27 June 2008 by

Denying access to information may land you in hot water!

A decision by the Supreme Court of Appeal (SCA) in 2007 once again underscores the need for businesses to understand and to fully comply with the requirements of the Promotion of Access to Information Act (PAIA), and to implement appropriate policies and procedures in dealing with requests made under PAIA.

In Claase v Information Officer: South African Airways (Pty) Ltd 2007 (5) SA 469 (SCA), Claase, a retired pilot, was, as part of his retirement package, entitled to two free business class tickets on any South African Airways (SAA) international flight per annum. When he wanted to change the date of two business class tickets he had obtained, he was advised by SAA that although there were business class seats available on the relevant flight, none could be allocated to him as bookings had closed.

The appellant then requested a copy of SAA's record of the number of business class seats available on the flight in question. Despite repeated requests, he was denied access to that record.. SAA only informed him of the number of passengers that had flown business and economy class on that date.

Claase applied to the High Court, where his request for access to the record was dismissed on the basis that he had failed to establish, in terms of PAIA, that he had a right which required protection, and that the information SAA gave him was sufficient for his intended purpose.

The SCA found in Claase's favour on appeal. The SCA also granted a cost order against SAA on a punitive basis to show the Court's displeasure at SAA's conduct in handling Claase's request.

The SCA reasoned that Claase had in fact established a contractual right to two free business class tickets per annum and that prima facie he had a right, the exercise or protection of which required that he be given access to the requested record. The very aim of PAIA is to establish a quick and inexpensive mechanism to obtain access to records, which SAA had frustrated in this case.

Preeta Bhagattjee and Ridwaan Boda

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