M&G Media Ltd and Others v 2010 FIFA World Cup Organising Committee South Africa Ltd and Another

• Jurisdiction: South Africa

M&G Media Ltd and Others v 2010 FIFA World Cup Organising Committee South Africa Ltd and Another
2011 (5) SA 163 (GSJ)

2011 (5) SA p163

Citation	2011 (5) SA 163 (GSJ)
Case No	09/51422
Court	South Gauteng High Court, Johannesburg
Judge	Morison AJ
Heard	May 24, 2010
Judgment	June 8, 2010
Counsel	GM Budlender SC (with KS Hofmeyr) for the applicants.; APH Cockrell SC for the respondents.; A Gotz (with K Millard) for the amicus.

Flynote : Sleutelwoorde B

Administrative law — Access to information — Access to information held by public body — Public body — What constitutes — FIFA World Cup Organising Committee — Board members including cabinet ministers — Public funds C expended in course of activities — Onward disbursement to third parties — No clear evidence to distinguish public and private funds among various transactions — Transparency and accountability to follow government funds — Organising Committee acting in terms of legislation when records in respect of tenders brought into existence — Promotion of Access to Information Act 2 of 2000, s 1 sv 'public body' (b)(ii). D

Administrative law — Access to information — Access to information held by private body — Right to freedom of expression — Press and other media — Seeking access to tender records of FIFA World Cup Organising Committee — Duty to disclose arising from acceptance of public funds — Access to information constitutionally entrenched right — Refusal a limitation that had E to be regarded as the exception — Harm to public from keeping records secret outweighing harm of publication — Promotion of Access to Information Act 2 of 2000, s 50(1)(a) and Constitution, s 16(1).

Headnote : Kopnota

The Mail & Guardian newspaper sought access under the Promotion of Access to Information Act 2 of 2000 (PAIA) to certain records relating to the tender F processes engaged in by the 2010 FIFA World Cup Organising Committee South Africa Ltd (the committee). A 'public body' is defined in s 1 of PAIA as:

'. . .

(b)

any other functionary or institution when —

(i)

. . . G

(ii)

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

The public-body request

According to the applicants the records were those of a public body because the committee's function was to host the 2010 World Cup, a public activity involving the entire country. The respondents argued, on the other hand, H that the function of the committee had been to run a private tender process involving only the tenderers and the committee, and that the records were thus those of a private body. The respondents proposed an approach that did not consider the overall function or activity of the committee — the organisation of the 2010 World Cup — but rather the specific nature of its function when the record was created or acquired, namely conducting a I private tender process.

Held, that the committee's award of tenders could not be said to have happened in isolation from government: on the contrary, the presence of eight Cabinet Ministers on its board weighed heavily in favour of a conclusion that its activities were those of a public body. (Paragraphs [230] – [235] at 201G – 202E.) J

2011 (5) SA p164

A Held, further, that the critical question in casu was whether the committee had disbursed public funds. If so, it would make no difference if it had conducted a tender for privately funded disbursements or intended to conclude a private contract without any tender process preceding it: the fact that it had been in receipt of and disbursed public funds was sufficient to make its activities public, and such activity did not cease being 'public' just B because it could also be performed by private bodies. (Paragraphs [240] – [242] and [246] at 203B – E and 204C – F.)

Held, further, that the origin of the funds was significant since an entity that received and disbursed public funds was either exercising a public power or performing a public function. If it received both State and private funds, then it acted as a public body in respect of the former. To draw too fine a C distinction between the entity's public and private-funded activities would place too much trust in its accounting practices. There was therefore no reason why the public should have to limit its rights under PAIA to anything less than a full disclosure of the records, and if this involved some invasion of privacy, it was a cost that had to be paid in the greater public interest. (Paragraphs [259] – [260] at 206G – I.)

