Access to Information and Protection of Privacy Act

Repealed

This Act was repealed on 2020-07-01 by Freedom of Information Act, 2020.

Jurisdiction: Zimbabwe
Citation: Chapter 10:27
Date: 31 December 2016
Language: English
Type: Legislation
Download: Download PDF (607.4 KB)

Access to Information and Protection of Privacy Act

Chapter 10:27

Published in Government Gazette
Commenced on 15 March 2002
[This is the version of this document at 31 December 2016 and includes any amendments published up to 31 December 2017.]
[Note: This version of the Act was revised and consolidated by the Law Development Commission of Zimbabwe]

[Repealed by Freedom of Information Act, 2020 (Act 1 of 2020) on 1 July 2020]

AN ACT to provide members of the public with a right of access to records and information held by public bodies; to make public bodies accountable by giving the public a right to request correction of misrepresented personal information; to prevent the unauthorised collection, use or disclosure of personal information by public bodies; to protect personal privacy; to provide for the regulation of the mass media; to establish a Media and Information Commission and to provide for matters connected therewith or incidental to the foregoing.

Part I – Preliminary

1. Short title

This Act may be cited as the Access to Information and Protection of Privacy Act [Chapter 10:27].

2. Interpretation

(1)In this Act—“accredited” means accredited in terms of section 79;[definition inserted by section 2 of Act 20 of 2007]“applicant” means a person requesting access in terms of section six to a record or information held by a public body;“code” means the code of conduct and ethics for journalists and mass media services developed in terms of section 42B(1);[definition inserted by section 2 of Act 20 of 2007]“Commission” means the Zimbabwe Media Commission established by section 38;[definition substituted by section 2 of Act 20 of 2007]“Committee on Standing Rules and Orders” means the Committee of Parliament referred to in section 57(2) of the Constitution;[definition inserted by section 2 of Act 20 of 2007]“controlling interest”, in relation to a mass media service company, means—(a)the majority of the shares in the company; or(b)shares representing more than half the share capital of the company; or(c)shares of a value in excess of half the share capital of the company; or(d)shares entitling the holder or holders thereof to a majority or preponderance of votes in the affairs of the company;“Council” means the Media Council constituted in terms of section 42A;[definition inserted by section 2 of Act 20 of 2007]“dissemination”, in relation to any mass media product, includes the sale, subscription, delivery, diffusion or distribution of periodically printed publications, audio-recorded programmes, electronically distributed information or teletext programmes;[definition inserted by section 2 of Act 5 of 2003]“excluded information” means records excluded from the application of this Act in terms of section four;“Fund” means the Media and Information Fund established by section forty-three;“head”, in relation to a public body, means —(a)the person designated as the head of a public body in the second column of the Second Schedule; or(b)any other person whom the Minister may, from time to time, designate as the head of a public body for the purposes of this Act;“injurious allegation” means an allegation which—(a)is false; or(b)unlawfully infringes a person’s dignity, reputation or privacy;[definition inserted by section 2 of Act 20 of 2007]“journalist” means a person who gathers, collects, edits or prepares news, stories, materials and information for a mass media service, whether as an employee of the service or as a freelancer;[definition inserted by section 2 of Act 5 of 2003]“journalistic privilege” means the rights and privileges attaching to the profession of journalism, including, but not limited to, the privileges of an accredited journalist referred to in section 78;[definition inserted by section 2 of Act 20 of 2007]“judicial administration record” means a record containing information relating to a presiding officer or a justice of the peace, including —(a)scheduling of presiding officers and trials;(b)the content of judicial training programmes;(c)statistics of judicial activity prepared by or for a judge;“law enforcement” includes —(a)policing, including criminal intelligence operations; or(b)investigations that lead to a penalty or sanction being imposed; or(c)proceedings that result in a penalty or sanction being imposed; or(d)control of immigration; or(e)national defence and security; or(f)maintenance of public order;“legal representative” means—(a)the liquidator of a company;(b)the representative recognised by law of any person who has died, become insolvent or bankrupt or assigned his estate, is an infant or a minor, is of unsound mind or is otherwise under a disability;[definition substituted by section 2 of Act 5 of 2003]“local government body” means —(a)a municipality as defined in the Urban Councils Act [Chapter 29:15];(b)a council as defined in the Rural District Councils Act [Chapter 29:13];(c)a catchment council or subcatchment council established in terms of the Water Act [Chapter 20:24];(d)a board of cemetery trustees established under the Cemeteries Act [Chapter 5:04];(e)any board, committee, commission, panel, agency or corporation that is created or owned by a body referred to in paragraphs (a) to (d) and all the members or officers of which are appointed or chosen by or under the authority of that body;“mass media” means—(a)newspapers, magazines, and other periodically printed publications; and(b)a broadcasting service as defined in the Broadcasting Services Act [Chapter 12:06], insofar as such service employs a journalist requiring to be accredited in terms of section 79;which are intended to be read, seen or heard, as the case may be, by an unlimited number of people;[definition substituted by section 2 of Act 20 of 2007]“mass media owner” means—(a)in the case of a mass media service company, the person who holds a controlling interest in the company; or(b)in the case of a mass media service that is not a company, the person who owns or co-owns the service;“mass media product” means—(a)a separate issue of a newspaper, magazine or other periodically printed publication; and(b)a programme broadcast by a broadcasting service as defined in the Broadcasting Services Act [Chapter 12:06];[definition substituted by section 2 of Act 20 of 2007]“mass media service” means any service that produces mass media products, whether or not it also disseminates them;[definition inserted by section 2 of Act 5 of 2003]“mass media trainer” means a person who teaches or qualifies to teach journalism or mass media studies at a tertiary educational institution;[definition substituted by section 2 of Act 20 of 2007]“Minister” means the Minister responsible for information and publicity or any other Minister to whom the President may, from time to time, assign the administration of this Act;“National Archives” means the National Archives of Zimbabwe established in terms of the National Archives of Zimbabwe Act [Chapter 25:06];“national event” means any event or occasion described as a such by the Minister by notice published in the Gazette or by advertisement in any mass media;[definition inserted by section 2 of Act 20 of 2007]“news agency” means an organisation that collects and prepares news reports for sale and distribution to the mass media or mass media services;[definition inserted by section 2 of Act 20 of 2007]“periodically printed publication” means a regular newspaper, magazine or journal, bulletin or any other publication with a constant name;[definition inserted by section 2 of Act 5 of 2003]“personal information” means recorded information about an identifiable person, and includes —(a)the person's name, address or telephone number;(b)the person's race, national or ethnic origin, colour, religious or political beliefs or associations;(c)the person's age, sex, sexual orientation, marital status or family status;(d)an identifying number, symbol or other particulars assigned to that person;(e)fingerprints, blood type or inheritable characteristics;(f)information about a person’s health care history, including a physical or mental disability;(g)information about educational, financial, criminal or employment history;(h)anyone else’s opinions about the individual; and(i)the individual’s personal views or opinions, except if they are about someone else;(j)personal correspondence, home and family;“personal information bank” means a collection of personal information that is organised or retrievable by the name of an individual or by an identifying number, symbol or other particular assigned to that individual and includes personal images;“prescribe” means prescribe by regulations made in terms of section ninety-one;“press card” means a document issued to a journalist in terms of section seventy-nine;“public body” means any body prescribed as a public body in terms of the first column of the Second Schedule to this Act.“public event” means any event or meeting which the public or any section of the public, is permitted to attend, whether on payment or otherwise;[definition inserted by section 2 of Act 20 of 2007]“record” includes books, documents, maps, drawings, photographs, letters, vouchers, papers and any other thing on which information is recorded or stored by graphic, electronic, mechanical or other means, but does not include a computer programme or any other mechanism that produces records;“responsible person”, in relation to a mass media service, means the person who discharges the functions of a chief executive officer of that service, by whatever name or title that person may be described;[definition inserted by section 2 of Act 20 of 2007]“third party”, in relation to a request for access to a record or for correction of personal information, means any person, group of persons or organisation other than the person who made the request;“trade secret” means information, including a formula, pattern, compilation, programme, device, product, method, technique or process, that is used, or may be used, in business or for any commercial advantage and —(a)derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and(b)is the subject of reasonable efforts to prevent it from becoming generally known; and(c)the disclosure of which would result in harm or improper benefit.

