FREQUENTLY ASKED QUESTIONS

Caveat and Disclaimer

This Frequently Asked Questions Guide (FAQ) does not constitute a legal opinion and is offered solely as a comment and general guide. When in doubt, all persons are best served by consulting a properly qualified professional advisor.

This Frequently Asked Questions Guide (FAQ) is copyright under the Berne Convention. In terms of the Copyright Act 98 of 1978, no part of this FAQ may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by information storage and retrieval system, without permission in writing from Compliance Monitoring Systems CC.

Although every care has been taken in the compilation of the material contained in this work (which includes the verbatim transcription of the texts of the Acts and Regulations as originally published, inclusive of typographical and suchlike errors), the authors, publishers and webmaster do not accept responsibility for any loss or damage that may be occasioned as a result of the reliance by any person on the information contained herein. In particular, persons who may be affected by the terms of statutory provisions should have recourse to the relevant Gazettes as originally published.



The facilities at www.accesstoinfo.co.za have been designed to provide support and assistance to private bodies.

The website does not cater for public bodies.

A public body includes any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government or any other functionary or institution when exercising a power or performing a duty in terms of the Constitution or a provincial constitution or exercising a public power or performing a public function in terms of any legislation.


WHO MUST COMPILE A MANUAL?

Section 51 of the Promotion of Access to Information Act, 2 of 2000 makes it compulsory for the head of every private body to compile a manual and to make the manual available "as prescribed" [S 51 (3)]

A "private body" is defined and means:

  1. a natural person who carries or has carried on any trade, business or profession, but only in such capacity;
  2. a partnership which carries or has carried on any trade, business or profession;
    or
  3. any former or existing juristic person

Natural Persons and Partnerships

The question for natural persons and partnerships is thus: Are you carrying on any trade business or profession?

In most cases the question is easily answered but in more unusual circumstances it needs to be analysed more carefully. When in doubt, consider the following definitions of the words as contained in the English Oxford Dictionary:

Trade (noun)

  • The action of buying and selling goods and services
  • Job requiring manual skills and special training: (he’s a carpenter by trade)
  • The trade [treated as singular or plural] the people engaged in a particular area of business

Business (noun)

  • A person’s regular occupation, profession, or trade

Profession (noun)

  • Paid occupation, especially one that involves prolonged training and a formal qualification

Juristic Persons

The following entities are recognised as juristic persons:

  • Associations incorporated in terms of a general enabling enactment such as companies, close corporations, banks and co-operatives;
  • Associations or institutions especially created and recognised as juristic persons in separate legislation, for instance universities, and public corporations such as the South African Broadcasting Corporation; and
  • Associations that comply with the common law requirements for the recognition of juristic personality, such as political parties and trade unions and in certain circumstances, churches.

A church will be considered to be a juristic person if that particular church, or the congregation of the church, has been entrusted with legal personality and, as a distinct entity:

  • has rights and obligations and can, for instance, own property; and
  • has the capacity to enter into legal transactions and to sue and be sued in its own name.

DOES THE PAIA EXEMPT ANY PERSON?

Natural Persons and Partnerships

There are no exemptions granted to any natural person or partnership from the requirements to compile and file a manual.

This means that no matter how small a business, trade or profession concerned and irrespective of turnover or number of employees, both are obliged to compile and file a manual.

Juristic Persons

There are no exemptions granted to any juristic person from the requirements to compile and file a manual.

This means that no matter how small a business, trade or profession being conducted by the close corporation or company concerned and irrespective of turnover or number of employees, every juristic person is obliged to compile and file a manual.

Having regard to the wording of the definition of a private body, even former companies and close corporations must comply – and that goes for dormant organisations too.

WHAT INFORMATION MUST THE MANUAL CONTAIN?

In terms of S 51(1) the manual must contain:

Details of the private body

The manual must contain at least the postal and street address, phone and fax number and, if available, electronic mail address of the head of the body. In the manual compiled by the AccessToInfo system, the only additional information required is the registration number of any juristic person. This is not a requirement of the Act.

Records available

The manual must show sufficient detail to facilitate a request for access to a record of the body, a description of the subjects on which the body holds records and the categories of records held on each subject and a description of the records of the body which are available in accordance with any other legislation.

Despite the title of the Act, it does not control the access to information – it controls the access to "records".

What is a "record"?

S 3 provides that the Act applies to a record of a private body regardless of when the record came into existence.

S 1 defines a record as any recorded information regardless of form or medium that is in the possession or under the control of that private body, and whether or not it was created by that private body.

Basically, any information recorded in any form by employees of a private body in the course of their duties would be included: documents of any form, notes on notepads, handwritten rough notes, computer files, tape or videotape recordings, e-mail messages and the like.

Note: In order to qualify as a record, the information must already exist in a recorded form.

