Legal Alert 1/2016 - PAIA Manuals

4 February 2016

Dear Client

PROMOTION OF ACCESS TO INFORMATION ACT MANUALS

Did you know that the exemption for certain types of entities to submit their Promotion of Access to Information (PAIA) manuals to the South African Human Rights Commission (SAHRC) has been extended to 31 December 2020.  This exemption is however not a blanket exemption and entities that do not meet the criteria for exemption still has to prepare and submit their PAIA manuals.

PAIA manual background

The Promotion of Access to Information Act (“PAIA”), No 2 of 2000 gives effect to the constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights.

PAIA gives the requester a right to lodge a request with the information officer of a public or private body.

PAIA requires all private and public bodies to prepare a PAIA manual.  The main purpose of the manual is to describe the types of information held by the entity as well as the process to be followed to request information.

The Department of Justice and Constitutional Development initially extended the exemption for certain private bodies to compile a manual from 31 December 2011 to 31 December 2015.  This deadline was further extended for a period of five years to 31 December 2020.

A private body is defined as follows:

  • "a natural person who carries or has carried on any trade, business or profession, but only in such capacity;
  • a partnership which carries or has carried on any trade, business or profession; or any former or existing juristic person; but excludes a public body"
  • any former or existing juristic person; but excludes a public body"

Examples of Private bodies include:

Sole proprietors Yes Business trusts Yes
Private/public companies Yes Schools Yes
Body corporates Yes Churches Yes
Partnerships Yes Foreign companies Yes
Close corporations Yes    

Private bodies (except companies) have now been exempted from submitting a manual until 31 December 2020, but the body still has to comply with the rest of the Act. The exemption does not apply to Public Companies.  Private Companies that fall below the employee and turnover thresholds as set out in the schedule below can also make use of the exemption until 31 December 2020. Private Companies that exceed the thresholds set out below, must however compile and submit their PAIA manuals.

SectorEmployeesTurnover (In Millions) R
Agriculture 50 or more 2
Mining and Quarrying 50 or more 7
Manufacturing 50 or more 10
Electricity, Gas, Water 50 or more 10
Construction 50 or more 5
Retail, Motor Trade and Repair Services 50 or more 15
Wholesale Trade, Commercial Agents, and Allied Services 50 or more 25
Catering, Accommodation and other Trade 50 or more 5
Transport, Storage and Communications 50 or more 10
Financial and Business Services 50 or more 10
Community, Special and Personal Services 50 or more 5

The following steps can be applied to determine whether your private body is required to submit a PAIA manual:

Step 1: Is the private body a company in terms of the Companies Act? – If yes, proceed to step 2. If no, the extended deadline of 31 December 2020 will apply.

Step 2: Is the Company a Public Company as defined in the Companies Act? – If yes, manual must be submitted. If no, proceed to step 3.   

Step 3: Refer to the relevant sector applicable to your Private Company as per the schedule.

Step 4: Does the company have 50 or more employees.  If yes, manual must be submitted.  If no, proceed to step 5.

Step 5: Does the company have an annual turnover equal or more than the amount listed under column 2 of the schedule? If yes, manual must be submitted.  If no, the exemption will apply until 31 December 2020.

The SAHRC also requires that the holding company and each of its subsidiaries must submit separate manuals for each entity respectively.

In terms of Section 51 of PAIA, the head of a private body must: 

  • Compile a manual prescribed by the Act;
  • A copy should be submitted to SAHRC;
  • Update any material changes on the manual on a regular basis;
  • A copy should be placed on your website;
  • A hard copy should be kept at your head office and other major places of business and it must be available for inspection during office hours; and
  • If you are a member of an umbrella organization, then a copy should be submitted to the controlling body.
  • Must annex a request form to the manual and also make a request form available on the website and at the company premises and access points.

This manual must contain minimum information about a business as prescribed by the Act.

  • Postal and street address, phone and fax number and if available the e-mail address of the head of the private body;
  • The description of the guide compiled by the SAHRC and how to access it;
  • The latest notice regarding the categories of records of the body which are available without a person have to request access in terms of PAIA;
  • A description of the records which the private body keeps in compliance with any other legislation;
  • Enough information to assist you in making a request for access to a record held by a private body;
  • A description of the subjects on which the private body holds records, and the categories of records held on each subject;
  • State who is the head of the company (CEO is usually the Information Officer in terms of PAIA);
  • Stipulate the fees applicable as legislated by the Act which are chargeable to requesters;
  • Remedies available to requesters if their request for information has been refused;
  • Details facilitating request for access to a record etc.

Public Bodies

A public body is defined as follows:

  • "any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere; 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 other legislation”

Public bodies must after six (6) months of the commencement of section 14 or the coming into existence of the body compile a manual stating the following:

  • Structure and function of the body;
  • Postal and street address, phone and tax number and, if available, the electronic mail address of the information officer and every deputy information officer of the public body;
  • A description of the guide compiled by SAHRC and how to access it;
  • A description of available records generated by the company stating those which are automatically available and those that are available on request;
  • Information to facilitate access to records;
  • Description of services available and how to gain access to them;
  • Description of an arrangement for a person to either consult, make representation or participate in formulation policy;
  • Action to be taken if the information officer refuses to give access to information.