(2)Where a mass media owner does not manage the mass media service of which he is the owner, any reference to a mass media owner in sections forty-six, sixty-six, sixty-seven, seventy-one, seventy-three and eighty-six shall be construed as a reference to the mass media service.

3. Application of Act in relation to other laws

(1)This Act shall apply to matters relating to access to information, protection of privacy and the mass media and shall be construed as being in addition to and not in substitution for any other law which is not in conflict or inconsistent with this Act.

(2)If any other law relating to access to information, protection of privacy and the mass media is in conflict or inconsistent with this Act, this Act shall prevail.

4. General application of Act

(1)This Act shall apply to all records in the custody or under the control of a public body, but shall not include the records listed in the First Schedule.

(2)This Act shall not limit the information available by law to a party to a legal proceeding.

Part II – Access to information

5. Right to information

(1)Subject to section ten, every person shall have a right of access to any record, including a record containing personal information, that is in the custody or under the control of a public body:Provided that such access shall not extend to excluded information.

(2)Where information can be extracted from a record that contains excluded information, an applicant may have access to the part of the record that is not excluded information.

(3)Nothing contained in this Act shall confer any rights to information or to a record to —

(a)a person who is not a citizen of Zimbabwe, or is not regarded as permanently resident in Zimbabwe by virtue of the Immigration Act [Chapter 4:02], or is not the holder of a temporary employment or residence permit or students permit issued in terms of that Act;

(b)any mass media service which is not registered in terms of this Act, or to a broadcaster who is not registered in terms of the Broadcasting Services Act [Chapter 12:06]; and

(c)any foreign state or agency thereof.

6. Request for record

An applicant who requires access to a record that is in the custody or control of a public body shall make a request, in writing, to the public body, giving adequate and precise details to enable the public body to locate the information so requested.

7. Fees for access to records and related services by public body

Subject to any exemption prescribed under this Act or any other enactment, an applicant shall be required to pay such fee as may be so prescribed for —

(a)obtaining access to any record; and

(b)any service rendered in connection with the provision of access to any record by the public body concerned.

8. Duty to assist applicants

(1)The head of a public body shall take every reasonable step to assist an applicant and shall, subject to section eleven or twelve, respond as soon as is reasonably possible in the circumstances, but not later than thirty days, to each request for access to a record.

(2)Where necessary, the head of a public body shall create a record for an applicant if —

(a)the record can be created from a machine readable record in the custody or under the control of the public body using its normal computer hardware and software and technical expertise; and

(b)creating the record will not unreasonably interfere with the operations of the public body.

9. Contents of response

(1)A response by the head of a public body to a request made in terms of section six shall inform the applicant —

(a)whether or not he is entitled to access to the record or a part of the record; and

(b)the place where, time when and manner in which such access will be given.

(2)Where the head of a public body refuses access to a record or part of a record, he shall inform the applicant of the reasons therefor.

(3)An applicant whose request for a record or part of a record has been refused by the head of a public body may request the Commission to review the public body’s decision.

(4)The head of a public body may refuse a request for a record or part of a record if granting access to such a record—

(a)will contravene this Act; or

(b)will result in the disclosure of personal information pertaining to a third party that is protected from disclosure in terms of Part III; or

(c)is not in the public interest.

10. Access to information

(1)Where an applicant is granted access to a record or part of a record, the head of a public body shall —

(a)give him the opportunity to examine such record or part thereof; or

(b)where the applicant has requested a copy of a record or part of a record, provide him with such copy if it can be reproduced, and where it cannot be reproduced, give the applicant an opportunity to take notes from such record or part thereof.[paragraph amended by section 25 of Act 5 of 2003]

(2)[subsection repealed by section 25 of Act 5 of 2003]

11. Extension of time limit for responding

(1)The head of a public body may extend the time for responding to a request by a further period not exceeding thirty days or, with the Commission’s permission, for a longer period if —

(a)the applicant does not give sufficient detail to enable the public body to identify the requested record; or

(b)a large number of records is requested or is required to be searched, and meeting the time limit will unreasonably interfere with the operations of the public body; or

(c)more time is needed to consult with a third party affected by the request or another public body before the head of the public body can decide whether or not to give the applicant access to the requested record.

(2)Where the time is extended in terms of subsection (1), the head of the public body shall inform the applicant—

(a)of the reason for such extension; and

(b)when he should expect a response.

12. Transfer of request

(1)The head of a public body may, within ten days after a request for access to a record is received, transfer the request to another public body if it appears to him that the record is in the custody or under the control of that other public body or affects that other body.

(2)Where a request or a record is transferred in terms of subsection (1), the head of the transferring public body shall notify the applicant of such transfer.

(3)The head of the public body to whom the transfer was made shall respond to the applicant’s request not later than thirty days after receiving the request, unless the time for responding has been extended in terms of section eleven.

13. Delegation by head of public body

(1)The head of a public body may delegate to any person any function of a head of a public body under this Act, except such power of delegation.

(2)A delegation made in terms of subsection (1) shall be in writing and may contain any conditions or restrictions the head of the public body considers appropriate.

Part III – Protected information

14. Protection of deliberations of Cabinet and local government bodies

(1)No information relating to the deliberations of Cabinet or any of its committees shall be revealed or disclosed to any person who is not authorised to have access to such information.

(2)The information referred to in subsection (1) shall include —

(a)any advice, policy considerations and recommendations made to Cabinet; and

(b)any draft legislation or regulations prepared for submission or submitted to Cabinet.

(3)Subsection (1) shall not apply to information contained in a record that has been in existence for twenty-five or more years.

(4)No information relating to the deliberations of a local government body which were held in camera shall be revealed or disclosed to any person who is not authorised to have access to such information.

(5)Subsection (4) shall not apply to circumstances where the deliberations, resolution or draft resolution was made or considered in the presence of members of the public.

15. Protection of advice relating to policy

(1)The head of a public body may not disclose to an applicant information relating to advice or recommendations given to the President, a Cabinet Minister or a public body.

