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Requesting Access to Information
The Constitution holds that everyone in South Africa has the right to access any information held by the state and any information held by a private body as long as the information held by that private body is required for the exercise or protection of any rights.[1] However, as with all rights in the Constitution, this right may be limited if it is reasonable and justifiable to do so.[2] The main piece of legislation dealing with access to information is the Promotion of Access to Information Act 2 of 2000 (PAIA). It holds different requirements for public and private bodies. |
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Examples of public bodies are government departments, branches of government and state-owned institutions. Examples of private bodies are individuals and companies.
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Requesting from Public Bodies (Department of Mineral Resources)
PAIA states that a requester must be given access to information held by a public body, like the DMR, if the requester complies with procedural requirements provided in the Act and if there are no valid grounds for refusing such access. From the outset, the requester does not have to provide reasons for requesting access to information in order to gain access to information held by public bodies. One does not have to show a special interest in the record.[3]
PAIA holds that access to information held by a public body must be refused “if its disclosure would involve the unreasonable disclosure of personal information about a third party, including a deceased individual.” However, there are a number of exceptions to this prohibition, only a few of which are relevant to accessing mining records. Information may still be given to the requester if the information was originally provided to the public body by an individual who was informed by the public body that the information might be made available to the public.[4]
Access to information must also be refused if the record contains trade secrets of a private body or if disclosing the information is likely to cause harm to the financial or commercial interests of the third party. However, such information may still be provided to the requester if the information was obtained as part of an investigation by the private body and its disclosure would reveal a ‘serious public safety or environmental risk’[5] or if the disclosure of the record would reveal evidence of a substantial contravention of, or failure to comply with, the law.[6]
The DMR is required by PAIA to provide a guideline for accessing information that it holds and is required to update such guide annually.[7] This guideline is instructive of procedures for requesting information as well as detailing which types of records should be freely accessible on the DMR’s website. The guideline can be found at the following web address: http://www.dmr.gov.za/portals/0/PAIA.pdf
The guideline contains a list of records for which the DMR cannot refuse access for any reason. This list of records accounts for the majority of information held by the DMR that is relevant for mining affected communities or organisations assisting mining affected communities, including: SLPs, Mining Works Programmes, Environmental Management Programmes, Environmental Authorisations, financial provision for rehabilitation made by mining companies, proof of consultations, title deeds, details of holders of mineral rights and the contents of prospecting and mining rights.[8] The Guideline states that a requester must fill out a form marked ‘Annexure A’ to the Guideline in order to obtain access to the above information. Despite the form stating that it only applies to interested and affected parties, occupiers and landowners, the Guideline states that above information is voluntarily available and ‘does not require an application process for access.’ The objective of the form is purported to merely be to ‘facilitate the copying of such records, to monitor service delivery and to keep appropriate records and statistics.
Thus, even if a person does not qualify as an interested an affected party, they should be granted access to the above information. They also should not be required to provide a reason for the above information. This is in line with the strong right of access to records of public bodies detailed in PAIA and the Constitution. The Annexure A form is reproduced on the next page of this document. The poor quality of the copy is as provided by the DMR. It also has not been updated to include the information listed as ‘voluntarily available’ in section 5.1.5 of the guideline. ‘Voluntarily available’ information should be listed on the form under the heading ‘additional information required’.
The 'Annexure A' form can be found on page 26 of the Guideline at: http://www.dmr.gov.za/portals/0/PAIA.pdf
It can be sent to:
The Information Officer
Adv. T Mokoena
[email protected]
[email protected]
The requester of information may have to pay a prescribed administrative fee. Proof of deposit should be submitted along with the request form. Currently the fee is R35.00 and can be paid via deposit into the following account:
ABSA Bank
Branch code: 632005
Account Number: 406 176 9154
Reference Number: 01005629AI09
The DMR has 30 days to reply to a request. If they do not reply to the request or if it is denied, the requester has 60 days to submit an appeal to the information officer (as above). The submission must state the reasons for the appeal and may include any other relevant information known to the appellant. If the appeal is denied or if there is no response within 30 days, the requester may take the decision or lack of decision on review by applying to the High Court within 180 days from the date of the decision or the end of the previous 30 days allotted for the department’s reply regarding the appeal.[9] A requester should contact an attorney for assistance in such litigation.
