If you own, manage or work for a business, whether it’s a multinational conglomerate or a desk set up in the garage, it is likely that you have, from time to time, been bombarded with information about the Promotion of Access to Information Manual, the importance of having one, and the penalties involved in not having one. Of course, this information is usually accompanied by an offer to do it all for you for a fee, and urgently if you want to stay out of jail.
But do you really need to have an Information Manual in place? Before spending a fortune in consulting fees, consider whether you are required to comply, or whether you are one of the businesses covered by the moratorium.
What is PAIA?
The Promotion of Access to Information Act was passed in 2000, and entitles requesters to ask for the release of information from public and private entities. But just because a request is delivered to a company doesn’t mean that the information must be released. The requester is only entitled to the information if s/he is able to show that s/he has a right to the information. Additionally, the information may not be released if there is a legally recognised reason why it should not be disclosed, such as the information being protected by a confidentiality agreement, or the company is, by law, prohibited from disclosing the information.
What is the Information Manual?
The Information Manual is mandated in section 51 of the Promotion of Access to Information Act, and all private bodies are required to have one. Private bodies include sole proprietors, partnerships, close corporations, companies and business trusts. The Information Manual needs to specify contact details for the entity’s head or information officer, and must outline the procedure that a requester needs to follow if s/he wants to obtain information about or held by the private body. In addition to submitting their Information Manual to the South African Human Rights Commission, the entity is also required to make their Information Manual available to the public. The penalty for failing to do this is a fine or up to two years in prison. To date the SAHRC has not enforced any penalties against transgressors, but they reserve the right to do so.
Once your organisation’s Information Manual has been prepared and signed, submission is a simple process of posting the final document to the SAHRC. Note also that the SAHRC does not charge any submission fees – a welcome exception to the rule!
The SAHRC Moratorium: There are certain categories of private bodies that do not need to compile and submit Information Manuals – at least, not yet.
Who needs to submit a Manual?
You need to have your manual in place if:
- You’re a public company; or
- You employ 50 or more employees; or
- You operate in a specific industry and have a turnover equal to or in excess of that specified:
- Agriculture: R2 million
- Mining and Quarrying: R7 million
- Manufacturing: R10 million
- Electricity, Gas and Water: R10 million
- Construction: R5 million
- Retail and Motor Trade and Repair Services: R15 million
- Wholesale Trade, Commercial Agents and Allied Services: R25 million
- Catering, Accommodation and other Trade: R5 million
- Transport, Storage and Communications: R10 million
- Finance and Business Services: R10 million
- Community, Special and Personal Services: R5 million
If you do not fall into one of the above-mentioned categories, you are not obliged to compile an Information Manual – yet.
In Summary: If you operate a business, ensure that you have drafted an Information Manual, and have submitted it to the South African Human Rights Commission. But only if you want to or have to. If you’re covered by the moratorium… you need not worry about it until the moratorium is reviewed.
Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.