(2)Subsection (1) shall not apply to the following classes of information —

(a)a public opinion poll;

(b)a statistical survey;

(c)an appraisal of an employee of the public body;

(d)a forecast of the economy;

(e)information relating to the state of the environment;

(f)an audit or performance report of a public body;

(g)a consumer test report or a report of a test carried out on a product to test equipment of the public body;

(h)a feasibility or technical study, including a cost estimate, relating to a policy or project of the public body;

(i)a report on the results of a field research undertaken before a policy proposal is formulated;

(j)a report of a committee, council or similar body that has been established to consider any matter and make reports or recommendations to a public body;

(k)a plan or proposal to establish a new programme or to change a programme, where the original plan or proposal had been approved or rejected by the head of the public body;

(l)information that the head of the public body has cited publicly as the basis for making a decision or formulating a policy;

(m)a decision, including the reasons thereof, that is made in the exercise of a discretionary power or an adjudicative function that affects the rights of the applicant;

(n)information contained in a record that has been in existence for ten or more years.

16. Protection of information subject to client-attorney privilege

The head of a public body shall not disclose to an applicant information that is subject to client-attorney privilege.

17. Protection of information whose disclosure will be harmful to law enforcement process and national security

(1)The head of a public body shall not disclose to an applicant information whose disclosure would —

(a)prejudice the law enforcement process in any way, including the following —

(i)revealing the identity of a confidential source of law enforcement information;

(ii)revealing information relating to criminal intelligence that has a reasonable connection with the detection, prevention or suppression of organised criminal activities;

(iii)compromising the effectiveness of investigation techniques and procedures used by the law enforcement agencies;

(iv)endangering the life or physical safety of a law enforcement officer or any other person;

(b)prejudice the defence and national security of the country and the safety or interests of the country; or[paragraph amended by section 25 of Act 5 of 2003]

(c)prejudice the defence and national security of a foreign country with which Zimbabwe has entered into a defence pact; or

(d)prevent the detection, prevention or suppression of espionage, sabotage or terrorism; or

(e)reveal any information relating to or used in the exercise of prosecutorial discretion; or

(f)facilitate the escape from custody of a person who is under lawful detention; or

(g)harm the security of any property or system, including a building, a vehicle, a computer system or a communications system; or

(h)prejudice the operations of the defence and security forces within or outside Zimbabwe; or

(i)result in or facilitate the commission of an offence; or

(j)result in exposing a person to civil liability for disclosing personal information contained in a law enforcement record; or

(k)prejudice the custody, supervision or release of a person in custody.

(2)Notwithstanding subsection (1), the head of a public body may disclose—

(a)the contents of a report prepared in the course of routine inspections by an agency that is authorised to enforce compliance with any enactment;

(b)the contents of a report, including statistical analysis, on the degree of success achieved in a law enforcement programme; or

(c)statistical information on decisions made by the Prosecutor-General on the prosecution of offences:

Provided that the disclosure of such information will not contravene the prohibitions set out in subsection (1).

(3)The head of a public body may disclose, after the completion of an investigation by the police, the reasons for a decision not to prosecute to—

(a)a person who was aware and had an interest in the investigation, including a victim or complainant, or relative or friend of a victim or complainant; or

(b)any member of the public, where the investigation had been made public.

18. Protection of information relating to inter-governmental relations or negotiations

(1)The head of a public body may, on the advice of the Minister responsible for local government or the Minister responsible for foreign affairs, as the case may be, refuse to disclose information to an applicant if such disclosure may —

(a)affect the relations between the government and —

(i)a municipal or rural district council; or

(ii)the government of a foreign state; or

(iii)an international organisation of states;

(b)divulge information received in confidence from a government, council or organisation referred to in paragraph (a).

(2)Subsection (1) shall not apply to information, other than law enforcement information, contained in a record that has existed for twenty or more years.

19. Protection of information relating to the financial or economic interests of public body or the State

(1)The head of a public body may refuse to disclose to an applicant information which may result in harm to the planning, financial or economic interests of the public body or the State.

(2)The information referred to in subsection (1) shall include —

(a)trade secrets of a public body or the State; or

(b)financial, commercial, scientific or technical information that belongs to a public body or to the State and has monetary value; or

(c)plans that relate to the management of personnel of or the administration of a public body or the State and that have not yet been implemented or made public; or

(d)information whose disclosure may result in the premature disclosure of a proposal or project or in undue financial loss or gain to a third party;

(e)information relating to negotiations made by or for a public body or the State.

(3)Subsection (1) shall not apply to the results of product or environment testing carried out by or for a public body, unless the testing was done —

(a)as a service to a person, group of persons or organisation who paid a fee for such service; or

(b)for the purpose of developing methods of testing.

20. Protection of research information

The head of a public body shall not disclose research information to the applicant if such disclosure will result in the loss by the researcher of the right of first publication of the results of such research or any intellectual property rights.

21. Protection of information relating to conservation of heritage sites

(1)The head of a public body may refuse to disclose information to an applicant if the disclosure will result in damage to, or interference with the conservation of —

(a)fossil sites, natural sites or sites that have an anthropological or heritage value; or

(b)an endangered, threatened or vulnerable species, subspecies or race of plants, vertebrates or invertebrates; or

(c)any other rare or endangered living species.

22. Protection of information relating to personal safety

[heading substituted by section 3 of Act 5 of 2003]

(1)[subsection repealed by section 3 of Act 5 of 2003]

(2)The head of a public body may refuse to disclose to an applicant personal information concerning the applicant if such disclosure will result in a threat to the applicant’s or another person’s safety or mental or physical health.[subsection substituted by section 3 of Act 5 of 2003]

23. Information otherwise available to public

(1)The right of access to information in terms of section five shall not be held to be denied where under this Act or any other law the head of a public body refuses to disclose information —

(a)that is otherwise available to members of the public upon payment of a specific fee; or

(b)that will be published or released to members of the public within sixty days of the date of receiving the applicant’s request.

(2)If the head of a public body refuses to disclose information on the ground referred to in paragraph (b) of subsection (1) and the information is not published after the expiry of sixty days from the date of receiving the request for the information, the applicant may make another request for the information and the head of the public body shall reconsider it.

24. Protection of information relating to business interests of a third party

(1)The head of a public body may refuse to disclose to an applicant information that will reveal the trade secrets or commercial, financial or employment, scientific or technical information of a third party that was supplied, implicitly or explicitly, in confidence to the public body, and the disclosure of which could reasonably be expected to —

(a)significantly harm the competitive position or interfere with the negotiating position of the third party; or

(b)result in similar information being no longer provided to the public body when it is in the public interest that such information continues to be so provided; or

(c)result in undue financial loss or gain to any person or organisation; or

(d)reveal information supplied to an arbitrator, mediator, labour officer or other person or body appointed to resolve or inquire into a labour relations dispute; or

(e)reveal information that will harm the economic interests of the State.

(2)The head of a public body shall not disclose to an applicant information contained in a tax return form or gathered for the purpose of determining a person’s tax liability or collecting outstanding tax.

