What about ‘name and shame’?

Dear Corruption Watch

Public Works Minister Thulas Nxesi recently announced the steps he is taking to root out corruption and collusion in his department. He says he can tell us what is being investigated but cannot tell us who, in business and government are implicated because there are laws which prevent him from disclosing names.

To which laws is the minister referring? Can he really hide behind these laws? This seems at odds with the recent announcement by the Minister of Justice to ‘name and shame’ those convicted of corruption.

Looking for Clarity

Dear Clarity

You are quite right.  The Public Works Minister appears overly general in his approach.

There are certainly laws that may prevent the minister from disclosing who is implicated in corrupt activities in some cases.  However, any refusal to disclose such information must be justified and the public interest in non-disclosure must be shown to outweigh that of disclosure.

The Promotion of Access to Information Act (PAIA) is the main law that governs disclosure of information held by the State.  There are several grounds under chapter 4 allowing the State to refuse to name and shame.  These include preventing prejudice to an ongoing investigation into possible unlawful activity; protecting confidential information provided by a third party; protecting the privacy or safety of individuals; preventing any unfairness at a trial or adjudication; or preventing disclosure of security-related information.

Importantly though, all of these are subject to a ‘public interest override’ contained in section 46 of PAIA.  Where the information would reveal evidence of “a substantial contravention of the law” and where the public interest in disclosure “clearly outweighs the harm contemplated in the provision”, then a refusal to disclose the information can never be justified.  Where, for example, the individual concerned holds an influential position in government, and there has been a finding of misconduct against this person, then the public interest would seem to require that he or she is publicly named and shamed.

The Courts have insisted that it is not good enough for the State merely to invoke one or more of the grounds of refusal in PAIA to justify non-disclosure, but must show evidence that the provision applies in the particular circumstances of the case, and must show that the public interest requires secrecy.

An instructive case is where the Eastern Cape High Court considered whether refusal to disclose the personal particulars of Parliamentarians involved in the Travelgate saga to protect their privacy was justifiable.  The High Court rejected this, stating: “How Parliamentarians exercise their duties as members of Parliament, under what circumstances they claim payment in respect of travel vouchers, and whether or not they obey the rules of Parliament and act in accordance with the code of conduct which society expects from its members of Parliament – all of this is the business of the State. The State has the right to know and through the State, the members of society.”

There are other laws requiring secrecy in respect of pending investigations (e.g. Prevention of Organised Crime Act), or security-related information (e.g. the National Key Points Act or the Nuclear Energy Act). But PAIA has the special status of constitutional legislation, which means that any refusal to provide information under another law must also comply with PAIA.  Thus the public interest consideration remains paramount.

The State and others also have to be careful not to defame anyone by publishing a mere suspicion of corruption. But the risk of defamation depends on the evidentiary basis for the suspicion and the context in which it is disclosed. If the evidence is strong and uncontroverted, and the context clearly indicates that there has been no finding of corruption, such disclosures of suspected corruption by public officials may be justified in the public interest.