By Peter Grealy, Nozipho Mngomezulu, Wendy Tembedza & Karl Blom from Webber Wentzel
Certain entities are exempt from compiling a PAIA Manual until 31 December 2021, but this depends on various factors, such as the type of entity, the sector in which the entity operates and the entity’s total annual turnover or number of employees.
The right of access to information is a fundamental human right entrenched in South Africa’s Constitution. The Promotion of Access to Information Act, 2000 (PAIA) was enacted to give effect to this right. Before 30 June 2021, the South African Human Rights Commission (SAHRC) was mandated to oversee compliance with PAIA. This mandate was transferred to the Information Regulator on 30 June 2021, when the Protection of Personal Information Act, 2013 (POPIA) became effective.
PAIA enables a person to access information held by a public body or a private body. This includes an obligation on each public and private body to compile a manual containing certain prescribed information about it. This manual is commonly referred to as a “PAIA Manual”.
Some private bodies have historically been exempted from compiling and publishing a PAIA Manual. The Minister of Justice and Correctional Services has again exempted certain private bodies from compiling and publishing a PAIA Manual following the implementation of POPIA. This exemption expires on 31 December 2021. The Information Regulator has stated that this is the final exemption that will be granted, and that, from 1 January 2022, all public and private bodies (including those exempted, as set out below) must have compiled and published a PAIA Manual.
Which private bodies are exempt from compiling a PAIA Manual until 31 December 2021?
-Private companies (as defined in the Companies Act, 2008) which operate in one of the sectors listed below; and generate an amount less than the corresponding total annual turnover listed below or employ fewer than the corresponding number of employees listed below.
|Total Annual Turnover||OR||
Number of Employees
|Agriculture||ZAR6 million||50 employees|
|Mining and Quarrying||ZAR22.5 million||50 employees|
|Manufacturing||ZAR30 million||50 employees|
|Electricity, Gas and Water||ZAR30 million||50 employees|
|Construction||ZAR15 million||50 employees|
|Retail, Motor Trade and Repair Services||ZAR45 million||50 employees|
|Wholesale Trade, Commercial Agents and Allied Services||ZAR75 million||50 employees|
|Catering, Accommodation and other Trade||ZAR15 million||50 employees|
|Transport, Storage and Communications||ZAR30 million||50 employees|
|Finance and Business Services||ZAR30 million||50 employees|
|Community, Special and Personal Services||ZAR15 million||50 employees|
Which private bodies are not exempt from compiling a PAIA Manual?
All other private bodies (i.e., not listed above) must compile a PAIA Manual as soon as possible. This includes:
-Private companies (as defined in the Companies Act, 2008) that operate in the above-mentioned sectors, but are larger businesses i.e. their turnover is either equal to or more than the corresponding amounts listed above (under “Total Annual Turnover”); or the number of employees in their employment is equal to or more than the corresponding number listed above (under “Number of Employees”).
-Other types of companies e.g., personal liability companies and public companies.
Are you required to submit your PAIA Manual to the Information Regulator?
No, unless the Information Regulator requests it. You must, however, make it available:
-On your website;
-If you are a private body, at your principal place of business, or, if you are a public body, at your head office, for inspection during normal business hours; and
-To any person that requests it and pays a reasonable amount.