Do trustees need to comply with the Promotion of Access to Information Act?

A RECENT deadline for relevant entities to submit their Promotion of Access to Information Act (PAIA) Annual Returns by 30 June 2025 has raised the question of whether trusts are included among the entities covered by the PAIA.

- PHIA VAN DER SPUY

The PAIA's primary aim is to grant individuals the right to access information held by both public and private bodies, thereby fostering a more transparent and accountable society. Section 32 of our Constitution states that “Everyone has a right of access to any information held by the state and any information held by another person that is required for the exercise or protection of any rights.”

The PAIA, Regulations, ‘Professor Google’ and guidance by the Court cause more confusion than providing clarity, as it is blatantly clear that trusts, which are considered unique entities by our courts, were never specifically catered for in the legislation.

In South Africa, both public and private bodies must comply with the PAIA. This means that nearly all entities, from government departments to private companies, are required to follow PAIA regulations and keep a PAIA manual. Public bodies are defined in the PAIA as any government body, institution, or organ performing a public function. This includes national and provincial departments, municipalities, and state-owned enterprises.

Clearly, trusts do not fall under this definition. The only remaining category in which a trust might be classified is “private bodies”.

“Private bodies” are defined as “a) a natural person who carries or has carried on any trade, business or profession, but only in such capacity; (b) a partnership which carries or has carried on any trade, business or profession; (c) any former or existing juristic person”. Trusts cannot be seen as “partnerships”, so the only remaining options are (a) and (c).

Is a trust a “juristic person”?

‘Professor Google’ suggests that for the PAIA, a trust is considered a “juristic person”, similar to a company or close corporation, and is therefore subject to the PAIA because it is regarded as a “private body”.