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Promotion of Access to Information Act

PROMOTION OF ACCESS TO INFORMATION ACT, 2 OF 2000

Does the Promotion of Access to Information Act (“the Act”) affect our business?

Yes, the Act applies to all private bodies including sole proprietors, close corporations and companies.

What is the purpose of this Act?

The Act was drafted to give effect to the constitutional right that a person should have the ability to access any information that they require for the exercise or protection of any right.

Specifically, the Act requires that by not later than 31 December 2011, all businesses must have published a document (called a “manual”) that sets out the various categories of information and records that they hold.  The Act also sets out the form in which any request for information from a business should be made and the grounds on which a request may be refused, including protection of the privacy of third parties and the protection of confidential commercial information.

Are there criminal penalties for ignoring this Act?

Yes, failing to submit a section 51 manual by 31 December 2011 is a criminal offence for which the head of a business may be convicted for up to 2 years imprisonment or fined.

Precisely how the State will enforce the Act is not known, but it is worth pointing out that criminal complaints can be laid against a business by a private party, such as an employee or a disgruntled customer demanding a refund.  By way of example, an employee facing a disciplinary hearing could demand access to certain company records or a customer could demand to know what categories of personal information are held by the business.  If a section 51 manual has not been published and submitted then the disgruntled employee or customer could technically lay a criminal complaint against the owners of the business and use that to leverage some kind of settlement.

What exactly do we have to do?

By 31 December 2011 all private bodies must submit a section 51 manual to the South African Human Rights Commission detailing:

  • the postal and street address of the body as well as the telephone, fax and email address of the head of the business;
  • the types of records held by the body and the categories of records held on each subject;
  • the types of records held by the body in accordance with any legislation (e.g. VAT Act);
  • a description of any records held by the body that are freely available without making use of the request procedures in terms of the Act (e.g. press releases or website information);
  • sufficient detail to facilitate a request for access to a record held by that body.

In relation to the bullet points above, what are examples of the types and categories of records that may be held by a body?

Examples are customer contracts, payroll records, etc. – any documentation that a company retains, whether for its own records or in terms of legislation.

In relation to the bullet points above, what is meant by ‘details to facilitate a request’? Does this refer to details of a specified contact person?

Yes, a specific contact person must be named and contact details must be provided. In addition, there is a standard form provided by the South African Human Rights Commission on its website which is to be used by a requester when requesting access to a record, and this may simply be annexed to the manual.

Is there a particular format in which the manual must be completed, or a form to complete for purposes of compiling the manual?

No, there is no mandatory prescribed form.

To whom at the South African Human Rights Commission must the manual be submitted, and how must it be submitted?

The manual may be submitted electronically to dmalesa@sahrc.org.za provided that a signed hard copy is sent thereafter to the South African Human Rights Commission, Private Bag X2700, Houghton, 2041.

AMANDA HOFMEYR

Amanda has a BA and LLB from UCT and an LLM from the University of Toronto.  She was admitted as an attorney in 2003 while working at Sonnenberg Hofmann Galombik (now Edward Nathan Sonnenbergs), and rose to the level of senior associate in the commercial department by 2006. From 2007 to 2009 she worked as a Senior Legal Advisor to MWEB, one of the Naspers Group companies. For the last two years she has consulted to various clients in Cape Town, focusing on commercial transaction work, including due diligence and all contract drafting, legislative compliance and general commercial legal advice.

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