“(1) A requester must be given access to any record of a private body if-(a) that record is required for the exercise or protection of any rights;
(b) that person complies with the procedural requirements in this Act relating to a request for access to that record; and
(c) access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this Part.
(2) In addition to the requirements referred to in subsection (1), when public body referred to in paragraph (a) or (b)(i) of the definition of “public body” in section 1, requests access to a record of a private body for the exercise or protection of any rights, other than its rights, it must be acting in the public interest.
(3) A request contemplated in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made.”
A widow made a request for access to information from a private hospital which detailed the care that had been provided to her deceased husband. Though several types of records had been requested, the main information sought was a report written by one Dr Naude on the involvement of certain nurses.
Position of Parties
The first respondent believed that the death of her husband was caused by negligence on the part of the hospital, and was seeking information to support a potential civil action.
The Appellant, Unitas, opposed the application as it did not believe the information to be necessary for the exercise of her rights.
The Appellant refused access on multiple grounds, including that the records contained personal information in regard to certain of the nursing staff.
Appeal or Administrative Review
The court a quo ordered against Unitas (the Appellant) and demanded the release of the report.
Court/Decision and Finding
In a split decision affirming the Clutcho v Davis standard of “substantial advantage or element of need”, the Court made a distinction between “useful and relevant” for the exercise or protection of rights and “essential or necessary”. The latter was required. Thus, ‘of assistance’ is a necessary though not sufficient requirement for satisfaction of the PAIA s 50 standard.
Access to Justice Barriers
As the dissenting judgment itself noted: ““Litigation involves massive costs, time, personnel, effort and risks. Where access to a document can assist in avoiding the initiation of litigation, or opposition to it, the objects of the statute suggest that access should be granted.”
The court held that attempting to determine the scope of section 50 must depend on the facts of each case, rather than being prescribed in abstract.
The court noted that PAIA is not intended to interfere with the discovery process sin court proceedings, and thus in this case she essentially was seeking a right to pre-action discovery – which should only be allowed as an exception, rather than as a rule. Ion the facts, the court held that Mrs Van Wyk had failed to show on the papers that the information would be of assistance to her (as she already had access to much information on her husband’s treatment).
There has developed a distinct body of law dealing with the requirements for a request to a private body. In this case the applicant failed to meet the threshold test – the rest of the case law in regard to private requests tends to deal with moving beyond the threshold to determine ‘need’ or ‘substantial advantage’, as required by Clutchco. However, this can also be viewed as restrictive interpretation that failed to consider the constitutional imperative underscoring the Act, which is the motive for PAIA, and instead relied heavily on common law and dictionary interpretations of the relevant words. PAIA should be utilised to avoid litigation – providing restrictive interpretation of what are, essentially, procedural requirements creates an access to justice restrictions that cannot be justified in a country with such prohibitive litigation costs. As such, we support the concerns raised by Cameron in the minority judgement.
1 Klaaren right to know 19.
2 Klaaren 20.
3 Klaaren 20.
4 Klaaren 20.
5 Klaaren 24.
6 Calland in right to know 153.
7 Ibid at 100.
8 In the South African ATI law, in terms of section 14, public bodies are required to create manuals which describe in detail the relevant information on PAIA processes for each department. These manuals are required to be made publically available, in three different languages, and serves as a valuable starting point for citizens wishing to initiate a PAIA request process.
20 http://www.citizen.co.za/citizen/content/en/citizen/local-news?oid=226139&sn=Detail&pid=334&Secrecy-bill-halted-for-%E2%80%98consideration%E2%80%99; and http://mg.co.za/article/2011-09-23-nec-members-deny-prompting-halt-of-secrecy-bill
21 Tilley, Carole it all...Working paper
22 Tilley p
23 South African Human Rights Commission , pp.124-14
24 Dimba .
25 Onselen .
26 For additional information, see also The Universal Service and Access Agency of South Africa (USAASA) which is a State Owned Entity of government established through the Electronic Communications Act, No 36 of 2005, to ensure that "every man, woman and child whether living in the remote areas of the Kalahari or in urban areas of Gauteng can be able to connect, speak, explore and study using ICT's”. Their website is at http://www.usaasa.org.za/ .
27 See for particular results the South African Human Rights Commission , pp.124-140.
28 PAIA DVD 06.55
29 Esarbica Journal, Vol. 22 (2003), p 51.
30 Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as Amicus Curiae) In re: Masetlha v President of the Republic of South Africa and Another (Independent (CCT38/07)  ZACC 6.
31 Ibid, para 153-154.
32 Constitution of the Republic of South Africa 1996, Section 36.
43 www.dwaf.gov.za/communications/Q&A/2012/NA%20468.pdf AND www.dwaf.gov.za/communications/q&A/2012/NA%202114/pdf
44 Opening doors p.6
45 2010 Open Budget Partnership review
46 Oosthuizen, M. Matthys, C. Hector, W and Maree, G. (2011). The Department of Environmental Affairs: Environmental Impact Assessment Strategy (2011). Available at http://www.environment.co.za/documents/eia/eiams/EIAMS%20-%20Subtheme%2002%20Knowledge%20and%20Information.pdf