Same- Sex Couples and Paternity Leave

The maternity leave options contemplated in terms of the Basic Conditions of Employment Act, 1997 ("the BCEA") provide that:

·        A mother has the right to four months of unpaid maternity leave in terms of the BCEA. 

·        This does not apply to male employees, who, at law, may take three days leave in terms of their family responsibility leave. Any other leave must be part of their annual leave.

In the case of M I A v State Information Technology Agency (Pty) Ltd [2015] JOL 33060 (LC) a married male same-sex couple had a baby with the assistance of a surrogate mother in terms of a surrogacy agreement as envisioned in the Children's Act (No. 38 of 2005).  Following the birth, the child was the entire responsibility of the couple.

One of the dads applied for "maternity leave", but was turned down because the company’s maternity policy applied only to females.

The judge hearing the dispute ruled that:

·        The judge hearing the dispute ruled that:

·        The wellbeing of the new born infant necessarily requires a devoted and full time care giver, particularly in the first months of life. 

·        The best interests of the child were paramount, as is required by both the Children's Act and the Constitution of South Africa. 

·        The employee, as the parent of the child, should be allowed to play that role, even if he had not physically given birth to the infant. 

·        There was was no reason why the employee was not entitled to the benefit of four months of unpaid maternity leave.

Review your maternity leave policies.

Sectional title bullies

Have your managing agents or body corporate trustees made unilateral decisions (always affecting your pocket) that you don’t agree with. E.g., they impose unreasonable fines.

Usually the amount involved is too low to justify referring the matter to a lawyer. Generally, you will find that legal fees will exceed the amount of the fine imposed.

Instead, you can ask the Sectional Title Ombudsman to intervene:

1st Floor Building A, 63 Wierda Road East, Wierda Valley, Sandton

T: +27 (010) 593 0533 │F: +27 (010) 590 6154 │ www.csos.org.za

So, I have two bosses?

A worker, placed at a client by a labour broker, has two employers, once he has worked for the client for more than three months.

In a recent Labour court decision, the court in Assign Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2015] JOL 33875 (LC), had to decide on the legal effect of the changes effected by sections 37 and 38 of the Labour Relations Amendment Act 6 of 2014 to section 198 and 198A – D of the Labour Relations Act 66 of 1995. The amendment addresses the relationship between a labour broker or Temporary Employment Service (“TES”), the workers it engages and the client with whom they are placed. Pivotal to the amendment is a deeming provision that makes a worker an employee of the client, three months after placement.

The question facing the Court was whether the TES continues to have a relationship with the worker and, if so, whether the relationship would remain as one of employment. The applicant was a TES and the third respondent was a trade union taking an opposing stance on the issue. The applicant contended that once a placement occurs, the client becomes invested with the rights and obligations that, by operation of the Labour Relations Act 66 of 1995, accrue to an employer and, since the TES has in no sense been deprived of its status as employer, the two relationships then operate in parallel.

Held that there appeared to be no reason, in principle or practice, why the TES should be relieved of its statutory rights and obligations towards the worker, because the client had acquired a parallel set of such rights and obligations. The worker, in contracting with the TES, became entitled to the statutory protections that automatically resulted from his engagement. There seemed to be no public policy considerations relating to why he should be expected to sacrifice them because the TES had found a placement with a client, especially since the designation of the client was within the sole discretion of the TES.

Must I  adopt my husband’s surname after we get married?

This is customary but it is not a legal obligation. The wife can continue to use her maiden name or any other surname which she bore before her marriage. A ‘wife’ also includes a woman who has been married according to the rites of the Islamic or any Indian religion or a recognised customary union.

The children, of course, will take the surname of the father.

Must I amend my will after a divorce?

In the aftermath of a divorce, a person often forgets to amend his or her will. A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessary fall away after divorce.

The Wills Act provides that if you die within three months of the divorce, a bequest to your divorced spouse will be deemed cancelled (except where you expressly provide otherwise). Basically, this provision allows a divorced person a period of three months to amend his/her will, after the trauma of a divorce. Should you fail to amend your will within three months after your divorce, your divorced spouse will benefit as indicated in the will.

So, be warned, if you don’t want your ex to benefit any longer, change your will.

What laws apply to keeping a dog in a sectional title complex?

A client complained that her body corporate won’t allow her to keep a small dog in her unit, and asked me about her legal rights.

