Case Summary and Outcome

The South African Supreme Court held that the definition of “public bodies” subject to disclosure under the Promotion of Access to Information Act (PAIA) includes state-owned companies that perform a government function and are under the control of the state, even if indirectly, and a formerly state-owned iron company must thus release records of meeting minutes.

This analysis was contributed by Right2Info.org.

Facts

Pursuant to the Promotion of Access to Information Act (PAIA) of 2002, and as part of his academic study of state corporations in the “old” South Africa, Mondli Hlatshwayo requested from Mittalsteel reports or minutes of meetings that occurred between 1965 and 1973. Mittalsteel, now privatized, had been until 1973 a state-owned company known as Iscor Limited. Iscor was incorporated by an act of Parliament to promote the development of iron in South Africa. The majority of the board of directors were appointed by the state, and the state held majority shares in the company.

Mittalsteel provided only a partial response to the PAIA request, and asserted that it had no obligation to produce other records. The High Court ordered Mittalsteel to disclose the records requested, and Mittalsteel appealed on the question of whether it was a public body at the time the records were created.

Decision Overview

The Court ruled that Mittalsteel must disclose the requested records because, at the time the records were created, its predecessor company was a “public body” as defined by PAIA. The Court relied on Section 32 of the Constitution and Section 9(a) of PAIA which each provide for the right of access to state-held information. Section 32 of the Constitution and Section 1 of PAIA define an “organ of state” and a “public body,” respectively, to include institutions “exercising a public power or performing a public function”.

The Court found that, based on the facts and upon a review of comparative law, Iscor was under the control of the state, performed a public function in providing South African industry with a supply of government-regulated steel and, generally, met the test for a public body.

While not needing to analyze the impact of privatization in this case, the Court observed that the control test may not always be the appropriate one because as “privatization of public services and utilities has become commonplace, bodies may perform what is traditionally a government function without being subject” to governmental control, but may still be classified as public bodies.