Municipalities fail to comply with PAIA, says InfoReg

Admire Moyo
By Admire Moyo, ITWeb's news editor.
Johannesburg, 21 Nov 2022

The Information Regulator’s Enforcement Committee, launched in July, has started acting against transgressors, with a particular focus on municipalities.

The regulator’s investigations found that all 15 municipalities assessed based on the Promotion of Access to Information Act No 2 of 2000 (PAIA) were non-compliant with the law.

The municipalities are: City of Johannesburg Metropolitan, City of Tshwane Metropolitan, City of Ekurhuleni Metropolitan, West Rand District, City of Cape Town Metropolitan, Cape Winelands District, eThekwini Metropolitan, Umgungundlovu District, Gert Sibande District, Capricorn District, Thabo Mofutsanyana District, Mangaung Metropolitan, Bojanala Platinum District, Buffalo City Metropolitan and Nelson Mandela Metropolitan.

The Enforcement Committee was established after the information watchdog came under the spotlight for failing to resolve data privacy issues.

Headed by advocate Pansy Tlakula, the Information Regulator is, among other duties, empowered to monitor and enforce compliance by public and private bodies with the provisions of South Africa’s data privacy law, the Protection of Personal Information Act (POPIA).

As of 30 June 2021, the Information Regulator took over the regulatory mandate functions relating to the Promotion of Access to Information Act from the South African Human Rights Commission.

In a statement, the regulator says the Enforcement Committee, at its inaugural sitting on 15 and 16 November, was represented by chairperson advocate Helen Fourie SC, alternate chairperson Simonè Margadie and part-time member of the regulator Mfana Gwala.

The Enforcement Committee met to review 15 assessment reports on compliance with PAIA by metropolitan municipalities and district municipalities. These assessment reports were compiled following assessments conducted by the regulator.

In this assessment exercise, the regulator investigated how municipal managers, as information officers in terms of PAIA, were complying with the requirements of the law.

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.

PAIA 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.

According to the regulator, this notice must be made available on the institution’s website, if any, and at the institution's head office for public inspection during normal business hours.

As an information officer, the municipal manager must also designate and delegate a deputy information officer(s), who is, or are, tasked with managing the institution’s responsibilities for compliance and implementation of PAIA and POPIA.

Speaking at the presentation of the regulator’s preliminary findings to the Enforcement Committee, PAIA executive Ntsumbedzeni Nemasisi said: “The 15 assessment reports that we have referred to the Enforcement Committee show 100% of the metropolitan and district municipalities assessed were, in our opinion, non-compliant with the critical provisions of PAIA.”

In terms of the next steps in this process, Nemasisi explained that once the Enforcement Committee made its findings and recommendations to the members of the regulator, enforcement notices will be issued against the municipal managers that are not compliant with the provisions of PAIA.

Nemasisi warned that a municipal manager who refuses or fails to comply with an Enforcement Notice issued by the regulator is guilty of an offence and liable upon conviction to a fine or imprisonment for a period not exceeding three years, or to both such a fine and such imprisonment.

The information watchdog notes access to information is a critical component of efficient and honest service delivery to the public, and municipalities are at the coalface of such service delivery efforts.

“It is, therefore, essential that municipalities put in place the enabling mechanisms for better access to information. PAIA, to the letter and spirit of the law, is the bedrock upon which such a system of efficient and honest service delivery is built,” it concludes.