The public body’s manual must be prepared in three of the official languages.  All public bodies also have to where necessary update and publish their manuals at intervals of not more than one year.

All public bodies must make their manuals available in the following manner: 

  • Making a copy available at every office;
  • Placing the manual on the website;
  • Making a copy available to the South African Human Rights Council (SAHRC).

Completed manuals must only be sent to section51.paia@sahrc.org.za.

What if I don’t register?

In terms of the Act, people who fail to register can be fined up to R15 000 or imprisoned by up to two years.

Who can request access to information in terms of PAIA?

Any interested party may request access to information from a private body. 

How can an interested party ascertain what information can be accessed under PAIA?

PAIA requires private and public bodies to compile information manuals which provide information on both the types and the categories of records held by the particular body.

Can access be obtained in respect of any information under the PAIA?

The PAIA considers a requester’s constitutional right to access to information to private and public bodies relative to the confidentiality of the information and whether any disclosure thereof may harm the private or public body.

Lodging PAIA Requests

Form A needs to be completed when a request for information is made to a public body.  Please note that these forms must be available from the public body in question and that the personnel tasked with the processing/receiving requests for information must assist in completing the form if you require assistance.  Certain public bodies will accept electronic submission of forms.

Please also note that if you earn below R14 712-00 a year you and your partners combined income is less than R27 192 per year, you will not have to pay a request fee with your application.

You will also not have to pay a request fee if your request for information is a request for your personal information.  In all other instance a fee of R35-00 needs to accompany your request.

Form B needs to be completed when a request for information to a public body has been refused or the public body has provided no response to your request 30 working days after the request was submitted.  The form B is the form to be used when you wish the decision of the public body not to grant access to information to be reconsidered.

Form C needs to be completed when a request for information is made to a private body (business).  Please note that these forms must be made available from the private body in question and that the personnel tasked with processing/receiving requests for information must assist you to complete the form if you require assistance.  Certain private bodies will accept electronic submissions of forms.

In requesting information from a private body the form must indicate what specific interest or right the information which is requested will assist you in asserting.

Please also note that if you earn below R14 712-00 a year or you and your partners combined income is less than R27 192-00 per year, you will not have to pay a request fee with your application. You will also not have to pay a request fee if your request for information is a request for your personal information.

In all other instances a fee of R50-00 needs to accompany your request.

The costs associated with all requests made under PAIA are determined by the Regulations relating to PAIA only, and not by any other laws or regulations.  Therefore, any demands made by a public or private body for the payment of additional fees with respect to PAIA request are invalid.  

The Commission is an independent public body currently mandated under PAIA to monitor the implementation of the Act.  The Minister of Justice and Constitutional Development is the only one who has the power to make decisions regarding fees associated with PAIA requests.  Value-Added Tax (VAT) is only payable by institutions who have registered as VAT vendors.

Fees for Accessing Records

Requesters are also required to pay fees for accessing the records of public and private bodies, which include fees associated with the search for, preparation of and reproduction of documentation.  The breakdown of fees for requests to both public and private bodies are as follows:

Public Bodies:

Copy per A4 page 60 cents
Printing per A4 page 40 cents
Copy on a CD R40
Transcription of visual images per A4 page R22
Copy of visual image R60
Transcription of an audio recording per A4 page R12
Copy of an audio recording R17
Search and preparation of the records for disclosure R15 p/h or part thereof excluding the first hour, reasonably required for the search and preparation.
Actual postage fee  

Private Bodies:

Copy per A4 page R1.10
Printing per A4 page 75 cents
Copy on a CD R70
Transcription of visual images per A4 page R40
Copy of visual image R60
Transcription of an audio recording per A4 page R20
Copy of an audio recording R30
Search and preparation of the records for disclosure R30 p/h or part thereof excluding the first hour, reasonably required for the search and preparation
Actual postage fee  

Appeal fees

The appeal fee payable in respect of the lodging of an internal appeal by a requester against the refusal of his or her request for access, is R50.

NO FEES are payable to the Commission for submission of your manual.

HOW WE CAN ASSIST

Veritas has significant experience in assisting clients with the changing terrain of regulatory compliance.

We take a structured approach to enable clients to achieve and sustain compliance in an efficient and cost effective manner and can assist you with the compilation and filing of your PAIA manuals

This should be dealt with promptly to minimize the risk of potential non-compliance with the Act. 

We will gladly assist you with the preparation and registration of your PAIA manual.

For assistance in this regard please contact Helga Moreira, Tel:  015 590 1000, email: helga@veritasinc.co.za.

We will gladly submit any additional information you may require.

This Alert is provided by Veritas Inc for information only, and does not constitute the provision of professional advice of any kind. The information provided herein should not be used as a substitute for consultation with professional advisers. Before making any decision or taking any action, you should consult a professional adviser who has been provided with all the pertinent facts relevant to your particular situation. No responsibility for loss occasioned to any person acting or refraining from acting as a result of using the information in the Alert can be accepted by Veritas Inc or any of the directors, partners, employees, sub-contractors or agents of Veritas Inc.
© 2015 Veritas Inc. No portion of this document may be reproduced by any process without the written permission of Veritas Inc.

Find out how we can serve as your trusted business partner

We believe in the value of long term value adding relationships with our clients.

2019 © Copyrights All Right Reserved By Veritas INC.
Website Designed & Developed By Stealth Media Ltd.