(3)Subsections (1) and (2) shall not apply where —

(a)the third party consents to the disclosure; or

(b)the information is contained in a record that is in the custody or control of the National Archives; or

(c)the information is contained in a record that is in the archives of a public body and has been in existence for thirty or more years.

25. Protection of information relating to personal privacy

(1)The head of a public body shall not disclose personal information to an applicant if the disclosure will result in the unreasonable invasion of a third party’s personal privacy.

(2)In determining whether or not a disclosure of personal information constitutes an unreasonable invasion of a third party’s personal privacy, the head of a public body shall consider all the relevant circumstances, including whether —

(a)the disclosure is desirable or necessary for the purpose of subjecting the activities of the government or a public body to public scrutiny;

(b)the disclosure is likely to promote public health and safety or the protection of the environment;

(c)the personal information is relevant to a fair determination of the applicant’s rights;

(d)the disclosure will assist in researching or validating the claims, disputes or grievances of indigenous people;

(e)the third party will be exposed unfairly to financial or other harm;

(f)subject to subsection (5), the personal information has been supplied in confidence by the third party about himself or herself, or by the third party about another person;[paragraph substituted by section 4 of Act 5 of 2003]

(g)the personal information is likely to be inaccurate or unreliable;

(h)the disclosure may unfairly damage the reputation of any person referred to in the record requested by the applicant.

(3)A disclosure of personal information shall be presumed to be an unreasonable invasion of a third party’s personal privacy if the personal information —

(a)relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation; or

(b)was compiled and is identifiable as part of an investigation into a possible violation of law, unless disclosure is necessary to prosecute such violation or to continue the investigation; or

(c)relates to eligibility for income assistance or social welfare benefits or to the determination of benefit levels; or

(d)relates to employment, occupational or educational history; or

(e)is contained in a tax return or gathered for the purpose of collecting a tax; or

(f)describes the third party’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness; or

(g)consists of personal recommendations or evaluations, character references or personnel evaluations concerning the third party; or

(h)could reasonably be expected to reveal that the third party supplied, in confidence, a personal recommendation or evaluation, character reference or personnel evaluation; or

(i)indicates the third party’s religious or political beliefs or associations; or[paragraph amended by section 4 of Act 5 of 2003]

(j)consists of the third party’s name, address, or telephone number and is to be used for mailing lists or solicitations by telephone or other means; or

(k)constitutes intrusion into personal or family grief.

(4)A disclosure of personal information shall not be considered an unreasonable invasion of a third party’s personal privacy if —

(a)the third party has, in writing, consented to or requested the disclosure; or

(b)there are compelling circumstances affecting another person’s health or safety and notice of disclosure is mailed to the last known address of the third party; or

(c)disclosure is authorised by any enactment other than this Act; or

(d)the disclosure is for purposes of research or the compilation of statistics in a manner authorised by law; or

(e)the information concerns the third party’s position, functions or remuneration as an officer, employee or member of a public body; or

(f)the disclosure reveals financial and other details of a contract to supply goods or services to a public body; or

(g)the information is about expenses incurred by the third party while travelling on the business and at the expense of a public body; or

(h)the disclosure reveals the details of, or the reasons for the grant by, a public body or authority of a licence, permit or other benefit whatsoever to the third party:Provided that—

(i)the reasons for the grant of the benefit shall not be disclosed if the law under which the benefit was granted provides that the grant is at the sole discretion of the public body or authority, or that the reasons for the grant or refusal of the benefit shall not be disclosed to the beneficiary or any other person;

(ii)personal information supplied in support of the application for the benefit shall not be disclosed;

[paragraph substituted by section 4 of Act 5 of 2003]

(i)the disclosure reveals details of a discretionary benefit of a financial nature granted to the third party by a public body, not including personal information that is supplied in support of an application for the benefit referred to in paragraph (c) of subsection (3).

(5)The head of a public body shall, when refusing to disclose personal information supplied in confidence as described in paragraph (f) of subsection (2), give the applicant a summary of the information, if such summary can be prepared without disclosing the identity of the third party who supplied such personal information.[subsection amended by section 4 of Act 5 of 2003]

(6)The head of a public body may allow the third party to prepare the summary of personal information referred to in subsection (5).

Part IV – Information pertaining to third parties

26. Requirement to notify third party

(1)The head of a public body shall, if he intends to give an applicant access to a record that he has reason to believe contains information pertaining to a third party that may be protected from disclosure in terms of Part III, notify the third party, in writing, of his intention to give such access and afford him an opportunity within twenty days after the notice is given to make written representations to the public body explaining why the information should not be disclosed.

(2)Where the head of a public body has been approached by an applicant with a request to give information pertaining to a third party and he does not intend to give the applicant access to such information, he shall notify the third party, in writing, of his intention not to give such access to a record.

(3)The head of a public body shall, when giving notice in terms of subsection (1), also give the applicant a notice stating that —

(a)the record he has requested contains information whose disclosure may affect the interests or invade the personal privacy of a third party; and

(b)the third party is being given an opportunity to make representations concerning disclosure; and

(c)a decision will be made within thirty days on whether or not to give the applicant access to the record.

(4)The notice referred to in subsection (2) shall—

(a)advise the third party that a request has been made by an applicant for access to a record containing information whose disclosure may affect his interests or invade his personal privacy; and

(b)describe the contents of the record; and

(c)state that, within twenty days after the notice is given, the third party may, in writing, consent to the disclosure thereof.

27. Time limit to give notice of decision

(1)Within thirty days after notice is given in terms of subsection (1) or (2) of section twenty-six, the head of the public body shall decide whether or not to give access to the record or to part of the record, but no decision may be made before —

(a)the lapse of twenty-one days after the day notice is given; or

(b)the day a response is received from the third party;

whichever occurs first.

(2)After reaching a decision in terms of subsection (1), the head of the public body shall give notice, in writing, of his decision to both the applicant and the third party.

(3)If the head of the public body decides to give access to the record or to part of the record, the notice shall state that the applicant will be given access to the record within twenty days after the date the notice is given, unless the third party requests a review in terms of Part X.

28. Information to be disclosed if in the public interest

(1)The head of a public body shall have a duty to disclose to —

(a)an applicant; or

(b)members of the public or interested or affected persons, whether or not a request has been made;information concerning —

(i)the risk of significant harm to the health or safety of members of the public; or

(ii)the risk of significant harm to the environment; or

(iii)any matter that threatens national security; or

(iv)any matter that is in the interest of public security or public order, including any threat to public security or public order:Provided that information concerning any threat to public security or public order shall only be disclosed to the relevant law enforcement authorities; or[paragraph substituted by section 5 of Act 5 of 2003]

(v)any matter that assists in the prevention, detection or suppression of crime.[paragraph substituted by section 5 of Act 5 of 2003]

(vi)[paragraph repealed by section 5 of Act 5 of 2003]

(2)Before disclosing any information in terms of subsection (1), the head of a public body shall, if possible, notify any third party to whom the information relates or directly affects and the Commission.

(3)If it is not reasonably possible to comply with subsection (2), the head of the public body shall mail a notice of disclosure in the prescribed form to the last known address of the third party and to the Commission.