For the purposes of the Act, a record in the possession or under the control of an independent contractor engaged by a private body in the capacity as such contractor, is regarded as being a record of that private body.

It is important to note that, because of the wording of the definition of a "record", a request to create or compile a record that does not exist does not qualify as a request for a record.

No person may use the provisions of the Act to compel private bodies to compile information or put information into the order that the requester prefers.

Records of the body which are available in accordance with any other legislation

A private body is required to list the records in its possession or under its control that have been established in terms of any relevant legislation. These are normal records of the business created and maintained as part of its everyday operations.

Completing the online form for records

The list of business records provided in the online form on the AccessToInfo website reflects an attempt to include a comprehensive list of the kinds of records normally held by most private bodies in South Africa. It does not mean that every private body must (or should) have records in every category listed. For example, an individual who carries on the business of a wedding photographer may only keep Correspondence and Banking Records.

The list of statutes provided in the online form on the AccessToInfo website has been compiled in an attempt to list all relevant statutes that would apply to most private bodies in South Africa – but it does not mean that all the statutes listed apply to every private body.

For example, the same individual who carries on the business of a wedding photographer may only retain records as required by the Income Tax Act 1962. Only that specific statute need be selected.

Select only those records that are actually in the possession or under the control of the private body.

Most small business with employees would have records under their control or in their possession as required, for example by:

  • Basic Conditions of Employment 75 of 1997
  • Close Corporations Act 69 of 1984
  • Companies Act 71 of 2008
  • Financial Intelligence Centre Act 38 of 2001
  • Income Tax Act 95 of I967
  • Promotion of Access to Information Act 2 of 2000
  • Unemployment Contributions Act 4 of 2002
  • Unemployment Insurance Act 63 of 2001
  • Value Added Tax Act 89 of 1991

If a record does not exist, then there is no obligation imposed by the PAIA to create or have such a record.

No obligation to create or retain records

The Act does not impose obligations on a private body to compile records of any kind. The Act simply requires private bodies to compile a manual that contains an index of all records under its control or in its possession.

The Act does not impose any obligations on private bodies to create or retain records. If a record has been destroyed or lost at the time of a request for access or if it was never created, there is no record in the possession or under the control of the body to disclose.

Other

  • The manual must contain a description of the guide referred to in section 10, if available, and how to obtain access to it. This information is included in every manual compiled by the AccessToInfo system for each client.
  • The manual must contain the latest notice in terms of S 52(2), if any, regarding the categories of record of the body which are available without a person having to request access in terms of this Act. To date no notice has been issued in terms of S 52(2) and so this does not apply.

WHO IS THE HEAD OF A PRIVATE BODY?

S 1 of the Act (Definitions) provides as follows:

"head" of, or in relation to, a private body means —

  1. in the case of a natural person, that natural person or any person duly authorised by that natural person;
  2.  in the case of a partnership, any partner of the partnership or any person duly authorised by the partnership;
  3. in the case of a juristic person—
    1. the chief executive officer or equivalent officer of the juristic person or any person duly authorised by that officer; or
    2. the person who is acting as such or any person duly authorised by such acting person

WHO MAY REQUEST ACCESS TO THIS INFORMATION?

The PAIA gives effect to s 32(1)(b) of the Constitution of South Africa by creating a right to request records held by private bodies. This right exists only to the extent that the record is required for the exercise and protection of rights. The Act places a duty on private bodies to disclose the record unless refusal of the request is permitted or mandated by one or more of a list of grounds.

Requester

S 50 (Right of access to records of private bodies) provides that a requester must be given access to any record of a private body if:

  • that record is required for the exercise or protection of any rights; and
  • that person complies with the procedural requirements in this Act relating to a request for access to that record; and
  • access to that record is not refused in terms of any ground for refusal as contemplated in the Act.

Essentially, a request for a record held by a private body can be made by any 'person', which obviously includes juristic persons. There is no residence, citizenship or jurisdictional qualification. A person can make a request in their own name or acting on behalf of someone else.

A public body is also entitled to request access to a record of a private body on condition that such request is to protect a right such public body has against the private body or is in the public interest.

The exercise or protection of any rights

The purpose of S 50 is to require private body transparency in order to prevent harm to fundamental rights associated with a human rights culture.

Such rights are those included in the South African Bill of Rights and rights in general law that can be regarded as deriving from the rights in the Bill of Rights. This would include such rights as are included in the law of delict.

The law of delict forms a part of private law and more particularly the law of obligations. Delict is one of the primary sources of obligations. In terms of an obligation caused by a delictual action, the wrongdoer has a personal duty to compensate the victim for the harm done and, vice versa, the victim has a personal right to claim reparation of harm done from the wrongdoer.

