On 22 May 2026, the Information Regulator of South Africa issued a historic enforcement notice against Sibanye-Stillwater Limited, a mining company listed on the Johannesburg Stock Exchange.
The Regulator ordered Sibanye to provide its annual compliance reports for the 2019–2023 Social and Labour Plans for the Eastern and Western Platinum Mines to the Centre for Applied Legal Studies, a research centre and legal clinic affiliated with the University of the Witwatersrand.
Sibanye refused access on 22 August 2023, citing sections 68(1)(b) and 68(1)(c)(i) of the Promotion of Access to Information Act 2 of 2000, the commercial information exemptions.
Thereafter, CALS lodged a complaint with the Regulator on 15 September 2023.
After investigation, the Regulator set aside the refusal and ordered disclosure within ten days, upon receipt of the prescribed fee.
The ruling upholds a fundamental constitutional tenet: access to information is the rule, secrecy the exception.
Under the Mineral and Petroleum Resources Development Act 28 of 2002, mining right holders must submit Social and Labour Plans.
These are public documents that set out commitments to community development, housing and employment.
Holders must also report annually on their compliance with those plans.
On 10 August 2023, CALS filed its PAIA request and, 12 days later, Sibanye’s Deputy Information Officer declined it, stating that the annual reports contained commercial data that would harm the company’s finances or put it at a disadvantage in negotiations.
On 15 September 2023, CALS filed a complaint with the Regulator’s PAIA Division.
After a pre-investigation, a conciliation meeting, which resolved part of the disagreement over SLP amendments, and lengthy written submissions, the Enforcement Committee concluded that Sibanye had not provided sufficient evidence to support its refusal.
The company’s suggestion that CALS might misinterpret the data, that its share price might suffer from a perception of non-compliance, and that its relationship with the Department of Mineral Resources and Energy might be damaged amounted to conjecture.
The Regulator agreed with the Committee and issued the enforcement notice.
The legal framework governing this dispute is well established. PAIA gives effect to section 32 of the Constitution, which guarantees the right of access to information.
Courts have consistently held that access is the norm, exemptions are exceptions to be narrowly construed, and the burden of justifying a refusal rests on the party withholding information, on a balance of probabilities.
Sibanye did not succeed.
The company was unable to provide any evidence that disclosure would probably result in harm under section 68(1)(b), which deals with commercial injury.
A suspicion concerning the potential use of the data by CALS is not proof.
The Regulator distinguished between “likely”, meaning a genuine anticipation, and “could reasonably be expected”, citing Transnet Ltd and Another v SA Metal Machinery Co (Pty) Ltd.
The Regulator found “mere conjecture and speculation” regarding section 68(1)(c)(i), which deals with negotiating disadvantage.
It concluded that openness regarding SLP compliance is more likely to encourage accountability than to hurt competition.
The Regulator reiterated, citing Smuts N.O. and Others v Member of the Executive Council: Eastern Cape, that access to information is the norm and exemption from disclosure is the exception.
Additionally, the Regulator dismissed Sibanye’s procedural objections, which challenged CALS’ standing and Mr. Krause’s authority, noting that Sibanye had already engaged with the request on its merits and could not raise new objections belatedly.
This enforcement notice is significant for more than just one mining company.
It serves as a clear warning to private entities that vague claims of commercial secrecy will not be sufficient.
Information officers must document a factual, record-specific justification for any refusal.
Speculation about reputational harm or share price volatility is insufficient. The burden of proof is on the refusing party, and it must discharge that burden on a balance of probabilities.
Beyond its impact on private bodies, the ruling meaningfully strengthens the position of civil society organisations.
As a university-affiliated research organisation, CALS demonstrated that community rights, as set out in section 24 of the Constitution, and academic freedom are valid grounds for access.
Sibanye’s claim that a public body cannot act in both its own interest and the public interest was dismissed by the Regulator.
Only 200–250 inspections are conducted each year for more than 1,500 operational mines, as CALS noted; community-driven accountability is crucial.
Perhaps most significantly, the decision firmly establishes the Regulator’s adjudicative authority.
Sibanye contended that the decision to grant exemptions could be made only by a court.
The Regulator disagreed, citing sections 77J and 77K of PAIA, which provide it with the authority to issue binding enforcement notices and set aside refusal decisions.
Non-compliance is a criminal offence, carrying a maximum penalty of three years’ imprisonment.
The Sibanye-Stillwater enforcement notice marks a significant moment in South Africa’s access-to-information landscape.
It confirms that the Information Regulator has both the authority and the appetite to enforce PAIA against private bodies that cannot substantiate their refusals.
For information officers, a refusal without evidence will not stand.
For civil society, it is an affirmation that the constitutional right of access to information belongs not only to those with the resources to litigate, but to every person and organisation with a legitimate need to know.
*Alude Xuba is an admitted attorney of the High Court of South Africa and the founder and principal attorney of the boutique business and IP law firm Xuba & Associates Attorneys Inc. He has a keen interest in corporate and commercial law, intellectual property law, artificial intelligence and litigation.
*Disclaimer: This article is not legal advice. For more information, contact Xuba & Associates Attorneys Inc on 010 500 1571 / 072 547 4269 or hello@xubalaw.co.za.
*The views expressed by Alude Xuba are not necessarily those of The Bulrushes