[1] Constitution, section 32(1)
[1] Constitution, section 32(1)
[2] Constitution, section 36
[3] PAIA, section 11
[4] PAIA, section 34
[5] PAIA, section 36
[6] PAIA, section 46
[7] PAIA, section 14
[8] DMR PAIA Guideline 2017, section 5.1.4. [Online] Available: http://www.dmr.gov.za/portals/0/PAIA.pdf
(Accessed on 14 May 2018)
PAIA states that a requester must be given access to information held by a public body, like the DMR, if the requester complies with procedural requirements provided in the Act and if there are no valid grounds for refusing such access. From the outset, the requester does not have to provide reasons for requesting access to information in order to gain access to information held by public bodies. One does not have to show a special interest in the record.[3]
PAIA holds that access to information held by a public body must be refused “if its disclosure would involve the unreasonable disclosure of personal information about a third party, including a deceased individual.” However, there are a number of exceptions to this prohibition, only a few of which are relevant to accessing mining records. Information may still be given to the requester if the information was originally provided to the public body by an individual who was informed by the public body that the information might be made available to the public.[4]
Access to information must also be refused if the record contains trade secrets of a private body or if disclosing the information is likely to cause harm to the financial or commercial interests of the third party. However, such information may still be provided to the requester if the information was obtained as part of an investigation by the private body and its disclosure would reveal a ‘serious public safety or environmental risk’[5] or if the disclosure of the record would reveal evidence of a substantial contravention of, or failure to comply with, the law.[6]
The DMR is required by PAIA to provide a guideline for accessing information that it holds and is required to update such guide annually.[7] This guideline is instructive of procedures for requesting information as well as detailing which types of records should be freely accessible on the DMR’s website. The guideline can be found at the following web address: http://www.dmr.gov.za/portals/0/PAIA.pdf
The guideline contains a list of records for which the DMR cannot refuse access for any reason. This list of records accounts for the majority of information held by the DMR that is relevant for mining affected communities or organisations assisting mining affected communities, including: SLPs, Mining Works Programmes, Environmental Management Programmes, Environmental Authorisations, financial provision for rehabilitation made by mining companies, proof of consultations, title deeds, details of holders of mineral rights and the contents of prospecting and mining rights.[8] The Guideline states that a requester must fill out a form marked ‘Annexure A’ to the Guideline in order to obtain access to the above information. Despite the form stating that it only applies to interested and affected parties, occupiers and landowners, the Guideline states that above information is voluntarily available and ‘does not require an application process for access.’ The objective of the form is purported to merely be to ‘facilitate the copying of such records, to monitor service delivery and to keep appropriate records and statistics.
Thus, even if a person does not qualify as an interested an affected party, they should be granted access to the above information. They also should not be required to provide a reason for the above information. This is in line with the strong right of access to records of public bodies detailed in PAIA and the Constitution. The Annexure A form is reproduced on the next page of this document. The poor quality of the copy is as provided by the DMR. It also has not been updated to include the information listed as ‘voluntarily available’ in section 5.1.5 of the guideline. ‘Voluntarily available’ information should be listed on the form under the heading ‘additional information required’.
The 'Annexure A' form can be found on page 26 of the Guideline at: http://www.dmr.gov.za/portals/0/PAIA.pdf
It can be sent to:
The Information Officer
Adv. T Mokoena
[email protected]
[email protected]
The requester of information may have to pay a prescribed administrative fee. Proof of deposit should be submitted along with the request form. Currently the fee is R35.00 and can be paid via deposit into the following account:
ABSA Bank
Branch code: 632005
Account Number: 406 176 9154
Reference Number: 01005629AI09
The DMR has 30 days to reply to a request. If they do not reply to the request or if it is denied, the requester has 60 days to submit an appeal to the information officer (as above). The submission must state the reasons for the appeal and may include any other relevant information known to the appellant. If the appeal is denied or if there is no response within 30 days, the requester may take the decision or lack of decision on review by applying to the High Court within 180 days from the date of the decision or the end of the previous 30 days allotted for the department’s reply regarding the appeal.[9] A requester should contact an attorney for assistance in such litigation.
