GUIDEON HOW TO USE THE
PROMOTION OF ACCESS TO INFORMATION ACT 2 OF
2000, AS AMENDEDTABLE OF CONTENTS

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FOREWORD BY THE CHAIRMANDISCLAIMER
LIST OF ACRONYMS AND ABBREVIATIONSUSEFUL TERMS EXPLAINED IN AN EASILY COMPREHENSIBLE FORM AND MANNERCONTACT DETAILS OF THE REGULATORPURPOSE OF THIS PAIA GUIDEABOUT PAIA
THE OBJECTS OF PAIAESTABLISHMENT OF THE INFORMATION REGULATOR
THE ROLE OF THE INFORMATION REGULATOR
MAKING A REQUEST FOR A RECORDCONTACT DETAILS OF INFORMATION OFFICERSPROCESS FOR MAKING A REQUEST FOR INFORMATION
WHO CAN MAKE A PAIA REQUEST?
TO WHOM CAN A REQUEST BE MADE TO?
COMPLETING THE FORM
THE FEES INVOLVEDWILL THE INFORMATION OFFICER HELP THE REQUESTER MAKE A PAIA REQUEST?
ASSISTANCE AVAILABLE FROM THE INFORMATION REGULATOR IN TERMS OF PAIA...
RESPONSES TO A REQUEST FOR INFORMATION
THIRD PARTY NOTIFICATION PROCESSMANDATORY DISCLOSURE OF RECORDS IN THE PUBLIC INTEREST
THIRD PARTY NOTIFICATION PROCESSLEGAL REMEDIES AVAILABLE AGAINST A DECISIONS OR FAILURE TO TAKE ...
COMPLAINT TO THE INFORMATION REGULATORAPPLICATION TO COURTDIAGRAM OF PAIA REQUEST PROCESSREGULATIONS MADE IN TERMS OF SECTION 92 OF PAIA
KEY LEGISLATIONS, REGULATIONS, NOTICES AND ACKNOWLEDGEMENT

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PAIA GUIDEPAIA GUIDE

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FOREWORD BY THE CHAIRPERSONThe Constitution of the Republic of South Africa, 19961 (“Constitution”) states that South
Africa is a sovereign and democratic state that is founded on the advancement of humanrights and an accountable, responsive and transparent system of governance as part of its
values. Before South Africa became a constitutional democracy with an enforceable Bill of
Rights, the system of Government in South Africa amongst others, resulted in a secretiveand unresponsive culture in both public and private bodies which often led to the abuse of
power and human rights violations. It is in this regard that section 32(1) of the Bill of Rights
in the Constitution, provides for the right of access to information held by the state; andany information held by another person that is required for the exercise or protection of
any rights. Section 32(2) of the Constitution in turn provides for the enactment of national
legislation that will give eﬀect to this right, by respecting, protecting, promoting andfulﬁlling this right.
The Promotion of Access to Information Act, No. 2 of 2000 (hereinafter referred to as“PAIA”, or “the Act” interchangeably), as amended, is the national legislation which wasenacted in accordance with the above-mentioned section 32(2) of the constitution.
The aim of PAIA, is to foster a culture of transparency and accountability in public andprivate bodies. It does that by giving eﬀect to the right of access to information and actively
promoting a society in which the people of South Africa have eﬀective access to
information to enable them to more fully exercise and protect all of their rights and also to
realise South Africa’s goals of an open and participatory democracy.
This PAIA Guide has been developed in fulﬁlment of the Information Regulator’s(“Regulator”) obligation under Section 10 of the PAIA, which requires the Regulator to
update and make available the existing Guide that has been compiled by the South African
Human Rights Commission.
This Guide has been designed to be a guiding, user-friendly and accessible tool for any
person who wishes to exercise any right contemplated in PAIA and the Protection of
Personal Information Act, 2013.

Adv Pansy Tlakula
CHAIRPERSON OF THE INFORMATION REGULATOR

1Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996)

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DISCLAIMER
This Guide does not relieve the user from the responsibility to exercise their own skill and care in
relation to the requirement or obligations imposed by any legislation. Furthermore, this Guide
does not provide legal advice and is not intended to replace PAIA or Regulations issued under
PAIA. The Regulator accepts no liability for any loss that may be suﬀered as a result of relianceon this Guide.

1. LIST OF ACRONYMS AND ABBREVIATIONSCEO
CFOConstitution
DIO
DoJ & CD
IO
Members
Minister
PAIA
PFMA
POPIA
Regulator
SAHRC

Chief Executive Oﬃcer
Chief Financial Oﬃcer
Constitution of the Republic of South Africa, Act No. 108 of 1996
Deputy Information Oﬃcer
Department of Justice and Constitutional Development
Information Oﬃcer
Members of the Information Regulator
Minister of Justice and Correctional Services
Promotion of Administrative Justice Act, 2000
Public Finance Management Act No. 1 of 1999 as amended
Protection of Personal Information Act No. 4 of 2013
Information Regulator
South African Human Rights Commission

2. USEFUL TERMS EXPLAINED IN AN EASILY COMPREHENSIBLE FORM AND MANNER
Term

Description

Access Fee

This access fee is paid by the requester to the body from which
you are requesting the information, to cover the costs of ﬁnding
and copying the records you require. What can be charged isprescribed by regulation.

Administrator

Is an organ of state or any natural or juristic person taking
administrative action.

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Term

Description

Administrative
ActionIs any decision taken, or any failure to take a decision, by(a) an organ of state, when:(i) exercising a power in terms of the Constitution or aprovincial constitution; or(ii) exercising a public power or performing a public functionin terms of any legislation; or(b) a natural or juristic person, other than an organ of state,when exercising a public power of performing a public
function in terms of an empowering provision.
which adversely aﬀects the rights of any person and which has adirect, external legal eﬀect.

Authorised
PersonThe authorised person is the person who is making a request on
behalf of someone else, and who has been properly authorised inwriting to do so.

Automatically
Available
Records

These are records that a public or private body will provide to arequester without them needing to ﬁle a request. These records
are listed in a ‘voluntary disclosure notice’, which should be madepublic.

Data Subject

Is the person to whom personal information relates.

Days

Unless speciﬁed as a ‘working day’ in a section in PAIA, a day isconsidered to be a calender day. To calculate time period, the dayon which the request is received is excluded, and every day
thereafter is included including weekends and public holidays
until the ﬁnal day is counted. If the ﬁnal day for responding to arequest falls on a Sunday or public holiday, the next day iscounted as the ﬁnal day.

Deemed Refusal

If not response is received to a request within the prescribed time,
this is deﬁned as a ‘deemed refusal’.

Form 2This form is prescribed by regulation and should be used torequest access to information held by a public or private body.

Form 4This form is prescribed by regulation and should be used whenappealing a decision made by a public body in relation to arequest for access to information.

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Term

Description

Guide

This Guide, made in pursuance of section 10 of PAIA, as amended
which seeks to assist a person who wishes to exercise any rightcontemplated in PAIA and the Protection of Personal Information
Act, 2013.

Information
Oﬃcer

The information Oﬃcer is the person authorised to handle PAIA
requests. The following are categories of Information Oﬃcers per
speciﬁc Body Public Body or National
Organ of State Department(as deﬁned inProvincial
section 239 of
the Constitution) Administration
Municipality

Director-General or the
person who is acting as such.
Head of Department or the
person who is acting as such.
Municipal Manager or the
person who is acting as such.

Chief Executive Oﬃcer or the
Publicperson who is acting as such.
Institutions
listed in PFMA
Schedule 1, 2,
3A, 3B, 3C & 3D
Private Body

Natural Person Sole proprietor who carries
on any trade business or
profession, but only in suchcapacity and not in his
personal capacity.
Partnership

Any partner of thepartnership or any person
duly authorised by thepartnership.

Political Party

Leader of the political partyor any person duly
authorised by that leader.

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Term

Description

Information
Oﬃcer

Private Body

Juristic Person

Chief Executive Oﬃcer or theManaging Director or
equivalent oﬃcer of thejuristic person or any person
duly authorised by theleader.
NB: The Chief ExecutiveOﬃcer or equivalent oﬃcer
may authorise any natural
person as informationOﬃcer of a Private Body.

DeputyInformation
Oﬃcer

The Deputy Information Oﬃcer is the person designed ordelegated by the Information Oﬃcer of a public body to assist therequester with their information request, and to whom theInformation Oﬃcer can delegate other PAIA powers to.
NB: Whilst only a public body can designate or delegate a Deputy
Information Oﬃcer(s), in terms of Section 17(1) of PAIA, theProtection of Personal Information Act 2013 (”POPIA”) extends
the power to designate a Deputy Information Oﬃcer to theprivate body in terms of section 56(1) thereof.

Information
Regulator

The Oﬃce of the Information Regulator has been established, in
terms of section 39 of POPIA, to monitor and enforce compliancewith both POPIA and PAIA. In this Guide the Oﬃce of theInformation Regulator or the information Regulator is referred toas the Regulator.

Internal Appeal

An internal appeal is the process for challenging a decision madein terms of a PAIA request to a public body, which must becompleted before a challenge can be made to the Regulator or toa court having jurisdiction.

Private Body

A private body is a person, company or other kind of juristic entitythat carries on trade, business or profession, including a politicalparty.

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Term

Description

Public Body

A private body means a government department or otherfunctionary or institution, which is performing a public function.
However, with regard to internal appeal, any reference to “publicbody” has been changed to “Government”, in order to avoid
confusion in respect of public bodies in which appeal is notapplicable.

RecordA record is any recorded information regardless of the from,
including, for example, written documents, audio, digital andvideo materials. A record requested from a public or private
body refers to a record that is in that body’s possession
regardless of whether that body created the record.

Regulations

PAIA allows the Minister to issue regulations that supplement
the Act, which must be published in the Government Gazette,and covers issues like the forms to be used and fees that may becharged for certain processes.

Relevant
Authority

PAIA uses the term the ‘relevant authority’ to deﬁne the person
within a National, Provincial and Local Government to whom aninternal appeal must be lodged, which is generally the politicalhead of the body concerned (this function can be oﬃciallydelegated).

3. CONTACT DETAILS OF THE REGULATOR
Information Oﬃcer
Chief Executive Oﬃcer:
Contact Person:
Email:Mr. Mosalanyane Mosala
Ms. Pfano Nenweli
PNenweli@justice.gov.za

Deputy Information Oﬃcer:
Email:

Ms. Varsha Sewlal
VarSewlal@justice.gov.za

Physical Address:
JD House, 27 Stiemens Street
Braamfontein
Johannesburg
2001

Postal Address:
P.O. Box 31533
Braamfontein
Johannesburg
2017

Telephone:
010 023 5200
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4. PURPOSE OF THIS PAIA GUIDE
4.1

The purpose of this Guide is to provide information that is needed by any person
who wishes to exercise any right contemplated in the Promotion of Access toInformation Act of 2000 (PAIA) and Protection of Personal Information Act, 2013(“POPIA”). Any person, irrespective of citizenship, can apply for access to
information under PAIA.

