1. The Johannesburg High Court held that applicants launching applications for an appeal against a refusal of a request for access to information of a private body under Section 82 of the Promotion of Access to Information Act, 2000 (PAIA), must first submit a complaint to the Information Regulator regarding the refusal, before launching court proceedings.
  2. In Elite Plumbing and Industrial Solutions (Pty) Ltd vs Casper Le Roux Inc Attorneys and another (High Court Gauteng Division Johannesburg Case No 2022/14821 (06 March 2023), the applicant had made two applications for requested information under Section 53(1) of PAIA, being the section specifically dealing with requests for access from private bodies. The applicant had delivered these requests, in respect of monies allegedly owing to it which had been held in trust by the first respondent firm of attorneys, in accordance with the requirements as set out in Section 50(1) of PAIA. The attorneys refused access, which led to the applicant approaching the court for relief.
  3. Section 50(1) of the Act prescribes requirements that must be met in order for an application for access to information to be granted. If those requirements are met, it is mandatory for the record holder to provide access to the information unless one of the grounds for refusal in Chapter 4 applies. Of particular importance to this case is Section 50(1)(b), which states that subject to valid refusal grounds: “a requester must be given access to any record of a private body if that person complies with the procedural requirements in this Act relating to a request for access to a record”.
  4. The attorneys alleged that the applicant had failed after the initial request was denied, to exhaust further or internal appeal procedures. Section 78(1) of PAIA states: “A requester or third party may only apply to a court for appropriate relief in terms of section 82 in the following circumstances:
    • after that requester or third party has exhausted the internal appeal procedure referred to in section 74; or
    • after that requester or third party has exhausted the complaints procedure referred to in section 77A.”
  5. Section 74 does not apply to private bodies. Sections 78(1) and 77A had been inserted into PAIA by way of amendment which came into effect on 30 June 2021, once the Protection of Personal Information Act, 2013 (POPIA), came into full force and the Information Regulator took over the duties of enforcing PAIA from the South African Human Rights Commission.  Section 77A(2)(d)(i) instructs requesters who have been refused access by a private body, to submit a complaint to the Information Regulator within 180 days of the decision.
  6. The court held that the language employed in Section 78(1) of PAIA is mandatory and clear, and that a requester must, after being refused access to information by a private body, exhaust the complaint procedure with the Information Regulator, before it can approach a court for relief under Section 82. In light of the applicant’s failure to approach the Information Regulator with a complaint, the court dismissed the application.
  7. When reviewing PAIA requests made to responsible parties, Information Officers need to understand the procedure which is to be followed by the applicant if the request for access to information is refused. Information Officers of public bodies must have an internal review procedure in place to regulate this process, in accordance with Section 74 of PAIA, whereas this is not necessary for private bodies.
  8. Information Officers of private bodies need to be familiar with the complaints procedure in PAIA (which are the same as those contained in POPIA), because the complaints procedure in PAIA may result in an enforcement notice from the Regulator. Under Section 77K of PAIA, failure to comply with an enforcement notice is an offence, and may result in the imposition of a fine, and/or imprisonment. Information Officers therefore must ensure that they have proper and effective policies and procedures in place to ensure that all requests for access to information and complaints are properly considered and managed.