Part V – Collection, protection and retention of personal information by public bodies

29. Purposes for which personal information may be collected

A public body may only collect personal information if —

(a)the collection of that information is expressly authorised in terms of an enactment;

(b)the information is to be collected for the purposes of national security, public order and law enforcement; or

(c)the information is to be collected for the purposes of public health; or

(d)the information relates directly to and is necessary for an operating programme, function or activity of the public body;

(e)the information will be used to formulate public policy.

30. Collection of personal information

(1)A public body shall collect personal information directly from the person to whom it relates unless —

(a)another method of collection is authorised by —

(i)that individual; or

(ii)the Commission; or

(iii)another enactment;

(b)the information is to be collected for the purpose of —

(i)determining the suitability for granting an honour or award, including an honorary degree, scholarship, prize or bursary; or

(ii)proceedings before a court or judicial or quasi-judicial tribunal; or

(iii)collecting a debt or fine or making a payment; or

(iv)law enforcement.

(2)A public body shall inform a person from whom it intends to collect personal information of the purpose for which the personal information is being collected and the legal authority for collecting it.

(3)Subsection (2) shall not apply if —

(a)the information relates to law enforcement; or

(b)the Commission excuses a public body from complying with the subsection if doing so would result in the collection of inaccurate information, or defeat the purpose of, or prejudice the use for which, the information is to be collected.

31. Accuracy of personal information

A public body shall, if it intends to use an individual’s personal information to make a decision that will directly affect that individual, take every reasonable step to ensure that the information is accurate and complete.

32. Right to request correction of personal information

(1)Where a person has reason to believe that personal information relating to him that is in the custody or control of a public body contains an error or omission, he may request the head of that public body to correct such information.

(2)The head of a public body shall, upon receiving a request in terms of subsection (1), correct or annotate the personal information on the record pertaining to the person making the request.

(3)The head of a public body shall, when correcting or annotating personal information upon a request made in terms of subsection (1), notify the correction to any other public body or any third party to whom that information has been disclosed during the last twelve months preceding the request for a correction.

33. Protection of personal information

The head of a public body shall protect personal information that is under his custody or control by taking reasonable steps to ensure that there is adequate security and there is no unauthorised access, collection, use, disclosure or disposal of such personal information.

34. Retention of personal information

If a public body uses an individual’s personal information to make a decision that directly affects the individual, the public body shall retain that information for at least one year after using it so that the individual has a reasonable opportunity to have access to it.

35. Penalty for deliberately falsifying personal information

Any person who, when required under any enactment to supply to a public body any personal information verbally or in writing about himself or herself or a third party, supplies any information which he or she knows to be false or does not have reasonable grounds for believing to be true, shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.[section substituted by section 6 of Act 5 of 2003]

Part VI – Use and disclosure of personal information by public bodies

36. Use of personal information

A public body may only use personal information —

(a)for the purpose for which that information was obtained or compiled, or for a use consistent with that purpose; or

(b)if the person to whom the information relates has consented, in the prescribed manner, to such use.[paragraph amended by section 25 of Act 5 of 2003]

37. Disclosure for archival or historical purposes

The National Archives, or the archives of a public body, may disclose personal information to a third party for the purpose of historical research or any other lawful purpose if —

(a)such disclosure would not result in an unreasonable invasion of a person’s personal privacy in terms of this Act; or

(b)the information is about a person who has been deceased for thirty or more years.

[section amended by section 25 of Act 5 of 2003]

Part VII – Zimbabwe Media Commission

38. Establishment and composition of Zimbabwe Media Commission

(1)There is hereby established a commission to be known as the Zimbabwe Media Commission, which shall be a body corporate capable of suing and being sued in its corporate name and, subject to this Act, of performing all acts that bodies corporate may by law perform.

(2)The Commission shall consist of a chairperson and eight other members appointed by the President from a list of not fewer than twelve nominees submitted by the Committee on Standing Rules and Orders.

(3)Persons appointed to the Commission must be chosen for their knowledge and experience in the press, print or electronic media, or broadcasting.[section substituted by section 3 of Act 20 of 2007]

39. Functions of Zimbabwe Media Commission

(1)Subject to this Act, the functions of the Commission shall be —

(a)to uphold and develop the freedom of the press; and

(b)to promote and enforce good practice and ethics in the press, print and electronic media, and broadcasting; and

(c)to ensure that the people of Zimbabwe have equitable and wide access to information; and

(d)to ensure the equitable use and development of all indigenous languages spoken in Zimbabwe; and

(e)to comment on the implications of proposed legislation or programmes of public bodies on access to information and protection of privacy; and

(f)to comment on the implications of automated systems for collection, storage, analysis or transfer of information or for access to information or protection of privacy; and

(g)to inform the public about this Act; and

(h)to engage in or commission research into anything affecting the achievement of the purposes of this Act; and

(i)to conduct investigations in terms of Part IX to ensure compliance with the provisions of this Act; and

(j)to receive, evaluate for accreditation and consider applications for the accreditation of journalists; and

(k)to review the decisions of public bodies in terms of Part X; and

(l)to bring to the attention of the head of a public body any failure to meet the prescribed standards for fulfilling the duty to assist applicants; and

(m)to authorise a public body, at the request of its head, to disregard requests that would unreasonably interfere with the operations of the public body; and

(n)to monitor the mass media and raise user awareness of the mass media; and

(o)to register mass media in Zimbabwe; and

(p)to investigate complaints against any journalist or mass media service in terms of Part VIIA.

(m)to make regulations in terms of section 91.

(2)Subject to this Act, for the better exercise of its functions, the Commission shall have power to do or cause to be done, either by itself or through its agents, all or any of the things specified in the Third Schedule, either absolutely or conditionally and either solely or jointly with others.[section substituted by section 3 of Act 20 of 2007]

40. ***

[section repealed by section 3 of Act 20 of 2007]

41. Financial and miscellaneous provisions relating to Commission

The Fifth Schedule shall govern the financial and certain other aspects of the operation of the Commission.

42. Annual report of Commission

(1)As soon as possible after the end of each year, the Board shall submit to the Minister an annual report on matters dealt with by the Commission during that year.

(2)At any time the Commission may submit a special report to the Minister on any matter upon which the commission considers it desirable to report.

Part VIIA – Media Council

[Part VIIA (sections 42A to 42H) inserted by section 4 of Act 20 of 2007]

42A. Constitution of Media Council

(1)For the purpose of exercising disciplinary control and other powers conferred by this Act, the Commission shall appoint a Media Council in terms of this Part.