The first place to look is in the conduct rules of the complex. Annexure 9 of the Sectional Title Act states that the keeping of pets in a sectional title scheme is permitted, subject to the prior written consent of the trustees, who may not unreasonably withhold their consent. These rules also state that the trustees may impose any reasonable condition on keeping a pet (e.g. no large animals, cats must be neutered or spayed, etc.)

Our judges, who have heard pet cases, have found that trustees must view each request to keep a pet, objectively, and not dismiss any request out of hand, without fairly considering the circumstances of each case.

Unfortunately, if the conduct rules of a complex specifically provide that no pets are allowed, stand on her head, an owner has no right to complain and if she brings a pet onto her property, the body corporate may and will ask her to accommodate the pet elsewhere.

What if the rules permit the keeping of pets, subject to approval, and the trustees refuse to give their permission?

In the case of Body Corporate of the Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D), Dorse kept a Yorkshire Terrier dog, without necessary approval. The trustees told her to house the dog elsewhere. She refused so the trustees brought an application to court for an order that she remove the dog from her section. Dorse opposed the application and brought a counter application to review the decision of the trustees to refuse her permission to keep the dog, and for an order that she be allowed to keep the dog on condition of specific circumstances.

When considering the question of whether the decision of the trustees was open to review, the court had to bear in mind whether the trustees had genuinely applied their minds to the owner’s application for consent or had refused it purely as a hard and fast rule to refuse all such applications so not as to create a precedent of allowing residents to house dogs. When considering the trustees’ reasons for the refusal of the owner’s application the court found that the decisive factors in refusing same were namely –

·        the general policy; and

·        the issue of precedent.

With regard to the general policy the court held that by simply applying a general policy the trustees had not truly applied their minds to the owner’s application and had not genuinely considered departing from the general rule.

Furthermore, the court found that the question of precedent was not a relevant consideration and ought not to have influenced the trustees’ decision. If each decision by the trustees to grant or refuse such permissions was to be considered on its own merits that decision would not constitute a precedent because it would be a decision based on the facts and circumstances relevant to the particular case under consideration. A refusal to grant permission in a particular case simply because it would create a precedent would be tantamount to a failure to consider and decide the application on its own merits and would result in a refusal to depart from the general policy of not granting permission. As such the court held the decision of a trustee was reviewable under the common law.

Ashley Madison: The Privacy Issues

A colleague, Mark Heyink, writes about the abuse of personal information.

© Mark Heyink 2015

Privacy Online www.privacyonline.co.za

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The hacking of the Ashley Madison website, which has as its logo “Life is Short - Have an Affair”, is one of the more dramatic examples of why the issue of privacy is so important. It graphically illustrates many of the questions relating to the abuse of personal information in the 21^st century and how the threats posed by evolving technologies, allowing for the abuse of information generally and personal information in particular, hold for our democratic society.

The “infidelity” or “cheating” website, as Ashley Madison has become termed, suffered a breach in which the personal information of 32 to 33 million customers was compromised. The sensitive information compromised included among other information seven years of credit card information, contact details, eMails and communications between participants. IT Web reports, quoting the Sunday Times, “that the personal information of over 70,000 South Africans (including many government officials and academics)” is among the information compromised.

When Ashley Madison’s parent company, Avid Life, failed to adhere to demands by the hackers, called the “Impact Team”, the personal information of customers was made public. By the nature of the website the publication of customers’ personal information has naturally caused severe embarrassment, hurt, disruption to families and law enforcement agencies in Canada have linked two “unconfirmed suicides” to the hacker’s publication of the personal information.

This gives rise to several issues which deserve consideration and debate. Firstly, there are those that take the attitude that the victims, by participating in the website, deserve the embarrassment and hurt that may come their way. This goes to the very core of privacy. We may all do things that others disapprove of. If what we do is not unlawful and we do it privately, a fundamental human right of privacy protects us. If we do not respect this right it is a very small step to allowing moral judgments to be exercised by publishing to the world the actions or communications made in private, for the advancement of political, commercial and social or even purely personal agenda and gain, regardless of the consequences to persons whose privacy has been infringed. In terms of our Constitution this is unlawful.

That the action of the hackers is unlawful is supported by the Canadian authorities formulating charges against them, which include the extortion, theft and mischief to property. Even though the enforcement of criminal charges against the hackers may prove problematical, this does not detract from the unlawful and morally reprehensible actions of the hackers. It serves to illustrate how anarchy on the web can be easily perpetrated if the right of privacy is not enforced and that, without the cooperation of governments, becomes difficult to counter. In the South African context this brings the delays in implementing appropriate legislation to protect citizens sharply into focus.