4.2

This Guide will speciﬁcally assist a person, also called a data subject, on how toaccess his/her personal information in terms of section 23 of POPIA. Under
POPIA, person or data subject has the right to 4.2.1

request a responsible party to conﬁrm, free of charge, whether or not the
responsible party holds personal information about them, and4.2.2

request from a responsible party the record or a description of thepersonal information about the data subject held by the responsible party,
including information about the identity of all third parties, or categories ofthird parties, who have, or have had, access to the information;

4.2.3

request a responsible party to (a) correct or delete personal information about the data subject in its
possession or under its control that is inaccurate, irrelevant, excessive,out of date, incomplete, misleading or obtained unlawfully; or(b) destroy or delete a record of personal information about the data
subject that the responsible party is no longer authorised to retain.

4.3

This guide will also assist any person on how to request access to records under
PAIA. The Guide will also assist requesters in:
4.3.1

understanding PAIA, its beneﬁts and background;

4.3.2

learning the step-by-step process by which to make a request andadditional tips for making that process easier;

4.3.3

learning the types of information which can be requested using PAIA;

4.3.4

understanding the process by which a requester can challenge a decision
taken in relation to their request;

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4.3.5

4.4

being introduced to the changes that will occur to PAIA once POPIA is fully
operational.

This guide will also assist people in understanding how to challenge the grantingof access to their records or how to participate in the process of accessing theirrecords.

5. ABOUT PAIA
5.1

The right to access to information is "one of the most eﬀective ways of upholding
the constitutional values of transparency, openness, participation andaccountability2. The above-mentioned constitutional values cannot be attained if
the government has a monopoly on the information that informs its actions anddecisions. Therefore, access to information is not only fundamental to a properly
functioning participatory democracy, but it also increases public conﬁdence ingovernment and enhances its legitimacy. Other beneﬁts of the right to access to
information are for instance, that it discourages fraud and corruption, uncertainty
and other improper governmental conduct.

5.2

When the South African Constitution was being drafted in the period following thefall of Apartheid in the 1990s, various organisations and individuals campaigned
for the inclusion of a right of access to information. It was hoped that the inclusionof this right in the Bill of Rights would ensure that atrocities such as Apartheid
could never again take place, as the state and private corporations would be
obliged to act in an accountable and transparent manner by providing access to
information, and therefore, would be unable to hide behind the veil of secrecy. It
was seen as a necessary step for helping to create a culture of justiﬁcation thatwould lead to fairer relations between people, and those in power. In one of theearliest cases3 to deal with the question whether an accused person is entitled toaccess to all the information contained in the police docket. Jones J acknowledged
its importance in these terms:“The purpose … is to exclude the perpetuation of the old system ofadministration, a system in which it was possible for government to escapeaccountability by refusing to disclose information even if it had bearing upon theexercise or protection of rights of the individual. This is the mischief it is designed
to prevent [....] Demonstrable fairness and openness promotes public conﬁdence
in the administration of public aﬀairs generally. This conﬁdence is one of thecharacteristics of the democratically governed society for which the Constitution
strives”.

2
3

Hoexter Administrative Law 94
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5.3

Section 32 of the Constitution enshrines the right of access to information held byboth public and private bodies. Section 32 also states that legislation must be
enacted to give eﬀect to the right of access to information by detailing the ways inwhich information from public and private bodies can be accessed, and byproviding grounds on which a public and private body could refuse access to
information.

5.4

PAIA was enacted in response to the above-mentioned constitutional mandate,and came into force in large part in March 2001. Its preamble acknowledges the"secretive and unresponsive culture" of the pre-democratic era, and asserts that
one of the objects of PAIA is to "foster a culture of transparency and accountability
in public and private bodies."

5.5

PAIA is meant to give eﬀect to a person’s rights of access to information andaccountability. It is designed to empower people to use the law, and so helps tofacilitate requesting access to information in diﬀerent ways. One does not need alawyer to make a request for access to information in terms of PAIA.

6. THE OBJECTS OF PAIA
6.1

The objects of PAIA are not to replace the constitutional right, but to give eﬀect tothe right in section 32 subject to justiﬁable limitations, and in a way which helps
balance all the other rights contained in the Constitution. It hopes to promote ahuman rights culture and social justice for people, the public sector and theprivate sector. PAIA seeks to promote transparency, accountability and eﬀective
governance of all institutions (both public and private) by empowering people tounderstand their access to information rights, act on them, and both scrutinise,and engage with, decision-making that aﬀects them.

6.2

The right of access to information is a very powerful constitutional right, as it helps
people realise other rights. A person can use it to help monitor and assess thedelivery of government services, or to access historical records that might be ofinterest.

6.3

The objectives of PAIA are 6.3.1

to give eﬀect to the constitutional right of access to
6.3.1.1

any information held by the State; and6.3.1.2

any information that is held by another person and that isrequired for the exercise or protection of any rights.

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• The requirement relating to the protection of rights is conﬁned
to information held in private hands. Private bodies are thus
subjected to a less stringent standard of transparency thanpublic bodies. The private sector, in other words, is entitled tokeep its information to itself, unless that information is needed
to protect rights.
• PAIA recognises, in terms of Section 8(1) thereof, that a bodymay be "public" or "private" for the purposes of the Act
depending on whether the record in question "relates to theexercise of a power or the performance of a function as apublic body or as a private body."
6.3.2

to give eﬀect to that right 6.3.2.1

subject to justiﬁable limitations, including, but not limited to,limitations aimed at the reasonable protection of privacy,commercial conﬁdentiality and eﬀective, eﬃcient and good
governance; and6.3.2.2

in a manner which balances that right with any other rights,
including the rights in the Bill of Rights in Chapter 2 of theConstitution;

6.3.3

to give eﬀect to the constitutional obligations of the State in promoting ahuman rights culture and social justice, by including public bodies in thedeﬁnition of 'requester', and allowing them, amongst others, to accessinformation from private bodies upon compliance with the four
requirements in this Act, including an additional obligation for certain
public bodies in certain instances to act in the public interest;

6.3.4

to establish voluntary and mandatory mechanisms or procedures to giveeﬀect to that right in a manner which enables persons to obtain access torecords of public and private bodies as swiftly, inexpensively andeﬀortlessly as reasonably possible; and6.3.5

generally, to promote transparency, accountability and eﬀective
governance of all public and private bodies by, including but not limited to,empowering and educating everyone 6.3.5.1

to understand their rights in terms of this Act in order to exercise
their rights in relation to public and private bodies;6.3.5.2

to understand the functions and operation of public bodies; andPage 12 of 59
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6.3.5.3
6.4

4

to eﬀectively scrutinise, and participate in, decision-making by
public bodies that aﬀects their rights.

The Promotion of Access to Information Amendment Act, 2019
6.4.1

In the matter of My Vote Counts NPC v Minister of Justice and Correctional
Services and Another [2018] ZACC 17, the constitutional court held that“the State is under an obligation that ﬂows from a proper reading of sections
32, 19 and 7(2) of the Constitution to do everything reasonably possible to givepractical and meaningful expression to the right of access to information andthe right to vote. The majority further contended that this is so because theexercise of the right to vote must be an informed choice, and there is a vitalconnection between the proper exercise of the right to vote and the right ofaccess to information. And “without access to information, the ability of citizens
to make responsible political decisions and participate meaningfully in public
life is undermined”. The Constitutional Court conﬁrmed the order of
constitutional invalidity and ordered Parliament to amend PAIA and takeany other measure it deems appropriate to provide for the recordal,
preservation and facilitation of reasonable access to information on theprivate funding of political parties and independent candidates within aperiod of 18 months.

6.4.2

In accordance with the above-mentioned constitutional court judgment,
the President has, on 3rd June 2019, assented to the Promotion of Accessto Information Amendment Act, 2019 (PAIA amendment Act 2019)4. The
PAIA amendment Act 2019 includes a political party in the deﬁnition of a
private body, which eﬀectively means that the leader of the political partyor any person duly authorised by that leader is an information oﬃcer orhead. The PAIA amendment Act 2019 now extends the right of access to
any records of the political party.

6.4.3

The amendment Act provides for information on the private funding ofpolitical parties and independent candidates to be recorded, preserved
and made available.

6.4.4

In terms of section 52A of the PAIA amendment Act 2019, the head of apolitical party must create and keep records of any donation exceeding theprescribed threshold, of R100 000.00, that has been made to that politicalparty in any given ﬁnancial year and the identity of the persons or entities
who made such donations. The head of a political party is also required tomake the records available on a quarterly basis, as prescribed; and keep
the records for a period of at least ﬁve years after the records concerned
have been created.

Promotion of Access to Information Amendment Act, No. 31 of 2019

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6.4.5

6.5This means that whilst the Political Party Funding Act makes provision for
mandatory disclosure to the Electoral Commission, the PAIA amendment
Act 2019 now extends the right of access, to the records of any donation
exceeding R100 000.00, to any person, that has been made to that politicalparty.

Other legislation that protects the right of access to information
PAIA also exists within a whole legal environment, which is designed to create a“culture of justiﬁcation”. In recognition of this, PAIA states that any other law thatgives a person an avenue for accessing information that is less onerous than PAIA,
can be used instead5.
6.5.1

6.5.2

5

Companies Act 71 of 2008
6.5.1.1

Section 26(1) of the Companies Act provides a person who holds
or has a beneﬁcial interest in any securities issued by a proﬁt
company, or who is a member of a non-proﬁt company, has aright to inspect and copy, without any charge for any suchinspection or upon payment of no more than the prescribedmaximum charge for any such copy, the information contained in
the records of the company.

6.5.1.2

In terms of section 26(7)(b) of the Companies Act, “the rights ofaccess to information set out in this section are in addition to, andnot in substitution for, any rights a person may have to accessinformation in terms of the Promotion of Access to Information
Act, 2000 (Act No. 2 of 2000)”.

The Political Party Funding Act, 2018 (Act No. 6 of 2018)
6.5.2.1

The Political Funding introduces a strict regulatory framework forthe private funding of all registered political parties, whether
represented in the national and provincial legislatures or not. This
includes setting limits for the source, size and use of donatedfunds by political parties.

6.5.2.2

To ensure transparency and accountability, political parties are
required to disclose all donations received above the disclosure
threshold of R100 000.00 to the Electoral Commission regularly
every three months (as well as ahead of general elections).

Section 2(1) of PAIA

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6.5.36.5.2.3

Any person or organisation making a donation to a political party
which individually or cumulatively exceeds R100 000.00 per year
must report that donation to the Electoral Commission within 30
days of making the donation or within 30 days of when the
cumulative donations exceeded R100 000.00.

6.5.2.4

Lastly, the Political Party Funding Act places an obligation on theElectoral Commission to make public every three months the
donations reported by political parties and to report annually to
Parliament on all donations made to political parties during theyear.

Protection of Personal Information Act, 2013 (Act No. 4 of 2013)
6.5.3.1

Section 23 of POPIA provides the data subject with the right ofaccess to personal information held by the responsible party,
including information about the identity of all third parties, orcategories of third parties, who have, or have had, access to theinformation.

