Time to Comply with Section 51 of PAIA

Section 51 of the Promotion of Access To Information Act 2 Of 2000 (“PAIA”) states that every “private body” must submit to the South African Human Rights Commission (“SAHRC”) a manual aimed at facilitating requests for information from that private body. Broadly defined, a private body is any natural person, partnership or juristic person which carries on any trade, business or profession.

The manual must contain the following:

1. The name of the head of the private body as well as that person’s contact details;
2. A description of all available records generated by the private body stating which are automatically available and those which are available on request;
3. An outline of the request procedure in terms of PAIA;
4. A description of the records of the body which are kept in compliance with any other legislation;
5. A description of the subjects on which the private body holds records, and the categories of records held on each subject;
6. The fees applicable and which may be charged in terms of PAIA for requests;
7. The remedies available to requesters if their request for information has been refused; and
8. Further details facilitating requests for access to a record.

Since its commencement date in 2002 Section 51 has remained in abeyance and has not come into effect. On 30 December 2011, the Department of Justice and Constitutional Development further delayed its commencement by placing a morotorium on the section providing all private bodies an additional 36 months to comply. This extension, however, was not granted to private companies which operate within certain sectors of the economy if they had over fifty employees or if the company’s turnover exceeded a nominal amount.

The moratorium will cease on 31 December 2015. After this date, Section 51 becomes compulsory for all private bodies.

There are penalties for non-compliance which are outlined by section 90 of PAIA. A head of a private body who wilfully or in a grossly negligent manner fails to comply with the provisions of section 51, commits an offence and is liable on conviction to a fine, or to imprisonment for a period not exceeding two years. To date the SAHRC has not imposed any fines for non-compliance but reserves the right to do so.

The head of the private body is defined in PAIA and is ordinarily the CEO of the company or any other person who is duly authorised by the private body. The head of the body remains responsible for the submission of the manual.