- RIGHT OF ACCESS TO INFORMATION
1.1 Introduction
The 1996 South African Constitution, by providing a statutory right of access on request to any record held by the state as well as access to records held by private bodies, entrenches the fundamental right to access to information.
The Promotion of Access to Information Act 2 of 2000 (“the Act”), which came into effect on 9 March
2001, seeks to advance the values of transparency and accountability in South Africa and provides the mechanism for requesters to exercise and protect their constitutional right to request access to a record.
The Act establishes the following statutory rights of requesters to any record of a private body if:
- That record is required for the exercise or protection of any of his or her legal rights;
- That requester complies with all the procedural requirements; and
- Access is not refused in terms of any ground referred to in the Act.
In terms of the Act private bodies are required to publish a manual to assist requesters who wish to request access to a record.
1.2 Availability of the Nemtek PAIA Manual and entry point for requests
This document serves as Nemtek’s PAIA Manual (“the Manual”) in accordance with the requirements of section 51 of the Act to facilitate access to records held by Nemtek.
A copy of this Manual is available to any person of the public in a PDF (“Portable Document Format”) version on the website of www.nemtek.co.za or on request from the Information Officer referred to in this Manual.
Nemtek endorses the spirit of the Act and believes that this Manual will assist requesters in exercising their rights.
In summary the Manual provides information on the:
- Contact details of the Information Officer;
- Structure and functions of Nemtek;
- Subjects and categories of records that are held by Nemtek; and
- Procedure that needs to be followed and criteria that must be met by a requester to request access to a record
1.3 Who my request access to information
The Act provides that a requester is only entitled to access to a record if the record is required for the exercise or protection of a right. Only requests for access to a record, where the requester has satisfied the Information Officer that the record is required to exercise or protect a right, will be considered. A requester may act in different capacities in making a request for a record.
This will influence the amount to be charged when a request has been lodged.
Requesters may make a request as:
- A personal requester who requests a record about him/herself;
- An agent requester who requests a record on behalf of someone else with that person’s consent and where it is required for the protection of that person’s legal right;
- A third-party requester who requests a record about someone else with that person’s consent and where it is required for the protection of that person’s legal right; and
- A public body who may request a record if:
- It fulfils the requirements of procedural compliance;
- The record is required for the exercise or protection of a right; and
- No grounds for refusal exist.
1.4 Contact details for Nemtek’s Information Officer Sec 51(1) a
The Chief Executive Officer has delegated his/her powers to the Information Officer below in terms of the Act to handle all requests on Nemtek’s behalf and ensure that the requirements of the Act are administered in a fair, objective, and unbiased manner.
Nemtek’s contact details
Information Officer: Gizelle Mc Intyre
Physical Address: Northriding Commercial Park, Stand 251, Aintree Avenue, Northriding, Randburg, South Africa
Postal Address: Postnet Suite 328, Private Bag X3, Northriding, 2162, South Africa
Tel: +27 (0) 11 462 8283/4
Fax: +27 (0) 11 462 7132/8844
E-mail: hr@nemtek.co.za
1.5 Confidentiality and Access to Information Policy
Nemtek will protect the confidentiality of information provided to it by third parties, subject to Nemtek’s obligations to disclose information in terms of any applicable law or a court order requiring disclosure of the information. If access is requested to a record that contains information about a third party, Nemtek is obliged to attempt to contact this third party to inform them of the request.
This enables the third party the opportunity of responding by either consenting to the access or by providing reasons why the access should be denied. In the event that the third-party furnishing reasons for the support or denial of access, the Information Officer will consider these reasons in determining whether access should be granted, or not.
1.6 SAHRC guidance to requesters on Sec 51 (1)(b)(i)
The Information Regulator is required in terms of section 10 of the Act to update and make available the existing guide that has been compiled by the South African Human Rights Commission (“SAHRC”) that contains information to assist a person wishing to exercise a right in terms of the Act and the Protection of Personal Information Act 4 of 2013 (“POPI Act”) for requesters. It contains information to assist a person wishing to exercise a right in terms of the Act.
The SAHRC guide is available from the SAHRC website at: www.sahrc.org.za.