(2)The Council shall consist of—

(a)a chairperson who shall be any member of the Commission chosen by the Commission other than the chairperson or deputy chairperson of the Commission; and

(b)two representatives of an association of accredited journalists nominated by one or more associations of journalists that, in the opinion of the Commission, are fairly representative of journalists, and appointed by the Commission; and

(c)a representative of an association of publishers nominated by one or more associations of publishers that, in the opinion of the Commission, are fairly representative of publishers, and appointed by the Commission; and

(d)two representatives of an association of advertisers or advertising agencies nominated by one or more associations of publishers that, in the opinion of the Commission, are fairly representative of advertisers or advertising agencies, and appointed by the Commission; and

(e)a representative of an association of mass media trainers nominated by one or more associations of publishers that, in the opinion of the Commission, are fairly representative of mass media trainers, and appointed by the Commission; and

(f)a representative of an association of churches or other religious bodies nominated by one or more associations of churches or other religious bodies that, in the opinion of the Commission, are fairly representative of churches or other religious bodies, and appointed by the Commission; and

(g)a representative of an association of businesspeople nominated by one or more associations of businesspeople that, in the opinion of the Commission, are fairly representative of businesspeople, and appointed by the Commission; and

(h)a representative of any trade union or federation of trade unions nominated by one or more trade unions or federations of trade unions that, in the opinion of the Commission, are fairly representative of trade union members, and appointed by the Commission; and

(i)a representative of an association of women or women’s groups nominated by one or more associations of women or women’s groups that, in the opinion of the Commission, are fairly representative of women or women’s groups, and appointed by the Commission; and

(j)a representative of an association of youth or youth groups nominated by one or more associations of youth or youth groups that, in the opinion of the Commission, are fairly representative of youth or youth groups, and appointed by the Commission; and

(k)a representative of the legal profession selected by the Commission from a panel of nominees submitted by the Council of the Law Society referred to in the Legal Practitioners Act [Chapter 27:07]; and

(l)a representative of the legal profession selected by the Commission from a panel of nominees submitted by faculties of law in any tertiary educational institution that have been invited by the Commission to make nominations.

(3)If any association referred to in subsection (1) for any reason fails or refuses to submit nominations as required by any paragraph of that subsection, the Commission shall appoint such person or persons in terms of the appropriate paragraph of that subsection whom it considers fit.

(4)If at any time a member of the Council is unable for any reason to act as such, he or she shall be replaced in accordance with the appropriate provision of subsection (1) (a) to (j):Provided that before the replacement of any member in terms of this subsection, any decision made or action taken by the chairperson of the Council and three other members of the Council shall be valid.

(5)The procedure to be followed by the Council shall be as prescribed in regulations.[section inserted by section 4 of Act 20 of 2007]

42B. Code of conduct and ethics of journalists and mass media services and resolution of breaches thereof

(1)The Commission shall, in consultation with the Council, develop a code of conduct and ethics governing the rules of conduct to be observed by journalists and mass media services, including in particular provisions with respect to the prevention or remediation of the publication or broadcasting of injurious allegations, and the penalties to be imposed on any journalist or mass media service for breaches of the code.

(2)The Commission together with the Council shall be responsible for enforcing the code of conduct and ethics referred to in subsection (1) in accordance with this Part.

(3)Subject to this section, any person who —

(a)is aggrieved by an injurious allegation published or broadcast in a mass media product; or

(b)considers that a mass media owner or journalist has contravened any provision of —

(i)this Act or any other enactment which requires or prohibits the publication or broadcasting of any matter or thing, whether in relation to elections or otherwise; or

(ii)the code or any other applicable code of conduct;

may lodge a complaint about it with the Commission.

(4)Whenever the Commission has reasonable grounds for believing that any journalist or mass media service has committed a breach of the code, or there is brought to the notice of the Commission a complaint that any journalist or mass media service has committed such a breach, the Commission shall have the power to call for such information and to cause such investigation to be made as it thinks necessary.

(5)After investigation in terms of subsection (4) and allowing the journalist or mass media service concerned to make written representations the Commission shall refer the matter to the Council for inquiry and may appoint a registered legal practitioner to present a charge on the evidence relating thereto at the inquiry:Provided that—

(i)if the Commission considers that—

(a)the conduct complained of would not, even if substantiated, constitute a breach of the code; or

(b)for any other reason the allegation should not be the subject of inquiry by the Council;

the Commission shall take such other action as it considers appropriate and may, after first allowing the person concerned to make written representations, admonish him or her and order him or her to pay a penalty not exceeding level seven which shall be payable to the Commission;

(ii)if the complaint forms or is likely to form the subject of criminal proceedings in a court of law, the Commission may postpone referring the matter to the Council until such criminal proceedings have been terminated.

(6)The journalist or mass media service who or which is the subject of any inquiry before the Council may—

(a)appear in person or be represented by—

(i)a registered legal practitioner; or

(ii)in the case of a mass media service, any person appointed in writing by such service; or

(b)make written representations to the Council.

[section inserted by section 4 of Act 20 of 2007]

42C. Taking of evidence by Council

(1)For the purposes of an inquiry in terms of this Part, the Council may take evidence and may —

(a)summon any person as a witness and, where it thinks fit, require him or her to produce any book, record, document or thing; and

(b)through the chairperson administer an oath to any person; and

(c)examine any book, record, document or thing which has been produced before it.

(2)A person who gives evidence as a witness before the Council shall be entitled to all the privileges to which a witness or a journalist who is a witness is entitled to at law.

(3)Any person who —

(a)has been summoned to attend before the Council and —

(i)refuses or fails without sufficient cause to attend and give evidence relevant to the inquiry at the time and place stated in the summons; or

(ii)refuses to be sworn when the chairperson wishes to administer an oath to him or her; or

(iii)refuses or fails without sufficient cause to produce any book, record, document or thing which he or she has been required in the summons to produce;

(b)attends as a witness before the Council and refuses to answer or to answer fully and satisfactorily to the best of his or her knowledge and belief any question lawfully put to him or her;

shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.

(4)Any person who at an inquiry held by the Council gives false evidence on oath, knowing such evidence to be false or not knowing or believing it to be true, shall be guilty of an offence and liable to a fine of level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

(5)For the purpose of conducting an inquiry in terms of this Part, the Council shall have the same powers, rights, and privileges as are conferred upon a Commissioner by the Commissions of Inquiry Act [Chapter 10:07], other than the power to order a person to be detained in custody, and sections 9 to 13 and 15 to 18 of that Act shall apply, with such changes as may be necessary, in relation to any hearing and determination of any matter before the Council under this Part and to any person summoned to give or giving evidence before the Council.[section inserted by section 4 of Act 20 of 2007]

42D. Powers of Council

(1)If after due inquiry the Council decides that journalist or mass media service has committed a breach of the code, the Council shall make a recommendation to the Commission to do one or more of the following, as may be provided for under the code—

(a)in the case of an accredited journalist—

(i)cautioning the journalist; or

(ii)ordering him or her to pay a monetary penalty of a prescribed amount; or

(iii)suspending for a specified period not exceeding three months the accreditation of the journalist; or

(iv)imposing such conditions as it deems fit subject to which he or she shall be allowed to practice; or

(v)deleting his or her name from the roll of journalists; or

(vi)where an injurious allegation was made or broadcast by the journalist, ordering any of the things referred to in paragraph (d);

(vii)referring the matter to prosecution;

(b)in the case of any journalist who is not accredited —

(i)cautioning the journalist; or

(ii)ordering him or her to pay a monetary penalty of a prescribed amount; or

(iii)suspending the journalist from practising as such for a specified period not exceeding three months; or

