Alert – Promotion of Access to Information Act. (PAIA)

Wednesday, November 30th, 2011

Some years ago, there was a huge rush to create Section 51 PAIA Manuals in order to comply with the deadline laid down by government.

We, at FINSERV, acting on behalf of clients, spent huge amounts of time assisting clients with this, only to have the whole process “moth-balled” by a moratorium.  It would seem that this has raised its head again, and this time, won’t go away.

The South African Human Rights Commission has a specific mandate in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA), to monitor compliance with the legislation, report compliance levels to National Parliament, and to enhance implementation of the Act within both the Public and Private sector.

It has seen very poor levels of compliance despite the inception of this legislation more than a decade ago, when the Minister declared a moratorium exempting small business from complying with Section 51 of this Act.

This moratorium is set to expire on 31 December 2011.

What this means is that ALL businesses/organisations – for profit or not-for-profit – will now be required to have these manuals.

This section carries a mandatory compliance obligation for the Private Sector.  Regulations permit the imposition of a fine or a sentence of imprisonment for wilful or grossly negligent non-compliance with the obligations of this section.

The PAIA is also a component of a framework advocated by the Companies Act, the King reports, etc. vital to securing good corporate governance.   The purpose of this legislation is to promote a culture of transparency, accountability and good governance both in the private and public sectors.

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

  1. compile a section 51 manual which is a roadmap of the company
  2. submit the manual to the South African Human Rights Commission once, electronically and in hard copy format
  3. effect material changes when these occur and resubmit to the SAHRC
  4. Submit manuals to SAHRC head office.
  5. make the manual available as prescribed by the Act at the company offices and on their website;
  6. must  annex a request form to the manual and  also make request forms available on the website and at the company premises’ access points;

There are penalties for non compliance, even though the Commission has not imposed fines for non compliance to date.  It does, however, reserve the right to do so.

The manual must, amongst others, contain the following information:

  1. details of the company’s postal, email and street address, fax and phone numbers of the company;
  2. the description of available records generated by the company, stating those which are automatically available and those that are only available on request;
  3. outline the request procedure in terms of PAIA;
  4. state who the head of the company is (CEO is usually the  Information Officer in terms of PAIA);
  5. stipulate the fees applicable, as legislated by the Act, which are payable by  requesters of information;
  6. remedies available to requesters, if their request for information has been refused;
  7. Details facilitating any request for access to a record etc.

The Human Rights Commission is mandated to provide training and support to all sectors of society, and so can be contacted for assistance.

We encourage all our clients, in the interests of compliance and good governance, to ensure that these manuals are done in the manner prescribed.

If you would like assistance with this, please would you contact Louise Madgwick at Finserv at 033-3552550 or email her at louise@finserv.co,.za.  It is not expensive. The cost for producing this manual for our clients will be R200 plus VAT, and will include the production of a hard copy manual.