In terms of section 32 of the Constitution of South Africa, every person is to be afforded the right to access to information held by the State and also by any person which he or she requires in order to enforce or protect rights which that person has:
- Everyone has the right of access to
a) any information held by the state; and
b) any information that is held by another person and that is required for the exercise or protection of any rights.
2. National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.
Since the Constitution does not only apply vertically, i.e. regulating the relationship between the State and its subjects, but also horizontally, i.e. regulating the relationships between private persons, the South African legislature had to enact legislation that provides for both categories of rights. This was achieved with the Promotion of Access to Information Act 2 of 2000 (“the Act”), which prescribed how access to information held by public bodies and private bodies must be obtained and sets out the procedure for addressing a request for access to information and for challenging any decision made in response to such request.
Objective of the Act
The Act tries to promote a culture of transparency and accountability, as opposed to the culture of secrecy and unresponsiveness which prevailed during the apartheid era and facilitated the abuse of power and consequent human rights violations. The Act acknowledges that not only vis a vis the State but also in the relationships between private parties, an imbalance of power can lead to the development of such a culture and accordingly also requires private bodies to comply with the terms of the Act.
The Act also required that a guide how to exercise the right to access to information be compiled by the South African Human Rights Commission (“SAHRC”) so that each South African is able to understand how the Act works and how to go about requesting information. This guide has since been published in all 11 languages and is available from the SAHRC’s website, www.sahrc.org.za.
Definition of private bodies
In order to assist private bodies in complying with the terms of the Act, its applicability to private bodies was suspended until 31 December 2011. From then onwards, each private body, where a private body is defined as:
(a) a natural person who carries or has carried on any trade, business or profession, but only in such capacity;
(b) a partnership which carries or has carried on any trade, business or profession;
(c) a former or existing juristic person,
but excludes a public body
must compile and register a manual about how and to whom a request for access must be submitted in compliance with section 51 of the Act. There is a voluntary disclosure provision in the act in terms of which are private body may notify the Minister of categories of documents which are automatically available without having to comply with the procedures of the Act. Whether private bodies will in fact make use of this provision seems doubtful in view of the compliance costs associated with the identification of the records and possible disputes regarding the classification of a specific record in practice . A request for information has to be processed within 30 days of receipt [in certain circumstances this period can be extended].
Private bodies have to comply with the provisions of the act with regard to manuals until 31 December 2011 (unless this deadline is further extended – such extension is currently being considered – or the private body is not yet 6 months old). The significance of the Act and its wide scope seem to have been underestimated by many and it will have to be seen whether the Human Rights Commission, which is tasked with enforcing the terms of the act and havin to report to parliament regarding the amount of requests received by public bodies and any court applications brought in connection therewith, will be able to fulfil its mandate. To date no fines or penalties have been imposed against any public or private body it would appear from the SAHRC’s website.
The head of the private body will be the person responsible for the compliance with the Act:
|Type of entity||Natural person (sole trader)||Partnership||Juristic entity|
|Head||The natural person (Proprietor) or person authorised by natural person||Any partner or person authorised by partnership||CEO or equivalent, or person authorised by that officer, or acting CEO or equivalent, if applicable|
Limitations on applicability
The Act applies to all information whether in existence before or after the commencement of the Act but does not apply to a record of:
- Cabinet and its committees;
- the judicial functions of courts, special tribunals, investigating units and judicial officers of such courts or tribunals ;
- an individual member of Parliament or of a provincial legislature in that capacity.
The Act also does not apply to records which are  required for civil or criminal proceedings,  which have commenced at the relevant time, and  where there is other law governing the production or access to such records, such as for example during the discovery stage of a litigation (exchange of documents relevant to the issues to be canvassed at the civil proceedings).