6.5.3.2

This means that whilst access to a record containing personal
information about a requester is excluded from PAIA in terms
Section 11(2) thereof, data subject can request –6.5.3.2.1 access to his/her personal information; and/or
6.5.3.2.2 identity of all third parties, and/or categories of third
parties, who have, or have had, access to theinformation.
6.5.3.2.3 correction or deletion of personal information about thedata subject in its possession or under its control that is
inaccurate, irrelevant, excessive, out of date, incomplete,misleading or obtained unlawfully; or
6.5.3.2.4 the record of his/her personal information that the
responsible party is no longer authorised to retain to be
destroyed or deleted.

6.5.3.3

A responsible party may refuse to disclose any personal
information requested, in accordance with the grounds for refusalof access to records, as set out in paragraph 19.4 below.
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6.5.4

The Promotion of Administrative Justice Act 3 of 2000
6.5.4.1

Another important law to remember when considering access to
information is the Promotion of Administrative Justice Act (PAJA).
PAJA gives eﬀect to the right to administrative action that is
lawful, reasonable and procedurally fair and to the right to written
reasons for administrative action as contemplated in section 33(2)of the Constitution6.

6.5.4.2

In terms of section 5(1) of PAJA, any person whose rights havebeen materially and adversely aﬀected by administrative action
and who has not been given reasons for the action may, within 90
days after the date on which that person became aware of theaction or might reasonably have been expected to have becomeaware of the action, request that the administrator concerned tofurnish written reasons for the action. The administrator to whom
the request is made must, within 90 days after receiving therequest, give that person adequate reason in writing for theadministrative action.

7. ESTABLISHMENT OF THE INFORMATION REGULATOR

6

7.1

To ensure the promotion and enhancement of the PAIA objectives, which are to
give eﬀect to that right of access to information in a manner which enables
persons to obtain access to records of public and private bodies as swiftly andinexpensively as reasonably possible, the Information Regulator (“the Regulator”)
was established in terms of section 39 of POPIA.

7.2

In order to ensure that uncomplicated and inexpensive administrative procedures
follow when a request for access to information is made, complaints to theRegulator and court applications should be the exception rather than the rule.

7.3

POPIA amends the role of the SAHRC in relation to the PAIA mandate. Eﬀectivefrom 30 June 2021, all the functions of the SAHRC, as enumerated in PAIA, will behandled by the Regulator, which also has additional enforcement powers.

7.4

Whilst the SAHRC will still maintain its broader constitutional obligations topromote, protect and monitor the rights enshrined in the Bill of Rights, the SAHRC
and the Regulator will work closely alongside one another.

Everyone whose rights have been adversely aﬀected by administrative action has the right to be given written reasons.

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8. THE ROLE OF THE INFORMATION REGULATOR
8.1

8.2

The Regulator has a very important role in relation to PAIA. The Regulator is
mandated by PAIA, under Part 4, Chapter 1A and Part 5 and other sections, to:
8.1.1

promote the right of access to information and assist the public in using
PAIA where reasonably possible to do so,

8.1.2

monitor and further the implementation of PAIA by public and privatebodies (which includes promoting eﬀective ways to make information
timeously available),

8.1.3

make recommendations to strengthen PAIA, and

8.1.4

report annually to Parliament.

Section 77C (1) and (2) of PAIA makes provision for the following powers, duties
and functions of the Regulator, to 8.2.1

investigate a complaint made to the Regulator in the prescribed manner;

8.2.2

refer the complaint to the Enforcement Committee established in terms ofsection 50 of the POPIA; or

8.2.3

decide, in accordance with section 77D, to take no action on the complaintor, as the case may be, require no further action in respect of thecomplaint; and8.2.4

act, where appropriate, as conciliator in relation to such complaint in theprescribed manner.

8.3

The Regulator may, in terms of section 77H(1) of PAIA, and on its own initiative, orat the request by or on behalf of information oﬃcer or head of a private body or
any other person conduct as an assessment whether a public or private body
generally complies with the provisions of PAIA, insofar as its policies andimplementation procedures are concerned.

8.4

The Regulator is empowered, in term of section 77F of PAIA, to use its best
endeavours to secure a settlement of a complaint, if it appears from thecomplaint, or any written response made in relation thereto that it may bepossible to settle the complaint. This means that the Regulator can only try toassist parties to settle their disputes, if there is a complaint lodged with theRegulator, unless it has decided, on its own initiative, to conduct an assessment, as
stipulated in paragraph 8.3 above.

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9. MAKING A REQUEST FOR A RECORD
Please refer to the step-by step process chart ﬂow in paragraph 27 below, on how torequest access to the records.
9.1

Getting started: PAIA Manuals
9.1.1

While this Guide has been published to assist the public from all walks oflife to uphold their constitutional right to access to information, there areother sources of information that can also assist a person in making arequest to access to records. PAIA requires that all public bodies, andprivate bodies, compile and make available a PAIA manual7.

9.1.2

Before any person takes steps to access the information or records of aparticular body, the PAIA Manual is the ﬁrst tool to read.

9.1.3

At its most basic, the PAIA manual is useful for a person to:
9.1.3.1

9.1.3.2

7check the nature of the records which may already be available
without the need for submitting a formal PAIA request;
have an understanding of how to make a request for access to
information held by a particular body;

9.1.3.3

access all the relevant contact details of the person who will assist
the public with the records any person intends accessing;

9.1.3.4

know all the remedies available from the body to which access to
the records is being requested, before approaching the Regulator
or the Courts;

9.1.3.5

know the description of the services available to members of the
public from the body and how to gain access to those services;

9.1.3.6

know if the body will process personal information, the purposeof processing of personal information and the description of thecategories of data subjects and of the information or categories of
information relating thereto;

9.1.3.7

know if the body has planned to transfer or process a person’s
personal information outside the Republic of South Africa; andSection 14 and section 51 of PAIA

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9.1.3.8

9.2

know whether the body has appropriate security measures toensure the conﬁdentiality, integrity and availability of theinformation which is to be processed.

Where to ﬁnd PAIA manuals?
9.2.1

PAIA Manual of public bodies
9.2.1.1

All public bodies must make the PAIA Manual easily available in atleast three oﬃcial languages8.

9.2.1.2

At the very least, they are required to make a copy of a PAIA
Manual freely available, except if a printed hard copy is requested
9.2.1.2.1 on the web site of the public body;
9.2.1.2.2 at the head oﬃce of the public body for public inspection
during normal business hours;
9.2.1.2.3 if a person wants a hard copy, the public body must
make a copy, but it may request payment of areasonable fee for the provision of a hard copy; and9.2.1.3.4 to the Regulator upon request.

9.2.2

PAIA Manual of private bodies
9.2.2.1

Private bodies are also required to compile a PAIA manual9, butthere is no requirement to compile it in more than one language
or in a speciﬁc language, although it is recommended that the
PAIA Manuals of private bodies should be at least in English. If a
speciﬁc body is providing services to majority of people without
formal education, the Regulator recommends that the manual ofthat body may also be in any other oﬃcial language.

9.2.2.2

At the very least, the private bodies are required to make a copyof a PAIA Manual freely available10, except if a printed hard copy isrequested 9.2.2.2.1 on the web site of the private body;

Section 14(1) of PAIAin terms of section 51 of PAIA
10
Section 51(3) of PAIA
8

9.2.2.2.2 at the principal place of business of the private body for
public inspection during normal business hours;

9

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9.2.2.2.3 if a person wants a hard copy, the private body must
make a copy, but it may request the payment of areasonable fee for the provision of the hard copy; and9.2.2.2.4 to the Regulator upon request.
9.2.3

The Minister of Justice and Correctional Services has powers to exempt11
certain private bodies or category of private bodies from the obligation tocompile a manual. Currently, and until 31 December 2021, the Minister has
exempted12 all private bodies, except any company which (a) (is not a private company as deﬁned in section 1 of the Companies Act,
2008 (Act No. 71 of 2008); and(b) is a private company as deﬁned in section 1 of the Companies Act,
2008 (Act No. 71 of 2008) which operates within any of the sectors
mentioned in column one of the schedule to this Notice and –(i)has 50 or more employees in their employment; or(ii)

has a total annual turnover that is equal to or more than theapplicable amount mentioned in column 2 of below table,from compiling the manual contemplated in section 51(1) of the ﬁrst
mentioned Act for a period of six (6) month from 1 July 2021 to 31
December 2021: Sector

Annual TurnoverR 6 million

Agriculture

R 22.5 million

Mining and Quarrying

11
12

Manufacturing

R 30 million

Electricity, Gas and Water

R 30 million

Construction

R 15 million

Retail and Motor Trade and Repair Services

R 45 million

Wholesale Trade, Commercial Agents and Allied Services

R 75 million

Catering, Accommodation and other Trade

R 15 million

Transport, Storage and Communications

R 30 million

Finance and Business Services

R 30 million

Community, Special and Personal Services

R 15 million

Section 51(4) of PAIA
Government Gazette no: 39504, 11 December 2015

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9.3

9.2.4

Due to the signiﬁcance of the legislative requirement for compiling the
PAIA Manual, especially the amendment13 of section 51 of PAIA (whichcome into operation on 30 June 2021), in terms of which the scope of theinformation that the manual must cover has been widened to include
matters relating POPIA, private bodies will no longer be exempted fromthe obligation to compile PAIA manual. Therefore, from, 1st January 2022,
every private and public body will be required to have their PAIA Manual
available, as prescribed in paragraph 9.2.2.2 above.

9.2.5

The exemption of private companies from the obligation to compile PAIA
manual does not exempt those private companies from compliance with
PAIA. This means that any person can still submit a request for access to
information to exempted private body. The exemption just means thatthose private companies don’t have to compile a PAIA manual.

9.2.6

Remember too, that not all private bodies are companies, as the deﬁnitionof private body includes natural person, sole proprietor and partnership.
However, it may still be worthwhile checking their website, as someCompanies create a PAIA manual regardless of the number of theiremployees or their annual turnover.

Voluntary disclosure and automatic availability of certain records
9.3.1

Automatically available records are those that a public or private body will
provide without the need for a requester to submit a PAIA request (in otherwords, a person can just request it without completing the PAIA Form 2).

9.3.2

The Information Oﬃcer of a public body is required, in terms of section
15(1) of PAIA, to make available a list or categories of records that areautomatically available, as prescribed in paragraph 9.3.4 below.

9.3.3

Automatically available records of a private body may also be madeavailable, in terms of section 52(1) of PAIA, but on a voluntary basis inaccordance with paragraph 9.3.4 below.

9.3.4

A description of the categories of automatically available records must be
made available (a) to the Information Regulator;(b) on the website of a body; and(c)

13Section 110 of POPIA

for inspection, at the oﬃces of a body concerned during normal oﬃce
hours.
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9.3.5

Please note that the Regulator will upload the description of automaticallyavailable records of a public body on its website.

9.3.6

This list includes records that might be required to be made available byother laws, and any other records that a body chooses to include. In order
to avoid the formality of complying with the PAIA request process, arequester is advised to check the PAIA Manual of the public or private bodyconcerned. Should a person wish to access records that fall within the
body’s list of automatically available records, that person may merely
request access to them without needing to complete PAIA Form 2.

9.3.7

Political Party Funding Act 6 of 2018 introduces some changes through
PAIA, in terms of which the heads of political parties are required to recordand preserve records of private donations, which will need to be madepublic without a person having to ﬁle a PAIA request.

