MEMORANDUM

PAIA’s grounds for refusal of access to requested records are closely related to

LAWP4ALH1 Administrative Law

Assignment 1

Student No: 95-023-415

 Table of Contents
Word Count.................................................................................................................................................1
Introduction.................................................................................................................................................2
Section 11 of PAIA.......................................................................................................................................2
Objects of PAIA............................................................................................................................................3
The Process of Interpretation......................................................................................................................4
PAIA Exemption Provisions regarding Public Record...................................................................................5
Section 33-44 of PAIA..............................................................................................................................5
Constraints on Exemption Provisions...........................................................................................................5
Severability Clauses.................................................................................................................................5
Interpretation Clauses.............................................................................................................................6
Exemption Clauses...................................................................................................................................7
Overriding Clauses...................................................................................................................................8
Conclusion...................................................................................................................................................9
Bibliography...............................................................................................................................................10

Word Count

Words 2 096

Page 1 of 11
Introduction
Section 32 of the Constitution provides that everyone has the right to access information
held by the State.1 The rights in the Bill of Rights may be limited in terms of law of
general application to the extent that the limitation is reasonable and justifiable. 2 The
Promotion of Access to Information Act, 2000 (Act 2 of 2000) (“PAIA”) is the legislation
contemplated by section 32(2) of the Constitution.

Section 11 of PAIA
In terms of section 11 of PAIA a person must be given access to a record held by a
public body save where access should be refused in terms of the grounds for refusal
contemplated in Chapter 4 of Part 2 of PAIA: sections 33 through to section 45.

The interpretation clause in sections 33(1)(a) and (b) of PAIA stipulates types of publicly
held records that fall to be protected from disclosure, subject to provisions of section 46.
This includes records which contain information described under section 34 through to
section 45 of PAIA. Section 50 of PAIA similarly provides the same for a record held by
a private body.

The corresponding clause to section 11 is, for private records, section 62 of PAIA,
subject to provisions of section 70. Section 63 through to section 69 describe the type of

1
“32 Access to information
(1) Everyone has the right of access to-
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the exercise or protection of any rights.
(2) National legislation must be enacted to give effect to this right and may provide for reasonable measures to alleviate
the administrative and financial burden on the state.”
2
“36 Limitation of rights
(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is
reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking into
account all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched
in the Bill of Rights.”

Page 2 of 11
information whose records should be protected from disclosure under Chapter 4 of Part
3 of PAIA.
Section 11 of PAIA provides that there is no right of access to a record of a public body
where such access is refused in terms of any of the contemplated grounds for refusal.
Chapter 4 of Part 2 includes both circumstances in which the information officer may
refuse access as well as circumstances in which the information officer must refuse
access. The Constitutional Court has held in this regard:
“PAIA places limitations on the right of access to information. It does this by
exempting certain information from disclosure. PAIA recognises, in its preamble,
that there are 'reasonable and justifiable' limitations on the right of access to
information, even in an open and democratic society. Those limitations emerge
from the exemptions to disclosure contained in Ch 4 of the Act. The purpose of
Ch 4 is to protect disclosure of certain information that, if disclosed, could cause
material harm to, amongst other things: the defence, security, and international
relations of the Republic; the economic interests and financial welfare of the
Republic and commercial activities of public bodies; and the formulation of policy
and taking of decisions by public bodies in the exercise of powers or
performance of duties conferred or imposed by law.”3

In my view, I submit, that preventing access to information in circumstances in which the

information officer would otherwise be entitled or obliged to refuse access under any of
the provisions under sections 34 – 44 is materially consistent with the provisions of
PAIA. Thus, the overall purpose of sections 34-44 is to give access without causing
harm.

Objects of PAIA
The objects of PAIA set out in section 9 are, amongst others, to give effect to the
constitutional right to-
(a) information held by the State; and information held by another person. Such
information should be required for the exercise or protection of any rights; and

3
President of the Republic of South Africa and Others v M & G Media Ltd 2012 (2) SA 50 (CC) at page 55-56, paragraph 11,
Ngcobo CJ (Froneman J, Mogoeng J, Mthiyane AJ and Yacoob J concurring).

Page 3 of 11
(b) access subject to limitations aimed at reasonable protection of privacy, as well as
subject to efficient and good governance. The giving of effect to the right to
access must be in a manner which balances that right with any other rights,
including the rights in the Bill of Rights in the Constitution.
It is within these parameters, I submit, that the provisions regulating grounds for refusal
should be interpreted.

