LCR4803
Assignment 1
Semester 2
DUE August 2025
, LCR4803 Assignment 1
Module: LCR4803 – Media Law
Question 1: The Constitutional Nexus of Information and Expression
1. Introduction
Section 32 of the Constitution entrenches a justiciable right of access to information
held by the state and by private persons where required for the exercise or protection of
rights. This right is both instrumental (it enables the exercise of other rights) and intrinsic
(it is a democratic good in its own right). Justice Ngcobo’s oft-quoted dictum in Brümmer
v Minister for Social Development and Others crystallises this dual character: access to
information is “fundamental to the realisation” of the Bill of Rights and is “crucial to the
right to freedom of expression,” including freedom of the press and the freedom to
receive and impart information or ideas.^1 This essay critically analyses that proposition
using Brümmer as a fulcrum. It (a) explains how the Promotion of Access to Information
Act 2 of 2000 (PAIA) gives effect to section 32; (b) unpacks the constitutional defects
identified in Brümmer; (c) situates the media’s democratic role in our jurisprudence; and
(d) interrogates the tensions between access to information and countervailing rights
and interests.
2. PAIA’s architecture: giving effect to s 32
2.1 Objectives, scope and structure
PAIA’s stated purpose is to “give effect to the constitutional right of access to any
information” and to promote transparency and accountability in public and private
bodies.^2 It does so through a detailed request–response procedure that applies to
“records” held by “public bodies” (ch 2) and, where necessary for rights protection, to
records held by private bodies (ch 3).^3 The extension to private bodies is a deliberate
choice: a modern constitutional order recognises that power (and thus information-
asymmetry) often resides in the private sphere.^4
2.2 Procedural mechanics (public bodies)
, For public bodies, PAIA creates a requester-friendly process: a written request to the
information officer; timelines for decisions; internal appeals for certain national and
provincial departments; and judicial enforcement.^5 Disclosure is the default refusals
must be justified under specific grounds, interpreted narrowly and applied
proportionately.^6
2.3 Private bodies and the “required for the exercise or protection of any rights”
test
Access to private-body records (s 50) is narrower: a requester must show that the
information is “required for the exercise or protection of any rights.” Appellate
jurisprudence has clarified this threshold. In Clutchco (Pty) Ltd v Davis, the SCA held
that “required” entails more than mere usefulness; there must be a substantial
advantage or element of need to exercise or protect a right.^7 In Unitas Hospital v Van
Wyk, the SCA confirmed that disclosure must be reasonably required for a legitimate
rights-based purpose; fishing expeditions or curiosity do not suffice.^8 This calibration
respects privacy and commercial interests while still enabling rights protection.
2.4 Exemptions and the public-interest override
Refusal grounds are enumerated (ss 34–46): privacy of third parties (personal
information), commercial confidentiality and research interests, law-enforcement and
security sensitivities, inter-governmental relations, and mandatory protection of Cabinet
records. Crucially, PAIA contains a public-interest override (s 46): even where a refusal
ground applies, a public body must disclose if (i) the record reveals a substantial
contravention of the law or an imminent and serious public safety/environmental risk,
and (ii) the public interest in disclosure clearly outweighs the harm. This override is a
statutory acknowledgment of Ngcobo J’s thesis: democratic accountability sometimes
demands sunlight despite sensitivity.
3. Brümmer: when procedure stifles the right
3.1 Facts and issue
Assignment 1
Semester 2
DUE August 2025
, LCR4803 Assignment 1
Module: LCR4803 – Media Law
Question 1: The Constitutional Nexus of Information and Expression
1. Introduction
Section 32 of the Constitution entrenches a justiciable right of access to information
held by the state and by private persons where required for the exercise or protection of
rights. This right is both instrumental (it enables the exercise of other rights) and intrinsic
(it is a democratic good in its own right). Justice Ngcobo’s oft-quoted dictum in Brümmer
v Minister for Social Development and Others crystallises this dual character: access to
information is “fundamental to the realisation” of the Bill of Rights and is “crucial to the
right to freedom of expression,” including freedom of the press and the freedom to
receive and impart information or ideas.^1 This essay critically analyses that proposition
using Brümmer as a fulcrum. It (a) explains how the Promotion of Access to Information
Act 2 of 2000 (PAIA) gives effect to section 32; (b) unpacks the constitutional defects
identified in Brümmer; (c) situates the media’s democratic role in our jurisprudence; and
(d) interrogates the tensions between access to information and countervailing rights
and interests.
2. PAIA’s architecture: giving effect to s 32
2.1 Objectives, scope and structure
PAIA’s stated purpose is to “give effect to the constitutional right of access to any
information” and to promote transparency and accountability in public and private
bodies.^2 It does so through a detailed request–response procedure that applies to
“records” held by “public bodies” (ch 2) and, where necessary for rights protection, to
records held by private bodies (ch 3).^3 The extension to private bodies is a deliberate
choice: a modern constitutional order recognises that power (and thus information-
asymmetry) often resides in the private sphere.^4
2.2 Procedural mechanics (public bodies)
, For public bodies, PAIA creates a requester-friendly process: a written request to the
information officer; timelines for decisions; internal appeals for certain national and
provincial departments; and judicial enforcement.^5 Disclosure is the default refusals
must be justified under specific grounds, interpreted narrowly and applied
proportionately.^6
2.3 Private bodies and the “required for the exercise or protection of any rights”
test
Access to private-body records (s 50) is narrower: a requester must show that the
information is “required for the exercise or protection of any rights.” Appellate
jurisprudence has clarified this threshold. In Clutchco (Pty) Ltd v Davis, the SCA held
that “required” entails more than mere usefulness; there must be a substantial
advantage or element of need to exercise or protect a right.^7 In Unitas Hospital v Van
Wyk, the SCA confirmed that disclosure must be reasonably required for a legitimate
rights-based purpose; fishing expeditions or curiosity do not suffice.^8 This calibration
respects privacy and commercial interests while still enabling rights protection.
2.4 Exemptions and the public-interest override
Refusal grounds are enumerated (ss 34–46): privacy of third parties (personal
information), commercial confidentiality and research interests, law-enforcement and
security sensitivities, inter-governmental relations, and mandatory protection of Cabinet
records. Crucially, PAIA contains a public-interest override (s 46): even where a refusal
ground applies, a public body must disclose if (i) the record reveals a substantial
contravention of the law or an imminent and serious public safety/environmental risk,
and (ii) the public interest in disclosure clearly outweighs the harm. This override is a
statutory acknowledgment of Ngcobo J’s thesis: democratic accountability sometimes
demands sunlight despite sensitivity.
3. Brümmer: when procedure stifles the right
3.1 Facts and issue
