There is nothing wrong with section 78 (2) of the Promotion of Access to Information Act, as claimed by a Mail & Guardian journalist, the Constitutional Court heard on Tuesday.

State lawyer, advocate Marumo Moerane, told the court the two sections of the act, which seemed to contradict each other, were applicable to two different sets of circumstances.

"The 60-day period (as set out in section 77.5) applies to a situation where the authority has to give notice of the application to a third party, whereas the 30 days (as set out in section 78.2) applies to where there needs to be no notice to a third party," said Moerane.

"No constitutional issue arise from section 77 (5)(c)."

Mail & Guardian journalist Stefaans Brummer challenged these two sections of the Act in the Constitutional Court, after the Cape High Court ruled that section 78 (2) was unconstitutional as it gave applicants for information too little time to apply to a court for access to information.

Section 78 (2) gives an applicant 30 days to launch such an appeal, whereas section 77 (5) gives an applicant 60 days.

Brummer had requested information regarding communication between former social development minister Zola Skweyiya, a consortium called IT Lynx and the finance minister.

He had wanted to establish whether Skweyiya had knowledge that Imvume Management head Sandi Majali, or one of his companies, was part of IT Lynx, which had demanded the implementation of a tender in the belief it had been awarded to them.

The Mail & Guardian reported in 2005 that State oil company PetroSA irregularly paid R15-million to Imvume Management, which had close ties to the ANC. R11-million of this public money allegedly found its way into the ANC's 2004 election fund.

After the publication of these reports, IT Lynx launched an action in the Pretoria High Court against the State Information and Technology Agency (Sita) and the minister.

It was intended to force them to implement a tender awarded to IT Lynx, or to pay damages amounting to almost R150 million, plus interest and costs.

Brummer approached the court to gain access to the information on 25 July 2007 after being denied the information on 22 December 2006, well after a 30-day period to launch such an application had expired.

Brummer apparently received a copy of the appeal decision only on 2 February 2007.

Brummer's legal team was asking the Constitutional Court to decide whether he should have been allowed to challenge being refused access to the information - even though he did not comply with the 30-day requirement, and whether the 30-day limit was unconstitutional as it did not afford people who wished to challenge a refusal adequate time to approach the court.

Brummer was supported by submissions by the Human Rights Commission and the South African History Archives.

The Cape High Court found that section 78(2) of the Act was unconstitutional as it did not give the person requesting information adequate time to approach a court for relief against refusal of access to information.

Brummer was asking the Constitutional Court to confirm this order.

Brummer's lawyer, Andrea Gabriel, said the Act was used to withold information from the applicant, rather than to facilitate access to information.

"We are involved in a democratic project. The information our leaders hold belong to the citizens," she said.

Judgment in the matter was reserved.

The minister now has two weeks to respond on the submission of the HRC, which they only received late last night, while Brummer's legal team will have another week to respond on their submission.

Sapa

When we fail democracy Rebekah Kendal wonders what it will take before someone stands up to SA's schoolyard bullies…

SA's terror dilemma With the 2010 World Cup on the horizon, Hadlee Simons takes a look at our anti-terror laws…

Quirky & Bizarre Do you need a laugh? Then check out our offbeat stories from around the world...