In Benatar v Black Academic Caucus, Professor Benatar lost his High Court application for access to the Black Academic Caucus’ membership list, its office bearers, and other documents. This judgment explains how the courts assess applications for access to information in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA). The court held that Professor Benatar did not show what rights he wanted to exercise or protect. Professor Benatar was unable to prove how the information he requested for “restorative justice” purposes would help him to protect his rights.
Who should care about this judgment and why?
- The general public because you can avoid expensive court applications by knowing how to correctly apply for access to certain information.
- Information officers because you must know how to correctly process an access to information request.
What could you do about it?
- Learn about the process involved in requesting access to information by reading our post on the PAIA regulations.
- Learn more about PAIA manuals and why everyone needs them by reading our post on having a PAIA manual.
- Comply with access to information laws by joining a programme.
- Dive into the detail by reading the full judgment.
- Access other relevant judgments by joining a Michalsons programme.
Our insights on the judgment
Litigation, especially in the high court, is expensive. While anyone can approach our courts for relief there are less expensive and more practical ways for you to achieve a favourable outcome. These alternative methods are in line with the latest laws that the regulator published.
All organisations must have a PAIA manual. It is a criminal offence if you do not have one and you could be imprisoned.
The definition of a private body is broad. Therefore, the BAC would be classified as a private body and must have a PAIA manual. However, the BAC does not have a website, so we were not able to get much information about them. We also couldn’t determine if they had a PAIA manual. A PAIA manual must contain certain information like the name of the information officer and how to request access to information.
Is a court application necessary?
For the benefit of anyone reading this insight, we urge you to consider a few things before approaching a court for access to records and other information:
- What type of records do you need access to? Remember some organisations may not release certain confidential records, such as medical records, to you.
- Are the records held by a public or private body? This matters because:
- Public bodies must make certain records automatically available.
- Private bodies must voluntarily disclose certain records and make them automatically available.
- Have you followed the correct procedure to request access to records? For example, the PAIA regulations stipulate that anyone who wishes to have access to information must apply for access to the information officer of a public or private body.
- If you are approaching an information officer of a public or private body, you should be able to find their contact details in their PAIA manual.
- You can lodge an internal appeal against the decision of an information officer, or you can lodge a complaint with the information regulator.
Digest
Professor Benatar had a disagreement with the Black Academic Caucus (BAC) at a faculty board meeting. The BAC is a voluntary association challenging the slow pace of transformation. They also advocate for an inclusive academic institution.
After the events at the board meetings, the BAC issued statements that the professor claimed there was an attack on his integrity and reputation. For the purposes of restorative justice, the professor seeks the membership list, office bearers and other documents of BAC, in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA).
The court considered:
- the purpose of the application.
- restorative justice.
- the court explained how South African courts approach access to information requests in terms of section 50(1)(a) of PAIA.
Section 50(1)(a) provides that for someone to gain access to a private organisation’s records, they must prove that they need the record to protect or exercise a right.
The court held that:
- the professor was unable to prove the right he wished to exercise or protect.
- consequently, he was also unable to prove how the information requested from the BAC would assist him in exercising or protecting that right.
Order
- The High Court dismissed the application with costs.
Details of
- Universal citation: [2021] ZAWCHC 265
- Case number: 18821/2020
- Full name: David Benatar v The Black Academic Caucus
Please note: The summary of this judgment is not intended for a general audience. It is specifically drafted for the members of the Michalsons Access to Information programme.
