Attention all Businesses, Public and Private!

If you are deemed to be a public body or a private body in terms of the law there are certain regulations that you are required to comply with that you may be unaware of.

Juristic persons are required to adhere to certain provisions of in the Promotion of Access to Information Act 2 of 2000 (PAIA) and the Promotion of Administrative Justice Act of 2000 (PAJA).

Promotion of Access to Information Act requires all public and private bodies to compile a manual in terms of section 14 and 51. These sections prescribe certain information that must be contained in the manual and certain other requirements.

The purpose for the manual is to give effect to section 32 of the Constitution of the Republic of South Africa which states that “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 right”.

Section 32 continues to state that “National Legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate administrative and financial burdens on the State”.

Consequently, the Promotion of Access to Information Act was passed to ensure that everyone has access to certain information that is required for the exercise and protection of their rights

Section 14 and section 51 of Promotion of Access to Information Act states that the information officer of the public body and private body must compile a manual containing the following information:

  • A description of its structure and functions
  • Postal and physical address, telephone and fax numbers
  • Email address of the information officer and his deputy
  • Information on how one would go about requesting access to a record of the body and remedies where the body has failed to act.
  • A description of the subjects on which the body holds records and the categories of records held on each subject.
  • Personal records
  • Financial records and
  • Any other information which may be prescribed in the Act

The Promotion of Access to Information Act requires juristic persons to update their manuals regularly but they are obliged to do so at least once a year. Where a request is made to a juristic person in terms of this Act, the body must release the information except where the Act expressly allows that body to refuse access to the information requested.

Once this manual is completed it is to be lodged with the Human Rights Commission and published in the Government Gazette. Additionally businesses are required to make the PAIA manual available for inspection during office hours at the place of business of the private or public body. This can be done by placing the PAIA manual on the business's website.

These laws have severe penalties for non compliance. If a juristic person is found in contravention of these laws the “head of the juristic person” could be personally liable to pay a fine or be sentenced to two years imprisonment

PAJA require and ensures good governance by good reasoning and explanation. This ensures that Directors cannot merely pay lip service to the principles of clarity and corporate authority. Therefore where a person makes an application for access to a company’s records the Director must give valid reasons for refusing it. Hence they are precluded from just dismissing the application without actually applying their mind to it.

These two Acts apply to all juristic persons. This includes a Body Corporate as it is deemed a juristic person in terms of section 36 of the Sectional Titles Act. Although many Trustees, Directors, Shareholders and Body Corporate’s may be unaware or ignorant of the law, it may not be used as an excuse and compliance with both Acts is mandatory.

Therefore it is advisable for juristic persons to get the manual completed and comply with the necessary formalities prescribed in the PAIA as soon as possible. The PAIA manual contains essential information that the juristic person should have easily available.

However in a Government Gazette Notice published on the 31st August 2005 the Minister of Justice exempted certain private bodies (which are deemed private companies in terms of section 20 of the Companies Act, 1973) from compiling a manual in terms of section 51(1) of PAIA until 31 December 2011.

Where a private body operates within the following sectors (in column one) AND has fifty (50) or more employees in their employment OR a total turnover that is equal to or more than the amount in column two they are not exempt from compiling a PAIA manual.

Column 1 Column 2

 

  • Agricultural, R 2 million
  • Mining and Quarrying, R 7 million
  • Manufacturing, R 10 million
  • Electricity, Gas and Water, R 10 million
  • Construction, R 5 million
  • Retail and Motor Trade and Repair Services, R 15 million
  • Wholesale Trade, Commercial Agents R 25 million

and Allied Services,

  • Catering, Accommodation and other Trade, R 5 million
  • Transport, Storage and Communications R 10 million
  • Finance and Business Services, R 10 million
  • Community, Special and Personal Services. R 5 million

If you do not know how to go about compiling your businesses manual please contact our offices.

 

 

References:

Promotion of Access to Information Act 2 of 2000

Promotion of Administrative Justice Act 3 of 2000

Government Gazette No. 27988, published on the 31 August 2005

Bleijs, K. (2010) Stick to the Law and Stay Out of Jail. Nama News. Issue number 35

  • Added 13 December 2010

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