The PAIA barrier to access municipal records: Is this right?

Municipalities are required to share an assortment of records and information with the public. There are multiple reasons behind this mandate, but the most important one is to promote transparency and, by implication, public participation in governance.

Legislation such as the Municipal Finance Management Act 56 of 2003, the Municipal Systems Act 32 of 2000, and the Municipal Structures Act 17 of 1998 create a right to municipal records that deal with many financial and governance issues. Additionally, PAIA determines that municipalities must make information automatically accessible to the public (without requiring a PAIA request) if mandated by other legislation to do so. Here is a list containing some of the records or documents that communities should have default access to:

Annual reports,
Annual performance reports,
Integrated development plans,
Budgets, including the adjustment budget,
Monthly budget reports,
Service delivery and budget implementation plan,
By-laws,
Policies,
Environmental management and implementation plans,
Municipal environment outlook report,
Performance agreements,
Service delivery agreements,
Long-term borrowing contracts,
Disposal asset registry,
Public-private partnership agreements,
Quarterly reports,
Declarations of financial interests of councillors,
Declarations of financial interests of senior managers,
Details of remuneration and benefits of councillors,
Details of remuneration and benefits of senior managers,
Audit reports,
Agendas of council and committee meetings,
Minutes of council and committee meetings,
Rules and orders of council, and
System of delegations

The preamble of PAIA states that before the enactment of the Constitution, South African government was characterised as secretive and unresponsive which led to many abuses of public power. It goes on to state that one of the reasons for enacting PAIA is to foster transparency and accountability in all governance issues, including municipalities. When one interprets these provisions, it can be concluded that the default position South African government must follow is one of transparency.

Unfortunately, municipalities often do not make this information publicly available by default, instead, they require interested individuals to follow a PAIA application process to access. For example, municipalities should publish the interests of councillors. Still, according to the City of Cape Town’s Disclosure of Financial Interests Policy (2005), people who want to inspect these declarations may only do so only through a PAIA application process. According to the Policy, the City will keep and maintain a register of councillors’ financial interests. The register has a public and a confidential part. Every financial disclosure is reflected in the public part of the register except the financial value of interests in a corporate entity (that is not a public company); remuneration for employment outside of the council; the address of private residences; the value of pension benefits; and details of close family members’ financial interests. The question is whether it is legally permissible for the City to require a PAIA application to access to this information when relevant local government pieces of legislation require that such information be made publicly available.

The Johannesburg High Court considered this question in its recent judgement: Montrose Mews Body Corporate v Moela [2024] ZAGPJHC 198. The Sectional Titles Schemes Management Regulations enacted under the Sectional Titles Management Act 8 of 2011 entitles all property owners who belong to the body corporate to access information about its management, such as bank statements. In this matter, the body corporate demanded a PAIA application from Ms Mokoka (a property owner) before she could access these bank statements. To be able to make an informed decision on matters affecting the finances of the body corporate, Ms Mokoka requested to inspect its bank statements to establish its financial position. However, the body corporate refused such access unless a PAIA application was made. The body corporate maintained that access is regulated under PAIA, while Ms Mokoka argued the Sectional Titles Management Act was applicable and a PAIA application unnecessary. The dispute served before the Community Schemes Ombud Service and the outcome favoured Ms Mokoka. The body corporate therefore approached the court to appeal against the award made by the Ombud. The question before the court was whether the body corporate was allowed to request a PAIA application against the background that the Sectional Titles Management Act created a pre-existing right for that information.

In its judgement, the court considered the purpose of PAIA and section 32 of the Constitution, which establishes the right to access information. The purpose of PAIA is to improve access to information and not to create a convenient barrier to hide information. The judgement acknowledges that many pieces of legislation create rights to access specific records of institutions. PAIA should not be interpreted in a manner that displaces these existing rights. Therefore, the court ruled that when someone has a pre-existing right to certain information, an institution may not hide that information behind a PAIA application. The court described the impact of requiring a PAIA application, despite an existing right to information as: “truly perverse to encumber specific statutory rights of access to information with the machinery of PAIA, which is manifestly designed to kick in only when no such specific rights exist… it ought to be read to facilitate rather than encumber the dissemination of information.” The learned judge stated that “it would significantly encumber many other statutory rights” if an institution required a PAIA application process for information that must have been made public by default.

In section 15, PAIA gives any person the right to make an application to access public documents or records that a person does not have an existing right or automatic access to. In other words, if legislation such as the Systems Act, Structures Act or the MFMA do not provide a default right to certain information, any person may then make a PAIA application to access such information. This means that the public can still access those declarations of councillors’ interests which the municipal council decided not to make public through a PAIA application, for instance. On this issue, the judgement highlighted that when such an application is made to a public institution, in this case the municipality, it is not necessary for the community member to give a reason why they wish to gain access to such records – the reason, the default position of South African government should be transparency.

It is important to note that the right to access public records are not limited to inspection only. A person may ask the municipality to make copies of such records as well. However, municipalities may request a reasonable reproduction fee to make copies of such records.

The language and way the judgement was delivered made it clear that the PAIA principles applies beyond the dispute that was before the court. This means that this judgement is equally relevant for municipalities and their approach to communicating documents and records to the public. This judgement made it clear that the purpose for PAIA was to create processes and entitlements that enable access to information where there were no existing rights to information. The purpose was not to create a barrier or displace existing rights to information. It therefore affirmed a position of transparency instead of secrecy in all institutions, public and private.

In conclusion then, all members of the public must have (1) default and unrestricted access to information in terms of legislation such as the Systems Act, Structures Act and MFMA, and (2) subject to a PAIA application, have access to all other information held by municipalities. Considering this judgement and existing legal obligations, municipalities such as the City of Cape Town should carefully reconsider some of their policies. Perhaps it would be a good time for an institution such as the Information Regulator to conduct an audit to establish (1) whether municipalities are proactively making information public in accordance with legislation and (2) whether municipalities have the required PAIA processes in place for the public to access all other information which they do not have a pre-existing right to. Municipalities’ approach should always favour a position of transparency rather than conditional secrecy.

By Johandri Wright, Post-doctoral Research Fellow