10. CONTACT DETAILS OF INFORMATION OFFICERS
10.1 Although the contact details of the Information Oﬃcers of every public body are
required to be published in every telephone directory, in terms of section 16 of
PAIA, the Regulator has speciﬁc contact details of all Information Oﬃcers(including Deputy Information Oﬃcers, designated in terms of section 17 and 56
of PAIA and POPIA respectively) registered with it in terms of section 55(2) of
POPIA.
10.2 Whilst getting the correct contact details may often be a very challenging part ofmaking a PAIA request, as roles change frequently in the public sector and PAIA
manual may not necessarily be up-to-date, the ﬁrst place to ﬁnd contact details
should be the body’s PAIA Manual. However, if a requester cannot ﬁnd themanual, calling the switchboard of the body to ask for the relevant details may also
assist.
10.3 For Municipalities, the South African Local Government Association (SALGA)
places the contact details for all Municipalities at this link:
http://www.salga.org.za/Municipalities%20MCD.html
10.4 Government communication also provides national and provincial contacts aswell as the contact details of State-Owned Enterprises under this link:
https://www.gov.za/about-government/contact-directory. Always remember thatthe deﬁnition of the Information Oﬃcer helps to identify whose contact details
are needed to identify the Information Oﬃcer.

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11. PROCESS FOR MAKING A REQUEST FOR INFORMATION
11.1 The forms of request
11.1.1 A request for access to information can be made to both public and privatebodies.
11.1.2 PAIA requires that if you want to make such a request, you have to submit
the request on the required form (these forms are prescribed byRegulations). There are two forms that can be used in pursuing the right toaccess to information
Form 2Form 4This form can only be used if you
want to request access to therecords of a public or private body.

This form can only be used if you
want to submit an internal appeal
against the decisions of theInformation Oﬃcers or that of the
Deputy Information Oﬃcers of a
National, Provincial or Local
Sphere of Government to which aninternal appeal is applicable.

11.1.3 These forms can be obtained on the Regulator’s website athttps://www.justice.gov.za/inforeg/
11.2 Deciding whether a request relates to information held by a private or public body
11.2.1 A public body performs a public function, such as providing electricity or
water to the public. So, a public body is not just a National, Provincial or
Local Government Department– it would include state-owned enterprises
or Organs of State such as the Regulator, Eskom, or PRASA, however, adistinction must be made regarding a public body for purpose of internal
appeal, which only refers to National, Provincial or Local Government.
11.2.2 A private body performs a private function. Such a body (which can be a
person) carries on a trade, business or profession. It is very important tonote that when submitting a PAIA request to a private body a person muststate which right he is protecting or exercising by asking for thisinformation. With regard to any information that is held by another person,
Streicher JA summed up the position as follows, in Cape Metropolitan
Council v Metro Inspection Services (Western Cape) CC and Others14,
14

2001 (3) SA 1013 (SCA) para 28 at 1026F–G

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“Information can only be required for the exercise or protection of a right if itwill be of assistance in the exercise or protection of the right. It follows that, inorder to make out a case for access to information in terms of section 32, anapplicant has to state what the right is that he wishes to exercise or protect,what the information is which is required and how that information would
assist him in exercising or protecting that right”.
11.2.3 Sometimes the question of whether a record is a public or private record
can be complicated and the public are advised to seek legal advice. For
example, if a public body appoints a private body to render certain services
on its behalf, such as installation of water metres in certain communities,
access to the numbers of installed metres, even if such information is heldby such private body, will be treated as information of a public body.
11.3 How does a person explain the right he is hoping to exercise or protect?
11.3.1 When explaining which right one is hoping to exercise when making arequest to a private body, one cannot refer to the right of access to
information. One has to explain how the record one is asking for isreasonably required for one to protect, or exercise, another right. This
could include rights that are not just constitutional rights.
11.3.2 One may for example require the master plans from a company that has
the potential to impact the pollution levels in a community, in order to help
protect one’s right to the environment through monitoring its activities. Or
one may require records, which will help one determine if one has the right
to ﬁle a civil claim against an entity. One therefore needs to:
11.3.2.1 Speciﬁcally identify the right one hopes to protect or exercise, andthen
11.3.2.2 Explain clearly why the record one is asking for is reasonably
required to help one with that right.
11.3.3 In contrast, when submitting a PAIA request to a public body, one does nothave to have a reason for requesting the information.
12. WHO CAN MAKE A PAIA REQUEST?
12.1 Any person, whether South African or non-South African, is allowed to make arequest under PAIA. The requester can be a natural person or juristic person.

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12.2 A public body is considered a juristic person and may make a request for access torecords held by private bodies, but only if the public body is 12.2.1 acting in the interests of the public, and12.2.2 if the records are required to fulﬁl or protect any rights other than those of
the public body.
12.3 Under PAIA a requester cannot request access to a record, of the public body,containing personal information about the requester from the public body15,
however the requester or data subject can, in terms of section 23(1)(b) of POPIA,
request from a responsible party the record or a description of the personal
information about the data subject held by the responsible party. This means thatany person can now request access to their personal information held by the
public or private body upon production of adequate proof of identity. The
personal information that a requester may request from the responsible bodymay include information about the identity of all third parties, or categories ofthird parties, who have, or have had, access to the information.
12.4 In terms of section 50(1) of POPIA, any person can request access to a record, of a
private body, containing personal information about the requester or the person
on whose behalf the request is made.
13. TO WHOM CAN A REQUEST BE MADE TO?
13.1 The Information Oﬃcer of a public body is required to designate a Deputy
Information Oﬃcer(s), who must ensure that access to the records of the public
body is as reasonably accessible as possible. Although this was not a requirementwith regard to the private body under PAIA, a private body may designate theabove-mentioned Deputy Information Oﬃcer, in terms of section 56 of POPIA.
13.2 The request for access to information, although it may be directed to the
Information Oﬃcer, can be submitted to the Deputy Information Oﬃcer.
Particulars of Deputy Information Oﬃcer(s) can be obtained in the PAIA manual ofthat particular body or from the Regulator.
14. COMPLETING THE FORM
14.1 Form 2 - request for access to a record of a public or private body:
14.1.1 In order to complete the PAIA form, a person needs to provide suﬃcientdetail to allow the Information Oﬃcer or Deputy Information Oﬃcer to
identify the records the requester seeks.
15

Section 11(2) of PAIA

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14.1.2 PAIA Regulations specify the form to be used, which must be sent to the
Information Oﬃcer, or Deputy Information Oﬃcer of the body.
14.1.3 Requesters who are unable to read or write can make verbal requests to
the Information Oﬃcer or Deputy Information Oﬃcer of a public body, whois then responsible for completing the form 2 on behalf of the requester.
The current form will require you to complete the following sections:
Information Required

Description

Particulars of public
private bodyThis section should contain the relevant
email and fax number of the InformationOﬃcer and/or Deputy Information Oﬃcer.

Particulars of person
requesting access torecords

This should contain enough information
about the requester to make the requester
reasonably easy to identify, including thecontact details of the requester: postal
address, email address, fax and/or telephone
number in South Africa. It also asks for youridentity number to authenticate youridentity. If you are requesting theinformation on behalf of someone else,
proof of the capacity in which you are making
the request must be provided (as the‘authorised person’).

Particulars of record
requested

Provide full particulars of the record to whichaccess is requested, including the reference
number if that is known to you, to enable therecord to be located. (If the provided space isinadequate, please continue on a separate
page and attach it to the form. All additional
pages must be signed.

Type of record

This should contain enough information
about the record to make it reasonably easy
to identify. If the information required
cannot ﬁt in the space provided in the form,
additional typed or handwritten page may be
used to give more detail of the request, aslong as each additional page is signed
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Information Required

Description
and attached to the request form. You might,
for example, include an extract from a reportor news story that references the record you
are looking for. It allows you to include areference number for the record, if is thisapplicable.

Fees

The body, to which a requester intends
submitting a request for access to a record,
includingrecordcontaining
personal
information about his or herself, may
request that you pay request fee (access fee)or deposit fee, but that amount must not be
excessive, as the fees must be for thereasonable time required to search for andprepare a record. The Minister may by noticein the Gazette exempt the payment of fees aslisted on paragraph 51.1 below.
A space is provided for the requester toindicate why he believes he or she should be
exempted from paying any fees. The reason
may include, for example, that he or she isunemployed.

Form of access to record

This section allows you to note with an “X”
your preferences for the form of access to
the record may be provided in a printed copyof record and/or ﬂash drive and/or compact
disc drive.

Manner of access

Under this section you are required to noteyour preference in relation to which
language the record should be in (this may
not be possible in relation to all records, but
you should still indicate your preference).
The manner of access of the record may
contribute to a refusal of access due tohigher fees. For example, if a requester
wants document in your preferred language,
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Information Required

Description
fees for changing the documents to yourpreferred language may become payable.
However, if the record is not available in thelanguage you prefer, access may be grantedin the language in which the record isavailable. The manner of access to record
may include personal inspection of record,
record sent by email, or fax or courier or
postal.

Notice of decision
regarding request foraccess

A space is provided for the requester todescribe the manner in which he wishes tobe informed about the decision to grant ordeny the request. The requester can specify
for instance that he would prefer to becontacted by email or by telephone or the
response can be posted or couriered to him.

Particulars of right to be
exercised or protected

When requesting information from a private
body a requester is required to describe the“particulars of right to be exercised orprotected”. Here he must state the right he isrelying on (such as his right to a healthy
environment) and how the record he isrequesting will help you either exercise, or
protect, that right. He must show aconnection between the record he wants,
and the exercise or protection of the right.
Unfortunately, unlike the request for accessto record of a public body, he cannot access arecord of the private body unless he speciﬁes
the right(s) he intends protecting or
exercising should access for information be
granted. This can include the fact that after
he gains access to records, he will then
exercise his right to equal protection andbeneﬁt of the law16 by suing that body fordamages that he may have suﬀered.

