PAJA: the PROMOTION of ADMINISTRATIVE JUSTICE ACT, 2000 (Act 3 of 2000)

 PAJA: THE PROMOTION OF ADMINISTRATIVE JUSTICE ACT, 2000 (Act 3 of 2000)

The PAJA is an important part of democracy. It makes sure that there is openness and transparency in the way the administration works, and it makes the administration accountable to people for what it does.

Why do we need the PAJA? In the past, government often took decisions that affected people’s lives without really explaining what they were doing. By clearly setting out the rights people have, the PAJA makes sure the administration acts fairly and that people know why decisions were taken. It also allows them a chance to have their side of the story heard before any decision is taken. In this way, the PAJA makes sure that the administration works in a way that is transparent and that it is accountable for its actions. It also makes sure that decisions are taken properly. For example, a decision of an administrator that is biased or based on considerations that are not relevant, can be set aside.

What does the PAJA deal with? The PAJA says administrators must: • Follow fair procedures when making decisions; • Allow people to make representations before taking any decision that might adversely affect their rights; • Clearly explain the decisions they take; • Inform people of any internal appeals within their department. If there is no internal appeal, they must tell people they can take the decision on review by a court; and • Tell people they have the right to ask for written reasons for the decision. What are the “fair procedures” administrators must follow? For the actions of the administration to be “just”, the procedures that they follow when making decisions must be fair. The PAJA sets out procedures that administrators must follow before taking a decision and afterwards: Before taking a decision, administrators must give people whose rights may be affected:

• Proper notice of what they plan to do; and • Enough time for people to make representations.  Administrators must consider these representations before they decide.  After taking a decision, administrators must give anyone whose rights have been affected: • A clear statement of what they decided; • Notice of any right to review or internal appeal; and • Notice that they can request reasons for the decision. Although they don’t have to, administrators can also: • Assist people whose rights will be affected; • Allow them to be represented by a lawyer; and • Allow them to challenge any arguments or evidence that goes against them (either in writing or in person).

 PAIA: THE PROMOTION OF ACCESS TO INFORMATION ACT, 2000 (Act 2 of 2000)

Section 32 of the Constitution enshrines the right of access to certain information, and the Promotion of Access to Information Act (PAIA) gives effect to that right. The Act maintains and protects South Africans' right to access any information held by the State and/or information held by another person that is needed to protect or exercise any rights. Access to information will be granted once certain requirements have been met. The Act also recognises that the right of access to information may be limited if the limitations are reasonable in an open and democratic society (e.g. a limitation that protects privacy).

This Act applies to all records held by public (i.e. State) or private bodies (or their contractors). All public bodies have a duty to appoint staff (called information officers) to handle requests for access to information. As long as a request for information does not conflict with another law, access to most information held by a public body must be granted, regardless of the reason for the request. (A public body is defined in the Act as any State institution or administration in the national or provincial sphere and any municipality in the local sphere.) Information officers must, however, withhold records if relevant fees have not been paid by the requester. All public bodies must also compile and make available a manual/policy that includes information on its structure, functions and contact details, e.g.:

 instructions on how to request access to records,

 a description of the services offered, and

 the remedies available if the body does not fulfill its functions.

A request for access must be made on a prescribed form, giving precise details on which records are required and the identity, language preference and contact details of the person requesting access to them. Requests can also be made orally. Information officers must respond within 30 days of the request being made, but can extend the period to 60 days if there is a large number of applications or the request requires a search for records in another city.

Subject to availability, information must be made available in the form (e.g. written and audiovisual transcripts) and language of the requester's choice. It is permissible to make copies as long as it does not damage the record or interfere with the public body's administration. Information officers have a duty to respond to these requests and to also transfer any requests to other public bodies that hold relevant information. Priority must be given to transfer requests.

The information officer must inform the requester (in writing) if the record cannot be found, and must also give a full account of the steps taken to try to access the record. If the record is subsequently recovered, then access must be granted. If information requested is due to published within 90 days of the request, the information officer can defer giving access to it, but must notify the person in writing of the period for which access is to be deferred. However, if the deferral will result in the requester suffering substantial prejudice, then access must be granted.

Every year, all public bodies must submit a detailed report to the Human Rights Commission on all requests for access to information.

When Can a Request for Information Be Refused? As with information held by public bodies, sometimes requests for access to information held by private bodies may be refused. These include the following instances (click on each case for more information):

 when a person's privacy should be protected;

 when commercial information about a third party should be protected;

 when information is deemed confidential;

 when disclosure of information might endanger a third party or their property;  when information is being used in legal proceedings; and research information