Freedom of Information: A Comparative Legal Survey - Federation of ...

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The Law contains detailed provisions on the transfer of requests, which is required whenever the record
in question is in the possession of a public body other than the one with which the original request was
fi led or the record is more closely connected with another body. Such transfers must be made as soon as
possible and in any event within 14 days. This period is not additional to the time limit for responding to
requests. The applicant must be informed about the transfer (section 20). Section 23 provides for situations
in which a record does not exist or cannot be found, in which case the applicant must be notifi ed of that
fact, as well as of the steps taken to attempt to locate the record. This notifi cation is deemed to be a refusal
to grant access for purposes of appeal.
The South African Law contains detailed provisions on third party notice and intervention, which is the
subject of Chapter 5 of Part II. Where certain exceptions are engaged – specifi cally those that involve the
rights of third parties such as protection of privacy or commercial confi dentiality – any third parties to
whom the information sought relates must be informed as soon as possible and in any case within 21 days
of the request, the applicant and any possible application of the public interest override (section 47). Third
parties must then be given 21 days either to make representations as to why the request should be refused
or to give consent to disclosure of the record (section 48). A decision on disclosure must be made within 30
days of notifying relevant third parties of the request, and they must be notifi ed of the decision. Where the
decision is to grant access, the applicant must be given access within a further 30 days (i.e. within 81 days
of lodging the request), unless the third party lodges an appeal against the decision (section 49).
Where a request is granted, notice shall be provided to the applicant stipulating the fees to be charged,
the form in which access will be given and the right to appeal, for example against the form of access or
the fee. Where a request is refused, in whole or in part, the notice must include adequate reasons for the
denial, along with the provision of the Law relied upon and the right to appeal (section 25).
The Law provides for some detail in terms of the forms of access that applicants may request, including a
copy, inspection or viewing of the record, a transcript, an electronic copy or extraction of the information
from the record by a machine. The applicant must be given access in the form requested unless this would
unreasonably interfere with the operations of the public body, be detrimental to the preservation of the
record or infringe copyright. The Law also provides for special forms of access for persons with disabilities,
at no extra charge. Finally, applicants may request the record in a certain language and access must be
provided in that language if the record is available in it (sections 29 and 31).
Applicants may be charged fees for requests, both for reproduction of the record and for search and
preparation. Where these fees are likely to be above a predetermined limit, the applicant may be asked to
make an advance deposit. The Law specifi cally provides for the minister to exempt any person from paying
the fees, to set limits on fees, to determine the manner in which fees are to be calculated, to exempt certain
categories of records from the fee and to determine that where the cost of collecting the fee exceeds the
value of the fee, it shall be waived (section 22).
Regulations adopted by the Minister of Justice and Constitutional Development in February 2002 set out a
schedule of fees for access which, for requests to public bodies, comprises a R35 (approximately USD5.30)
fee for processing a request and access fees of R0.60 per page (approximately USD0.10) for photocopying,
R5 (approximately USD0.70) for a fl oppy disk and R40 (approximately USD5.7) for a compact disk. Six hours
of staff time is set as the limit before a deposit may be demanded. 249 In an October 2005 Government
Notice, the Minister of Justice exempted requestors earning less than R14,712 per annum (approximately
USD2,101) 250 from having to pay any of the access/reproduction fees specifi ed above. The same Notice
provides that fees may not be charged where the cost of collection would exceed the fee or for requests for
personal information. 251
The Law also provides for the correction of personal data, where this is not already catered to by another
law (section 88).