PAIA

Promotion of Access to Information Act

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Quick Guide to the PAIA Act

Quick PAIA Setup Manual

MORE ON THE PAIA ACT

History & Formation of the PAIA Act

The Promotion of Access to Information Act 2 of 2000 must be seen against the backdrop of its origin. It’s an origin which all South African’s share, a painful past that has shaped the freedom and rights that we relish today. It is a well known fact that  pre 94’, South Africa was ruled by a sovereign regime whose only check and balance was itself, policies and laws had been enacted to shield the elitist of that time and to control the majority and the marginalised.

The way in which information was disseminated to the public was subject to a lot of control.  The media was also muzzled and controlled to always push and promote the regime’s agenda. Enter the 94’ elections and taking centre stage thereafter is the 96’ Constitution which is revered around the world as a model constitution to all democratic states.

The objectives of The PAIA Act

1) To give effect to the constitutional right of access to any information held by the State and any information held by another person and that is required for the exercise or protection of any rights

2) To give effect to this constitutional right subject to justifiable limitation in a manner which balance this right with any other rights.

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” and hereby allowing them to request information from private bodies upon compliance with the requirements in PAIA

4) To establish voluntary and mandatory mechanisms or procedures which will allow people to obtain records from public and private bodies as swiftly, inexpensively and effortlessly as reasonably possible

5) To promote transparency, accountability and effective governance of all public and private bodies by empowering everyone to understand their rights in terms of PAIA, to understand the functions and operations of public bodies and to effectively scrutinise and participate in the decision-making by public bodies that affect their rights.

The aim of the PAIA Act

PAIA relates to all information that is 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.

  • The right of access to any information held by a public or private body may be limited to the extent that the limitations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as Contemplated in section 36 of the Constitution;
  • Reasonable legislative measures may, in terms of section 32(2) of the Constitution, be provided to alleviate the administrative and financial burden on the State in giving effect to its obligation to promote and fulfil the right of access to information.

Compliance with the PAIA Act

Compliance with the Act requires an organisation to implement clear policies and procedures, understood and complied with by all in the organisation. Every public body and some private bodies (business entities) in South Africa are obliged to prepare an information manual, which sets out the categorisation of information, and the procedures required to apply for access to the information of that body/entity.

The Act prescribes that the manual should set out, in sufficient detail a description of the categories of records held by the organisation and the contact details of the Information and Deputy Information Officer(s).

Section 32 Compliance

The PAIA provisions carry a mandatory obligation for all levels of public bodies to comply with section 32 of PAIA. The required section 32 report seeks to inform the monitoring duty of the South African Human Rights Commission in respect of transparency and accountability in the public sector. The Commission is charged with the receipt of section 32 reports in terms of PAIA from all public bodies annually. The reporting period for the section 32 report in terms of PAIA is from 1 April to 31 March every year. This means that public bodies must submit their section 32 reports within the first week of April each year.

Deputy Information Officers must submit the statistics required in terms of section 32 in the table format provided by the Commission. Special emphasis must to be accorded to the recommendations/observations and comments to be included by the Deputy Information Officer where this is applicable.

The section 32 report must clearly state:

– the name of the public entity;
– the name of the deputy information officer and information officer
– and the period for which the report is submitted.

Please also note that the names of public bodies not complying with PAIA will be submitted to the National Assembly of Parliament in terms of section 84 of PAIA.

Offences for non-compliance with section 14 & 51

Section 14 and 51 of PAIA place mandatory obligations on public and private bodies to compile information manuals. Noting that compliance with these provisions is mandatory, the Act further places the following offences for non compliance:

Section 90(2) “an information officer who willfully or in a grossly negligent manner fails to comply with the provisions of section 14 commits an offence and is liable on conviction to a fine, or to imprisonment for a period not exceeding two years.

Section 90(3) A head of a private body who willfully or in a grossly negligent manner fails to comply with the provisions of section 51 commits an offence as is liable on conviction to a fine or to imprisonment for a period not exceeding two years..

PENALTIES FOR NON COMPLIANCE OF SECTION 14

The information officer of a public body or a delegated information officer who fails to comply with the provisions of section 14 would be liable for non-compliance and the sanctions would be:

  • A fine, or
  • Imprisonment for a period not exceeding two years.

HOW TO START YOUR PAIA MANUAL

How our PAIA System Works

The Act requires all public and private bodies to compile manuals, this means that if you are in business as a sole proprietor, partnership, close corporation, private or public company, business trust or co-operative, you are required to compile and file a Manual.

This requirement also applies to every body-corporate of every residential complex in South Africa The Manual must contain a minimum amount of information about your business.

The Following will be required:

  • Name of Entity
  • Head of Entity (Name and Title)
  • Position (Description of Position)
  • Postal Address
  • Street address
  • Phone Number
  • Fax Number
  • Email Address
  • Website if applicable
  • Types of Records Kept by Entity

Best that the person who is tasked with going online and providing the information should have an intimate knowledge of the business. This will ensure an easily completed session and the immediate production of your Manual.

 

It dosen’t end there!

We will also send a copy of the Manual to the Commission for Human Rights. This fulfils your obligation to file a copy with the Commission as required in the Act. You will receive a copy of the email to the Commission and will receive their acknowledgement of receipt.

A copy of the Manual will also be loaded onto our website and you will be given a unique location (URL) that will allow any person to view the Manual online. If you do not have a website of your own, you can use this address on our website in all your correspondence and business documents as a demonstration of your compliance with the Act and as a destination for any enquiries.

Important Act Information about requests

The only person who has any right to request any access to any record of your business is a person who wishes to protect a right to which he or she is entitled. Such rights may be the result of a contract or may exist because of some Statute.

Rights may also come into existence as a consequence of the person having suffered damages due to the negligence or recklessness of another.

The Act is intended to encourage openness and to establish voluntary and mandatory mechanisms or procedures which give effect to the right of access to information in a speedy, inexpensive and effortless manner as reasonably possible and to promote transparency, accountability and effective governance of all public and private bodies by empowering and educating everyone to understand their rights in terms of the Act so that they are able to exercise their rights in relation to private bodies.

The Act does not create any additional rights – it is essentially intended to make it easier for someone who does have a right, to protect that right or exercise that right by making public the name of the contact person and details of the kinds of records a business holds.

The onus of proving that he or she has a right to such records lies with the requester. There are also many grounds for refusing access to any record.