(iv)imposing such conditions as it deems fit subject to which he or she shall be allowed to practise as a journalist; or

(v)where an injurious allegation was made or broadcast by the journalist, ordering any of the things referred to in paragraph (d);

(vi)referring the matter to prosecution;

(c)in the case of a mass media service —

(i)cautioning the mass media service; or

(ii)ordering it to pay a monetary penalty of a prescribed amount; or

(iii)suspending for a specified period not exceeding three months the registration certificate of the mass media service; or

(iv)imposing such conditions as it deems fit on the breach of which the mass media service may become liable for any other penalty in terms of this paragraph; or

(v)which has breached the code more than once, cancelling the registration certificate of a mass media service; or

(vi)where an injurious allegation was made or broadcast by the mass media service, ordering any of the things referred to in paragraph (d);

(vii)referring the matter to prosecution;

(d)where the Council finds that an injurious allegation was made or broadcast by any journalist or mass media service —

(i)requiring the journalist or mass media service to publish or broadcast an apology and additionally, or alternatively, a correction or retraction of an earlier publication or broadcast, within such period and in such form and manner as the Council may recommend to the Commission; or

(ii)requiring the journalist or mass media service to afford the complainant an adequate opportunity to respond to the injurious allegation in such form and manner as the Council may recommend to the Commission; or

(iii)requiring the journalist or mass media service to desist from any conduct that might result in a repetition of the injurious allegation;

(2)Upon considering a recommendation made in terms of subsection (1) the Commission may adopt, with or without modification, or refuse to adopt the recommendation and notify the journalist or mass media service accordingly, and, where it adopts, with or without modification, any recommendation, it shall furnish the reasons therefor in writing to the journalist or mass media service.

(3)If at any time the Commission is satisfied that a journalist or mass media service has not complied with any conditions imposed upon him or her in terms of subsection (1)(a)(iv), (b)(iv) or (c)(iv) the Commission, after giving reasonable notice to the journalist or mass media service, may proceed further to do one or more of the things specified in subsection (1).

(4)The amount of any penalty imposed in terms of subsection (1) shall form part of the funds of the Commission.

(5)After any inquiry in terms of this Part the Commission shall, where it finds that a journalist or mass media service has committed a breach of the code, order the journalist or mass media service concerned to pay the expenses of the Council and Commission incurred in connection with the inquiry, or any part of these expenses as it thinks fit.

(6)A person authorised by the Commission may, by action in any court of competent jurisdiction, recover from the person concerned any expenses he or she has been ordered to pay in terms of subsection (5).

(7)The Commission shall inform the Council of any action taken by it in terms of this section.[section inserted by section 4 of Act 20 of 2007]

42E. Appeals from decisions of Commission

(1)Any person who is aggrieved at the order or findings of, or penalty imposed by, the Commission in terms of this Part may appeal to the Administrative Court, and the relevant provisions of section 90A shall, subject to this section, apply to such appeal.

(2)The Administrative Court shall not set aside any findings or penalty by reason of any informality in the proceedings of the Council or Commission which did not prejudice the appellant in answering the charge or in the conduct of his or her defence.

(3)The noting of an appeal in terms of this section shall not, pending the determination of the appeal, suspend the decision appealed against unless the Commission, on application being made to it, directs otherwise, and for such purposes the Commission may give such directions as it thinks fit.[section inserted by section 4 of Act 20 of 2007]

42F. Enforcement of orders of Commission

(1)Subject to this section, on application by the Commission or an interested party, any decision made by the Commission in terms of section 42D may be registered in the High Court and, upon registration, may be enforced in the same way as a judgment of the High Court.

(2)Part II of the Civil Matters (Mutual Assistance) Act [Chapter 8:02] and any relevant rules of court shall apply to the registration and enforcement of an order in terms of subsection (1) as if —

(a)the order were a judgment in a designated country as defined in section 2 of the Act; and

(b)the Commission or the interested party making the application were a judgment creditor as defined in section 4 of that Act; and

(c)the responsible party in respect of whom the order was made were a judgment debtor.

(3)An order may be registered and enforced in terms of subsection (1) even if a prosecution been instituted in respect of any contravention or failure to comply with the order.[section inserted by section 4 of Act 20 of 2007]

42G. Penalty for contravention of decisions or orders of Commission

Any person who without lawful excuse contravenes or fails to comply with any decision or order of the Commission made in terms of this Part shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.[section inserted by section 4 of Act 20 of 2007]

42H. Council to keep records

(1)The Council shall cause minutes of all proceedings of and decisions taken at every meeting of the Council to be entered in books kept for the purpose.

(2)Any minutes referred to in subsection (1) which purport to be signed by the chairperson of the meeting to which the minutes relate or by the chairperson of the next following meeting of the Council, as the case may be, shall be accepted for all purposes as prima facie evidence of the proceedings of and decisions taken at the meeting concerned.

(3)In addition to the minutes it is required to keep by subsection (1), the Council shall keep proper records of all its proceedings, findings and recommendations in terms of this Part.

(4)The records referred to in subsection (3) shall be kept at the offices of the Council and be open to inspection by interested parties during normal office hours.

(5)The Council shall, at the request of any interested party and on payment of such fee as may be prescribed, furnish him or her with a certified copy of or an extract from any record referred to in subsection (3).[section inserted by section 4 of Act 20 of 2007]

Part VIII – Media and Information Fund

43. Establishment and vesting of Media and Information Fund

(1)There is hereby established a fund to be known as the Media and Information Fund.

(2)Subject to this Part, the Fund shall be vested in and administered by the Commission as trustee.

44. Objects of Fund

The objects of the Fund shall be —

(a)the standardisation of mass media services and the maintenance of high standards of quality in the provision of such services; and

(b)to assist in the training of persons in the provision of mass media services; and

(c)to promote and contribute towards research and development in the field of information and mass media;

(d)to promote public awareness on the right of access to information and protection of privacy;

in accordance with an annual implementation plan prepared by the Commission in consultation with registered mass media services.[section amended by section 25 of Act 5 of 2003]

45. Moneys of Fund

The Fund shall consist of —

(a)such moneys as may be raised by levies imposed in terms of section forty-six;

(b)such moneys as may be payable to the Fund from moneys appropriated by an Act of Parliament for the purpose of the Fund; and

(c)any surplus of income over expenditure at the end of the Commission’s financial year appropriated in terms of paragraph 3 of the Fifth Schedule;

(d)any other moneys to which the Fund may be lawfully entitled; and

(e)accreditation fees.

46. Levies

(1)Every mass media owner, other than a broadcasting licensee as defined in the Broadcasting Services Act [Chapter 12:06], shall pay the prescribed annual levy to the Fund.

(2)The dates on which the levies to the Fund become payable and the manner in which they shall be paid shall be as prescribed.

(3)Where any mass media owner fails to pay the whole or any part of a levy within seven days after the date when it is due to the Fund the owner shall be liable to pay to the Fund an amount equivalent to double the levy due.

(4)The Commission may, by action in a competent court, recover the amount of a levy or penalty payable in terms of this section.