Ashley Madison is not blameless as it represented that it would protect participants’ privacy and it would appear that its security was seriously deficient. While it may suffer no criminal penalty, having reported the breach as required by Canadian law, the penalty for its failure lies in the enormous reputational damage that the website has suffered and the lawsuits which are likely to be brought against it. It is reported that a national class action of Canadian citizens claiming US Dollar 760 million will be instituted. It is also reported that Avid Life were not long ago, considering an initial public offering at a valuation of US Dollar 1 billion. One doubts that an IPO is any longer feasible or that any other potential purchasers would be found, so tainted is the website and the company’s image.

Another element of the fallout from the hack is that its CEO, Noel Biderman, has left by “mutual agreement”. This follows on from the replacement of Amy Pascal at Sony Pictures and the CEO of Target, after devastating hacks on those companies information systems compromised personal information of its customers.

While we may shake our heads at the failure of Avid Life to protect personal information the fact is that typically the boards of South African companies and institutions do not take information security seriously. The identification of government officials and academics whose interaction with Ashley Madison has been easily detected as a result of .gov.za and .ac.za extensions to the eMails used in their communication with Ashley Madison, is evidence of this disregard. Either these employees do not know that they should not be using their employer’s information and communication systems for these very personal purposes, or the policies and the enforcement of the policies by the employers are deficient. Which South African directors will, like Noel Biderman, be the first to “fall on their swords” for the general apathy and neglect that exists in implementing appropriate information security? It is not a case of if, but rather of when.

The framers of our Constitution have enshrined privacy as a fundamental human right. The Protection of Personal Information Act provides the framework necessary to protect against the abuse of personal information. We should do everything possible to prevent the right of privacy being subverted by government, big business, individuals or criminals in the advancement of “their agenda”.

Damages for dog bites

Can I sue my neighbour for damages if his dogs attack me outside his property?

The matter was heard in Du Preez v Kingsley [2015] JOL 33595 (FB)

Facts: Whilst cycling on a suburban road, the plaintiff encountered two dogs which exited their property and one of them bit him. The dogs had managed to get out of their owner’s property because the gate had been left partially open. The plaintiff received medical attention from a doctor living next door to the property where the dogs lived. As a result of his injury, the plaintiff sued the defendant for damages.

The defendant could not dispute the version of the plaintiff and the doctor. He contended that he had secured the gate, but could not dispute that the dogs had gotten out of the property. As he was not home at the time of the incident, he could not deny that the dogs went out of the premises.

Held that where a person has assumed control over potentially dangerous animal which may cause harm unless preventative measures are taken, he is under a legal duty to act in protection of third parties.

At common law, the defendant ordinarily would be required to take steps to protect others against harm flowing from the conduct of the dog.  The defendant should have ensured that his dogs did not escape onto the street. Whatever means he alleged he had taken, if any, were clearly inadequate and insufficient.

The plaintiff had discharged the onus of proof on both action de pauperie and actio legis aquiliae. The grounds of negligence were that the defendant had not properly controlled the dogs and taken reasonable measures or sufficient precautions at all relevant times so that they did not escape and cause harm to others.

The defendant was therefore liable for plaintiffs proven damages arising out of the incident.

The Employment Services Act now law

The Employment Services Act, No 4 of 2004 (ESA) became law on 9 August 2015. The only section not yet in force is s13 which deals with the registration of private employment agencies.

In short, the ESA:

·        Repeals the Employment Services provisions contained in the Skills Development Act, No 97 of 1998 (SDA).

·        Is designed to establish productivity within South Africa, decrease levels of unemployment, and provide for the training of unskilled workers.

·        Provides for the creation of a Public Employment Service, which will be established and managed by the State, to provide state assistance to unemployed job seekers. The Public Employment Service will:

o   Register job seekers and employers (placement opportunities) and try to match them.

o   Provide training for unskilled job seekers and give the unemployed access to career information. Employers in certain industries may be required to register vacancies and specific categories of work with the Public Employment Service. Employers may also be required to interview individuals recommended by the Public Employment Service and pay license fees to assist in funding the Public Employment Service.

Time will tell…

Overhanging Trees

I am often consulted by disgruntled clients who complain that the branches of neighbour's trees hang into their properties.  Generally, the basis for such complaint is that the leaves from such branches clog up their swimming pools or block out the natural sunlight.