The Process of Interpretation

The Supreme Court of Appeal (SCA) has described the process of interpretation -in
relation to provisions that limit access to records- the in the following terms:
“[27] The process of interpretation is no longer one in which we seek out a
notional plain meaning of the words used, ignoring context and the
circumstances in which the document being interpreted, whether a contract or a
statute or a patent specification, came into being. Nonetheless, it must start with
the actual words used. I pointed out in Endumeni [Natal Joint Municipal Pension
Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)] that:
'The inevitable point of departure is the language of the provision itself, read in
context and having regard to the purpose of the provision and the background to
the preparation and production of the document.' It is therefore incumbent on
counsel to identify the meaning for which they contend so that it can be tested
against the language used, not simply to engage in generalities. The reason is
simple. If the words are unable to bear the meaning contended for then that
meaning is impermissible.”4

4
Firstrand Bank Limited v Land and Agricultural Development Bank of South Africa 2015 (1) SA 38 (SCA) - Wallis JA (Maya
JA, Shongwe JA, Swain JA and Legodi AJA concurring); also see Cloete Murray and Another NNO v Firstrand Bank Ltd t/a
Wesbank 2015 (3) SA 438 (SCA) at page 445, paragraph 30. In the Natal Joint Municipal Pension Fund v Endumeni
Municipality judgment referred to above, Wallis JA said the following:
“The present state of the law can be expressed as follows: Interpretation is the process of attributing meaning to the words
used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by
reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon
its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the
light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which
it is directed, and the material known to those responsible for its production. Where more than one meaning is possible
each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible
meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of
the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable,
sensible, or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the
divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the

Page 4 of 11
The Constitutional Court succinctly set out the approach to interpretation as follows:
“[28] A fundamental tenet of statutory interpretation is that the words in a statute
must be given their ordinary grammatical meaning, unless to do so would result
in an absurdity. There are three important interrelated riders to this general
principle, namely:
(a) that statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised;
(c) all statutes must be construed consistently with the Constitution, that is,
where reasonably possible, legislative provisions ought to be interpreted to
preserve their constitutional validity. This proviso to the general principle is
closely related to the purposive approach referred to in (a).”5

PAIA Exemption Provisions regarding Public Record

Section 33-44 of PAIA
The provisions of section 33(1) under chapter 4 of PAIA stipulate a type of record that
must be refused, and that may be refused.6 These types of records are described in
sections 34 through to 44. However, both the mandatory and discretionary prescriptions
to refuse access are constrained.

These constraints are contained in the interpretation clauses, exemption clauses,

override clauses, and severability clauses in PAIA.

Constraints on Exemption Provisions

Severability Clauses
Section 28(1) of PAIA provides for disclosure of a redacted and severed record -if it falls

one they in fact made. The 'inevitable point of departure is the language of the provision itself', read in context and having
regard to the purpose of the provision and the background to the preparation and production of the document.” Natal Joint
Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18.
5
Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) para 28
6
“33 (1) The information officer of a public body—
(a) must refuse a request for access to a record contemplated in section 34(1), 35(1), 36(1), 37(1)(a), 38(a), 39(1)(a), 40
or 43(1); or
(b) may refuse a request for access to a record contemplated in section 37(1)(b), 38 (b), 39 (1) (b), 41 (1) (a) or (b),
42(1) or (3), 43(2), 44(1) or (2) or 45,
unless the provisions of section 46 apply.”

Page 5 of 11
to be refused- to enable the disclosure of an otherwise protected public record. 7 Section
59 of PAIA provides for similar disclosure of private records.

Where it is shown that the records fall within exempted information in terms of section
33(1) of PAIA and fall to be refused such refusal is subject to the severability provision in
terms of section 28 of PAIA.8

The prevailing purpose of these provisions is to give effect to the right of access to
information.

