FOR
PROSPER
(“PROSPER”)
In terms of
section 51 of the Promotion of Access to Information Act
Act 2 of 2000
Section 32 of the
Constitution of the Republic of South Africa, No. 108 of 1996 (“the Constitution”) provides:
(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.
The Promotion of Access to Information Act, 2 of 2000 (“the Act”), was enacted on 3 February 2002 to give effect to section 32 of the Constitution, that is giving effect to the constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights. Where a request is made in terms of this Act, the private or public body to whom the request is made is obliged to release the information, except where the Act expressly provides that the information must not be released. The Act sets out the requisite procedural issues attached to such request.
The act came into effect on 9 March 2001 with the exception of sections 10, 14,16 and 51 which sections were brought into operation on 15 February 2002.
Any person who requires
information for the exercise or protection of any rights, may request
information from a private body. Section 50 of the Act states that;
(1) A requester must
be given access to any record of a private body if –
(a) that record is
required for the exercise or protection of any rights;
(b) that person
complies with the procedural requirements in this Act relating to a request for
access to that record; and
(c) access to that
record is not refused in terms of any ground for refusal contemplated in
Chapter 4 of this Part.
Any person who wishes to request any information from Prosper with the object of protecting or exercising a right may contact the information officer whose contact details are as follows;
Postal Address
The Information Officer
Prosper Insurance Company Limited
P O Box 11250
Johannesburg, 2000
Physical address
10 th Floor
Cnr Barry Hertzog Avenue and Napier Road
Richmond, Johannesburg, 2092
Tel: (011) 489-4000
Fax (011) 489-4125
e-mail address: compliance@telesure.co.za
In terms of section 53, a
request for access to a record of Prosper must be made in the prescribed
form to Prosper at the address, fax number or electronic mail
address given above. The form requires the requestor to provide the following
information:
·
sufficient information to enable the information officer to identify
the requestor;
·
sufficient information to enable the information officer to identify
the record(s) requested;
·
the form of access required;
·
the requestor’s postal address or fax number;
·
identification of the right sought to be exercised or protected;
·
an explanation on why the record is required to exercise or protect
that right;
·
the manner in which the requestor wishes to be informed of the decision
on the request, if in a manner in addition to written notification; and
if the request is made on behalf of a person, the submission of proof of the capacity in which the requestor makes the request, to the satisfaction of the information officer.
For a specimen of the request form see ANNEXURE A to the manual. Requestors please note that all of the information as listed above should be provided, failing which the process will be delayed while the private body requests such additional information. The prescribed time periods will not commence until all pertinent information has been furnished on the private body by the requestor.
Payment of fees is regulated
in terms of section 54 of the Act. The Regulations to the Act provide for two
types of fees:
·
Request fee: This is a non- refundable administration fee paid by all
requestors with the exclusion of personal requestors. It is paid before the
request is considered.
· Access fee: This is paid by all requestors only when access is granted. This fee is intended to re-imburse the private body for the costs involved in searching for a record and preparing it for delivery to the requestor.
Prosper may
withhold a record until the request fee and the deposit (if applicable) have
been paid. A schedule of the prescribed fees is attached as ANNEXURE B to the manual.
The information officer must
give written notice to a requestor other than a personal requestor of the
request fee and amount to be paid before the request may be further processed.
If in the information officer’s opinion the search for a record, or preparation of the record for disclosure will require more than the prescribed hours, the information officer may require the requestor to pay a deposit, not being more than one third of the access fee that would be payable if the request is granted. If the request is declined, the deposit must be repaid to the requestor.
The notice given by the
information officer must advise the requestor that s/he has a right to apply to
court against the payment of the request fee or deposit, and also advise of the
procedure of the application.
A personal requestor is
described in terms of the Act as a requestor seeking access to a record
containing information about the requestor.
A personal requestor is not liable to pay a request fee, is liable for payment of access fees in the event of a request being granted, but may not be required to pay a deposit before the granting of the record.
In terms of section 10 of the Act, the Human Rights Commission must compile a guide by 14 August 2003. This guide is intended to assist users in the interpretation of the Act. The guide will contain a description of the objects of the Act, the contact details of the information officers of all the public bodies, particulars of the public bodies, the manner of access to the records of those public bodies and the remedies available in law regarding a breach of any of the provisions of the Act.
The South African Human Rights Commission’s contact details are as follows;
Private Bag 2700
Houghton
2041
Tel: 011 484 8300
Fax 011 4841360
The requestor
may request access to the following types of documents;
5.1 Personnel
Records
These include;
·
Any personal records provided to the private body by their personnel;
·
Any records a third party has provided to the private body about any of
their personnel;
·
Conditions of employment and other personnel-related contractual and
quasi-legal records;
·
Internal evaluation records; and
·
Other internal records and correspondence.
