jurisdiction. Jurisdiction of Information Court 102. An Information Court shall have jurisdiction in respect of - (a) a decision or decision on internal appeal mentioned in section 99(1), [or] (2) or (3) of the information officer or head of the governmental body concerned that has its office or, if the body has more than one office, its main office; (b) a person who lodges an appeal under section 99(1) or an application under section 100 and resides, carries on a business or is employed; (c) an alleged contravention mentioned in section 100 - (i) which has occurred or is about to occur; or (ii) by a governing body that has its office, or if it has more than one office, its main office, in the area of jurisdiction of the provincial or local division of the Supreme Court for which the Information Court has been established. Form and manner of appeal and application 103. (1) An appeal shall be lodged by giving to the registrar of the Information Court having jurisdiction a written notice of appeal stating - (a) the decision, or part of the decision, appealed against and the reasons for the appeal; (b) such other information as is relevant to the appeal and the appellant wishes to include; and (c) the appellant's postal address, residential or work address and (if any) fax number or, if the appellant will be represented by another person as contemplated in section 106(1), that person's name, postal address, residential or work address and (if any) fax number. (2) The notice of appeal referred to in subsection (1) shall be accompanied [by], in the case of an appeal under - (a) section 99(1), by a copy of the notice of the decision on internal appeal by the head of a governmental body given in terms of section 87(3); (b) section 99(2) or (3), by a copy of the notice of the decision of the information officer of a governmental body given in terms of section 17(1) or the notice of the decision on internal appeal of the head of a governmental body given in terms of section 87(3) (as the case may be). (3) An application shall be lodged by giving to the registrar of the Information Court having jurisdiction a written notice of application supported by a declaration under oath or after having made an affirmation, stating - (a) the subject-matter of and reasons for the application; (b) the relief sought by the applicant; (c) such other information as is relevant to the application; and (d) the applicant's postal address, residential or work address and (if any) fax number or, if the applicant will be represented by another person as contemplated in section 106(1), the person's name, postal address, residential or work address and (if any) fax number. (4) The notice of appeal or application referred to in subsection (1) or (3), respectively, shall be sent by registered post, delivered by hand or, if fax facilities are available at the relevant registrar's office, sent by fax. (5) If a person, [who] because of illiteracy, poor literacy or physical disability, is unable to comply with subsection (1) or (3), and wishes to lodge an appeal or application under section 99(1) or 100, respectively, the person may request the Public Protector to take the necessary particulars orally and reduce them to writing. Notice of appeal and application 104. (1)(a) Where an appeal is lodged under section 99(1), the registrar concerned shall give notice of the appeal to - (i) in the case of an appeal under section 99(1)(a)(i), the information officer of the governmental body concerned; or _ (ii) in the case of an appeal under section 99(1)(a)(ii), the head of the governmental body concerned. (b) When the information officer or head of the governmental body receives [a copy of the] notice of an appeal, he or she shall, as soon as practicable and in any case within seven days after he or she is notified, give notice of the appeal to any person required to be notified in terms of section 44(1) or [86(1) or (3)] 47(1). (2)(a) Where an appeal is lodged under section 99(2) or (3), the registrar shall give notice of the appeal to the information officer or head of the governmental body who made the decision appealed against. (b) The information officer or head of the governmental body so notified shall, as soon as practicable and in any case within seven days after he or she is notified, give notice of the appeal to - (i) the requester concerned; and (ii) in the case of a decision by - (aa) the information officer of a governmental body, any third party required to be notified in terms of section 44(1); or (bb) the head of a governmental body on internal appeal, any third party required to be notified in terms of section [86(1)] 47(1). (3) A notice of appeal under subsection (1) or (2) shall include a copy of the notice of appeal lodged with the registrar concerned in terms of section 103(1), and a statement to the effect that - (a) the person so notified may appear as a party to the appeal; and (b) if the person wishes so to appear as a party, the person shall, within 10 days after he or she is given notice of the appeal, give notice - (i) to that effect; and (ii) of his or her postal address, residential or work address and (if any) fax number or, if he or she will be represented by another person as contemplated in section 106, of the person's name, postal address, residential or work address and (if any) fax number, to the registrar concerned. (4) (a) Where an application is lodged under section 100, the registrar concerned shall give notice of the application to the information officer of the governing or governmental body (as the case may be) concerned. (b) The information officer of a governing body so notified shall, as soon as practicable and in any case within seven