Interpretation Clauses
Section 2 of PAIA, requires every court –when interpreting a provision of PAIA- to
prefer any reasonable interpretation of the provision that is consistent with the objects of
PAIA over any alternative interpretation that is inconsistent with the objects of PAIA. In
terms of section 3(4), a public body is enjoined to function transparently. This is
consistent with provisions of section 195 (1) (g) of the Constitution. 9 Such interpretation,
I submit, is consistent with section 39(2) of the Constitution

Based on the understanding of the traversed statutory provisions a public body should
serve the best interests of the public and gather and holds information not for itself but as
custodian of the public good.10

Protected information contemplated under section 33 or section 70 of PAIA must, in terms

of section 46 or 70(a) and (b) of PAIA respectively, be disclosed if, inter alia, it reveals
evidence of a substantial contravention of, or failure to comply with, the law, or evidence of

7
“If a request for access is made to a record of a public body containing information which may or must be refused in terms
of any provision of Chapter 4 of this Part, every part of the record which—
(a) does not contain; and
(b) can reasonably be severed from any part that contains,
any such information must, despite any other provision of this Act, be disclosed.”
8
Avusa Publishing EC (Pty) Ltd v M Qoboshiyane & others ECP 2011-10-20 Case no 829/2011 para 33
9
“Transparency must be fostered by providing the public with timely, accessible and accurate information”
10
Constitutional Principle IX; Certification of The Constitution of the Republic of South Africa, 1996 CCT23/96, page 53, para
H.82-83; section 32 of the Constitution; and the Preamble to the Promotion of Access to Information Act

Page 6 of 11
imminent and serious public safety risk, and the public interest in the disclosure of the
record outweighs the harm contemplated in the provision in question.
Therefore, the purpose of the provisions of PAIA is even in exemption of disclosures
structured to reduce the limitation on the right of access to information as much as
possible.

Exemption Clauses
The following exemption clauses contain provisions that constrain and oblige disclosure
despite mandatory and discretionary protection of information: sections 34 (2), 35 (2),
36 (2), 37 (2), 39 (2), 41 (3), 42 (5); and section 44 (3) regarding public records.
Section 63 (2), 64 (2), and section 68 (2) of PAIA similarly obtain regarding private
records.

In deciding to disclose information protected under exemption clauses the court has
held that discretion to refuse access should be interpreted and applied in accordance
with the spirit and purport of the Constitution as stipulated by section 39(2) of the
Constitution and section 2 of PAIA.11 Therefore, in addition, the records falling within
exempted information in terms of section 33(1) of the PAIA that access to may be refused
under is subject to the override provision in terms of section 46 or 70 as provided for in
terms of section 33(1) and section 70 of PAIA.12

Ngcobo CJ writing for the Constitutional Court in President of the Republic of South
Africa v M & G Media Limited13 said it is insufficient to recite the exemption provisions

11
Qoboshiyane NO v Avusa Publishing Eastern Cape (Pty) Ltd (864/2011) [2012] 166 ZASCA. The Supreme Court of Appeal
had the following to say regarding the interpretation and application of section 44(1) of the PAIA:
“However, the genesis of the legislation was the Constitution and the Act must be interpreted with due regard to its terms
and spirit. The right of access to information held by the state is couched therein in wide terms. Subsection 44 (1) (a) must
be construed in the context of s 32 (1) (a) read with ss 36 and 39 (2) of the Constitution (cf Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs 2004 (4) SA 490 (CC) (2004 (7) BCLR687) para [72]). It is clear that s 44 (1) (a) limits the
right to access to information and s 36 of the Constitution requires that the scope of such a provision be restricted only to an
extent which is reasonable and justifiable. Section 39 (2) obliges every court to promote’ the spirit, purport and objects of
the Bill of Rights’ when interpreting any legislation. It must also be borne in mind that the Act was enacted in order to give
effect to access to information and promote the values of openness, transparency and accountability which are foundational
to the Constitution.”
12
Avusa Publishing EC (Pty) Ltd v M Qoboshiyane & others ECP 2011-10-20 Case no 829/2011 para 33
13
2012 2 BCLR 181 (CC) para 22

Page 7 of 11
of PAIA to show that the record requested falls within exempted information. A case-by-
case analysis is required to illustrate the application of the exemption.

All this points to the central objective of PAIA, to provide access to information.
The description of the grounds of refusal in section 44, by Currie, as exceptionally
wide-ranging and in furtherance of public interest does not detract from the general
purpose of PAIA provisions.14 It is a timing delay as opposed to refusal that
underscores the purpose to give access. Notwithstanding, in terms of subsection 44(4)
of the PAIA a record may not be refused in terms of subsection (1) in so far as it
consists of an account, or a statement of reasons required in accordance with section 5
of the Promotion of Administrative Justice Act (PAJA).