16

Section 9(1) of the constitution of the Republic of South Africa, Act 108 of 1996

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14.1.4 If for any reasons his request does not comply with the requirements listed
above, the Information Oﬃcer may not just refuse his request, unless henotiﬁed the requester that he intends to refuse the request and thereasons are provided. The Information Oﬃcer must also notify that he willassist the requester or give him an opportunity to correct the error.
15. THE FEES INVOLVED
15.1 Generally, fees need to be paid both for making a request, but also to cover thecost of providing access to records in terms of a request. There are, however,some exceptions. If the requester is granted access to the records he or she
requested and he or she is not exempted from paying any fees, as indicated inparagraph 15.2 below, the Information Oﬃcer or Deputy Information Oﬃcer of apublic or private body can charge the prescribed fees relating to the following
categories NB: The fee structure in respect of fees payable to the Public and Private
Bodies can be accessed on the Regulator’s website.
Item

Description

1
2
3
4

The request fee payable by every requester
Photocopy of A4 size page
Printed copy of A4 size pageFor a copy in a computer-readable form on:(i) Flash drive (to be provided by requestor)(ii) Compact disc• If provided by requestor• If provided to the requestor
For a transcription of visual images per A4 size page
Copy of visual images
Transcription of an audio record, per A4 size page
Copy of an audio record on:(i) Flash drive (to be provided by requestor)(ii) Compact disc• If provided by requestor• If provided to the requestor
To search for and prepare the record for disclosure for each hour orpart of an hour, excluding the ﬁrst hour, reasonably required for suchsearch and preparation. To not exceed a total cost of the prescribedmaximum amount
Deposit: If search exceeds 6 hours
Postage, e-mail or any other electronic transfer

5
6
7
8

9

10
11

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15.2 The requester does not need to pay an access fee17 to a public body if:15.2.1 He is a single person whose annual income, after permissible deductions,such as PAYE and UIF, is less than R14 712.00 a year, or
15.2.2 He is married and the joint income with his partner, after permissible
deductions, such as PAYE and UIF, is less than R27 192.00 per year.
15.3 Please note that the public or private body can request, in Form 4 to theRegulations, a deposit from the requester, but only if they believe that the
information or records requested will take more than six (6) hours to search, but
the deposit amount cannot be more than one-third of the prescribed fee.
16. WILL THE INFORMATION OFFICER HELP THE REQUESTER MAKE A PAIA REQUEST?
16.1 The role of the Information Oﬃcers and/or Deputy Information Oﬃcers of bothpublic and private bodies is to, in so far as it relates to the processing of requests
for access to records:
16.1.1 receive the PAIA or POPIA request;
16.1.2 coordinate the processing of the request within the body;
16.1.3 make a decision as to whether to grant or refuse access to the records
being requested;
16.1.4 liaise with the requester (e.g. they may need to ask the requester for moredetails or they may need to request an extension of time to deal with therequest, etc.);
16.1.5 Advice the requester of the outcome of their PAIA request, which advice
must be given as soon as is reasonably possible but within 30 days after
receiving the request. The initial period of 30 days may be extended once
for a further period of not more than 30 days, if for example, the requester
has agreed to the extension or the request requires a search for records
that cannot reasonably be completed within the original period;
16.1.6 provide the requester with reasons for the decision to refuse access. It isvery important that the reasons given for a refusal are clear and detailed
and must include reference to the speciﬁc sections of PAIA (see paragraph19.4 below, regarding the grounds for refusal of access to records18);

1718

as per Government Notice R991 of 14 October 2005
Section 33 to 46 of PAIA

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16.1.7 inform relevant third parties through the third-party notiﬁcation process,in terms of section 47 of PAIA; and16.1.8 if access to the records is granted, provide the requester with a copy of therecord.
16.2 When notifying the requester about the decision, also outline the forms ofrecourse available and the relevant time-lines (the recourse available is diﬀerent
for public and private bodies).
16.3 The additional role and responsibilities of the Information Oﬃcers and/or Deputy
Information Oﬃcers are those detailed in the Guidance Note on InformationOﬃcers and Deputy Information Oﬃcers which Guidance Note is available athttps://www.justice.gov.za/inforeg/docs.html
16.4 Because the role of the Information Oﬃcers and/or Deputy Information Oﬃcers is
to facilitate the request for access to information, this also means they have avariety of duties to those making a request.
16.5 The Information Oﬃcers and/or Deputy Information Oﬃcers must provide theassistance for free.
16.6 The Information Oﬃcers and/or Deputy Information Oﬃcers of a public body havethe following special tasks:
Duties of Information Oﬃcers

Description

Assist with completingthe form

The Information Oﬃcer must provide
reasonable assistance to the requester incompleting their PAIA form, and may notrefuse to accept a form that is not properly
completed unless they have either giventhat help, or oﬀered that help and theassistance or help has been refused.

Provide relevant
information

If it is reasonably possible, the InformationOﬃcer must provide the requester with anyother information that may be relevant,even if not speciﬁcally requested.

Transfer the request

This is a very important duty. When a PAIA
request is made to the wrong public body,the Information Oﬃcer must transfer the
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Duties of Information Oﬃcers

Description
request to the correct public body within 14
days of receiving the request and must
inform the requester in writing of having
done so. Once transferred, the correct
Information Oﬃcer must then respond witha decision within 30 days.

Deferral of release

The Information Oﬃcer may decide to defer
the release of a record to a requester if thatrecord will be published within 90 days or if
the record is required by law to be
published but is yet to be.

16.7 With both public and private bodies, the Information Oﬃcer must, if they areunable to ﬁnd the particular records requested or believe that the records do notexist, submit a detailed aﬃdavit or aﬃrmation19 to the requester giving notice thatthe records in question do not exist or cannot be found, but also outline the steps
they took to locate them.
17. ASSISTANCE AVAILABLE FROM THE INFORMATION REGULATOR IN TERMS OF PAIA
17. AND POPIA
17.1 The Information Oﬃcer of a public body has an obligation to render suchreasonable assistance20, free of charge, as is necessary to enable that requester ordata subject to comply with the manner of access as contemplated in sections 18of the PAIA and section 23 of POPIA.
17.2 However, should the Information Oﬃcer fail to comply with his/her duty, referredin paragraph 17.1 above, a requester or a data subject can may lodge a complaint
with the Regulator and the Regulator may, upon investigation, issue an
Enforcement Notice directing the Information Oﬃcer to provide the reasonableassistance.
17.3 The Regulator may, if reasonably possible, on request, assist any person wishing
to exercise any right contemplated in PAIA and POPIA21, and this includes
providing reasonable assistance, free of charge, as is necessary to enable thatrequester or data subject to comply with the manner of access as contemplated in
sections 18 and 53 of the PAIA and section 23 of POPIA.
17.4 The above includes providing guidance on how to complete a request for accessform or completing a form on behalf of an illiterate or blind person.
Section 23(1) and 51(1) of PAIA
Section 19(1) of PAIA
21
Section 83(3)(c) of PAIA
19
20

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18. CAN THE INFORMATION OFFICER EXTEND THE TIMELINES INVOLVED?
18.1 An outline of the process and the key time-lines involved are contained in the
diagram of the PAIA request process, in paragraph 27 below. Having speciﬁctime-lines is an important part of PAIA, as it fosters the eﬀective management ofrequests for access to records.
18.2 As a reminder, once you have submitted your request correctly the InformationOﬃcer or Deputy Information Oﬃcer, to whom the request is made ortransferred, must respond to you as soon as is reasonably possible but in any
event within 30 days22. However, the Information Oﬃcer of a public or private
body can request a single 30 day extension23, but only if:
18.2.1 the request is for a large number of records or requires that a large
number of records are searched and, without an extension, this searchwould interfere with the normal activities of the body concerned;
18.2.2 the request requires a search through records in an oﬃce of that body notsituated in the same city or town and could thus not be completed within
the 30 days; and/or
18.2.3 it requires a level of consultation in order to act on the request, whichcannot reasonably be completed within just 30 days.
18.3 The Information Oﬃcer must notify the requester of his or her intention to extend
the initial time period, and indicate the period of extension, the reason for theextension, and notify the requester of his or her or its right to 18.3.1 Appeal to the relevant authority;
18.3.2 complain to the Regulator; or
18.2.3 launch proceedings in court against the extension as the case may be.
18.4 The Information Oﬃcer must also inform the requester of the process for each of
the above-mentioned rights in the notice24.
19. RESPONSES TO A REQUEST FOR INFORMATION
19.1 PAIA has provided the public with the right to request access to records from any
public or private body. It is often described as the law that keeps citizens in theknow about their government. Public bodies are required to disclose any
information requested under the PAIA unless it falls under one of twelve (12)Section 25(1) of PAIA
Section 26(1) of PAIA
24
Section 26(3) of PAIA - the extension notice must state that the requester may lodge an internal appeal, complaint to the
Information Regulator or an application with a court, as the case may be, against the extension, and the procedure (including
the period) for lodging the internal appeal, complaint to the Information Regulator or application, as the case may be.
22
23

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exemptions or reasons why access to records of a public body may or must not
be granted25 and seven (7) exemptions or reasons why access to records of private
body may or must not be granted26. The nineteen (19) exemptions provided for in
PAIA are intended to protect interests such as personal privacy, national security,and law enforcement.
19.2 The guiding principle underlying the administration of PAIA is the presumption of
openness. This means that any reason for limiting this openness must be
justiﬁable. Public bodies should also consider whether partial disclosure of
information is possible whenever they determine that full disclosure is notpossible and they must sever or redact the information that cannot be disclosed
and disclose the rest.
19.3 Types of responses to requests
19.3.1 When a request for access to a record is made, the Information Oﬃcer or
Deputy Information Oﬃcer must, if a request for access to a record is
granted or refused, inform the requester of (a)(b)

his or her decision; andthe fees payable, if any,

on a form that corresponds substantially with Form 3 of Annexure A to theRegulations:19.3.2 However, PAIA provides a list of reasons or grounds (exemptions) (seeparagraphs 19.4 and 19.6 below) why the request may or must be refused.
This is important, as the request can only be refused on the basis of one ofthese listed grounds for refusal of access to records.
19.3.3 Despite the above-mentioned reasons for refusal of access to records, theInformation Oﬃcer of a public body must grant a request for access to arecord of the body if the public interest in the disclosure of the record
clearly outweighs the harm contemplated in the listed reasons for refusal27.
This means the requester can rely on public interest whenever any of thegrounds of refusal of access to records is being invoked.
19.3.4 In short, the reasons behind why information cannot be disclosed relate towhether the disclosure of the information would cause more harm thannon-disclosure would. There are two diﬀerent types of listed grounds forrefusal for access to records of a body:
Chapter 4 of PAIA- grounds for refusal of access to records (section 34-45 of PAIA)
Chapter 4 of PAIA -grounds for refusal of access to records (section 63-69 of PAIA)
27
Section 46 of PAIA
25
26

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19.4 Mandatory grounds of refusal (grounds of exemption)
19.4.1 With mandatory grounds, the Information Oﬃcer or Deputy InformationOﬃcer must refuse a request because they apply to the record.
19.4.2 There are more mandatory grounds than discretionary grounds. The
following are the mandatory grounds of refusal, and the InformationOﬃcer or Deputy Information Oﬃcer must refuse a request because they
apply to the record –19.4.2.1 Mandatory protection of privacy of third party who is anatural person;
The Information Oﬃcer of a public or private body must not allow
a requester access to the personal information of another person
if it amounts to ‘an unreasonable disclosure’. The sections
themselves indicate a few reasons when this does not apply, likewhen records are already in the public knowledge, or where aperson has given consent. The consent issue is particularly
important as it connects to another part of the process therequester should be aware of, which relates to third party
notiﬁcations, in terms of chapter 5 of PAIA.
19.4.2.2 Mandatory protection of certain records of the South African
Revenue Service;
The Information Oﬃcer of SARS must not allow a requester
access to records obtained, or held, by SARS for its revenue
collection purposes. However, records obtained or held by SARS
may not be refused if a request is done by personal requester or
the person on whose behalf the request is made.
19.4.2.3 Mandatory protection of commercial information of third
party;The Information Oﬃcer of a body must not allow a requester
access to the commercial information of another person (in otherwords, who is not the requester or requestee. This would include
information like trade secrets, or that might threaten that third
party’s commercial interests. For example, KFC use certain
recipes, including some ingredients manufactured by a third
party, which are the trade secrets of that third party and its
disclosure might threaten the commercial interests of that third
party.