days after the [body] information officer is notified, give notice of the application to any third party required to be notified in terms of section 78(1). (c) The information officer of a governmental body so notified shall, as soon as practicable and in any case within seven days after the [body] information officer is notified, give notice of the application to any third party required to be notified in terms of section 44(1). (5) A notice of application under subsection (4) shall include a copy of the notice of application lodged with the registrar concerned in terms of section 103(3), and a statement to the effect that - (a) the [person] governing or governmental body or third party so notified may appear as a party to the application; and (b) if the [person] body or third party wishes so to appear as a party, the [person] body or third party shall, within 10 days after notice of the application is given to the [person] body or third party, give notice - (i) to that effect; (ii) in the case of a governing or governmental body, of the name, residential or work, postal address and (if any) fax number of the person who will represent the governing or governmental body; (iii) in the case of a third party, of his or her postal address, residential or work address and (if any) fax number or, if the third party will be represented by another person as contemplated in section 106, of the person's name, postal address, residential or work address and (if any) fax number, to the registrar concerned. (6) A notice of appeal or application to be given in terms of this section shall be sent by registered post or delivered by hand or, if fax facilities are available, sent by fax. Appearance as party to appeal and application 105. (1)(a) Any person who is required in terms of section 104(1) or (2) to be notified of an appeal may appear as a party to the appeal. (b) If a person wishes so to appear as a party to the appeal, he or she shall, within 10 days after notice of the appeal is given to the person, give notice - (i) to that effect; and (ii) of his or her postal address, residential or work address and (if any) fax number or, if he or she will be represented by another person as contemplated in section 106, of the person's name, postal address, residential or work address and (if any) fax number, to the registrar concerned. (3)(a) A governing body or third party which is required in terms of section 104(4) to be notified of an application under section 100 may appear as a party to the application. (b) If a governing body or third party wishes so to appear as a party to an application, the body or third party shall, within 10 days after notice of the application is given in terms of section 104(4), give notice - (i) to that effect; and (ii) in the case of a governing body, of the name, postal address or residential or work address and (if any) fax number of the person who will represent the governing body; (iii) in the case of a third party, of his or her postal address, residential or work address and (if any) fax number or, if the third party will be represented by another person as contemplated in section 106(1), of the person's name, postal address, residential or work address and (if any) fax number, to the registrar concerned. (3A) If the Commission is of the opinion that an important matter of principle is involved, he or she may appear before an Information Court as a party to - (i) an appeal under section 99(1) or (2); or ( ii) an application under section 100. (b) If the Commission wishes so to appear as a party to the appeal, he or she shall, within 10 days after notice of the appeal is given to the registrar, give notice - (i) to that effect; and (ii) of the name, postal address or residential or work address and (if any) fax number of the person who will represent the Commission, to the registrar concerned. (4) Any person - (a) may, when giving notice under this section to the registrar that he or she will appear as a party to an appeal or application, submit a written declaration under oath or after having made an affirmation, stating such information as is relevant to the appeal or application; and (b) shall at the same time give notice thereof by sending a copy of the declaration to the appellant or applicant and every other party to the appeal or application. (5) A notice under this section shall be sent by registered post, delivered by hand or, if fax facilities are available, sent by fax. Appearance on behalf of party 106. (1) Subject to section 109, a party to an appeal or application to an Information Court shall - (a) in the case of a natural person who has the capacity to act, appear in person; or (b) in any other case, be represented by some other person duly authorised in writing to appear on the party's behalf. (2) The Commission may appear before an Information Court on behalf of a person who - (a) has lodged an appeal or application under section 99(1) or 100 respectively; or (b) is a party (other than an appellant) to an appeal under section 99(2), and has requested the Commission to so appear on his or her behalf. Determination of hearing of appeal and application and urgent hearings 107. (1) After notice of an appeal or application was given in accordance with section 104, the registrar of the Information Court concerned shall set a date and time for the hearing of the appeal or application being not less than 15 days and not more than 25 days after such notice was given, unless a different date is agreed upon under subsection (2) or determined by the Information Court under subsection (3). (2) If each party to an appeal or application so agrees, the registrar may set the date for the hearing of the appeal or