A notice was published in the Government Gazette on 30 June 2021, in which Notice the Minister for Justice and Correctional Services exempts private bodies from completing and submitting a Manual as contemplated in section 51(1) of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000) (“PAIA”) for a period of six months, except any company –
(a) which is not a Private Company as defined in section 1 of the Companies Act; and
(b) any Private Company, that –
(i) operates in the sectors mentioned in Column One of the Schedule and employs more than 50 employees; or
(ii) has an annual turnover equal to or more than the applicable amount mentioned in Column Two of the Schedule.
The main point of the Notice is that all private bodies will have to prepare and submit a Manual as contemplated in section 51 of PAIA to the Human Rights Commission with effect from 1 January 2022.
Regarding the current exemptions, the threshold in turnover as far as Agriculture is concerned is R 6 million per annum, whilst the threshold for Catering, Accommodation and other Trades, such as Hotels, Restaurants and B&B Establishments, is R 15 million per annum. This essentially means that any private company that operates in the Agricultural Sector must comply with PAIA if it employs 50 or more employees or if its turnover is equal to, or above, R 6 million per annum. The same requirement applies to Hotels, Restaurants and B&B Establishments, except that the accompanying turnover of such private bodies is R 15 million per annum.
It is also crucial to note that substantial provisions contained in the Protection of Personal Information Act, 2013 (Act No. 4 of 2013) (“POPIA”) have been incorporated into PAIA, including the submission of reports to the Information Regulator as may be prescribed. This incorporation will have a substantial effect on how employers treat the personal information of their employees, especially since the failure to comply with any provision of PAIA carries significant criminal sanctions, including fines, which are not limited, and imprisonment of up to two years.
We recommend that private bodies, including those exempted from compliance with PAIA until 31 December 2021, commence the process as soon as possible to prepare the necessary Manuals.
McCarthy & Associates can assist in compiling the required PAIA Manual and complying with the associated requirements in both PAIA and POPIA. If you need such assistance, kindly contact us to provide you with the required information to compile the Manual.