Overriding Clauses
The language of section 46 and section 70 of PAIA contemplates a two-part test:
 The disclosure must reveal evidence of a “substantial contravention of, or failure to
comply with, the law” or “imminent and public safety risk to the environment”;
 The public interest in the disclosure of the record must outweigh the harm
contemplated by the provision which would otherwise limit the disclosure.

In the matter of Qoboshiyane, the court found that section 33(1) of PAIA contains an
obligation to make disclosure where the criteria specified under section 46 are met.15

The court opined that, where grounds advanced by the information officer constitute
grounds upon which he may refuse access, there is nonetheless an obligation on him to
weigh the harm that would arise from disclosure against the public interest in disclosure.16 I
14
The Promotion of Access to Information Act Commentary, Iain Currie and Jonathan Klaaren, SiberInk, 2002, Currie at page
182 states-
“There is no parallel ground of refusal in respect of information held by private bodies or information about the internal
operations of private bodies. This is an indication of the purpose of the ground (or, more precisely, of s 44(1)). It is not a
general confidentiality provision (in which case it would apply to private as well as public bodies) but rather furthers the
public interest in preventing premature disclosure of policy and protecting the integrity of decision-making processes in
order to ensure that such processes are full and frank and not inhibited by the prospect of publicity.”
15
See Note 10 above: para 12 - “Disclosure is not optional or discretionary. There is an obligation to permit access.”
16
See Note 10 above: para14 - “… the exercise that an information officer must undertake under s 46 is a careful balancing,
on the facts of the particular case, of the harm that would accrue from permitting disclosure of the record, and the public
interest in its disclosure. In other words, the enquiry in every case is a fact-sensitive one, the outcome of which will vary

Page 8 of 11
submit that the principle applied in the interpretation of section 46 is also applicable to
section 70 of PAIA regarding private records.
I, again, am of the view that the said overriding provisions seek to ensure access to
information.

Conclusion
In the circumstances, it appears to me that the overall purpose of the provisions of PAIA
is to give effect to the right of access to information under section 32 of the Constitution.

The exempting provisions under section 33-45 of PAIA about public records, and
section 63-69 of PAIA regarding private records accord with the limitation clause in
section 36 of the Constitution. They do not derogate the reach of provisions of sections
11 and 50 of PAIA regarding public and private records respectively. Instead, they are in
themselves, in the public interest, where they are invoked judiciously to protect privacy
where it is due.

Section 2 of PAIA, consistent with section 39 of the Constitution, compels an

interpretation of the exempting provisions that enable access to, rather than a refusal of
access to information.

Section 33(1) of PAIA compels disclosure where the criteria specified under section 46
are met, it is not discretionary. The same principle, I submit, applies to provisions of
section 70 of PAIA.

Therefore, the purpose of the provisions in issues is to give effect to section 32 of the
Constitution while preventing abusive access to information. In conclusion, I submit the
cumulative effect of the interpretation clauses, exemption clauses, override clauses, and
severability clauses in PAIA sketch a structure of a highly effective mixture of provisions
that ensure access to information and protect access to information where due.

from case to case depending on the particular facts.”

Page 9 of 11
Bibliography
1. Avusa Publishing EC (Pty) Ltd v M Qoboshiyane & others ECP 2011-10-20 Case no 829/2011
(n.d.).
2. Certification of The Constitution of the Republic of South Africa, 1996 CCT23/96 (n.d.).
3. Constitution, n.d. Constitutional principles Schedule 4 of the Interim Constitution 1993, s.l.: s.n.
4. Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) (n.d.).
5. Firstrand Bank Limited v Land and Agricultural Development Bank of South Africa 2015 (1) SA 38
(SCA) (n.d.).
6. Iain Currie and Jonathan Klaaren, S., 2002. The Promotion of Access to Information Act
Commentary. s.l.:s.n.
7. Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) (n.d.).
8. President of the Republic of South Africa and Others v M & G Media Ltd 2012 (2) SA 50 (CC)
(n.d.).
9. Principles, C., n.d. s.l., s.n.
10. Promotion of Access to Information Act, Act 2 of 2000 (n.d.).
11. Promotion of Administrative Justice Act, 3 of 2000 (n.d.).
12. Qoboshiyane NO v Avusa Publishing Eastern Cape (Pty) Ltd (864/2011) [2012] 166 ZASCA (n.d.).

Page 10 of 11