Exceptions when to refuse access
The private body must (in certain circumstances may) refuse to grant access to the relevant records if:
- the records have been lost or cannot be found, which facts have to be confirmed by affidavit;
- the records have been provided by a health practitioner in his/her capacity as such and the disclosure to the requester of such records may cause serious mental or physical harm for such person [in the opinion of a health practitioner nominated by the requester or his/her guardian and consulted by the head] without first consulting with such health practitioner or the requester is under the age of 16 or incapable of managing his/her own affairs;
- the record contains personal information, which is not already publicly available, about a third party, including a deceased individual, who has not consented to its disclosure (expressly or by consenting at the time prior to furnishing the information to the private body that the private body could make the information publicly available) and if it would be unreasonable to disclose same, unless
- the information relates to the mental and/or physical health or well-being of a minor person or person incapable of managing his/her own affairs under the care of the requester and if it is in the best interest of that person for the record to be disclosed;
- the information relates to certain aspects of the the employment history of the individual concerned pertaining to his position or functions;
- the requester is the next of kin of the deceased or the representative of such next of kin;
- the record contains trade secrets of a third party or financial, commercial, scientific or technical information other than trade secrets, 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 which would put that third party at a disadvantage contractually or in negotiations or in commercial competition, unless:
- the third party concerned has consented;
- the information is about the results of environmental or product testing (excluding preliminary testing or investigations), the disclosure of which would reveal a serious public safety or environmental risk;
- the record contains the above information regarding the commercial or financial interests of the private body itself or is a computer program defined in section 1(1) of the Copyright Act owned by the private body, unless the information is about the results of environmental or product testing (excluding preliminary testing or investigations), the disclosure of which would reveal a serious public safety or environmental risk;
- the disclosure would give rise to an action for breach of a duty of confidence contractually owed to the third party;
- the disclosure would reasonably be expected to endanger the life or physical safety of an individual or prejudice or impair the security of a building, structure or system, such as a computer or communication system, or a transport mode or other property or plan, procedure or method such as the witness protection scheme or the safety of the public;
- the record is privileged from production in legal proceedings, unless the privilege has been waived by the relevant person;
- the information relates to research conducted by a third party, the disclosure of which would put the third party, the person conducting the research or the subject matter of the research at a serious disadvantage;
- the information relates to the serious disadvantage referred to above in connection with the disclosure of information about research conducted by the private body itself.
Notwithstanding the above exceptions, a record must be disclosed if disclosure of the record would reveal evidence of:
- a substantial contravention of, or failure to comply with, the law; or
- 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.
From the above, it is clear that a private body must be careful when furnishing a requester with information and the provisions of the Act need to be studied in detail. A simple example of a request for a reference may trigger the operation of the above clauses and it will be advisable to ensure that the employment contracts of employees provide for the employer to furnish such references.
Notice to third parties and application to court by aggrieved persons
The Act prescribes how third parties have to be informed of a request in order to make representations. Notice of the request must be given to the third party within 21 days of receipt thereof and the representations or consent has to be given within 21 days thereafter. Within 30 days of informing all relevant third parties, the head of the private body must make a decision regarding the access request giving due regard to the representations received. The decision can only be implemented after the expiry of a further 30 days to allow the third parties or the requester, as the case may be, to bring an application to court to challenge the decision to grant or refuse access. Such application has to be made within a further 30 days.
The fees with regard to compliance with a request in terms of the Act have been prescribed in the Regulations to the Act and range from R 0.75 per printed A4 page to R 70.00 for each compact disc (all amounts exclusive of VAT). An administrative processing fee of R 50.00 per request is also allowed and a deposit can be demanded should the estimated amount of time involved in searching for the records exceed six hours. The private body can insist on payment of the request fees in advance (1/3 thereof) and demand a deposit regarding the fees for searching for and preparing the records (if these are likely to exceed six hours) but the person requesting access to information may apply to court against the imposition of such deposit or advance payment of the request fees. No request fees or fees in respect of the time to seach for the records are chargeable if the requester seeks record containing personal information concerning himself.
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