You may also request any additional information to assist you in making a request from the SAHRC.
Please direct any queries to:
The South African Human Rights Commission: PAIA Unit
Physical Address: Forum 3, Braampark Office Park, Braamfontein
Postal Address: Private Bag 2700 Houghton, 2041
Tel: +27 (0) 11 877 3600 (Head Office)
+27 (0) 11 877 3750 (GP Office)
Fax: +27 (0) 11 403 0684
E-mail: info@sahrc.org.za
Website: www.sahrc.org.za
2. NEMTEK’S STRUCTURE
2.1 Scope
This Manual has been prepared in respect of the Nemtek, which includes related entities and / or wholly owned subsidiaries as reflected in Annexure A.
The scope of this Manual will include Nemtek’s operations outside South Africa and will serve to provide a reference regarding the records held by Nemtek at its Registered Office and various operations.
2.2 Nemtek’s Profile and Structure
Nemtek is a supplier of electric fencing products. Nemtek manufactures and supplies a full range of energisers and fencing hardware for applications in agriculture, animal control, industrial, commercial, and residential security fencing.
3. CLASSES OF RECORDS
3.1 Automatic Disclosure: Sec 51 (1)(b)(ii) Records automatically available to the Public
The following records are automatically available at the registered office of Nemtek on payment of the prescribed fee for reproduction.
- Documentation and information relating to Nemtek which is held by the Companies and
Intellectual Properties Commission in accordance with the requirements set out in section
25 of the Companies Act 71 of 2008.
- Product and Promotional Brochures
- News and other Marketing Information
3.2 Legislative requirements: Sec 51 (1)(b)(iii) Records are not automatically available without a request under the Act.
Records are kept in accordance with such other legislation as applicable to the Nemtek, which includes, but is not limited to:
- Banks Act 94 of 1990
- Basic Conditions of Employment Act 75 of 1997
- Broad-Based Black Economic Empowerment Act 53 of 2003
- Civil Proceedings Evidence Act, 1965 (Act 25 of 1965)
- Companies Act 71 of 2008
- Compensation for Occupational Injuries and Diseases Act 130 of 1993
- Competition Act 89 of 1998
- Constitution of South Africa Act 108 of 1996
- Copyright Act 98 of 1987
- Consumer Protection Act 68 of 2008
- Criminal Procedure Act 51 of 1977
- Customs and Excise Act, 1964
- Deeds Registries Act 57 of 1937
- Debt Collectors Act 114 of 1998
- Electronic Communications and Trans-actions Act 25 of 2002
- Employment Equity Act 55 of 1998
- Finance Act 2 of 2007
- Income Tax Act 58 of 1962
- Insolvency Act 24 of 1936
- Labour Relations Act 66 of 1995
- Long Term Insurance Act 52 of 1998
- Magistrates Court Act 32 of 1944
- Non-Profit Organisations Act 71 of 1997
- Occupational Health and Safety Act 85 of 1993
- Patents Act 57 of 1987
- Pension Funds Act 24 of 1956
- Protection of Information Act, No. 84 of 1982
- Short Term Insurance Act. 53 of 1998
- Skills Development Act 97 of 1998
- Skills Development Levies Act 97 of 1999
- South African Revenue Service Act 34 of 1997
- Statistics Act 6 of 1999
- Tax on Retirement Funds Act No 38 of 1996
- Trust Property Control Act 57 of 1988
- Unemployment Insurance Act 63 of 2001
- Value Added Tax Act 89 of 1991
Although Nemtek has supplied you with a list of applicable legislation to the best of our ability it is possible that the above list may be incomplete.
Whenever it comes to our attention that existing or new legislation allows a requester to access on a basis other than that set out in the Act, we shall update the list accordingly.