[1] Constitution, section 32(1)
[1] Constitution, section 32(1)
[2] Constitution, section 36
[3] PAIA, section 11
[4] PAIA, section 34
[5] PAIA, section 36
[6] PAIA, section 46
[7] PAIA, section 14
[8] DMR PAIA Guideline 2017, section 5.1.4. [Online] Available: http://www.dmr.gov.za/portals/0/PAIA.pdf
(Accessed on 14 May 2018)
Requesting from Private Bodies (Mining Companies)
As well as complying with procedure, a party requesting access to information from a private body has to show that the information is required for them to exercise or protect any rights.[1] This is a hurdle not present with information held by public bodies, as above. Further, private bodies can refuse access for the same reasons stated above: to protect the reasonable privacy or commercial interests of third parties. Private bodies may also refuse access to their information in order to protect their own trade secrets, contractual negotiations, commercial competition and other commercial interests.[2] However, a private body cannot use such reasons for denying access if the disclosure of the requested information would show evidence of “a substantial contravention of, or failure to comply with, the law; or imminent and serious public safety or environmental risk; and the public interest in the disclosure of the record clearly outweighs the harm” to the private party resulting from disclosure.[3]
Reg 26(h) of the EIA Regulations states that, from 7 April 2017, “An environmental authorisation must specify … a requirement that the environmental authorisation, approved EMPr, any independent assessments of financial provision for rehabilitation and environmental liability, closure plans, where applicable, audit reports including the environmental audit report contemplated by regulation 34, and all compliance monitoring reports be made available for inspection and copying— (i) at the site of the authorised activity; (ii) to anyone on request; and (iii) where the holder of the environmental authorisation has a website, on such publicly accessible website.”
Large private bodies should have their own prescribed form of accessing information from them. If they do not, however, there is a template form in the PAIA Regulations, ‘Form C’. The essential information that needs to be included in any request is:
The requester must sign every page in the request submission.
If a private body refuses access to a record, the requester will have to go to a court to obtain an interdict mandating the private body to provide the requester with access. There is a 30-day time limit within which the requester can bring such an application to a court.[4]
[1] Constitution, section 32(1)(b)
[2] PAIA, section 68(1)
[3] PAIA, section 70
[4] PAIA, section 78
As well as complying with procedure, a party requesting access to information from a private body has to show that the information is required for them to exercise or protect any rights.[1] This is a hurdle not present with information held by public bodies, as above. Further, private bodies can refuse access for the same reasons stated above: to protect the reasonable privacy or commercial interests of third parties. Private bodies may also refuse access to their information in order to protect their own trade secrets, contractual negotiations, commercial competition and other commercial interests.[2] However, a private body cannot use such reasons for denying access if the disclosure of the requested information would show evidence of “a substantial contravention of, or failure to comply with, the law; or imminent and serious public safety or environmental risk; and the public interest in the disclosure of the record clearly outweighs the harm” to the private party resulting from disclosure.[3]
Reg 26(h) of the EIA Regulations states that, from 7 April 2017, “An environmental authorisation must specify … a requirement that the environmental authorisation, approved EMPr, any independent assessments of financial provision for rehabilitation and environmental liability, closure plans, where applicable, audit reports including the environmental audit report contemplated by regulation 34, and all compliance monitoring reports be made available for inspection and copying— (i) at the site of the authorised activity; (ii) to anyone on request; and (iii) where the holder of the environmental authorisation has a website, on such publicly accessible website.”
Large private bodies should have their own prescribed form of accessing information from them. If they do not, however, there is a template form in the PAIA Regulations, ‘Form C’. The essential information that needs to be included in any request is:
- Particulars of the private body
- Particulars of requester
- Particulars of person on behalf of whom the request is made (if applicable)
- Particulars of the record (description, reference number (if applicable))
- Applicable fees
- The form of access that is requested
- The particulars of the right that is sought to be exercised or protected
The requester must sign every page in the request submission.
If a private body refuses access to a record, the requester will have to go to a court to obtain an interdict mandating the private body to provide the requester with access. There is a 30-day time limit within which the requester can bring such an application to a court.[4]
[1] Constitution, section 32(1)(b)
[2] PAIA, section 68(1)
[3] PAIA, section 70
[4] PAIA, section 78
