I fear that many private sector businesses have not yet published the prescribed Manual as required by PAIA.
Has your company done so?
The Promotion of Access to Information Act 2 of 2000 as amended (“PAIA“) in Section 51 requires the head of each private body to compile and publish a Manual of the required information.
Private bodies are defined in Section 1 as:
- a natural person who carries on or has carried on any trade, business or profession, but only in such capacity, i.e. as an individual(s);
- a partnership which carries on or has carried on any trade, business or profession; or
- any former or existing juristic person, i.e. a company, close corporation or co-operative; or
- a political party, but
- excludes a public body.
The head of a private body is also defined in Section 1 as meaning:
- in the case of a natural person, including a person referred to in paragraph (c) of the definition of “political party” that natural person or any person duly authorised by that natural person;
- in the case of a partnership, any partner of the partnership or any person duly authorised by the partnership;
- in the case of a juristic person –
- the chief executive officer or equivalent officer of the juristic person or any person duly authorised by that officer; or
- the person who is acting as such or any person duly authorised by such acting person;
- in the case of a political party, the leader of the political party, or any person duly authorised by that leader.
It is clear from the above two definitions that every single private sector business, from the one-man spaza shop to the largest multi-national company registered in South Africa, have to compile and publish the prescribed Manual.
By when must the prescribed Manual be published?
Section 51 provides that it must be published within six months:
- after the Act came into being – which was in 2001 – in respect of then-existing private bodies, or
- after a private body came into existence. This presumably means the date when an unincorporated owner-controlled business or profession commenced trading, or when a company is incorporated.
DOJ&CD is the department responsible for the publication of the Act, Regulations, and Forms.
What is required to be published in this Manual?
The following details must be covered by the Manual:
- postal and street address, phone and fax number and, if available, electronic mail address of the head of the body;
- a description of the guide referred to in section 10, if available, and how to obtain access to it;
- the latest notice in terms of section 52(2), if any, regarding the categories of record of the body which are available without a person having to request access in terms of this Act;
- a description of the records of the body which are available in accordance with any other legislation;
- sufficient detail to facilitate a request for access to a record of the body, a description of the subjects on which the body holds records and the categories of records held on each subject; and
- such other information as may be prescribed.
- item three above refers to a listing of records identified by a private body which are available for inspection. This is compiled and made available at the discretion of the private body.
- the second item above, the Guide has to be published by the Human Rights Commission (“SAHRC”) and it is unclear if such a guide is actually available. It:
- has to be done in all 11 official languages; and
- must contain the contact details of every public body; plus
- such particulars of every private body as are practicable; and
- provide a guide on how to access information; and
- must be updated at least every two years.
A formidable task without a doubt.
Why is the publication of the prescribed Manual important?
The Protection of Personal Information Act (“PoPI Act“) took effect on 1 July 2020 and is overseen by the same Information Regulator as PAIA. The provisions and prescribed aspects are similar in many respects and compliance with both Acts needs to be focused on.
Are you compliant? Do you require assistance to become compliant?