3.3 Records held by Nemtek: Sec 51 (1)(b)(iv) Records Subjects and categories
3.3.1 Corporate Affairs and Communications
- Media Releases
- Newsletters and Publications
- Corporate Social Investment
- Public Corporate Records
- Accredited Skills Development Provider Records
3.3.2 Corporate Secretariat and Governance
- Applicable Statutory Documents
- Annual Reports
- Board of Directors and Board Committee Terms of Reference
- Codes of Conduct
- Legal Compliance Records
- Memoranda of Incorporation
- Policies and Procedures
- Share Certificates
- Shareholder Agreements
- Share Registers
- Statutory Returns to Relevant Authorities
- minutes of meetings
- Correspondence
- Risk security and insurance records
3.3.3 Finance and Taxation
- Policies and Procedures
- Accounting Records
- Annual Financial Statements
- Audit Reports
- Capital Expenditure Records
- Investment Records
- Invoices and Statements
- Management Reports
- Purchasing Records
- Sale and Supply Records
- Tax Records and Returns
- Transactional Records
- Creditor and debtor records
3.3.4 Human Resources
- Education and Training Records
- Employee Benefit Records
- Employment Contracts
- Employee Information
- Policies and Procedures
- Leave Records
- Medical Records
- Pension and Retirement Funding Records
- Study assistance scheme/s
- Tax Returns of employees
- UIF Returns
- Employee Loans
3.3.5 Information Technology
- Agreements
- Disaster Recovery
- Hardware and Software Packages
- Policies and Procedures
- Internal Systems Support and Programming
- Licenses
- Operating Systems
3.3.6 Intellectual Property
- Agreements relating to intellectual property
- Copyrights
3.3.7 Legal
- Complaints, pleadings, briefs, and other documents pertaining to any actual or pending litigation, arbitration, or investigation
- Material licenses, permits and authorizations
3.3.8 Sales, Marketing and Communication
- Brochures, Newsletters and Advertising Material
- Client Information
- Marketing Brochures
- Marketing Strategies
- Product Brochures
- Policies and Procedures
4. PROCESSING OF PERSONAL INFORMATION IN TERMS OF THE POPI ACT
4.1 Processing of personal information of data subjects: Sec 51 (1)(c)(i)
Nemtek processes personal information of data subjects (“living natural person or existing juristic person to whom information relates”) for the following purposes:
- Fulfilling its statutory obligations in terms of applicable legislation;
- Verifying information provided to Nemtek
- Obtaining information necessary to provide contractually agreed services to a customer
- Monitoring, maintaining, and managing contractual obligations to customers, clients, suppliers, service providers, employees, directors and other third parties;
- Marketing and advertising;
- Resolving and tracking complaints;
- Monitoring and securing the assets, employees, and visitors to the premises of the Nemtek;
- Historical record keeping, research and recording statistics necessary for fulfilling Nemtek’s business objectives.
4.2 Categories of personal information processed: Sec 51 (1)(c)(ii)
Nemtek may process the personal information of the following categories of data subjects. This includes current, past, and prospective data subjects:
- Customer and employees, representatives, agents, contractors, and service providers of such customers;
- Suppliers, service providers to and vendors of Nemtek and employees, representatives, agents, contractors and service providers of such suppliers and service providers;
- Directors and officers of Nemtek;
- Shareholders;
- Job applicants;
- Visitors to any premises of Nemtek;
- Complaints, correspondents, and enquiries; and
- learner information relevant to the NQF and SAQA acts.
4.3 Nature of personal information processed: Sec 51 (1)(c)(ii)
The nature of personal information processed in respect of the data subjects listed above may include:
- Name, identifying number, symbol, email address, physical address, telephone number, location information, online identifier, or other particular assignment to the person;
- Biometric information;
- Information relating to the education or the medical, financial, criminal or employment history of the data subject;
- Information relating to the race, gender, marital status, national origin, age disability, language, and birth of the data subject;
- The personal opinions, views, or preferences of the data subject;
- Confidential correspondence sent by the data subject;
- The views of opinions of another individual about the data subject
- Assessments and other relevant information.
4.4 Recipients to which information may be supplied: Sec 51 (1)(c)(iii) Nemtek may supply personal information to the following recipients:
- Regulatory, statutory and government bodies;
- Suppliers, service providers, vendors, clients, agents, and representatives of Nemtek;
- Employees of Nemtek;
- Shareholders and other stakeholders;
- Third party verification agencies and credit bureau;
- Collection agencies;
- Banks and other financial institutions;
- Quality Assurance Councils in terms of the NQF Act.