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19.4.2.4 Mandatory protection of certain conﬁdential information,and protection of certain other conﬁdential information, of athird party;
The Information Oﬃcers of both a public and private body must
not allow a requester access to a record if its release would
amount to a breach of a duty of conﬁdence owed to a third party
in terms of an agreement or contract.
19.4.2.5 Mandatory protection of safety of individuals, and protectionof property;
The Information Oﬃcer of both a public or private body must notallow a requester access to a record if its release could reasonably
be expected to compromise the safety of an individual. In thesame sections, it also states that the Information Oﬃcer of a bodymay refuse access if it would be likely to impair the security of abuilding or property.
19.4.2.6 Mandatory protection of police dockets in bail proceedings,
and protection of law enforcement and legal proceedings;
The Information Oﬃcer of a public body must not allow arequester access to records like bail proceeding records that are
already protected by section 60 of the Criminal Procedure Act. In
the same section, it also states that an Information Oﬃcer of apublic body may refuse access to records of law enforcement thatreveal its methods, techniques, procedures for prevention ofcrimes, or prosecution of crimes, as well as certain other records
relevant to legal proceedings that are happening.
19.4.2.7 Mandatory protection of records privileged from productionin legal proceedings;
The Information Oﬃcer of a private body must not allow arequester access to a record if the record is privileged fromproduction in legal proceedings, unless the person entitled to theprivilege has waived the privilege.
19.4.2.8 Mandatory protection of research information of third party,
and protection of research information of public or private
body.
The Information Oﬃcer of a body must not allow a requester
access to a record if the record relates to research that is, or willbe, undertaken by the body in question and its release would be
likely to expose the researcher, the third party or the matter
under research to a serious disadvantage.
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19.4.3 Please note that the above mandatory grounds for refusal of access torecords are somewhat the same for public and private bodies, except forthe mandatory protection of certain records of South African Revenue
Service, of police dockets in bail proceedings, of law enforcement and oflegal proceedings, which are only applicable to public bodies.
19.4.4 If only part of the record is linked to an exemption ground, the InformationOﬃcer or Deputy Information Oﬃcer of both a public or private body isunder an obligation to consider whether partial disclosure of information ispossible whenever they determine that full disclosure is not possible andthey should take reasonable steps to sever or redact that part that cannot
be released to the requester and grant access to the rest of the record.
19.5 Deemed refusal of request28
19.5.1 A failure to respond properly to a request within the correct timeframe isconsidered to be a ‘deemed refusal’. This is important, because PAIA allows
the requester to challenge a decision when no decision has been made andthe request has been ignored. The requester would merely state in theinternal appeal that no response was received.
19.5.2 Request for access to records is deemed to be a refusal after the expiry of
30 days or any extended period and the public or private body fails to
respond.
19.6 Discretionary grounds of refusal
19.6.1 With discretionary grounds, an Information Oﬃcer or Deputy InformationOﬃcer may consider whether or not to refuse a request because thegrounds apply to the record requested. Because it is a discretion, theInformation Oﬃcer must apply his/her mind objectively when considering
the diﬀerent grounds, which are:19.6.1.1 South Africa’s defence, security and international relations:
The Information Oﬃcer may refuse access if the release of theinformation could reasonably be expected to threaten the
defence or security of the country. This could also apply where therelease of the information might harm South Africa’s relations
with another country, such as revealing records supplied in
conﬁdence.
19.6.1.2 Economic, ﬁnancial and commercial interests:
The Information Oﬃcer may refuse access if its release will beharmful to the economic and ﬁnancial status of the Republic;
28

Section 27 and 58 of PAIA

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19.6.1.3 Operations of public bodies: The Information Oﬃcer of a public
body may refuse access if the release of the information could
reasonably hamper operations, for example if it is trying toformulate policy, or deliberate on an issue;
19.6.1.4 Manifestly frivolous or vexatious requests: The InformationOﬃcers may refuse a request for information if they are of theopinion that processing requests will be unreasonably time
consuming and lead to a waste of resources. In addition, they may
refuse access to a record if the request is seen to be made by arequester to unnecessarily annoy or provoke.
20. MANDATORY DISCLOSURE OF RECORDS IN THE PUBLIC INTEREST
20.1 Even if a discretionary or mandatory ground for refusal exists in relation to arequest for access to records of public or private bodies, there is always thepossibility that the public interest in the disclosure of the record is more important
than the harm created by the release of the record.
20.2 Where the importance of the public interest exists as stated above and thedisclosure of the record would reveal evidence of a substantial contravention of,or failure to comply with, the law; or an imminent and serious public safety or
environmental risk, then the Information Oﬃcer of a body must grant a request
for access to a record despite the existence of the exemption grounds listed
above.
21. THIRD PARTY NOTIFICATION PROCESS29
21.1 An Information Oﬃcer or Deputy Information Oﬃcer of a body is required, in
terms of sections 47 and 71 of PAIA, to take all reasonable steps to inform a third
party about a request for his or records that might be a record that contains either
personal information,
21.1.1 a SARS record;
21.1.2 trade secrets;
21.1.3 Information the release of which could constitute grounds for an action forbreach of a duty of conﬁdence; or research information that could expose
someone or the subject matter to serious damage.
21.2 The notice to the third party whose records or Information are subject of request
should invite the third party to 29

Section 47 and 71 of PAIA

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21.2.1 make written or oral representations to the Information Oﬃcer why therequest for access should be refused; or
21.2.2 give written consent for the disclosure of the record to the requester.
21.3 Importantly for the requester, PAIA says that the written notices to the third party
must be sent to the third party within 21 days of the request being received, andthat the Information Oﬃcer or Deputy Information Oﬃcer must inform therequester that a notice has been sent to the third party.
21.4 Once that notiﬁcation has been sent, the Information Oﬃcer or Deputy
Information Oﬃcer must then make a ﬁnal decision on whether or not to release
the records within 30 days of that notice being sent.
21.5 The third party must be notiﬁed about the decision taken and adequate reasonsfor granting the request must also be provided. The third party must also be
informed about the right and the procedure to challenge the decision as indicatedin paragraph 22 below.
22. LEGAL REMEDIES AVAILABLE AGAINST A DECISIONS OR FAILURE TO TAKE A
22. DECISION BY THE INFORMATION OFFICER OR DEPUTY INFORMATION OFFICER
22.1 Action to take once a decision is made on a request
22.1.1 A requester can make a follow-up action in writing, on the pending decisionof an Information Oﬃcer or Deputy Information Oﬃcer. It is encouraged
that all correspondence between a requester and the Information Oﬃcer
or Deputy Information Oﬃcer must be in writing for future reference
purposes.
22.1.2 There are diﬀerent processes for public and private bodies, especiallyregarding internal appeals. For instance, with regard to a request for accessto a record of a public body, the requester must ﬁrst submit an internal
appeal before approaching the Regulator or Court. However, there is nointernal appeal against a decision (whether granting or refusal to grant
access to records) or deemed refusal of access to records of a private body.
22.1.3 This section will explain the legal remedies available to requesters whowish to challenge such decisions, which include internal appeals, lodging acompliant to the Regulator and applications to Court. See also diagram of
PAIA request process ﬂow, in paragraph 27 below.

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22.1.4 A requester may, amongst others, challenge the following decision of a
private and/or public body 22.1.4.1 the tender or payment of the request fee;
22.1.4.2 the tender or payment of a deposit;
22.1.4.3 the access fee to be paid is too excessive;
22.1.4.4 the form of access granted;
22.1.4.5 the refusal of the request;
22.1.4.6 the procedure (including the period) for lodging the internal
appeal;22.1.4.7 inappropriate time extension taken to respond to a request foraccess;22.1.4.8 failure to disclose records;
22.1.4.9 the granting of a request for access to a record;
22.1.4.10 refusal to grant request to waive the fees;
22.2 Internal remedies
22.2.1 How does a requester appeal internally against a public body’s decision?
22.2.1.1 An internal appeal can only be lodged, in terms of section 74 of
PAIA, with the relevant authority of the national or provincial
sphere of government or any municipality in the local sphere ofgovernment as the case may be30.
22.2.1.2 So for example, the City of Johannesburg is an example of a local
sphere of government against which an internal appeal can besubmitted. The Road Accident Fund or the Regulator is an
example of a public body which is not part of the national,
provincial or local sphere of government as it is set up bylegislation, and therefore an internal appeal may not be lodged
against it.
30

Section 74(1) of PAIA

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22.2.1.3 When a requester or a third party is unhappy with a decision
made by the Information Oﬃcer or Deputy Information Oﬃcer ofa national, provincial or local sphere of government, therequester or a third party has the right to ﬁle an internal appeal,in terms of section 74(1) or (2) of PAIA. The process for lodging anappeal is prescribed in the PAIA manual of that particular bodyand the manner for lodging an internal appeal is also detailed
herein below.
22.2.1.4 If the response from the national, provincial or local sphere ofgovernment is a deemed refusal, in another words, it has failed
to respond to a request within 30 days or any extended period,
the requester may ﬁle an internal appeal, as per the processes
outlined herein, before the requester may approach theRegulator or a Court.
22.3 Preservation of records until ﬁnal decision on request has been ﬁnallydetermined
22.3.1 The Information Oﬃcer of a National, Provincial or Local sphere ofgovernment to which an internal appeal is applicable is required, in termsof section 21 of PAIA, to take appropriate steps that are reasonably
necessary to preserve the record and cannot delete or destroy any
re-quested record, until such time as all or any proceedings in an internal
appeal or a complaint to the Regulator or an application to court, as thecase may be, are ﬁnally determined.
22.3.2 This means that the information oﬃcer cannot delete or destroy any
information requested, pending any process prescribed in paragraph22.3.1. above.
22.4 To whom should the internal appeal be directed to?
22.4.1 Although the appeal will be considered by the relevant authority, aninternal appeal must be delivered or sent to the Information Oﬃcer of the
National, Provincial or Local Sphere of Government, as the case may be, at
his address, fax number or electronic mail address31, the contact details of
which can be found in the PAIA manual or as may be obtained from theRegulator.
22.4.2 The Information Oﬃcer of the national, provincial or local sphere ofgovernment, as the case may be, has a speciﬁc obligation, in terms ofsection 75(4) of PAIA, to submit the appeal to the31

Section 75(1)(b) of PAIA

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appeal authority, together with his reasons for the decision under appeal.
The submission of the appeal to the relevant authority must be done
within 10 working days after receipt of the appeal.
22.5 Who is the relevant authority?
22.5.1 The relevant authority, herein referred to as “appeal authority” is generally
the political head of the body concerned (although this function can beoﬃcially delegated) and speciﬁcally refers to the following person.

Public body(”Government”)

Relevant Authority(“Appeal Authority”)

Oﬃce of the Presidency

The person designated in writing by
the President, if any, otherwise thePresident is the appeal authority.

National Department

Minister responsible for thatdepartment or the person designatedin writing by that Minister.

Oﬃce of a Premier

The person designated in writing by
the Premier.