application for a date before the expiry of the period of 15 days or after the expiry of the period of 25 days referred to in subsection (1). (3)(a) An appellant or applicant who wishes the appeal or application to be a heard at a date before the expiry of the period of 15 days referred to in subsection (1) may apply to the Information Court having jurisdiction in respect of the appeal to set such an earlier date. (b) An application under paragraph (a) shall be made by means of a written or oral declaration under oath or after having made an affirmation setting forth explicitly the circumstances the appellant or applicant avers render the matter urgent and the reasons why the appellant or applicant claims that he or she could not be afforded redress at a hearing in due course. (c) The registrar shall give notice of an urgent application under this subsection to every party which is required to be notified of the relevant appeal or application in terms of section 104. (d) If an Information Court grants an application made under paragraph (a), the Court may dispose of the appeal or application at such time and place and in such manner and in accordance with such fair procedure as in its opinion is required by the urgency of the matter. (e) A person or governmental or governing body against whom or against which an order [was] is granted in his or her or its absence in an urgent application may by notice set down the matter for reconsideration of the order if the Information Court is satisfied that there [is] are reasonable grounds for the absence of the person in question. (4) The registrar of an Information Court shall give notice of the date and time of the hearing of an appeal or application set in terms of this section to all the parties to the appeal or application and the notice shall be served on the parties by the sheriff of the Information Court. Procedure at appeal and application 108. (1) An appeal or application shall be conducted on an urgent basis and disposed of as expeditiously as possible in accordance with any regulations made under section 126(c) in respect of appeals or applications lodged with an Information Court. (2) Subject to this Act, an Information Court shall have all the powers of a division of the Supreme Court of South Africa. (3) Subject to this Act, the rules of the law of evidence, shall not apply in respect of the proceedings in an Information Court, and the Court may ascertain any relevant fact in such manner as it may think fit. (4) Notwithstanding any other provisions of this Act or any other law, an Information Court may examine any record of a governmental body to which this Act applies, and no such record may be withheld from an Information Court on any grounds. (5) No obligation to maintain secrecy or other restriction upon the disclosure of a record of a governmental body imposed by any law shall preclude a person from supplying a record to the Information Court. (6) An Information Court shall take such steps as the Court considers necessary to avoid the disclosure of - (a) any record which may be withheld from disclosure in terms this Act; and (b) where the information officer of a governmental body, or the head of the body on internal appeal, in refusing to grant access to a record, [does not] in terms of section 33(2) or 34(2) [indicate or refuse to indicate whether or not the record exists] refuses to confirm or deny the existence or non-existence of the record, any information as to whether or not the record exists. Legal representation 109. A legal practitioner shall be allowed to represent a party to an appeal or application before an Information Court. Burden of proof 110. In any proceedings brought under this Chapter the burden of establishing that - (a) the refusal of a request for access to a record of a governmental body; (b) the closure of a meeting, or a portion thereof, to a person, class of persons or all persons; or (c) any decision taken under section 15(3), 16(1), 18(3), 19(1), 22(4), 23(3), 24, 44(1), 49C(8)(d), 60(3), 62(1) or (2), 78(1), 83(4) or 86(1), is justified in terms of this Act shall be on the party claiming that it is so justified in terms of this Act. Decision on appeal and application 111. (1) After due consideration of all written and oral evidence received by an Information Court given in respect of an appeal or application, the Court may make such [decision or] order as the Court considers just, giving due weight to the importance of open, accountable and participatory administration, including - (a) in the case of an appeal - (i) confirming, amending or setting aside the decision which is the subject of appeal; (ii) making an order requiring the information officer or head of a governmental body to take such action as the Court considers necessary within such period of time as may be specified in the order; (iii) against the refusal of an urgency application referred to in section 18(1) or 88(1), decide whether or not the request for access in respect of which the urgency application was made, should be granted; (b) in the case of an application - (i) granting an interdict requiring a meeting of a governing body to be open to a person, class of persons or all persons; (ii) granting an interdict against future contraventions of the provisions of Part V or Part VI; (iii) [after due regard of the grounds upon which minutes of a meeting of a governing body should or could have been refused by the information officer of the governmental body concerned upon a request for access under this Act,] ordering a governing body to make available to a person, class of persons or all persons the minutes of a meeting, or a portion thereof, in respect of which this Act was not