Procedural requirements relating to information sought from a public body regarding the Promotion of Access to Information Act 2 of 2000 (“PAIA”).

 

 

Section 32 of the Constitution of the Republic of South Africa, 1996  provides that everyone has the right of access to any information held by the state and any information that is held by another person that is required for the exercise or protection of any rights. 

PAIA is the legislation envisaged in terms of section 32 (2) of the Constitution of the Republic of South Africa. 

From 1 July 2021, the Information Regulator takes over the oversight of PAIA in South Africa. PAIA has been in effect since 2002 but will now have a more significant impact with the appointment of a dedicated regulator to enforce it. 

S11 of PAIA firstly emphasises that it is peremptory for a requester of information to comply with all procedural requirements set out in PAIA when requesting information from a public body. 

A requester “must” be given access to the information on the condition that the procedural requirements are complied with and that the information requested is not protected from disclosure by one of the exemptions set out in the Act. 

What are some of the procedural requirements?

·         Public bodies must publish a Manual that provides guidelines to members of the public on how the information they hold is to be made available to requesters. 

·         Some public bodies have designed their unique form for the requesting of information. However, the prescribed form A, which applies to all public bodies, can be used and is attached as an annexure to the Regulations regarding the Promotion of Access to Information, promulgated in Government Notice 187, Government Gazette 23119 dated 15 February 2002. Therefore, it is essential to obtain the Manual of the public body in question and ensure that the guidelines contained therein are complied with, such as completing the correct form requesting information.  

·         The requester must send the prescribed form to the listed Information Officer and to the recorded email address. 

·         A required fee may be applicable if the information is not freely available. 

·         The requester must provide sufficient particulars to enable an official of the public body to identify the record or records requested. 

·         The requester must indicate which appropriate form of access is required and state whether the record concerned is preferred in a particular language. 

·         Details of a postal address or fax number of the requester in the Republic of South Africa. 

·         If in addition to a written reply, if the requester wishes to be informed of the decision on the request in any other manner, to state that manner and the necessary particulars to be so informed. 

·         If the request is made on behalf of a person, the requester must submit proof of their capacity to the reasonable satisfaction of the information officer must be submitted. 

It is therefore crucial that all the procedural requirements are adhered to by a requester. Failing compliance, a public body is not obliged to provide the information, and the requester is not entitled to the information.

 

 

The test for foreseeability of harm

 

The true criterion for determining negligence is whether in the particular circumstances of each specific case the conduct complained of fell short of the standard of the reasonable person. A court can’t seek guidance from the facts and results of other cases.

In Pick 'n Pay Retailers (Pty) Ltd v Pillay (900/2020) [2021] ZASCA 125 (29 September 2021) the Supreme Court of Appeal had to decide whether the appellant, Pick ’n Pay Retailers (Pty) Ltd (the defendant), was negligent in the operation of an automated Centurion Sector boom gate (the boom) controlling the exit of vehicles from a parking area for persons with special needs and parents with small children at Pick ’n Pay Hypermarket in Durban North. The plaintiff was injured when the boom struck on her head as it descended from a vertical position.

The plaintiff instituted proceedings against the defendant, alleging that the defendant should reasonably have foreseen the possibility that the boom could cause injury to persons frequenting the shopping centre, and failed to take steps to guard against such occurrence.

Although the risk of the boom descending and striking a person was reasonably foreseeable, counsel for the defendant submitted that the plaintiff had not proved that the defendant was negligent. 

The court cited various authorities and authors:

 In Kruger v Coetzee, Holmes JA formulated the test for negligence as follows:

‘For the purposes of liability culpa arises if:

(a)    A diligens paterfamilias in the position of the defendant-

(i)    would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii)    would take reasonable steps to guard against such occurrence; and

(b)    the defendant failed to take such steps.’

In Sea Harvest Corporation, Scott JA stated that dividing the issue of negligence into various stages, however useful, was no more than an aid or guideline in resolving the issue: in the final analysis the true criterion for determining negligence was whether in the particular circumstances the conduct complained of fell short of the standard of the reasonable person. There is no universally applicable formula which would prove to be appropriate in every case.

In the light of recent authorities, J R Midgley and J C van der Walt in Lawsa have made the following observation:

‘When assessing negligence, the focus appears to have shifted from the foreseeability and preventability formulation of the test to the actual standard: conduct associated with a reasonable person. The Kruger v Coetzee test, or any modification thereof, has been relegated to a formula or guide that does not require strict adherence. It is merely a method for determining the reasonable person standard, which is why courts are free to assume foreseeability and focus on whether the defendant took the appropriate steps that were expected of him or her.’

Applied to the present case, the question is thus whether in the particular circumstances, the defendant took appropriate steps to avoid injury to pedestrians.

‘Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case. No hard and fast basis can be laid down. Hence the futility, in general, of seeking guidance from the facts and results of other cases.’

The SCA found that, in the particular circumstances, the defendant’s conduct fell short of the standard of the reasonable person. In the result the appeal was dismissed with costs.