Info watchdog uncovers gaps in political parties’ PAIA compliance

Simnikiwe Mzekandaba
By Simnikiwe Mzekandaba, IT in government editor
Johannesburg, 27 Mar 2024
None of the political parties represented in Parliament are compliant with PAIA.
None of the political parties represented in Parliament are compliant with PAIA.

It’s concerning that South African law-makers – the political parties represented in Parliament – are generally non-compliant with the Promotion of Access to Information Act 2, 2000 (PAIA), says advocate Pansy Tlakula.

The chairperson of the Information Regulator was responding to her office finding that none of the assessed political parties in Parliament are compliant with PAIA.

Yesterday, the regulator detailed the outcomes of investigations and assessments in relation to the Protection of Personal Information Act (POPIA) and PAIA.

In the case of PAIA, the regulator conducted 108 assessments on public and private bodies, including political parties, universities, national and provincial government departments and JSE-listed companies.

The political parties are: Action SA, African Christian Democratic Party, African Independent Congress, ANC, African Transformation Movement, Al Jama-ah, COPE, DA, Freedom Front Plus, Good Party, IFP, National Freedom Party, Pan African Congress of Azania and UDM.

Tlakula explained that part of the non-compliance can be attributed to the fact that it hasn’t been “too long” since PAIA was amended to include political parties.

Some of the political parties were not even aware that PAIA applies to them, she commented. “All of them were quite pleased that we conducted the assessment because it opened their eyes to how PAIA applies to everyone, including themselves. We were deliberate in conducting the assessments because we felt that one of the founding values of our Constitution is transparency and openness.

“If anything, political parties − especially those represented in Parliament − should lead the way in shining the light on the value of openness and transparency. We are hoping the reports submitted to them pointing out the gaps in their compliance will make sure they comply fully.”

In May last year, the Information Regulator announced it will embark on an assessment of political parties’ compliance with PAIA, saying this is to strengthen transparency within political parties, particularly in light of the upcoming 2024 national and provincial elections.

The information watchdog says it assessed 13 political parties represented in Parliament and one party not represented in Parliament, but with a presence in municipal councils nationally.

“We found that about 54% of political parties represented in Parliament are generally non-compliant with PAIA. About 46% of political parties represented in Parliament have some level of compliance but need to improve in certain areas. Therefore, none of the political parties represented in Parliament are compliant with PAIA.”

PAIA executive Ntsumbedzeni Nemasisi explained that consequences for non-compliance with PAIA include the issuing of an enforcement notice. “Non-compliance with the notice will lead to a fine or imprisonment for a period of three years.”

However, the fine and the term of imprisonment are not imposed by the regulator but by the courts, he stated.

“In the case of the assessment report, the regulator is developing a process on how it can enforce non-compliance with the assessment reports that we issue. We are in the process of developing that but also coming up with the proposed amendment to PAIA to ensure it is explicitly clear on how we deal with failure to comply with the assessment reports that we have issued.”

Advocate Pansy Tlakula, chairperson of the Information Regulator.
Advocate Pansy Tlakula, chairperson of the Information Regulator.

Headed by Tlakula, the Information Regulator is, among other duties, empowered to monitor and enforce compliance by public and private bodies with the provisions of SA’s POPIA data privacy law.

As of 1 July 2021, the regulator officially took over the oversight of PAIA from the South African Human Rights Commission, a move described by industry insiders as a step in the right direction to giving greater impact to the law that’s been in effect since 2002.

PAIA imposes an obligation on an information officer to compile a PAIA manual and make it available on the institution’s website, if any, and at the head office of the institution for public inspection during normal business hours.

It also requires that the information officer compiles and issues a notice of categories of records that are automatically available without a requester having to ask for them.

Meanwhile, on the matter concerning the Department of Justice and Constitutional Development (DOJ) and its R5 million fine, Tlakula said the department has instituted a review application in court, to challenge the regulator’s decision.

The regulator issued the DOJ with an infringement notice, after it failed to comply with one of the conditions in the initially-issued enforcement notice.

Jacob Jansen, chief legal officer at the Information Regulator, added: “The regulator was served with the DOJ’s review application. We are now at an advanced stage and finalising the process to disclose all the documents upon which the decision was based. There will also be a further exchange of affidavits, both from the regulator and the DOJ.

“The matter will eventually be enrolled for a hearing and then finalised.”