complied with; (iv) declaring null and void any final decision taken at a meeting of a governing body in respect of which a provision of Part[y] V was not complied with; (v) granting interim or specific relief, a declaratory order or compensation for harm as contemplated in section 100(2). (1A) For the purposes of subsection (1)(b)(v), "harm" shall include loss, detriment, injury, adverse effect on the individual's rights, benefits, privileges or obligations and significant loss of dignity, humiliation or injury to feelings. (2) In deciding which [decision or] order is just, the Court shall have due regard to the desirability of a speedy and inexpensive resolution of the appeal or application. (3) An Information Court shall give notice to each party to an appeal or application of [any] its decision [or] and of any order made under subsection (1) and state in that notice the Court's reasons for the decision. (4) An order [or other decision] of an Information Court made under subsection (1) shall - (a) be executed as if it is an [decision or] order made by the Supreme Court; and (b) subject to review of proceedings of the Information Court under section 114, be final and no appeal shall lie from it. Costs 112. (1) Subject to subsections (2) and (3), each party to an appeal or application before an Information Court shall bear its own costs. (2) If - (a) the information officer or head of a governmental body; (b) the State as contemplated in section 99(2); (c) a governing body; (d) a third party being the only party who opposes the disclosure of a record of a governmental body or the opening of a meeting of a governing body, is unsuccessful (in whole or in substantial part) in an appeal or application (as the case may be) to an Information Court, the cost of the opposite party shall be paid [by] - (i) in the case of paragraphs (a) and (c), by the governmental body concerned; (ii) in the case of paragraph (b), by the State; (iii) in the case of paragraph (d), by the third party referred to in that paragraph. (3) Where an Information Court is of the opinion that the adjudication of an appeal lodged under section 99(1) or an application lodged under section 100 has - (a) raised an important new principle in relation to this Act; or (b) promoted the interests of open, accountable and participatory administration, the Court may order the governmental body concerned to pay the costs of the appellant or applicant (as the case may be). Proof of orders 113. A document purporting to be a copy of an order or other decision of an Information Court made under section 111 and certified by the registrar of the Court to be a true copy of such order or decision shall in any legal proceedings be sufficient proof of the order or decision unless the contrary is proved. Review of proceedings of Information Court 114. (1) The proceedings of an Information Court may be taken on review before a court consisting of [at least two] three judges of the provincial or local division of the Supreme Court for which the Information Court has been established. (2) The grounds upon which the proceedings of an Information Court may be taken on review are error of law (including absence or excess of jurisdiction), procedural irregularity, impropriety, unfairness, unreasonableness, abuse or improper exercise of discretion and failure to give reasons. Regulations regarding appeals and applications to, and proceedings before, Information Court 115. (1) Regulations made under section 126(c) - (a) shall be made after consultation with each Judge President to whose division of the Supreme Court the regulations would apply; (b) shall endeavour to render the proceedings of an Information Court as accessible, inexpensive, uncomplicated, informal and expeditious as possible; (c) may, without restricting the generality of [that] section 126(c), provide for - (i) an Information Court to have jurisdiction in respect of an appeal or application if all the parties to the appeal or application consent thereto; (ii) the keeping of records of proceedings of an Information Court; (iii) the language used at proceedings of an Information Court and the use of interpreters; (iv) the execution of the orders and decisions of an Information Court; (v) the procedure relating to the review of proceedings of an Information Court under section 114; (vi) the publication of reports of the Court's decisions; (vii) forms for appeals, applications and notices to be given under this Chapter; (viii) any matter which is reasonably necessary or expedient for the proper discharge [and conduct] of the functions of an Information Court. (2) Different regulations may be made under section 126(c), read with subsection (1) of this section, for different provincial or local divisions of the Supreme Court. (3) Section 6 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985) shall not apply to regulations made under section 126(c), read with subsection (1) of this section. (4) If regulations are not made under section 126(c), read with subsection (1)(c)(v) of this section, the procedure for the review of proceedings of an inferior court before the Supreme Court shall, with the necessary modification, apply to the review of proceedings of an Information Court under section 114. Reports to Commission 116. The registrar of an Information Court shall annually submit to the Commission a report stating - (a) the number of appeals and applications lodged with the Information Court and the outcome of those appeals and applications; [and] (b) the number of the proceedings of the Information Court which were taken on review under section 114 and the outcome of those reviews; and (c) [any] such other matters as may be prescribed.