Abstract
South Africa’s Information Regulator is tasked with enforcing both the Promotion of Access to Information Act (PAIA) and the Protection of Personal Information Act (POPIA). While these statutory frameworks are critical for transparency and data protection, the Regulator faces significant resource constraints. This article examines how a co-regulation model, whereby the Regulator accredits external compliance partners for technical functions, could enhance capacity, efficiency, and enforcement credibility. International and local precedents are used to illustrate the feasibility and benefits of such a model.
1. Introduction
The Information Regulator has a dual mandate: ensuring public and private bodies comply with PAIA to promote access to information and with POPIA to safeguard personal data. Both laws are foundational to South Africa’s democratic governance and data protection regime.
However, enforcing these laws across thousands of organisations is a substantial operational challenge. Limited staffing, broad statutory responsibilities, and resource constraints result in uneven compliance and under-enforcement. Consequently, organisations may deprioritise compliance, undermining the effectiveness of these regulatory frameworks and public trust in data protection and access-to-information rights.
2. The Capacity Challenge
The Regulator’s mandate encompasses:
- Monitoring compliance by organisations of all sizes across multiple industries.
- Conducting audits, assessments, and investigations under both PAIA and POPIA.
- Promoting awareness and providing guidance to public bodies, private organisations, and citizens.
Currently, the Regulator’s capacity is insufficient to comprehensively fulfil these responsibilities. Without interventions to extend operational reach, there is a risk of:
- Low compliance levels: Organisations may delay or minimise implementation of robust PAIA and POPIA frameworks.
- Erosion of public trust: Citizens may question whether their statutory rights are being upheld effectively.
- Reputational and operational risks for organisations: Poor compliance increases exposure to legal, financial, and reputational harm.
3. International and Local Precedents
Several regulatory bodies have addressed capacity constraints by outsourcing supporting functions while retaining ultimate authority:
- United Kingdom (ICO): The Information Commissioner’s Office engages private audit firms to perform compliance audits. These firms conduct technical work, while the ICO retains full authority over findings and enforcement decisions.¹
- European Union (GDPR): Member state Data Protection Authorities can accredit certification bodies and monitoring organisations to support compliance oversight. Accredited entities assist with assessments, but the DPA remains the ultimate authority.²
- South Africa (Auditor-General): The Auditor-General engages registered audit firms to perform fieldwork. The firms conduct technical audit procedures, and final reports are issued under AGSA authority.³
- South Africa (Financial Intelligence Centre): The FIC collaborates with industry bodies and supervisory authorities to co-regulate compliance monitoring, extending capacity while retaining enforcement authority.⁴
These examples demonstrate a consistent principle: regulators can preserve legal authority while leveraging external expertise for technical and operational tasks, thereby improving efficiency, reach, and credibility.
4. The Case for Outsourcing Supporting Functions
Outsourcing supporting functions does not diminish regulatory authority. Instead, it allows the Regulator to focus on strategic oversight and enforcement while trusted, accredited partners provide technical assistance in areas such as:
- Compliance audits and assessments – Initial review of organisational PAIA and POPIA frameworks.
- Sector-specific monitoring – Collection and analysis of compliance data to identify high-risk areas.
- Training and awareness programs – Building capacity among compliance officers, staff, and boards.
- Research and policy support – Sector-specific reports, guidance on emerging risks, and evidence for regulatory decision-making.
5. Benefits of a Panel of Accredited Compliance Partners (PACPs)
Implementing a formal co-regulation model could deliver several benefits:
- Scalability: Extend coverage across sectors without increasing permanent staffing.
- Sector expertise: Leverage specialists in complex industries such as financial services, healthcare, and estate agencies.
- Credibility and trust: Demonstrate tangible enforcement and oversight activity, motivating organisations to prioritise compliance.
- Efficiency: Produce high-quality evidence for regulatory decisions, reducing bottlenecks and ensuring timely interventions.
6. Practical Implementation
A phased approach could ensure feasibility and effectiveness:
- Accreditation process: Define criteria for accrediting partners, including independence, expertise, confidentiality, and quality standards.
- Pilot phase: Deploy the model in selected sectors to test procedures and generate initial reports for the Regulator.
- Full rollout: Scale to additional sectors and integrate partner findings into enforcement and monitoring strategies.
- Continuous feedback and quality assurance: Review performance regularly, update standards, and provide ongoing training to ensure consistency.
Flow diagram illustrating the operational model for co-regulation between the Information Regulator and accredited compliance partners.
7. Consequences of Inaction
Failing to address capacity constraints could result in:
- Reduced compliance and increased regulatory gaps.
- Greater risk of data breaches, access-to-information failures, and organisational liabilities.
- Public distrust in the Regulator and the effectiveness of PAIA and POPIA.
- Missed opportunities to proactively guide best practices across sectors.
8. Conclusion
Outsourcing supporting functions to accredited compliance partners provides a tested and practical solution to the Regulator’s capacity challenge. By retaining ultimate authority while leveraging external expertise, the Regulator can:
- Expand coverage and operational reach.
- Strengthen enforcement credibility.
- Improve overall compliance culture across South Africa.
International and local precedents confirm the viability of this approach. Adopting a co-regulation model could transform the Information Regulator into a more proactive, scalable, and credible institution, capable of enforcing PAIA and POPIA effectively in the digital era.
International Outsourcing Comparison Table
| Country / Regulator | Model | Tasks Outsourced | Regulator Retains Authority |
| UK (ICO) | Private audit firms | Compliance audits | Enforcement decisions |
| EU (GDPR) | Accredited monitoring bodies | Certification and audits | Legal enforcement |
| SA (AGSA) | Registered audit firms | Fieldwork | Report authority |
| SA (FIC) | Industry co-regulation | Data collection, monitoring | Enforcement decisions |
References
- ICO Data Protection Audit Framework – Local Government Lawyer, 2023
https://www.localgovernmentlawyer.co.uk/information-law/398-information-law-news/58740-information-watchdog-launches-data-protection-audit-framework-to-help-organisations-improve-compliance - GDPR Certification Bodies and Accreditation – GDPR.eu
https://gdpr.eu/article-43-certification-bodies/ - AGSA Outsourcing Fieldwork to Registered Audit Firms – Auditor-General South Africa
https://www.agsa.co.za/Portals/0/Repository/Summary%20of%20MOA%20Updates.42df9012-7c77-4c4a-8790-4a148859c15e.xlsx - FIC Co-Regulation with Industry Bodies – Financial Intelligence Centre, South Africa
https://www.fic.gov.za/compliance/
About the Author / IPSE Tech Law Services
IPSE Tech Law Services is a South African legal tech consultancy specialising in technology law, data protection, and regulatory compliance. The firm assists organisations with POPIA and PAIA compliance, offering practical solutions including gap assessments, compliance documentation, training, and advisory services.
Led by Péru du Toit, IPSE combines legal expertise with technology-driven solutions to help businesses manage regulatory obligations efficiently and sustainably.
Contact: péru [at] ipse.co.za | www.ipse.co.za
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