A customer includes any natural or juristic entity who receives services
from the private body. Customer-related information includes the following:
·
Any records a customer has provided to a third party acting for or on
behalf of the private body;
·
Any records a third party has provided to the private body; and
·
Records generated by or within the private body pertaining to the
customer, including transactional records.
This includes but
is not limited to the following:
·
Financial records;
·
Operational records;
·
Databases;
·
Information technology;
·
Marketing records;
·
Internal correspondence;
·
Product records;
·
Statutory records;
·
Internal policies and procedures;
·
Treasury-related records;
·
Securities and equities; and
·
Records held by officials of the private body.
The private body may possess records pertaining to other parties, including without limitation, contractors, suppliers, subsidiary/holding/sister companies, joint venture companies, service providers. Alternatively, such other parties may possess records which can be said to belong to the private body.
The following
records fall under this category:
·
Personnel, customer or private body records which are held by another
party as opposed to being held by the private body; and
·
Records held
by the private body pertaining to other parties, including without limitation
financial records, correspondence, contractual records, records provided by the
other party, and records third parties have provided about the contractors /
suppliers.
The requestor may also request information which is available in terms of legislation, such as the following;
alienation
of land act (68 of 1981)
basic
conditions of employment act (75 of 1997)
companies
act (61 of 1973)
compensation
for occupational injuries & diseases act (130 of 1993)
employment
equity act
financial
services board act (97 of 1990)
Income
tax act 58 of 1962
labour
relations act (66 of 1995)
occupational
health and safety act (85 of 1993)
promotion
of equality and prevention of unfair discrimination act
regional
services councils act (109 of 1985)
short
term insurance act (53 of 1998)
skills
development act (97 of 1998)
Skills
Development Levies act (9 of 1999)
South
African Qualifications Authority act (58 of 1995)
VAT act (89 of 1991)
The Information
officer will take into considerations section 8 of the manual to decide on
whether or not access to any of the information stated above should be given to
the requester.
6.1 In
terms of Section 55, the information officer will take all reasonable steps to
find a record that has been requested.
If the record cannot be found or does not exist, the
information officer must notify the requestor by way of affidavit or
affirmation that it is not possible to give access to the record. This is
deemed to be a refusal of the request. If, however, the record is later found,
the requestor must be given access if the request would otherwise have been
granted.
6.2 Section
56 provides that the information officer must within 30 days of receipt of a
correctly completed request notify the requestor of the decision as to whether
or not to grant the request. If the request is:
·
Granted: the notification must state the applicable access fee required
to be paid, together with the procedure to be followed should the requestor
wish to apply to court against such fee, and the form in which access will be
given.
·
Declined: the notification must include adequate reasons for the
decision, together with the relevant provisions of the Act relied upon, and
provide the procedure to be followed should the requestor wish to apply to
court against the decision.
6.3 The
information officer may extend the period of 30 days by a further period not
exceeding 30 days if:
·
the request is for a large number of records or requires a search
through a large number of records;
·
the request requires a search for records located in a different office
of the private body not situated in the same city;
·
consultation between divisions of the private body, or with another
private body is required; or
·
the requestor consents to the extension.
The requestor
must be notified within the initial 30 day period in writing of the extension,
together with reasons therefor, and the procedure involved should the requestor
wish to apply to court against the extension.
The information officer’s failure to respond to the requestor within the 30 day period constitutes a deemed refusal of the request.
6.4 Section
59 provides that the information officer may sever a record and grant access
only to that portion which the law does not prohibit access to.
If access is
granted, access must be given in the form that is reasonably required by the
requestor, or if the requestor has not identified a preference, in a form
reasonably determined by the information officer.
If the request is for a
record pertaining to a third party, the information officer must take all
reasonable steps to inform that third party of the request. This must be done
within 21 days of receipt of the request. The manner in which this is done must
be in the fastest means reasonably possible, but if orally, the information
officer must thereafter give the third party a written confirmation of the
notification. The third party may within 21 days thereafter either make
representation to the private body as to why the request should be refused,
alternatively grant written consent to the disclosure of the record. The third
party must be advised of the decision taken by the information officer on
whether to grant or decline the request, and must also be advised of
his/her/its right to appeal against the decision by way of application to court
within 30 days after the notice.
Notwithstanding compliance with section 50, the request may be declined in accordance with one of the prescribed grounds in terms of the Act, namely:
8.2 Section
64 states that a request must be refused if it relates to records containing
third party information pertaining to:
·
trade secrets;
·
financial, commercial, scientific or technical information where
disclosure would be likely to cause harm to the commercial or financial interests
of that third party; or
·
information supplied in confidence by the third party, the disclosure
of which could reasonably be expected to put the third party at a disadvantage
in contractual or other negotiations, or prejudice the third party in commercial
competition.
