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Promotion of Access to Information Act

Promotion of Access to Information Act

25th August 2016

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It is by now well established that the Promotion of Access to Information Act (PAIA) is the vehicle giving effect to the right of access to information, enshrined in section 32 of the Constitution. This is an important right, albeit an importance easy to disrespect and disguise.

It is one thing to create the impression of democracy. It is a harder thing to live democracy. Governments worldwide would typically prefer to deny the importance of this right, whilst pretending to act in the best interests of the governed.
Human nature being what it is, we must ever be vigilant against abuse of power. One of the best mechanisms for doing so is to ensure that that which is done in the name of power, be exposed to light. This is the aim of section 32 with its tool/mechanism of implementation, being the Promotion of Access to Information Act (PAIA).

Does PAIA succeed, optimally, in its aim of giving effect to the right of access to information? Not at all. Justice Cameron highlighted a number of the problems in the minority judgment in My Vote Counts. PAIA does not give access to information, but to records. Thus, where information is not contained in a record, it need not be provided. Only public bodies and certain private bodies, as defined in PAIA, can be compelled to provide information, provided certain conditions are met in the case in private bodies and provided, in the case of both, no exclusionary grounds are raised.

The latter leads to the real weakness in PAIA, namely the multifarious grounds of exclusion available to bodies to provide a justification for the refusal to accede to a request for information. Those grounds would only serve a just purpose, were public bodies to exercise optimal care in raising them.

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These are a few of the challenges inherent in the right of access to information. Undoubtedly, South Africa set a brave example by incorporating such a right as a separate enforceable right in its Constitution.  Likewise, South African courts are, with respect, generally to be lauded for a brave and independent stance in favour of the enforcement of the right to access to information.

Recently, in the matter of Nova Property Group (Pty) Ltd and others v Cobbett and Moneyweb (Pty) Ltd,[1] the Supreme Court of Appeal confirmed that section 26(2) of the Companies Act, 2008, provides an unqualified right of access to the securities register of a company. The motive for access was irrelevant. This right of access was not subject to the provisions of PAIA. With respect, the decision is correct.

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This writer was relieved that that which she wrote in Access to Information[2], now bears, in principle the imprimatur of approval by the SCA: PAIA is not the only statute granting a right of access to information. Other legislation, such as the Water Services Act and the Companies Act identify information which must be made available to the public. In such cases recourse to PAIA and its procedures is not required. The information must be provided because of the obligation created by the statute in question.

Indeed, in that court, the SCA wrote: In choosing to confer an unqualified right capable of prompt and easy vindication in s26(2) of the Companies Act, Parliament would have been alive to the fact that the procedures of PAIA can readily be used as an instrument to frustrate and delay access to records.

This is equally true and regrettable. It means that those statutes providing for a right of access to identified information provide a more effective route to access than does PAIA. The next challenge would be to find ways to refine the mechanisms created by PAIA to ensure that it optimally meets the constitutional imperative of section 32.

Written by Ronée Robinson SC. She has 25 years’ experience as an advocate. She has a BA Hons in Philosophy and LLB from RAU (now UJ), an LLM from Unisa and an LLM from University College London. Ronée joined the Society of Advocates in December 1990. She specialises in all aspects of intellectual property law and matters related thereto such as restraints of trade. Her practise also includes much general commercial litigation

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