You are perfectly entitled to insist that the overhanging branches be sawn off by your neighbour.  If he refuses to do so, you could obtain a Court Order compelling him to do so or, alternatively, may, yourself, lop off the branches where they encroach onto your property.  If your neighbour refuses to co-operate, you would also be entitled to recover from him all reasonable expenses incurred in removing the branches.

In similar fashion, if roots from your neighbour's tree encroach onto your property, you may request your neighbour to remove such roots (or may remove them yourself).  If such roots have caused damaged to your property, you are entitled to claim compensation.

Although you are entitled to have overhanging branches removed, you have no cause of action if leaves from your neighbour's tree clog up the weir in your swimming pool or block your gutters. This is so, because our Courts have held that through the simple expedient of removing the leaves from the surface of the swimming pool or cleaning out the gutters, damage could be avoided.

As a general rule, there is, unfortunately, nothing you can do to prevent your neighbour from growing large trees on his property if such trees obstruct your view or block out sunlight.

Obviously, for the sake of peace and in the interests of loving your neighbour, any possible dispute should, in the first instance, be resolved with your neighbour over a cup of tea.

Suretyship agreement – Defence of mistake

In Voltex (Proprietary) Limited v Super Team Electrical (Proprietary) Limited t/a Electric World and others [2015] JOL 33416 (KZD), the court had to determine if the Respondent’s defence was valid.

In a written credit application to the applicant, the Respondent bound himself as surety and co-principal debtor in solidum with Super Team. Although admitting having signed the credit agreement, the surety argued that he was not bound by a suretyship document, because he signed it by mistake and without any intention to incur contractual liability. He further averred that he did not read the document when he signed it.

The court found that the respondent’s mistake in this case was a unilateral one. Having regard to the nature of the agreement signed by the respondent and the clear wording thereof, there could be no doubt that the respondent knew what he was signing. The document was clearly recognisable as a suretyship undertaking. By affixing his signature to the document, the respondent had effectively assented to the terms contained therein unless he could show that he was fraudulently deceived by the applicant into signing it. No such fraud was established. The Court held that the legal maxim “caveat subscriptor” found application herein and the respondent was bound to the terms contained in the agreement.

On that basis, the court described the defences raised by the Respondent as fictitious, far-fetched and untenable, and granted judgment in the applicant’s favour.

Can a defendant ask a plaintiff company to put up security?

Until the arrival of the Companies Act 71 of 2008 (the Act) a defendant could request an incorporated company as plaintiff in litigation, to put up security for costs (provided that there was reason to believe that the plaintiff company was unable to pay the defendant's costs, if successful).

The Act does not provide for that any longer, so when can a Defendant call for security for costs?

The Supreme Court of Appeal ("SCA") answered that question in Boost Sports Africa (Pty) Ltd v The South Africa Breweries (Pty) Ltd [2015] ZASCA 93.

It held that corporate plaintiffs must be treated the same as natural plaintiffs, and the defendant can only call for security for costs it can show that an action is vexatious or reckless. This is a difficult onus to discharge. Our courts have attempted to define vexatious litigation:

In the words of Holmes JA in African Farms & Townships v C.T. Municipality 1963 (2) SA 555 (A) at 565D-E, "an action is vexatious and an abuse of the process of Court … if it is obviously unsustainable". In Golden International Navigation SA v Zeba Maritime 2008 (3) SA 10 (C) para 18, Griesel J posited that an action is vexatious and frivolous, "where on the face of the pleadings it is shown that the action cannot be maintained".

Thus it is possible to call for security, no longer as a right, but if the Plaintiff’s action is vexatious or reckless.

Significant change to the in duplum rule

The Constitutional Court recently developed the common law regarding the in duplum rule in its judgment in Paulsen and Another v Slip Knot Investments 777 (Pty) Limited 2015 (3) SA 479 (CC).

The in duplum rule provides that arrear interest stops accruing when the sum of the unpaid interest equals the amount of the outstanding capital. This was to cap the interest creditors could claim from debtors.

Until the judgment in Paulsen, the in duplum rule had one exception, namely that the prohibition against claiming interest in excess of the capital fell away when a creditor instituted proceedings to recover the debt and the interest, so interest would then run at a fixed rate for as long as the litigation persisted.

In Paulsen – to the relief of debtors (borrowers) - the Constitutional Court has now abolished the exception to the in duplum rule while litigation persists.

The effect of the Paulsen judgment is thus that until judgment (after which interest will once again run on the 'judgment debt' at the agreed rate), lenders will only be able to recover 1) the capital advanced to a debtor and 2) the interest equal to that capital amount and no more.