Rights enshrined in the SA Constitution – Bill of Rights

  • Equality
  • Human Dignity
  • Life
  • Freedom and Security of the Person
  • Slavery, Servitude and Forced Labour
  • Privacy
  • Freedom of Religion, Belief and Opinion
  • Freedom of Expression
  • Assembly, Demonstration, Picket and Petition
  • Freedom of Association
  • Political Rights
  • Citizenship
  • Freedom of Movement and Residence
  • Freedom of Trade, Occupation and Profession
  • Labour Relations
  • Environment
  • Property
  • Housing
  • Health Care, Food Water and Social Security
  • Children
  • Education
  • Language and Culture
  • Cultural, Religious and Linguistic Communities
  • Access to Information
  • Just Administrative Action
  • Access to Courts
  • Arrested, Detained and Accused Persons

In the opinion of University of the Witwatersrand academics Jonathan Klaaren and Iain Currie in their 2002 publication "The Promotion of Access to Information Act Commentary"

"It is doubtful, however, whether the Act should be applied to rights created by the voluntary assumption of obligations i.e., contractual rights."

GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

Mandatory protection of privacy of third party who is natural person

The head of a private body must refuse a request for access to a record of the body if its disclosure would involve the unreasonable disclosure of personal information about a third party (being any natural person other than the requester), including a deceased individual.

However, a record may not be refused if:

  • it consists of information about an individual who has consented in writing to its disclosure to the requester concerned;
  • it is already publicly available;
  • the record was given to the private body by the individual to whom it relates and the individual was informed by or on behalf of the private body, before it is given, that the information belongs to a class of information that would or might be made available to the public;
  • the request is for a record about an individual's physical or mental health, or well-being, who is under the care of the requester and who is under the age of 18 years or is incapable of understanding the nature of the request, and if giving access would be in the individual's best interests;
  • it is about an individual who is deceased and the requester is the individual's next of kin or is making the request with the written consent of the individual's next of kin;
  • is about an individual who is or was an official of a private body and which relates to the position or functions of the individual, including, but not limited to the fact that the individual is or was an official of that private body, the title, work address, work phone number and other similar particulars of the individual, the classification, salary scale or remuneration and responsibilities of the position held or services performed by the individual and the name of the individual on a record prepared by the individual in the course of employment.
Mandatory protection of commercial information of third party

The head of a private body must refuse a request for access to a record of the body if the record contains

  • trade secrets of a third party;
  • financial, commercial, scientific or technical information, other than trade secrets, of a third party, the disclosure of which would be likely to cause harm to the commercial or financial interests of that third party; or
  • information supplied in confidence by a third party, the disclosure of which could reasonably be expected to put that third party at a disadvantage in contractual or other negotiations or to prejudice that third party in commercial competition.

A record may not be refused insofar as it consists of information about-

  • a third party who has consented in writing to its disclosure to the requester concerned;
  • the results of any product or environmental testing or other investigation supplied by a third party or the results of any such testing or investigation carried out by or on behalf of a third party and its disclosure would reveal a serious public safety or environmental risk.

Note: "third party", in relation to a request for access to a record of a private body, means any person (including, but not limited to, a public body) other than the requester.

Mandatory protection of certain confidential information of third party

The head of a private body must refuse a request for access to a record of the body if its disclosure would constitute an action for breach of a duty of confidence owed to a third party in terms of an agreement.

Mandatory protection of safety of individuals, and protection of property

The head of a private body must refuse a request for access to a record of the body if its disclosure could reasonably be expected to endanger the life or physical safety of an individual; or

The head of a private body may refuse a request for access to a record of the body if its disclosure would be likely to prejudice or impair the security of a building, structure or system, including, but not limited to, a computer or communication system, a means of transport or any other property;

The head of a private body may refuse a request for access to a record of the body if its disclosure would be likely to prejudice or impair methods, systems, plans or procedures for the protection of an individual in accordance with a witness protection scheme, the safety of the public, or any part of the public or the security of property.  

Mandatory protection of records privileged from production in legal proceedings

The head of a private body must refuse a request for access to a record of the body if the record is privileged from production in legal proceedings unless the person entitled to the privilege has waived the privilege.

Commercial information of private body

The head of a private body may refuse a request for access to a record of the body if the record:

  • Contains trade secrets of the private body,
  • Contains financial, commercial, scientific or technical information, other than trade secrets, of the private body, the disclosure of which would be likely to cause harm to the commercial or financial interests of the body;
  • Contains information, the disclosure of which could reasonably be expected to put the private body at a disadvantage in contractual or other negotiations or to prejudice the body in commercial competition;
  • Is a computer program, as defined in section 1 (1) of the Copyright Act, 1978 (Act No. 98 of 1978), owned by the private body, except insofar as it is required to give access to a record to which access is granted in terms of this Act.
Mandatory protection of research information of third party, and protection of research information of private body

The head of a private body must refuse a request for access to a record of the body if the record contains information about research being or to be carried out by or on behalf of a third party, the disclosure of which would be likely to expose the third party, a person that is or will be carrying out the research on behalf of the third party or the subject matter of the research to serious disadvantage.