The information
must, however, be released if it pertains to the results of product or
environmental testing, the disclosure of which would reveal a serious public
safety or environmental risk.
8.3 Section
65 prohibits disclosure of information if such disclosure would constitute a
breach of any duty of confidentiality owed to a third party in terms of an
agreement.
8.4 In
terms of section 66, a private body must refuse a request for access to a
record of the body if disclosure could reasonably be expected to:
·
endanger the life or physical safety of an individual;
·
prejudice or impair the security of a building, structure or system,
including but not limited to a computer or communication system, means of
transport or any other property
·
The private body may also refuse a request for access to information
which would prejudice methods, systems, plans or procedures for the protection
of an individual in accordance with a witness protection scheme or safety of
the public.
8.5 Section
67 mandates the refusal of a request if the record is privileged from
production in legal proceedings, unless the person entitled to the privilege
has waived the privilege.
8.6 Section
68 pertains to records containing information about the private body itself and
unlike the other provisions pertaining to decline of a request, is not
mandatory, but rather discretionary. Prosper may refuse
access to a record if the record:
·
contains trade secrets of Prosper
·
contains financial, commercial, scientific or technical information,
the disclosure of which would be likely to cause harm to the commercial or
financial interests of Prosper
·
contains information which, if disclosed, could reasonably be expected
to put the private body at a disadvantage in contractual or other negotiations,
or prejudice Prosper in commercial competition; or
·
consists of a computer program owned by Prosper
Notwithstanding
the above, the information must be released if it pertains to the results of
product or environmental testing, the disclosure of which would reveal a
serious public safety or environmental risk.
8.7 Section
69 prohibits the disclosure of information about research where disclosure is
likely to expose the third party, the person conducting the research on behalf
of the third party, or the subject matter of the research to serious
disadvantage. Disclosure is discretionary if such research pertains to Prosper itself.
Notwithstanding
any of the above-mentioned provisions, section 70 provides that a record must
be disclosed if its disclosure would:
·
reveal evidence of a substantial contravention of or failure to comply
with the law, imminent and serious
public safety or environmental risk; and
· if the public interest in the disclosure clearly outweighs the harm.
A requestor that is dissatisfied with the information officer’s refusal to grant access to any information may, within 30 days of notification of the decision, apply to court for relief. Likewise, a third party dissatisifed with the information officer’s decision to grant a request may, within 30 days of notification of the decision, apply to court for relief.
It should be noted that
notwithstanding any provision in this Act, the court may examine the record(s)
in question. No record may be withheld from the court on any grounds. The court
may not, however, disclose the contents of the record(s).
The court is empowered to
grant any order that is just and equitable, including:
·
confirming, amending or setting aside the information officer’s
decision
·
requiring the information officer to take any action, or refrain from
taking any action as identified by the court within a specified period;
·
granting an interdict, interim or special relief, declaratory order or
compensation; or costs.
ANNEXURE A
(Section 53(1) of the Promotion of Access to Information Act, 2000 (Act No 2 of 2000)
The Head:
|
(a) The particulars of the person who requests access to the records must be recorded below. (b)
Furnish an address and/or fax number in the Republic to which
information must be sent. (c) Proof of the capacity in which the request is made, if applicable, must be attached. |
Full name and surname: ______________________________________________________________
Identity number: ______________________________________________________________
Postal Address: ______________________________________________________________
______________________________________________________________
Telephone number: _______________ Fax number: _______________
E-mail address: ______________________________________________________________
Capacity in which request is made, when
made on behalf of another person:
______________________________________________________________
C. Particulars of person on whose behalf request is made:
|
This
section must be completed only if a request for information is made on behalf
of another person. |
Full names and surname: ______________________________________________________________
______________________________________________________________
Identity number: ______________________________________________________________
D. Particulars of record:
|
(a) Provide full particulars of the record to which access is requested, including the reference number if that is known to you, to enable the record to be located. (b) If the provided space is inadequate please continue on a separate folio and attach it to this form. The requester must sign all the additional folios. |
1. Description of record or relevant part of the record:
________________________________________________________
________________________________________________________
________________________________________________________
________________________________________________________
________________________________________________________________________________________________________________________________________________________________________________________________________________________________
2. Reference number, if available: ________________________________________________________
3. Any further particulars of record: ________________________________________________________________________________________________________________________________________________________________________________________________________________________________
|
(a) A request for access to a record, other than a record containing personal information about yourself, will be processed only after a request fee has been paid. (b) You will be notified of the amount required to be paid as the request fee. (c) The fee payable for access to a record depends on the form in which access is required and the reasonable time required to search for and prepare a record. (d) If you qualify for exemption of the payment of any fee, please state the reason therefor. |
Reason for exemption from payment of fees: ______________________________________________________________
______________________________________________________________
|
If you are prevented by a disability from reading, viewing or listening to the record in the form of access provided for in 1 to 4 hereunder, state your disability and indicate in which form the record is required. |
|
Disability: ______________________________ ______________________________ ____________________________________________________________ |
Form in which record is required: __________________________________________________________________________________________ ______________________________ |
Mark the appropriate box with an “X” NOTES: (a)
Your indication as to the required form of access depends on the
form in which the record is available. (b)
Access in the form requested may be refused in certain
circumstances. In such a case you will be informed if access will be granted
in another form. (c)
The fee payable for access to the record, if any, will be determined
partly by the form in which access is requested. |
|
1.