The Court found that the post-judgment "…interest runs on – and is limited to an amount equal to – the whole of the judgment debt, including the portion which consists of previously accrued interest." 

Party married according to Islamic law entitled to share of spouse’s pension

The Office of the Pension Funds Adjudicator has reiterated it will not discriminate against parties married under the terms of Islamic law.  

This position was made clear by Muvhango Lukhaimane in a determination in which she ordered Sanlam's Staff Umbrella Pension Fund to reverse its earlier decision not to pay a complainant, Ms Z Paulse, a 50% share of the pension interest in a divorce settlement.  Sanlam Staff Umbrella Pension Fund (first respondent) and its administrator, Sanlam Life Insurance Limited (second respondent), submitted that the parties were not married in terms of the Marriage Act, the Recognition of Customary Marriages Act or the Civil Union Act, but in terms of the tenets of the Islamic religion.  They claimed the Divorce Act was not applicable to the dissolution of the marriage as it had to be dissolved in terms of the tenets of the Islamic religion.  But, a decree of divorce as contemplated in terms of the Divorce Act was not possible, since there was no marriage as contemplated in terms of the Divorce Act.  In her determination, Lukhaimane said that prior to 28 February 2014, parties who divorced after having married in terms of the Islamic religion confront a challenge when a non-member spouse intends to claim pension interest held by a fund in respect of the member spouse.  The first respondent was ordered to compute and pay the complainant her share of pension interest as provided in the divorce settlement agreement.

When can a CCMA award be set aside?

In terms of section 145 of the LRA, a party may apply to the Labour Court on the basis of an alleged defect with a commissioner's rulings or awards. The party who alleges such a defect must apply to the Labour Court to set aside the award within six weeks of the award being served.

A defect means:

• that the commissioner committed misconduct in relation to the duties of the commissioner as arbitrator;
• that the commissioner committed a gross irregularity in the conduct of the arbitration proceedings;
• that the commissioner exceeded his powers; and
• that the award was improperly obtained.

The above criteria refer to misconduct and irregularities, including, but not limited to:

• Taking into account evidence that was not put before the arbitrator;
• Refusing to allow valid and relevant evidence to be brought;
• Ignoring statutory requirements or legal principles;
• Unduly assisting one or other party with his/her case;
• Delivering a biased award;
• Taking a bribe; and
• Failure to apply his/her mind to the facts in evidence.

It is important to note that the review is not an appeal, and therefore it is not related to the merits of the matter but to the commissioner's conduct. The Applicant must show cause (based on factual and legal grounds) why the decision or proceedings should not be reviewed and corrected or set aside.

The test for the review of arbitration awards involves the court determining whether the decision reached by the arbitrator was one that that a reasonable commissioner could not reach, given the oral evidence led on the material facts in dispute.

Thus, where an arbitrator commits misconduct in relation to his/her duties or there is a gross process-related irregularity in the arbitration, this is not - in and of itself - a sufficient ground to warrant interference by our courts on review. The irregularity must be of such a nature that it renders the decision reached unreasonable in the circumstances.

In terms of recent case law, it is not good enough for employers or employees wishing to review an award based on one of the procedural defects provided for in section 145(2)(a), to only establish the existence of the defect, i.e. misconduct by an arbitrator in relation to his/her duties, a gross irregularity committed by the arbitrator in the conduct of the arbitration proceedings or the arbitrator exceeding his powers.  It is now also necessary to show that the defect caused the ultimate result of the award to be unreasonable. Thus, the two stage test adopted by the LAC in such instances is:

a.     Was there a section 145(2)(a) defect?; and

b.     If so, can the defect be said to be such that resulted in the decision reached being unreasonable (in the sense that it was one that a reasonable arbitrator could not have reached)?

In the absence of these criteria, it will not be possible to successfully prosecute review applications in the Labour Court.

Licensing of computer software – warning to software developers.

The Supreme Court of Appeal recently handed down a judgment in the case of Attachmate Corporation v Minister of Water and Environmental Affairs (20 May 2015), providing lessons for those  involved in the licensing of computer software.

Attachmate, a US company, signed a software licence agreement authorising the Department of Water and Environmental Affairs (DWE) to download certain software at a heavily discounted rate, based on 300 computers on which the software was to be installed.