47. Holding of Fund

(1)All moneys received on behalf of the Fund shall be paid into a banking account and no money shall be withdrawn therefrom except by means of cheques signed by such persons as are authorised in that behalf by the Commission.

(2)Any part of the Fund not immediately required for the purposes of the Fund may be invested in such manner as the Minister may determine:Provided that such moneys shall not be invested directly in any securities issued by a mass media service company.[proviso amended by section 25 of Act 5 of 2003]

48. Financial year of Fund

The financial year of the Fund shall be the period of twelve months ending on the 31st December in each year.

49. Accounts and audit of Fund

(1)The Commission shall cause proper books of accounts of the Fund to be kept, together with adequate financial and other records in relation thereto, and, within three months after the end of the financial year to which the accounts relate, shall submit the accounts to the Comptroller and Auditor-General for audit in terms of subsection (2).

(2)The accounts of the Fund shall be audited by the Comptroller and Auditor-General, who shall have all the powers conferred upon him by section 9 of the Audit and Exchequer Act [Chapter 22:03] as though the assets of the Fund were public moneys or State property.

Part IX – Further powers of Commision

50. Power of Commission to conduct investigations, audits or inquiries

(1)For the purpose of conducting an investigation, inquiry or hearing in terms of this Act, other than an inquiry in terms of Part VIIA, the Commission shall have the same powers, rights, and privileges as are conferred upon a Commissioner by the Commissions of Inquiry Act [Chapter 10:07], other than the power to order a person to be detained in custody, and sections 9 to 13 and 15 to 18 of that Act shall apply, mutatis mutandis, in relation to any hearing and determination of any matter before the Commission under this Act and to any person summoned to give or giving evidence before the Commission.[subsection amended by section 5 of Act 20 of 2007]

(2)The Commission may require any record, including a record containing personal information held by a public body, to be produced as evidence.

(3)A public body requested by the Commission to produce a record in terms of subsection (2) shall do so within a period of ten days from the day that such record was requested

51. Restrictions on disclosure of information by Commission and staff

(1)The Commission and any person acting for or under its direction shall not disclose any information obtained during the performance of their duties, powers and functions under this Act, except in the circumstances provided for in subsections (2) to (5).

(2)The Commission may disclose, or may authorise anyone acting on its behalf or under its direction to disclose, information that is necessary to —

(a)conduct an investigation, audit or inquiry under this Act; or

(b)establish the grounds for findings and recommendations contained in a report made under this Act.

(3)In conducting an investigation, audit or inquiry under this Act and in a report made under this Act, the Commission and anyone acting for or under the direction of the Commission shall take every reasonable precaution to avoid disclosing information that a head of a public body may not disclose in terms of this Act.

(4)The Commission may disclose to the Prosecutor-General information relating to the commission of an offence if it considers that there is enough evidence to prove the commission of an offence.

(5)The Commission may disclose, or may authorise anyone acting for or under its direction to disclose, information in an appeal.

52. Delegation of powers by Commission

(1)The Commission may delegate to any person any duty, power or function under this Act except the power to delegate in terms of this section.

(2)A delegation made in terms of subsection (1) shall be in writing and may contain any conditions or restrictions that the Commission considers appropriate.

52A. Power of Commission to issue orders

(1)Subject to sections fifty two B and ninety A, the Commission shall have power —

(a)to issue orders in relation to any matter referred to in paragraphs (a) to (e) or (g) of subsection (1) of section fifty-two B;

(b)on its own initiative or at the request of any person, to issue orders—

(i)requiring that a duty imposed by or under this Act be performed;

(ii)extending a time limit in terms of section eleven or extending any other time limit in terms of this Act;

(iii)confirming, exempting or reducing a fee, or ordering a refund, in the appropriate circumstances;

(iv)confirming a decision not to correct personal information or specify how personal information is to be corrected;

(v)requiring a public body to stop collecting, using or disclosing personal information in contravention of this Act;

(vi)requiring the head of a public body to destroy personal information collected in contravention of this Act.

(2)The Commission may specify any terms or conditions subject to which an order is issued in terms of this section, including the time within which the person to whom the order is issued shall comply with the order.[section inserted by section 7 of Act 5 of 2003]

52B. Determinations and inquiries by Commission

(1)The Commission shall, in relation to the determination by it of the following matters -

(a)a request for a review in terms of Part X;

(b)an application for registration of a mass media service, in terms of Part XI;

(c)whether to suspend or cancel any registration certificate or make any other order in terms of section seventy-one;

(d)[paragraph repealed by section 6 of Act 20 of 2007]

(e)[paragraph repealed by section 6 of Act 20 of 2007]

(f)whether to issue an order in terms of paragraph (b) of subsection (1) of section fifty-two A;

(g)any other matter in terms of this Act which it is required or empowered to determine;

do either of the following—

(i)if it considers that the matter involves no substantial dispute of fact or law, and after affording any party concerned an opportunity to make written representations to it within the time it specifies, determine the matter and give notice of its determination orally or in writing to the party or the parties concerned; or

(ii)if it considers that the matter involves any substantial dispute of fact or law, conduct an inquiry in terms of the following provisions of this section.

(2)The Commission shall conduct an inquiry and may decide all questions of fact and law arising in the course of the inquiry.

(3)An inquiry in terms of subsection (2) may be conducted in camera.

(4)The Commission shall give every person who has an interest in the matter an opportunity to make representations during the inquiry.

(5)The Commission may decide—

(a)whether representations are to be made orally or in writing; and

(b)whether a person other than the persons referred to in subsection (4) is entitled to be present during or to have access to or to comment on representations made to the Commission by another person.

(6)Every person appearing before the Commission at an inquiry may be represented at the inquiry by a legal practitioner.

(7)An inquiry into any matter shall be completed within ninety days from the date of commencement of the inquiry.

(8)On completing an inquiry the Commission shall make a written determination of its findings and may, on the basis of those findings, issue an appropriate order to the parties concerned in the matter and give a copy of it to the Minister and any other party considered by the Commission to have an interest in the matter.

(9)Any person aggrieved by any order or determination of the Commission made in terms of section fifty-two A or fifty-two B may, within twenty-eight days after being notified of that order or determination, appeal to the Administrative Court.[section inserted by section 7 of Act 5 of 2003]

Part X – Reviews by the Commission

53. Right to request a review

(1)A person who makes a request to a head of a public body, other than the Commission, for access to a record or for correction of personal information may request the Commission to review any decision or act of the head of that public body that relates to that request.

(2)A third party notified of a decision to give access may request the Commission to review any decision made by the head of the public body.

54. Procedure for seeking review

(1)For the purposes of this section, the failure by a head of a public body to respond within the time limit to a request for access to a record shall be deemed to be a decision to refuse access to the record.

(2)A person requesting a review in terms of this Part shall make such request, in writing, to the Commission.

(3)A request for a review of a decision of the head of a public body in terms of subsection (1) shall be made within thirty days from the date of the decision:Provided that the Commission may allow a longer period upon a request made to the Commission for the extension of the period.

55. Notice of review

The Commission shall, on receiving a request for a review, give a copy of the request to the head of the public body and any other person that the Commission considers appropriate