4.5 Planned or prospective transborder flow of personal information: Sec 51 (1)(c)(iv)
Personal information of data subjects may be transferred across borders due to the hosting of some of Nemtek’s infrastructure in foreign jurisdictions. Data subjects’ personal information may also be transferred transborder to other countries where Nemtek has a physical presence or may be providing services or performing actions in terms of its contractual obligations.
4.6 Security measures to ensure confidentiality, integrity, and availability of personal information: Sec 51 (1)(c)(v)
Nemtek continuously establishes and maintains appropriate, reasonable technical and organizational measures to ensure that the integrity of the personal information in its possession or under its control is secure and that such information is protected against unauthorized or unlawful processing, accidental loss, destruction or damage, alteration or access by having regard to the requirements set forth in law, in industry practice and generally accepted information security practices and procedures which apply.
4.7 Specific policies relating to the protection of personal information
The following policies can be obtained from Nemtek, pertaining to the protection of personal information as contemplated in the Protection of Personal Information Act no.4 of 2013.:
- Protection of Personal Information Policy
- Personal Information Retention Policy
- Data Breach Policy
- Data Subject Access Request Policy
4.8 The form to be used to request access to personal information of a data subject is Form 1 under annexure B of this manual.
4.9 The details of the Information Regulator
Physical address: JD House, 27 Stiemens Street, Johannesburg, 2001
Postal address: PO Box 31533, Braamfontein, Johannesburg, 2017
Email address: Complaints email: complaints.IR@justice.gov.za
General enquiries email: inforeg@justice.gov.za
5. ACCESS PROCEDURES AND REQUESTS
The purpose of this section is to provide requesters with sufficient guidelines and procedures to facilitate a request for access to a record held by Nemtek.
- N Requests for access to personal information as contemplated in the Protection for Personal Information Act no. 4 of 2013 is dealt with and prescribed in terms of the Nemtek’s Data Subject Access Request Policy, which can be obtain from Gizelle Mc Intyre, hr@nemtek.co.za, +27 (0) 11 462 8283/4. Annexure B is to be completed and submitted to the company.
It is important to note that an application for access to information can be refused in the event that the application does not comply with the procedural requirements of the Act. In addition, the successful completion and submission of an access request form does not automatically allow the requester access to the requested record.
An application for access to a record is subject to certain limitations if the requested record falls within a certain category as specified within Part 3 Chapter 4 of the Act.
If it is reasonably suspected that the requester has obtained access to Nemtek’s’ records through the submission of materially false or misleading information, legal proceedings may be instituted against such requester.
5.1 Guidance on prescribed Request for Access Form: Sec 51 (1)(b)(iv)
In order for Nemtek to facilitate access to a record a requester will need to complete the prescribed Request to Access a Record Form attached as Annexure A. The prescribed form must be completed in full. Failure to do so will result in the process being delayed until all information is provided.
Nemtek will not be held liable for delays due to receipt of incomplete forms. Due cognizance should be taken of the following instructions when completing the form because the Information Officer shall not process any request for access to a record until satisfied that all requirements have been met.
Proof of identity is required to authenticate the requesters identify. If the requester acts as an agent requester, the requester shall provide proof of the identity of the person on whose behalf the request is made, the authority or mandate given to the requester by such person and proof of the identity of the requester as provided above.
- Type or print in BLOCK LETTERS an answer to every question.
- If a question does not apply, state “N/A” in response to that question.
- If there is nothing to disclose in reply to a particular question, state “nil” in response to that question.
- If there is insufficient space on a printed form in which to answer a question, additional information may be provided on an additional folio attached to the form.
- When the use of an additional folio is required, precede each answer thereon with the title applicable to that question.
5.2 Submission of prescribed Request for Access to a Record Form
The completed Request for Access to a Record Form must be submitted either via conventional mail, e-mail or fax and must be addressed to the Information Officer.