D Held, further, that when public funds passed directly or indirectly into the control of an entity for onward payment to others, it performed a public function or exercised a public power irrespective of whether the function performed or the power exercised was typically governmental or subject to government control. Subject to certain limitations, where government funds were being disbursed by a 'private' corporate entity, the right to access to information E applied to all records relating to such expenditure. (Paragraphs [263] and [267] at 207C – D and 207I.)

Held, accordingly, that the receipt of public funds by the committee for onward disbursement to third parties constituted the performance of a public function or the exercise of a public power. (Paragraph [277] at 210D.)

Held, further, that it was in the present case impractical to distinguish between F the committee's disbursement of public versus private funds. Once a body accepted the responsibilities that came with receipt of public funds and the duty to disperse them to others, the reach of a public-body information request could no longer be limited to records relating only to those funds unless it was clear — which it was not in the present case — that public funds were kept separate from other funds handled by that body. (Paragraph [278] at 210E – H.) G

Held, further, that government was found wherever its funds went, and that transparency and accountability had to follow. The agency and object of the distribution were irrelevant: if the funds emanated from the public, the agency was performing a public function or exercising a public power. (Paragraph [282] at 212A – B.)

H Held, accordingly, that the committee had performed public functions in relation to its tender records. (Paragraph [286] at 213B.)

In terms of legislation

Held, that whether the committee had performed a public function or exercised a public power was not, however, decisive. To qualify as a public body, it had to have exercised public power or performed a public function 'in terms I of legislation' when it invited and awarded tenders. (Paragraph [292] at 213H.)

The 2010 FIFA World Cup South Africa Special Measures Act 11 of 2006 was enacted to give effect to the Organising Association Agreement between FIFA and SAFA and to the guarantees issued by the government to FIFA for the hosting and staging of the 2010 FIFA World Cup South Africa; and to J provide for matters connected therewith. The Minister of Trade and

2011 (5) SA p165

Industry, acting in terms of s 15A of the Merchandise Marks Act 17 of 1941, A issued a protected event notice designating the World Cup as a 'protected event'.

Held, that the committee had, by enjoying the protection of the protected event notice and the Act, acted in terms of that legislation by staging the very event that was the subject of the notice. (Paragraph [313] at 218G.) B

Held, further, that the intention of the legislature in promulgating the protected event notice was to bind the committee to observe the provisions of the procurement statute. (Paragraph [315] at 218J – 219C.)

Held, further, that the committee had acted in terms of legislation when it exercised its powers under the bylaws passed by the Johannesburg and Tshwane Local Authorities to restrict the right of access to ordinarily public spaces. (Paragraphs [316] and [318] at 219D – E and 219I – J.) C

Held, further, that it was, in addition, a condition of the 'protected event' status of the Word Cup that the committee had to act in accordance with the legislation referred to in the Government Notice. (Paragraph 325 at 221C.)

Held, accordingly, that the committee had acted in terms of legislation, or as a 'public body' as intended in s 1(b)(ii) of PAIA, when the records in respect of its tenders were brought into existence. (Paragraph [326] at 221D – E.) D

The private-body request

Section 50(1)(a) of PAIA provided that 'a requester must be given access to any record of a private body if . . . that record is required for the exercise or protection of any rights'.

Held, that PAIA required requesters to show a need to know the information — a E connection between the information requested and the protection and enforcement of rights — but that the degree of connection required could not be such as to frustrate the very purpose of PAIA. This meant that the words 'required for the exercise or protection of any rights' had to be interpreted so as to enable access to such information as would enhance and promote the exercise and protection of rights. (Paragraph [354] at 227F – G.)

Held, further, that the main question was whether the requested records were F reasonably required for the exercise of the constitutional right to freedom of expression in s 16(1) of the Constitution: s 16(1)(a) guaranteed the freedom of the press and other media, while s 16(1)(b) protected the freedom to receive or impart information or ideas, and underpinning both of these was a recognition of the public's right to know. (Paragraphs [366] – [368] at 230D – F.) G

Held, further, that a general appeal to the essential role of the print and electronic media in our society did not suffice since the fact remained that it had to be shown that the records were required for the exercise...