Case Summary and Outcome

The South African Supreme Court held that a retired pilot was entitled, under the Promotion of Access to Information Act (PAIA), to a record held by a private airline because he was able to establish that the record existed and that he needed it to protect a right.

This case analysis was contributed by Right2Info.org.

Facts

A retired South African Airways pilot was contractually entitled to two free business class tickets each year as part of his retirement package. When he attempted to benefit from this for a specific flight, the airline told him that no business class seats were available though he witnessed passengers upgraded and was later told telephonically that a record existed showing that a seat had indeed been available. Pursuant to the Promotion of Access to Information Act (PAIA), and in order to support a claim that the airline violated his contractual rights, the pilot requested records to prove that he was denied the seat improperly. In response, the airline provided some information but not the particular record requested. The court of first instance ruled that the pilot had not sufficiently established that the record was necessary to protect a right, and that the information already provided by the airline was sufficient to satisfy his request. He appealed.

Decision Overview

The Supreme Court of Appeal ruled that the pilot had established sufficiently the existence of the record sought and the necessity of its disclosure to protect his right, and that the airline had not provided the specific relief sought and must do so.

Section 50(a) of PAIA provides for the right of access to records of private bodies if “that record is required for the exercise or protection of any rights.” Section 53 requires that, where making a request for privately held records, the requester provide sufficient evidence to establish (a) the existence of the records requested, and (b) “the right the requester is seeking to exercise or protect” and “why the requested record is required for the exercise or protection of that right.” Section 9 of PAIA provides for access to information “as swiftly, inexpensively and effortlessly as reasonably possible.”

The Court ruled that the applicant has the burden only to present facts that “prima facie, though open to some doubt,” establish that a record exists for which disclosure is required to protect a particular right. The Court also ruled that the applicant was entitled to disclosure of the specific record requested, as Section 50 provides for access to “any record” in any form or medium. The Court ordered a punitive award of costs against the airline for failing to adhere to the spirit and the letter of Section 9 of the law as it had made disclosure slow and burdensome.