THE GUNSTONS BLOG

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PAIA exemption for certain businesses granted at the last moment

On 30 December 2011, the Department of Justice and Constitutional Development extended the exemption for private bodies from compiling and submitting information manuals in terms of section 51 of the Promotion of Access to Information Act (PAIA). Much like the previous exemption (which expired on 31 December 2011 and was also granted at the last minute), the extended exemption applies only to certain private bodies. There have been five exemptions to date.

 

The exemption will apply to:

  1. All partnerships, close corporations, co-operatives, and other juristic persons (except companies, which are dealt with elsewhere)
  2. All individual businesspeople / sole proprietors
  3. Each private company which operates within any of the sectors listed in the schedule below and which
    – has 50 or fewer employees; or
    – has an annual turnover less than that listed in column 2.
Sector Annual turnover threshold
Agriculture R2 million
Mining and Quarrying R7 million
Manufacturing R10 million
Electricity, Gas and Water R10 million
Construction R5 million
Retail and Motor Trade and Repair Services R15 million
Wholesale Trade, Commercial Agents and Allied Services R25 million
Catering, Accommodation and other Trade R5 million
Transport, Storage and Communications R10 million
Finance and Business Services R10 million
Community, Special and Personal Services R5 million

All businesses falling within the exemption now have until 31 December 2015 to submit their section 51 PAIA manuals. All other businesses which are ?private bodies? or ?public bodies? as defined in PAIA are required to submit their PAIA manuals in accordance with section 51 of PAIA or face penalties, which may include a maximum prison sentence of two years for the head of the non-complying private body, or a fine. The South African High Rights Commission has not imposed fines for non-compliance to date, but has reserved the right to do so.

If you are an association or a trust, you do not need to comply with PAIA, since you are neither a private body or a public body as defined in PAIA (despite what the SA Human Rights Council website says about trusts).

If you are a personal liability company (an ?Inc?), a non-profit company (the old ?section 21 company?) or a public company, then you already needed to comply with the requirements for a manual by 31 December 2005. Likewise, if you are a private company and you have more than 50 employees, or a turnover above the amounts set out in the Schedule to the notice, then you already needed to comply with the requirements for a manual by 31 December 2005.

The exemption notice of 30 December 2011 contains at least one error, and its wording is so complex that it makes it close to incomprehensible to a non-lawyer, which is regrettable. We also find it a pity that the exemption notices under PAIA are routinely issued so late that law-abiding businesses will already have complied with the legal requirement by the time the exemption comes to their attention. This eleventh-hour approach by Government does not encourage a culture of legal compliance.

 

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