It is correct that Article 32 of South Africa's Constitution Act provides that everyone has the right of access to information held by the State, and to information held by another person that is required for the exercise or protection of any rights.
However, it should be noted that Article 32(2) provides that national legislation must be enacted to give effect to this right, and such national legislation has not yet been enacted. Furthermore, Article 36 of the Constitution provides that the rights granted as part of the Bill of Rights (including the right of access to information) may be limited in terms of laws of general application and to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
It is submitted that laws such as the Fertilizer, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947, and the Medicines and Related Substances Control Act 101 of 1965 are laws of general application which are on the statute book of South Africa. Furthermore, it is submitted that the continued confidentiality of information held in terms of these Acts is reasonable and justifiable in an open and democratic society. Accordingly, it is submitted that the position in South Africa in regard to the access to confidential information is in substantial compliance with Article 39 of the TRIPS Agreement.