The head of a private body may refuse a request for access to a record of the body if the record contains information about research being or to be carried out by or on behalf of the private body, the disclosure of which would be likely to expose the private body, a person that is or will be carrying out the research on behalf of the private body or the subject matter of the research to serious disadvantage.

Mandatory disclosure in public interest

The head of a private body must grant a request for access to a record of the body if the disclosure of the record would reveal evidence of a substantial contravention of, or failure to comply with, the law or evidence of imminent and serious public safety or environmental risk and the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question.

HOW MUST THE MANUAL BE MADE AVAILABLE "AS PRESCRIBED"?

The submission of an electronic copy in PDF format is sufficient to comply with the requirements of the Act.

Regulation 9(1), provides that immediately after the manual has been compiled in terms of section 51 (1) or updated in terms of section 51 (2) of the Act, the head of a private body must make available a copy of the manual to the Human Rights Commission and to the controlling body of which that private body is a member, if applicable.

In addition, the head of a private body must make the manual available on the web site, if any, of the private body.

The head of a private body may publish the manual in the Gazette.

In terms of S 83(3) the Human Rights Commission may make recommendations for procedures in terms of which public and private bodies make information electronically available.

Currently the website of the Human Rights Commission (www.sahrc.org.za ) provides that electronic submissions to the Commission are accepted, and must be sent to dmalesa@sahrc.org.za. The website then states that after submission of the electronic copy a hard copy original must be sent to the Commission.

It is submitted that there is no legal requirement that any hard copy be submitted and that the submission of an electronic copy is in full compliance with the requirements of S 51(3) read with the provisions of Regulation 9(1)(a)(i)(aa).

In particular, if these provisions are read with the provisions of Sections 12, 17, 19 and 27 of the Electronic Communications and Transactions Act 25 of 2002, the submission of an electronic copy can be considered to be adequate fulfilment of the obligation to "make available a copy of the manual to the Human Rights Commission".

ARE THERE ANY OTHER LEGAL OBLIGATIONS THAT MUST BE MET?

The manual must be updated whenever there are any changes in the information contained therein.

S 51(2) provides that the head of a private body must on a regular basis update the manual and Regulation 9(1), provides that immediately after the manual has been updated in terms of section 51 (2) of the Act, the head of a private body must make available a copy of the manual to the Human Rights Commission and to the controlling body of which that private body is a member, if applicable.

WHAT ARE THE PENALTIES FOR NON-COMPLIANCE?

In terms of S 90 (3) a head of a private body who wilfully or in a grossly negligent manner fails to compile a manual, update a manual or fails to make the manual available as prescribed, commits an offence and is liable on conviction to a fine, or to imprisonment for a period not exceeding two years.

The important words in this provision are "wilfully" and "grossly negligent". These terms are subject to legal interpretation and, in a court of law, usually require a great deal to prove their presence.

In addition any person who with intent to deny a right of access in terms of this Act destroys damages or alters a record, conceals a record or falsifies a record or makes a false record, commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding two years.

WHAT IS THE REAL PURPOSE OF THIS PIECE OF LEGISLATION?

S 9 of the Act (Objects of Act) provides as follows:

The objects of this Act are -

  1. to give effect to the constitutional right of access to –
    1. any information held by the State; and
    2. any information that is held by another person and that is required for the exercise or protection of any rights;
  2. to give effect to that right
    1. subject to justifiable limitations, including, but not limited to, limitations aimed at the reasonable protection of privacy, commercial confidentiality and effective, efficient and good governance; and
    2. in a manner which balances that right with any other rights, includ¬ing the rights in the Bill of Rights in Chapter 2 of the Constitution;
  3. to give effect to the constitutional obligations of the State of promoting a human rights culture and social justice, by including public bodies in the definition of 'requester', allowing them, amongst others, to access information from private bodies upon compliance with the four require¬ments in this Act, including an additional obligation for certain public bodies in certain instances to act in the public interest;
  4. to establish voluntary and mandatory mechanisms or procedures to give effect to that right in a manner which enables persons to obtain access to records of public and private bodies as swiftly, inexpensively and effort¬lessly as reasonably possible; and
  5. generally, to promote transparency, accountability and effective govern-ance of all public and private bodies by, including, but not limited to, empowering and educating everyone -
    1. to understand their rights in terms of this Act in order to exercise their rights in relation to public and private bodies;
    2. to understand the functions and operation of public bodies; and
    3. to effectively scrutinise, and participate in, decision making by public bodies that affects their rights.