Right of Access to Information
On 19 October 2023 in the Pietermaritzburg High Court, Judgment was handed down in the case Khanyile v Director-General Province of KwaZulu-Natal and Others (16707/22P)  ZAKZPHC 119 (19 October 2023), and the applicant was granted access to the respondents records within 20 days of the Court Order and ordered cost against the respondents. The Judge also recorded that the respondents’ bald allegations were entirely inadequate to discharge their burdens to demonstrate, for example, that reports could not be found.
This case therefore dealt with an applicants’ right of access to information in terms of section 78 of the Promotion of Access to Information Act 2 of 2000 (PAIA) to compel production of records.
PAIA was enacted to give effect to the right of access to information in terms of the Constitution, subject to justifiable limitations, including the reasonable protection of privacy and good governance. The objects of PAIA is to include the promotion of transparency, accountability and the effective governance of all public bodies.
Requesters are entitled to the records of public bodies regardless of the reasons given for requesting access or the information officer’s belief as to what the requester’s reasons are for requesting access, provided only that they comply with the procedural requirements of PAIA.
If the requester has complied with the procedure, access can only be refused on grounds contemplated by Chapter 4 of PAIA. The Act is quite detailed with regard to the mandatory protection of privacy who is a natural person, protection of the commercial information of a third party and so forth. I recommend that this Chapter be considered carefully by any requester.
The issue in the Khanyile application was whether the respondents discharged their burden of establishing that their refusal of the request complies with the provisions of PAIA.
The respondents were public bodies as defined in section 1 of PAIA – functionaries exercising a public power or performing a public function in terms of any legislation, and departments of state or administration in the provincial sphere of government.
The information at issue in the Khanyile application included records of a meeting of the Provincial Executive Committee relating to an agenda item concerning the applicant, the reports of two forensic investigations into her alleged misconduct which were conducted by the office the Premier and the Provincial Treasury, and records relating to her unsuccessful applications for the posts of head of the Department of Social Development and the Department of Transport. The respondent had refused the records for various reasons.
The issue therefore in the Khanyile application was whether the respondents discharged their burden of establishing that their refusal of the request complies with the provisions of PAIA.
Acting Judge Annandale ordered that the applicant be granted access to records within 20 days of the Court Order and made a cost order against the respondents. The Judge also recorded that the respondents’ bald allegations were entirely inadequate to discharge their burdens to demonstrate, for example, that reports could not be found.
In conclusion, and in light of the order as discussed, it is obvious that PAIA applications must be carefully considered and that it is necessary to have a clear understanding of chapter 4, and when those grounds for refusal of access can successfully be relied on. A mere refusal to provide the documentation is wholly inadequate and could result in a High Court Order similar to this.
Michéle Engela is a director at CK Attorneys.
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