The Promotion of Access to Information Act 2 of 2000 (“PAIA”) stipulates that both private and public bodies are obliged to comply with the requirements as set out in the PAIA. Whether a trust qualifies as a private body is, however, unclear in terms of the definitions set out in the PAIA.
PAIA defines a private body as a natural person or partnership which carries or has carried on any trade, business or profession, any existing or former juristic person or a political party. The Information Regulator requires that public and private bodies that are subject to PAIA must submit annual reports on their electronic platform. Apart from the submission of PAIA reports, private and public bodies must have a PAIA manual outlining the process of how individuals can access information in respect of a private or public body. The annual submission aims to assist the Information Regulator in maintaining accountability and transparency in the supervision of requests for access to information. PAIA therefore aims to ensure compliance with section 32 of the Constitution of the Republic of South Africa, which stipulates that everyone has the right of access to any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights.
A trust does not have a legal personality and merely consists of assets and liabilities that are owned by the trustees of the trust to administer for and on behalf of the beneficiaries. In terms of the Trust Property Control Act 57 of 1988, a trust is not defined as a juristic person but rather as a legal arrangement since a trust cannot be transferred, owned or sold, as is the case with close corporations or companies. In Braun v Blann and Botha NNO and Another 1984 (2) SA 850 (A), a trust was described by the court as a legal institution of its own class or kind (sui generis). The description of a trust would, therefore, at least textually, fall outside the ambit of the obligations imposed in terms of PAIA.
Notwithstanding the above, in Kilbourn v Zwemstra and Others (24858/2020) [2023] ZAGPPHC 1938 (14 November 2023), the court held that trusts should not be treated differently from other natural persons or juristic persons which carry on trade or business. This is because the trustees, acting in their representative capacities, are the people who carry on the business of a trust. The court held that, for purposes of clarity in interpreting a juristic person in terms of PAIA, a trust will be seen as a juristic person provided that the trust carries on trade or business. Considering this decision, it can be concluded from the court’s interpretation of the nature of a trust that only trusts that carry on a business will be obliged to comply with PAIA. Accordingly, family trusts or special trusts that do not carry on a business will not fall within the definition of a private body in terms of PAIA.
Should trustees be called to submit PAIA reports, the trustees bear the onus to prove that the trust does not have a commercial rationale and thus does not qualify as a business or trading trust. Until the legislation has been amended or our courts provide more clarity, it is best to assume that business trusts must ensure compliance with PAIA on an annual basis.
Should you require guidance in establishing whether your trust should comply with PAIA, please feel free to contact our Trust Office Team for assistance.