Provincial Department

Member of the Executive Council(MEC) responsible for that Provincial
Department or the person designatedin writing by the MEC;

Municipality

The Mayor, the Speaker or any otherperson designated in writing by the
Municipal Council of thatmunicipality;

22.5.2 Any other case, where it is not the oﬃce of the premier: the member of theexecutive who is responsible for that public body or the person designatedin writing by that member.
22.5.3 If the appeal authority approves the Information Oﬃcers’ decision, thenthe internal appeal is denied and the original
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22.5.4 decision of the Information Oﬃcer stands. However, should the appeal
authority disagree with the Information Oﬃcer’s decision, then the appeal
is granted and the original decision is overturned.
22.6 Who can lodge an internal appeal?
22.6.1 Any requester whose PAIA request for access to the records of National,
Provincial or Local sphere of Government, as the case may be, has beenrefused, and believes that one of the appeal grounds listed in paragraph22.2.4 above is applicable to their request, has the right to ﬁle an internal
appeal.
22.6.2 Third parties can also ﬁle internal appeals against the decision made by an
Information Oﬃcer to grant access to a record that concerns them. If theinternal appeal involves a third party, the appeal authority who received
the internal appeal is required to notify those third parties (so the
responsibility shifts from the Information Oﬃcer to the appeal authority).
22.7 Period within which to lodge an appeal
22.7.1 An internal appeal must be lodged22.7.1.1 within 60 days32 after the decision was taken;
22.7.1.2 within 30 days33 after notice is given to the third party of thedecision appealed against
22.7.2 Lodging an internal appeal after the above-mentioned period (late) may
not be allowed, unless a valid reason for being late is provided to theappeal authority. An example, such as being hospitalised for more than 60days may be accepted as valid reasons for being late.
22.7.3 If the appeal authority does not accept the late lodging of an internal
appeal, it must provide you with reasons for rejecting the appeal andprovide guidance of any additional information, if any, required in order toaccept the appeal. The appeal authority must also advise you about theprocess to lodge a complaint against their decision with the Regulator or a
court.

32
33

Section 75(1)(a)(i) of PAIA
Section 75(1)(a)(ii) of PAIA

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22.7.4 As indicated above, your appeal must be submitted by the InformationOﬃcer to the appeal authority within 10 working days after receipt of aninternal appeal34.
22.8 Notice of appeal by appeal authority to the requester or third party
22.8.1 The appeal authority must, as soon as is reasonably possible but in any
event within 30 days after the receipt of the internal appeal35, notify 22.8.1.1

the third party to whom or which the record under appeal
belongs, or

22.8.1.2

the requester about the internal appeal against the granting of arequest for access.

22.8.2 A requester or a third party to whom or which notice is given, may within
21 days after that notice is given, make written representations to theappeal authority why the request for access should or should not be
granted.
22.9 Decision on internal appeal and notice thereof36
22.9.1 The appeal authority must decide the internal appeal as soon asreasonably possible but in any event within 30 days:
22.9.1.1 after the internal appeal is received by the Information Oﬃcer of abody;
22.9.1.2 after a third party is informed, as indicated in paragraph 22.8.1
above.
22.9.2 The decision of the appeal authority must be communicated to theappellant, third party and the requester. The decision of the appeal
authority must be accompanied by adequate reasons for the decision,
including the provision of PAIA or POPIA relied upon.
22.9.3 If the appeal authority fails to give notice of the decision on an internal
appeal to the appellant within 30 days, the appeal is deemed to have been
dismissed and the requester can proceed to lodge a complaint to theRegulator or approach the Court for appropriate relief37.

Section 75(4) of PAIA
Section 76(2)(a) of PAIA
36
Section 77 of PAIA
37
Section 77(7) of PAIA
34
35

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22.10 Completing the internal appeal - Form 4
22.10.1 In order to appeal against any decision by a National, Provincial or Local
sphere of Government, the requester must lodge his internal appeal bycompleting Form 4. Form 4 must be submitted to the Information Oﬃcerof the sphere of government concerned, who is then required to forward
it to the appeal authority, as stated above.
22.10.2 Form 4 is available on the Regulator’s website,
https://www.justice.gov.za/inforeg/, as well as in the website of thesphere of Government concerned.
22.10.3 The Information Oﬃcer or Deputy Information Oﬃcer of the sphere ofGovernment concerned is not under an express obligation to help therequester complete the internal appeal form; however, the requester
may still request the Information Oﬃcer to assist him in this regard.
22.10.4 Below is the step-by-step process to complete the internal appeal form Information Required

Description

Particulars of public bodyThis section should contain the name of
the National, Provincial for Local sphereof Government concerned, and thename and surname of the InformationOﬃcer.

Particulars of appellant
who lodges the internal
appealThis section should be completed by theappellant, whether in representative
capacity or not. The full names andsurname, identity number and thecapacity, in which an internal appeal islodged on behalf of another person, if
relevant, must be provided. If the appeal
is being in a personal capacity, suchcapacity must be recorded. Additional
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Information Required

Description
postal address, email address, fax
and/or telephone number. This
information should be the same as in
the original request. If the person
ﬁlling in the form is the representativeof the requester, proof of the capacityin which appeal is lodged must be
attached to this form.

Particulars of person onwhose behalf request is
made (If lodged by a third
party)

This section only needs to becompleted by a person who isrequesting information for anotherperson. If the person submitting theinternal appeal is not the person who
originally requested the information,
the particulars of the requester must
be provided herein. If the request is in
one’s personal capacity this sectionneed not be completed.

The decision against which
the internal appeal islodgedThe form provides space for therequester to indicate with an “x”,
which of the listed appeal grounds
applies to the appeal.

Grounds for appeal

Under this section, the requester isrequired to describe in detail why hethinks the appeal grounds apply. He is
required to provide reasons(s) why hethinks the decision of the InformationOﬃcer is incorrect. He also needs toattach any documents which support
the appeal. The list of reasons
supplies in support of the appeal canbe outlined in greater detail on a
separate page, if the space provided in
the form is not suﬃcient. The
additional pages submitted should besigned.

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Information Required

Description
There must be suﬃcient reasons andsupporting information to enable theappeal authority makes an informed
decision. Therefore, one must also
include an outline of everything thathas happened in the run-up to theinternal appeal. On the separate page,
one can refer to speciﬁc sections of
PAIA as a basis for the appeal.

Notice of decision on
appealA space is provided for a descriptionof the manner in which the decisionmust be sent, for example by post,
couriered or facsimile or e-mail.
Please select the preferred manner of
notiﬁcation.

22.10.5 Whilst there is no prohibition against getting a lawyer to assist at any stageof the request for information, the various PAIA processes are meant to
be user-friendly removing the need for a lawyer and for legal fees to be
incurred.
23. COMPLAINT TO THE INFORMATION REGULATOR
23.1 A requester or third party may only submit a complaint to the Regulator after thatrequester or third party has exhausted the internal appeal procedure against adecision of the Information Oﬃcer of a national, provincial or local sphere ofgovernment. This means that one can only submit one’s complaint, against aparticular sphere of government to the Regulator if one is not happy with thedecision of the appeal authority. The Regulator will reject the complaint if anappeal process to the relevant sphere of government has not been completed.
23.2 However, with regard to a public body (in respect of which an internal appeal is notapplicable) and a private body, a requester or third party may submit a complaint
to the Regulator, if not satisﬁed by the decision of the body concerned.
23.3 A complaint to the Regulator by a requester or third party must be lodged within
180 days of receipt of the decision from the body.
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23.4 A requester may lodge a complaint with the Regulator, if not happy with 23.4.1 the outcome of an internal appeal to the appeal authority of any sphere ofgovernment;
23.4.2 a decision of the appeal authority to disallow the late lodging of an internal
appeal;23.4.3 a decision of the Information Oﬃcer of a public body that is not part of any
sphere of government to –23.4.3.1 refuse a request for access; or
23.4.3.2 extend the period to deal with request; or
23.4.3.3 grant access in a particular form.
23.4.4 a decision of the head of a private body to 23.4.4.1 refuse a request for access; or
23.4.4.2 demand payment of the request fee, or a deposit of the accessfee; or23.4.4.3 extend a period to deal with request; or
23.4.4.4 grant access in a particular form.
23.5 A third party may lodge a complaint with the Regulator, if not happy with 23.5.1 the outcome of an internal appeal to the appeal authority of the relevant
sphere of government;
23.5.2 a decision of the Information Oﬃcer of a public body that is not part of any
sphere of government to grant a request for access; or
23.5.3 a decision of the head of a private body to grant a request for access to arecord of that body,

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23.6 How does one complain to Regulator?
23.6.1 complaint to the Regulator must be made in writing and a complaint form
must be completed, either manually or online. A complaint form, Form 5,
can be downloaded from the Regulator’s website,
https://www.justice.gov.za/inforeg/
23.6.2 This means that the Regulator will not accept a complaint telephonically;
however, the Regulator is required to provide reasonable assistance to any
person who wishes to make a complaint and this includes assistanceregarding completing a complaint form.
23.6.3 If one is challenging the decision of the Information Oﬃcer of a private
body, one must provide suﬃcient evidence to prove that the record
requested is required for the exercise or protection of any other right(s).
Access to the records of a private body can only be granted if one can provethat one intends exercising or protecting any other right(s) with the record
requested.
23.7 What happens after receipt of the complaint?
23.7.1 Upon receipt of one’s complaint, the Regulator must 23.7.1.1 investigate the complaint and refer its ﬁndings to the
Enforcement Committee for a decision; or
23.7.1.2 take no action on the complaint due to the fact that 23.7.1.2.1 The complaint has not been submitted within the
period of 180 days and there are no reasonablegrounds to condone the late submission of acomplaint;
23.7.1.2.2 the complaint is frivolous or vexatious or not made ingood faith; or
23.7.1.2.3 having regard to all the circumstances of the case, any
further action is unnecessary or inappropriate. For
example, the information requested has been madepublicly available.
23.7.1.3 Where appropriate conciliate or use its best endeavours tosecure such a settlement or assist the parties to settle theirdispute(s); andPage 49 of 59
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23.7.1.4 Advise the complainant and the Information Oﬃcer, to whom
the complaint relates, of the course of action to be undertaken.
23.8 Regulator’s ﬁrst communication to the complainant and Information Oﬃcer
regarding the complaint lodged
23.8.1 If the Regulator decides not to take any further action on the complaint, theRegulator will inform the requester of that decision and the reasons for nottaking further action on the complaint.
23.8.2 If the Regulator decides to investigate a complaint, the requester will
receive a letter advising him that the Regulator has decided to conduct aninvestigation.
23.8.3 Upon receipt of a compliant, the Regulator will forward the details of thecomplaint to the Information Oﬃcer of the relevant body, and request him
to submit to the Regulator, a written response to the complaint.
23.9 Investigative powers of the Regulator
23.9.1 The Regulator has powers, in terms of section 77G(2) of PAIA, to 23.9.1.1 use its best endeavours to secure such a settlement;
23.9.1.2 summon and enforce the appearance of persons before theRegulator;
23.9.1.3 compel them to give oral or written evidence on oath and to
produce any records;
23.9.1.4 receive and accept any evidence and other information, whether
on oath, by aﬃdavit;
23.9.1.5 enter and search any premises occupied by a responsible party;
23.9.1.6 conduct a private interview with any person in any premises
entered; and23.9.1.7 carry out in those premises any inquiries that the Regulator
deems ﬁt.

