PAIA has holes, but is not the only law giving access to information

BY RONÉE ROBINSON.

It is by now well established that the Promotion of Access to Information Act (PAIA) is the vehicle giving effect to the right of access to information, enshrined in section 32 of the constitution. This is an important right, albeit an importance easy to disrespect and disguise.

It is one thing to create the impression of democracy. It is a harder thing to live democracy. Governments worldwide would typically prefer to deny the importance of this right, whilst pretending to act in the best interests of the governed.

Human nature being what it is, we must ever be vigilant against abuse of power. One of the best mechanisms for doing so is to ensure that what is done in the name of power is exposed to light. This is the aim of section 32, with its mechanism of implementation for the Promotion of Access to Information Act (PAIA).

Does PAIA succeed optimally in its aim of giving effect to the right of access to information?

Not at all. Justice Edwin Cameron highlighted a number of the problems in the minority judgment in My Vote Counts. PAIA does not give access to information, but to records. Thus, where information is not contained in a record, it need not be provided. Only public bodies and certain private bodies, as defined in PAIA, can be compelled to provide information, provided certain conditions are met in the case in private bodies and provided, in the case of both, no exclusionary grounds are raised.

The latter leads to the real weakness in PAIA, namely the multifarious grounds of exclusion available to bodies to provide a justification for the refusal to accede to a request for information. Those grounds would only serve a just purpose, were public bodies to exercise optimal care in raising them.

These are a few of the challenges inherent in the right of access to information. Undoubtedly, South Africa set a brave example by incorporating such a right as a separate enforceable right in its constitution. Likewise, South African courts are, with respect, generally to be lauded for a brave and independent stance in favour of the enforcement of the right to access to information.

Recently, in the matter of Nova Property Group and others v Cobbett and Moneyweb, the Supreme Court of Appeal confirmed that section 26(2) of the Companies Act, 2008, provides an unqualified right of access to the securities register of a company. The motive for access was irrelevant. This right of access was not subject to the provisions of PAIA.

With respect, the decision is correct.

It means PAIA is not the only statute granting a right of access to information.

Other legislation, such as the Water Services Act and the Companies Act, identify information which must be made available to the public. In such cases recourse to PAIA and its procedures is not required. The information must be provided because of the obligation created by the statute in question.

Indeed, the Supreme Court of Appeal wrote: "In choosing to confer an unqualified right capable of prompt and easy vindication in s26(2) of the Companies Act, Parliament would have been alive to the fact that the procedures of PAIA can readily be used as an instrument to frustrate and delay access to records."

This is equally true and regrettable. It means that those statutes providing for a right of access to identified information provide a more effective route to access than does PAIA.

The next challenge would be to find ways to refine the mechanisms created by PAIA to ensure that it optimally meets the constitutional imperative of section 32.

Robinson is an advocate with 25 years’ experience.

This article was first published in Business Day Live dated 3 September 2016.