If the record is in written or printed form: |
|||
|
|
Copy of record* |
|
Inspection of record |
|
2.
If record consists of visual images: (this includes photographs, slides, video recordings, computer-generated images, sketches, etc) |
|||||
|
|
View the images |
|
Copy of the images* |
|
Transcription of the images* |
|
3.
If record consists of recorded words or information which can be
reproduced in sound: |
|||
|
|
Listen to the soundtrack (audio cassette) |
|
Transcription of soundtrack* (written or printed document) |
|
4. If record is held on computer or in an electronic or machine-readable form: |
|||||||
|
|
Printed copy of record |
|
Printed copy of information derived from the record* |
|
Copy in computer readable form* (stiffy or compact disc) |
||
|
*If you requested a copy or transcription of a record (above), do you wish the copy or transcription to be posted to you? A postal fee is payable. |
YES |
NO |
|||||
G. Particulars of right to be
exercised or protected:
|
If the provided space is inadequate please continue on a separate folio and attach it to this form. The requester must sign
all the additional folios. |
Indicate which right is to be exercised or protected: ____________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________
Explain why the requested record is required for the exercising or protection of the aforementioned right: ________________________________________________________________________________________________________________________________________________________________________________________________________________________________
H. Notice of decision regarding request for access:
|
You will be notified in writing whether your request has been approved/denied. If you wish to be informed thereof in another manner, please specify the manner and provide the necessary particulars to enable compliance with your request. |
How would you prefer to be informed of the decision regarding your request for access to the record?
______________________________________________________________
______________________________________________________________
Signed at ____________________________ this _________________ day
of ______________2002
________________________________________
SIGNATURE OF REQUESTER/PERSON ON
WHOSE BEHALF REQUEST IS MADE
ANNEXURE B
FEES
IN RESPECT OF PRIVATE BODIES
1.
The fee for a copy of this manual is R1,10 for every
photocopy of an A4 size page or part thereof.
2. Where a private body has voluntarily
provided the Minister with a list of categories of records that will
automatically be made available to any person requesting access thereto, the
only charge that may be levied for obtaining such records, will be a fee for
reproduction of the record in question.
These fees for reproduction are as follows:
a) For
every photocopy of an A4 size page or part thereof R 1,10
b)
For every printed copy of an A4 size page or part thereof R
0,75
held on a computer or in electronic or
machine readable
form.
c)
For a copy in a computer readable form on –
i) stiffy
disc R 7,50
ii) compact
disc R70,00
d) i) For
a transcription of visual images for an R40,00
A4
size page or part thereof
ii) For a copy of visual images R60,00
e) i) For a transcription of an audio
record, for an R20,00
A4 size page or part thereof
ii) For
a copy of an audio record R30,00
2.
The request fee payable by a
requester, other than a personal
requester is R50,00.
3.
The access fees payable by a
requester are as follows:
a) For
every photocopy of an A4 page or part thereof R 1,10
b)
For every printed copy of an A4 size page or part R 0,75
thereof held on a computer or in electronic
machine
readable form
c)
For a copy in a computer readable form on –
i) stiffy
disc R 7,50
ii) compact
disc R70,00
d) i) For
a transcription of visual images for an R40,00
A4
size page or part thereof
ii)
For a copy of visual images
e) i) For a transcription of an audio record
for an R20,00
A4
size page or part thereof
ii) For a copy of an audio record R30,00
f)
To search for and prepare a record that must be disclosed, R30,00 for
each hour or part of an hour reasonably required for such search and
preparation.
4. Where a private body receives a request for access to information held on a person other than the requester himself/herself and the information officer upon receipt of the request is of the opinion that the preparation of the required record for disclosure will take more than 6 (six) hours, a deposit is payable by the requester.
One third of the access fee is payable as a
deposit by the requester.
5.
The actual postage is payable when a copy of a record must be posted to
a
requester.