DWE went to town and installed the software on 1000’s more computers. DWE refused to pay Attachmate the regular licence fee on the additional unauthorised copies, and Attachmate sued DWE to pay Attachmate the “applicable licence fee” for unlicensed copies. The court had to decide what compensation Attachmate was entitled to.

The judge found that the installation of the extra, unauthorised software was “not that [DWE] was trying to avoid payment of licence fees, but that its affairs were in such disarray that it could not determine the number of unlicensed copies involved”.

Attachmate couldn’t prove the existence of more than 1564 unlicensed copies. However, what was the “applicable licence fee”?

The court found that Attachmate “…only has itself to blame … if it wanted to stipulate for its list price or its standard price or some other penalty in the situation contemplated by clause 11, I can think of nothing which prevented it from doing so.”  The judge concluded that “... Once a licence fee had been determined through negotiation between Attachmate and the licensee involved, I do not think the fee applicable to that licensee can be determined without any reference to the negotiated fee.”

Software companies must thus ensure that if they want the non-compliant licensee to pay a penalty, they must stipulate this in their contracts. Also, allow for audits, to determine the software numbers downloaded.

PAIA and a banks’ refusal to say why it declined vehicle finance.

A client asked me to advise if she had any recourse against a bank for refusing to provide reasons why it declined her application for vehicle finance.

I told her that in terms of the Promotion of Access to Information Act (PAIA), the bank could withhold that information and that her only recourse would be to apply to court, to challenge the decision.

What follows is a very brief summary of PAIA. For a more detailed summary, in plain language, see http://www.mpumalanga.gov.za/paia/plainlanguagePAIA.pdf.

The purpose of PAIA is:

·        to give effect to the constitutional right of access to any information held by the state, as well as information held by another person that is required for the exercise or protection of any right;

·        to foster a culture of transparency and accountability both in public and private bodies and to promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all their rights.

Who does the Act apply to?

·        The Act applies to all records held by public (i.e. State) or private bodies (or their contractors).

·        The Act does not apply to records that are being used in criminal or civil proceedings.

·        The Act does not apply to Cabinet Ministers and committees, members of parliament or of the provincial legislature, courts (in their judicial capacity) and certain investigative tribunals.

What are public and private bodies?

Public bodies are generally government departments, bodies created by Constitutions such as Parliament or the Gender Commission, or institutions set up by law which perform services for the public such as universities or Telkom. Private bodies are those that have no connection with the government and which are privately owned and controlled, i.e. any person who runs a business, or trade or profession, or a partnership or any juristic person, like a company or a CC. It doesn’t mean a person as a private individual, but only their records as they relate to their business, trade, profession, etc.

Who can ask for records?

Anyone can ask for records from a private body, but the record must be needed for the exercise or protection of a right. A requester must use the form that has been printed in the Government Gazette. It must contain enough so that it is clear what records are wanted and who the requester is. The form must explain how the requester wants to get access to the record (by post, fax, email, by hand, telephone, etc.). The requester must identify the right that he or she wishes to exercise or protect and explain why the record is needed for the exercise or protection of that right.

When can a request be refused?

·        If a requester asks for information that would disclose personal information about a third party, the request must be refused (to protect the privacy rights of other people and to make sure that these rights are not infringed upon by requests under the Act). This may not apply if the third party whose privacy is affected consents, or if the information has been made publicly available, when it may be disclosed.

·        If someone asks for information that would disclose certain commercial information about a third party, the request must be refused. Commercial information includes trade secrets, financial, technical or scientific information. It also includes information which has been supplied in confidence by the third party and which may place them at a disadvantage in negotiations or commercial competition.

·        A private body must refuse a request for information if disclosing it could threaten the life or physical safety of other people, safety and security of buildings, equipment or any other property. It may also be refused if its disclosure would prejudice or impair a system or plan for the protection of individuals, the public or property.

·        A request for a record that can’t normally be used as evidence in a court case, because it is privileged, must be refused. An example of this would a letter written by a lawyer to the private body during a court case, discussing a settlement of the case.

·        If someone asks a private body for information that would disclose certain commercial information about that body, the request may be refused. Commercial information includes trade secrets, financial, technical or scientific information, which, if disclosed, could harm that body’s financial interests. It also includes information which, if disclosed, could place the private body at a disadvantage in negotiations or commercial competition.

What steps must a requester take if the information he seeks is refused?

If a private body makes a decision to refuse a request, the requester may go to court to challenge this decision. The application to court must be made within 30 days of being informed of the decision. There is no system of internal appeal with respect to the decisions of private bodies.