5.3 Payment of prescribed Fees
Payment details can be obtained from the Information Officer and payment can be made by a direct deposit (no credit card payments are accepted). Proof of payment must be supplied. Four types of fees are provided for in terms of the Act:
- Request fee: An initial, non-refundable R57.00 (incl. VAT) is payable on submission. This fee is not applicable to personal requesters, referring to any person seeking access to records that contain their personal information.
- Reproduction fee: This fee is payable with respect to all records that are automatically available.
- Access fee: If the request for access is successful an access fee may be required to reimburse Nemtek for the costs involved in the search, reproduction and/or preparation of the record and will be calculated based on the Prescribed Fees.
- Deposit: A deposit of one third (1/3) of the amount of the applicable access fee, is payable if Nemtek receives a request for access to information held on a person other than the requester himself/herself and the preparation for the record will take more than six (6) hours. In the event that access is refused to the requested record, the full deposit will be refunded to the requester.
5.4 Notification
Nemtek will within thirty (30) days of receipt of the request decide whether to grant or decline the request and give notice with reasons (if required) to that effect.
The thirty (30) day period within which Nemtek has to decide whether to grant or refuse the request, may be extended for a further period of not more than thirty (30) days, if the request is for a large volume of information, or the request requires a search for information held at another office of Nemtek and the information cannot be reasonably obtained within the original thirty (30) day period. Nemtek will notify the requester in writing should an extension be sought.
5.5 Records that cannot be found or do not exist
If Nemtek has searched for a record and it is believed that the record either does not exist or cannot be found, the requester will be notified by way of an affidavit or affirmation. This will include the steps that were taken to try to locate the record.
6. GROUNDS FOR REFUSAL OF ACCESS TO RECORDS AND APPEAL
6.1 Grounds for refusal: Chapter 4
The thirty (30) day period within which the Information Officer is required to reply to a request, as stipulated in the Act, shall commence only once a requester has complied with all the requirements of the Act in requesting access to a record, to the satisfaction of the Information Officer.
Requests may be refused on the following grounds, as set out in the Act:
- Mandatory protection of privacy of a third party who is a natural person, including a deceased person, which would involve the unreasonable disclosure of personal information of that natural person;
- Mandatory protection of commercial information of a third party or Nemtek, if the record contains:
- Trade secrets of the third party and/or Nemtek;
- Financial, commercial, scientific, or technical information which disclosure could likely cause harm to the financial or commercial interests of the third party and/or Nemtek; and Information disclosed in confidence by a third party to Nemtek if the disclosure could put that third party and/or Nemtek to a disadvantage or commercial competition.
- Mandatory protection of certain confidential information of a third party if disclosure of the record would result in a breach of a duty of confidence owed to that party in terms of an agreement;
- Mandatory protection of the safety of individuals, and the protection of property;
- Mandatory protection of records privileged from production in legal proceedings, unless the legal privilege has been waived; and
- Mandatory protection of research information of a third party and/or of Nemtek.
6.2 Appeal
If a requester is aggrieved by the refusal of the Information Officer to grant a request for a record, the requester may, within thirty (30) days of notification of the Information Officer’s decision, apply to court for appropriate relief.
7. PRESCRIBED FEES: SEC 92
7.1 Reproduction Fees
The applicable fees (excluding VAT) for reproduction as referred to above are:
- For every photocopy of an A4–size page or part thereof R3.90
- For every printed copy of an A4-size page or part thereof held on a computer or in electronic from R4.80
- For a copy in a computer readable form: Compact disc R56.00
- A transcription of an audio record, for an A4-size page or part thereof – dependent on quotation from service provider
7.2 Request Fee
A request fee of R50.00 (excluding VAT) is payable upfront where a requester submits a request for access to information on anybody else other than a requestor.
7.3 Access Fees
The applicable fees (excluding VAT) which will be payable are:
- For every photocopy of an A4–size page or part thereof R3.90
- For every printed copy of an A4-size page or part thereof held on a computer or in electronic from R4.80
- For a copy in a computer readable form: Compact disc R56.00
- A transcription of an audio record, for an A4-size page or part thereof – dependent on quotation from service provider
7.4 Postage Fees
Where a copy of the record needs to be posted the actual postal fee is payable in addition to the applicable fees.