Mittalsteel South Africa Ltd (Formerly Iscor Ltd) v Hlatshwayo

• Jurisdiction: South Africa
• Judge: Mpati DP, Mthiyane JA, Conradie JA, Lewis JA and Cachalia AJA
• Judgment Date: 31 August 2006
• Citation: 2007 (1) SA 66 (SCA)
• Docket Number: 326/05
• Hearing Date: 22 May 2006
• Counsel: F G Barrie SC for the appellant. N Bawa for the respondent.
• Court: Supreme Court of Appeal

Conradie JA:

[1] Mr Mondli Hlatshwayo, the respondent, is a very determined student. His interest in factory regimes in State corporations during the late sixties and early seventies led him to what was then known as Iscor, the largest steel producer in South H Africa. He considered their factory regime to be representative of the period, so, for his Master of Arts degree in industrial sociology he chose as the topic for his thesis 'The politics of production and forms of worker responses at Iscor Vanderbijlpark Works, 1965 - 1973'.

[2] The material the respondent needed for his research project was obtainable only from the appellant. Certain records were I made available by the appellant, but when it came to other records the appellant took the view that it was not obliged to and would not produce them. That refusal led to an application in the Pretoria High Court before Van der Westhuizen J who, in terms of the Promotion of Access to Information J

Conradie JA

Act 2 of 2002 (PAIA), ordered the appellant to make available to the respondent within 40 days of the date of the A order the following documents or copies thereof: [1]

'(a)

reports or minutes of meetings of Iscor Vanderbijlpark works management for the period 1965 to 1973 dealing with labour relations;

(b)

reports or minutes of meetings of compound or hostel managers of the Vanderbijlpark works for the period 1965 to 1973; B

(c)

reports or minutes of meetings in respect of wages and conditions of service at the Vanderbijlpark works for the period 1965 to 1973;

(d)

minutes of meetings dealing with health and safety issues at the Vanderbijlpark works for the period 1965 to 1973'.

[3] The appellant sought and obtained leave from the Court a quo to appeal against its order. In doing so it has abandoned a C number of minor points relied upon in that Court. In particular it is no longer disputed that the appellant's change of status from a public to a private body has no impact on any obligation that may rest upon it to make the requested records available. The issue before us is therefore a crisp one: whether the appellant, at the relevant time and D in creating the requested documents, [2] was a 'public body' as that term is to be understood in PAIA. If it was, then the respondent is entitled to the documents requested by it in terms of s 11 of PAIA. The section is headed 'Right of access to records of public bodies'. Subsection 11(1) provides that a 'requester must be given access to a record of a public body if - ' (emphasis added) (a) the requester E complies with all the procedural requirements of the Act and (b) access to the record is not refused in terms of any ground set out in the provisions of PAIA dealing with the records of public bodies. None of these provisions is applicable to the respondent's request and compliance with procedural requirements is not in issue. F

[4] The right of access to information is entrenched in s 32 of the Constitution of the Republic of South Africa, 1996:

'(1) Everyone has the right of access to -

(a)

any information held by the State; and G

(b)

any information that is held by another person and that is required for the exercise and protection of any rights.

(2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the State.'

[5] The legislation envisaged by s 32(2) of the Constitution was enacted as the Promotion of Access to Information Act 2 of 2000. Among H the objects of PAIA is that stated in s 9(a):

'(a)

to give effect to the constitutional right of access to -

Conradie JA

(i)

any information held by the State; and A

(ii)

any information that is held by another person and that is required for the exercise or protection of any rights'.

PAIA gives effect to that right, subject to justifiable limitations, such as the reasonable protection of privacy and the balancing of that right with other rights. [3] B

[6] Section 32 of the Constitution does not mention organs of State. An 'organ of State' in terms of the definition in s 239 means:

'(a)

any department of State or administration in the national, provincial or local sphere of government; or

(b)

any other functionary or institution - C

(i)

exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii)

exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer'. [4]

[7] PAIA includes within its scope a body that it calls in s 1 a 'public body', the characteristics of which coincide with those of an D 'organ of State':

'"public body" means -

(a)

any department of State or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or E

(b)

any other functionary or institution when -

(i)

exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii)

exercising a public power or performing a public function in terms of any legislation'. F

[8] The 'organ of State' of the Constitution is essentially the 'public body' of PAIA. The only difference between the two is that a 'public body' does not exclude a court or judicial officer. [5] Decisions on the meaning of 'organ of State' in the interim Constitution of the Republic of South Africa, 1993, [6] and the 1996 Constitution, of which there are several, are, therefore, of considerable assistance in determining what the Legislature had in mind when it referred to G 'public body'.

[9] Moreover, the Promotion of Administrative Justice Act 3 of 2000

Conradie JA

(PAJA) employs the concept 'organ of State' to give effect to the constitutional guarantee of administrative action that is lawful, A reasonable and procedurally fair. Among the definitions in s 1 is that of 'administrative action', which means:

'. . . any decision taken, or any failure to take a decision, by -

(a)

an organ of State, when - B

(i)

exercising a power in terms of the Constitution or a provincial constitution; or

(ii)

exercising a public power or performing a public function in terms of any legislation; or

(b)

a natural or juristic person, other than an organ of State, when exercising a public power or performing a public function C in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect, but does not include . . .'.

[10] A body such as that described in ss (b)(ii) of the definition of 'public body' in s 1 of PAIA, one 'exercising a public power or performing a public function in terms of any legislation', has the attributes of a 'public body' only when, in D terms of s 8 of PAIA, it produces a record in the exercise of that power or the performance of that function. When it does not produce such a 'public record', it is a private body in relation to whatever record it does produce. [7]

[11] It appears from the nature of their contents, indeed it is beyond dispute, that the records requested were produced in the course E of the appellant's usual business as a steel producer. If, in carrying out that business, it can be said to have performed a public function pursuant to legislation the appellant would fall within the definition of 'public body' and would be obliged, subject to whatever...