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23.10 Assessment of compliance with the provisions of PAIA
23.10.1 The Regulator may conduct an assessment on whether a public or private
body generally complies with the provisions of this PAIA.
23.10.2 The Regulator may randomly conduct a compliance assessment on abody, of its own volition, however, the Regulator can also conduct thecompliance assessment upon request by or on behalf of the InformationOﬃcer of a body or any other person. This means that any person may
request the Regulator to conduct compliance assessment on a body. A
person can also submit an anonymous request to conduct a complianceassessment, by indicating that he or she request to remain anonymous.
23.10.3 The Regulator will provide the person who requested the assessmentwith the assessment report and a recommendation of action to beundertaken, if any.
23.11 Information Notice
The Regulator may serve the Information Oﬃcer of a body with an Information
Notice requiring said party to furnish the Regulator with information speciﬁed in
the notice. For example, if a complaint lodged with the Regulator relates to arefusal of access based on any of the exempted grounds, the Regulator may
request, in an Information Notice, copies of the records to which access has beenrefused in order to determine if the reasons for refusal are valid or not.
23.12 Establishment of Enforcement Committee
23.12.1 The Regulator is required to establish an Enforcement Committee38,
which has powers to 23.12.1.1 consider all matters referred to it by the Regulator in terms
PAIA and make a ﬁnding in respect thereof; and23.12.1.1 make any recommendation to the Regulator regarding any
action that should be taken against the Information Oﬃcer ofa body.
23.13 Enforcement Notice23.13.1 The Regulator may, after having considered the recommendations of the
Enforcement Committee, serve the Information Oﬃcer of a body with an
Enforcement Notice 38

Section 50 of POPIA

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23.13.1.1 conﬁrming, amending or setting aside the decision which isthe subject of the complaint; or
23.13.1.2 Requiring the Information Oﬃcer to take such action or torefrain from taking such action as the Information Regulator
has speciﬁed in the notice.
23.14 What are consequences for non-compliance with Enforcement Notices?
23.14.1 An Information Oﬃcer of a body who refuses to comply with an
enforcement notice is guilty of an oﬀence and liable upon conviction to aﬁne or to imprisonment for a period not exceeding three years or to bothsuch a ﬁne and such imprisonment.
23.14.2 Section 77K of PAIA signiﬁes the importance of the right of access toInformation or records. This section also strengthens the importance of
the Regulator in so far as promotion of right of access to information isconcerned.
24. APPLICATION TO COURT
24.1 Who can ﬁle an application to court against a decision?
24.1.124.1.2

requester or third party may only apply to a court for appropriate relief interms of section 82 in the following circumstances:
24.1.1.1

After that requester or third party has exhausted the internal
appeal process referred to in paragraph 22.3 above; or

24.1.1.2

After that requester or third party has exhausted thecomplaints procedure referred to in section 77A.

In terms of section 78(1) of PAIA, a requester or a third party has two
options, either to refer a decision, listed in paragraphs 22.2.4, 23.4 and23.5 above, to the Regulator or the Court. Whilst one is not compelled toapproach the Regulator before approaching the Court, it is advisable thatone should consider approaching the Regulator, as the Regulator has
extensive and quick dispute resolution mechanisms, as opposed to the
Court.

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24.1.3

24.1.4

However, for the Court to have jurisdiction to adjudicate the matter, arequester or a third party must 24.1.3.1

be aggrieved by either of the decisions, listed in paragraph22.2.4, 23.4 or 23.5 above; or

24.1.3.2

have exhausted the complaints procedure with the Regulator
or withdraw the complaint to the Regulator. This means that
one cannot approach the Court if one’s compliant is still
pending with the Regulator.

If one is challenging the decision of an Information Oﬃcer of a private
body, one needs to provide suﬃcient evidence to prove that the record
requested is required for the exercise or protection of any other right(s).

24.2 When can one ﬁle an application to Court against a decision of a body or
Regulator?

39
40

24.2.1

An application to Court by a requester or third party, who is either
unsuccessful in an internal appeal to the appeal authority of the relevant
sphere of government or aggrieved by a decision of the InformationOﬃcer of a body (listed in 22.2.4, 23.4 or 23.5 above) or that of theRegulator must be ﬁled within 180 days from the date of the applicable
event.

24.2.2The Information Oﬃcer of a body or appeal authority of a Government,
as the case may be, aggrieved by a decision of the Regulator may apply toa court for appropriate relief in terms of section 82, within 180 days39.

24.2.3A requester, third party, or a body, may apply to court to have any of thedecisions they are aggrieved by reviewed by the Court.

24.2.4

An application to Court under PAIA is done through civil proceedings,
and should be used as a last resort.

24.2.5

Cases for access to information can be heard before the Magistrate’s
Courts, as a court of ﬁrst instance40, and the High Court having
jurisdiction.

24.2.6

Failing to bring the application within a period of 180 days may be
condoned by the Court if one shows that the interests of justice sorequire. This means that the court may accept the late application if theissue to be adjudicated is found to be in the interests of justice.

Section 78(4) of PAIA
Section 91A of PAIA and Promotion of access to information Rules, 2019

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If the records to which access is requested will assist one in applying for
an appeal against imprisonment or assist one in getting further medical
attention, for example, the court is likely to grant condonation in thisregard.
24.2.7

An application may be brought in accordance with the procedure set out
in rule 53 of the High Court Rules or in terms of rule 55 of the Magistrates’
Court Rules if no records have or an incomplete record has been
furnished by the administrator.

24.2.8

If the record has already been furnished, the application shall be broughtin terms of rule 55 Magistrates’ Court Rules, provided that where there isreason for the applicant to believe that the full record of proceedings
may not have been provided by the administrator, the applicant may
proceed in accordance with the procedure set out in Rule 53 of the High
Court Rules, at its election, but shall indicate in its founding aﬃdavit why
there is reason to believe that the full record has not been provided41.

24.3 What is the legal status of the Regulator’s decision pending the decision of
the Court?
The Regulator’s powers are mainly sourced from the Constitution, POPIA and
PAIA. As a result, the enforcement notice issued by the Regulator has legal
consequences and is therefore binding until such time as the court of law has
decided otherwise. The Regulator’s decisions are therefore eﬀective andenforceable unless directed otherwise by the relevant Court.
24.4 What are orders the Court hearing an application may grant?
24.4.1

41

The court (either Magistrates’ or High Court) hearing an application may
make the following orders 24.4.4.1

conﬁrm, amend or set aside the decision of either the
Information Oﬃcer, or Appeal Authority or Information
Regulator;

24.4.4.2

require the Information Oﬃcer or Appeal Authority to takesuch action or to refrain from taking such action as the Court
considers necessary within a period mentioned in the order;

24.4.4.3

grant an interdict, interim or speciﬁc relief, a declaratory order
or an order for compensation;

Rule 4 Promotion of access to information Rules, 2019

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24.4.4.4

make an order of costs against any party;

24.4.4.5

in the interests of justice, condone non-compliance with the180-day period within which to bring an application. As
indicated above, suﬃcient grounds for failure to adhere to theprescribed period must be explained in detail in theaccompanying application for condonation.

25. DIAGRAM OF PAIA REQUEST PROCESS
Please refer to the step-by step process chart ﬂow, on the processes to be followed
when exercise the right of access to information.

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Complete and submit Form 2

Within 30 day

PAIA request is
granted

PAIA request
is refused

IO/DIO fails respond:
this is then deemedrefusedIO/DIO requests a
30 day extension

Before 60 days
pass

Before 30 days

IO/DIO does not
respond and deemedrefusedAppeal is
granted

PAIA request is
grantedSubmit a complaint to
the information
Regulator (Form 5)

Submit internal appeal
to the Appeal Authority
use Form 4

30 dayspass

PAIA request isrefusedApproach the Court

Appeal isrefusedAppeal Authority does
not respond and refusal
is presumed

Before 180 days
pass

Approach theInformation Regulator(Form 5)

Not happy with theRegulators decision(Before 180 days pass)

Approach the Court

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26. REGULATIONS MADE IN TERMS OF SECTION 92 OF PAIA
26.1 In accordance with section 92(1) and 92(4) of PAIA, Minister made Regulations
relating to the Promotion of Access to Information, covering the following matters26.1.1

Obligations of Information Regulator (Regulation 2)

26.1.2

Obligations of information oﬃcer (Regulation 3)

26.1.3

Automatic availability of certain records of public body (Regulation 4)

26.1.4

Voluntary disclosure and automatic availability of certain records of

26.1.5

Availability of records of political parties (Regulation 6)

26.1.6

Request for access to information (Regulation 7)

26.1.7

Outcome of request and fees payable (Regulation 8)

26.1.8Internal appeal against decision of information oﬃcer of public body
(Regulation 9)

26.1.9Lodging of complaints (Regulation 10)

26.1.10 Procedure regarding investigation of complaints (Regulation 11)
26.1.11 Settlement of matter (Regulation 12)
26.1.12 Conciliation of matter (Regulation 13)
26.1.13 Assessment (Regulation 14)
26.1.14 Electronic communication (Regulation 15)
26.1.15 Oﬀences and penalties (Regulation 16)
26.2 In accordance with section 79(1) of PAIA, the Rules Board for Courts of Law, withthe approval of the Minister, made rules of procedure for 26.2.1

a court in respect of applications in terms of section 78 of PAIA; and26.2.2a court to receive representations ex parte referred to in section 80(3)(a)Page 57 of 59
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27. KEY LEGISLATIONS, REGULATIONS, NOTICES AND ACKNOWLEDGEMENT
Legislations, As May Be Amended From Time To Time
Promotion of Access to Information Act, Act 2 of 2000
Promotion of Administrative Justice Act, Act 3 of 2000
Promotion of Access to Information Amendment Act, Act 54 of 2002
Protection of Personal Information Act, Act 4 of 2013
Promotion of Access to Information Amendment Act, Act 31 of 2019
Political Party Funding Act, Act 6 of 2018

Regulations and Notices
Government Notice

Date of Publications

Subject and Description

Government Notice

27 August 2021

Regulations relating to the Promotion

R.757 in GG No 45057
Government Noticeof Access to Information, 2021
14 October 2005

R.991 in GG 28107

Regulations that prescribe thegrounds under which a person is
exempt from having to pay fees.

Government Notice

30 June 2021

from compiling PAIA Manual.

397 in GG No. 44785
Government Notice

Exemption of certain private bodies

19 September 2019

Designation of Magistrate Courts as
having the capacity to hear PAIA

1217 in GG 42717

matters.
Government Notice
R.1284 in GG 42740

4 October 2019

Rules of procedure for applications to
be made in terms of PAIA before High
Court or Magistrates Court.

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Ensuring protection of your personal informationand eﬀective access to informationACKNOWLEDGEMENT
This updated Guide on how to use PAIA was originally compiled by the South African
Human Rights Commission (SAHRC) and the Regulator hereby acknowledges the original
work of the SAHRC, including all its sources.
Issued by
INFORMATION REGULATOR

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