Mittalsteel South Africa Ltd (Formerly Iscor Ltd) v Hlatshwayo

• Jurisdiction: South Africa
• Citation: 2007 (1) SA 66 (SCA)

Mittalsteel South Africa Ltd (Formerly Iscor Ltd) v Hlatshwayo
2007 (1) SA 66 (SCA)

2007 (1) SA p66

Citation	2007 (1) SA 66 (SCA)
Case No	326/05
Court	Supreme Court of Appeal
Judge	Mpati DP, Mthiyane JA, Conradie JA, Lewis JA and Cachalia AJA
Heard	May 22, 2006
Judgment	August 31, 2006
Counsel	F G Barrie SC for the appellant.; N Bawa for the respondent.

Flynote : Sleutelwoorde F

Administrative law — Access to G information — Public or private body — Tests for — Control and function tests — Control test useful to determine whether functions, which by nature might be private, being performed under control of State and thereby turning H into public functions — This converting body like trading entity, normally private, into public body for time and to extent that carrying out public functions — Courts generally adopting control test, but in certain circumstances, function test more appropriate — Promotion of Access to Information Act 2 of 2000, s 11.

Administrative law — Access to information — Public or private body — Relevant time when institution required to be I defined as public body — Whether appellant, at relevant time and in creating the requested documents, a 'public body' — If it was, then respondent entitled to documents requested by it — Institution from which documents requested to have been 'public body' at time documents produced in course of business — Status of institution at time of request immaterial — Where J

2007 (1) SA p67

appellant a public body at time documents requested being produced, requester entitled to access A sought — Promotion of Access to Information Act 2 of 2000, s 11.

Administrative law — Access to information — Public or private body — Corporation established by legislation — Records — Public function — Control by State not only test — Body 'exercising a public power or performing a B public function in terms of any legislation' being 'public body' only when producing 'public record' — Otherwise private in relation to record produced — Promotion of Access to Information Act 2 of 2000, s 11.

Headnote : Kopnota

The respondent successfully sought an order in the High Court in terms of the Promotion of Access to Information Act 2 of 2002 (PAIA) C for access to certain records of the appellant. On appeal, the appellant (respondent in the Court a quo) contended that it was not a 'public body' as defined in PAIA and, consequently, was not obliged in terms of s 11 thereof to grant the respondent (applicant a quo) access to its records. Indeed, it was common cause that the appellant was not a 'public body' as defined. D The respondent contended that, at the time the appellant created the records, it was a 'public body', and he was therefore entitled to access those records.

Held, that a 'public body' as defined in the PAIA included an 'institution . . . exercising a public power or performing a public function in terms of any legislation' (ss (b)(ii) of the definition of 'public body' in s 1 of the Act), which created a E record in the exercise of that power or performance of that function (s 8). Where it did not create such a 'public record', it was a private body in relation to any record created. (Paragraph [10] at 72E.)

Held, further, that the test adopted by our Courts for whether an institution was a 'public body' was whether it was controlled by the State. (Paragraph [13] at 73B.) F

Held, further, that the control test was useful in a situation where it was necessary to determine whether functions, which by their nature might well be private functions, were performed under the control of the State and were thereby turned into public functions instead. This converted a body like a trading entity, normally a private body, into a public body for the time and to the extent that it carried out public functions. (Paragraph [19] at 75E/F.) G

Held, further, that the control test, however, was not appropriate in all circumstances, for example where a private body performed a public function without being subject to State control. (Paragraph [22] at 76F.)

Held, further, that, on the control test, the appellant had been a 'public body' when it exercised the functions in respect of which the respondent requested records. The respondent was thus H entitled to access to those records. (Paragraphs [27] - [28] at 77G - H.)

Held, accordingly, that the appeal be dismissed. (Paragraph [30] at 78A.)

Cases Considered

Annotations I

Reported cases

ABBM Printing and Publishing (Pty) Ltd v Transnet Ltd 1998 (2) SA 109 (W) (1997 (10) BCLR 1429; [1997] 4 All SA 94): dictum at 113B - E (SA) applied

Banco de Moçambique v Inter-Science Research and Development Services (Pty) Ltd 1982 (3) SA 330 (T): referred to J

2007 (1) SA p68

Directory Advertising Cost Cutters v Minister for Posts, Telecommunications and Broadcasting and Others 1996 (3) SA 800 (T) A ([1996] 2 All SA 83): applied

Goodman Bros (Pty) Ltd v Transnet Ltd 1998 (4) SA 989 (W) (1998 (8) BCLR 1024; [1998] 3 All SA 336): applied

Greater Johannesburg Transitional Metropolitan Council v Eskom 2000 (1) SA 866 (SCA): dictum in para [12] applied B

Lebowa Mineral Trust v Lebowa Granite (Pty) Ltd 2002 (3) SA 30 (T) ([2001] 2 All SA 388): dictum at 36 (SA) applied

Minister of Education, Western Cape, and Others v Governing Body, Mikro Primary School, and Another 2006 (1) SA 1 (SCA): referred to

Mistry v Interim Medical and Dental Council of South Africa and Others 1998 (4) SA 1127 (CC) (1998 (7) BCLR 880): applied C

The Shipping Corporation of India Ltd v Evdomon Corporation and Another 1994 (1) SA 550 (A): referred to

Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA) (2001 (2) BCLR 176): dictum in paras [7] - [8] applied D

Wittmann v Deutscher Schulverein, Pretoria, and Others 1998 (4) SA 423 (T) (1999 (1) BCLR 92): dictum at 454B - E (SA) applied.

Statutes Considered

Statutes

The Promotion of Access to Information Act 2 of 2000, ss (b)(ii) sv 'public body' in s 1, ss 8, 11: see Juta's Statutes of South Africa 2005/6 vol 5 at 1-223 - 1-224, 1-225 and 1-226. E

Case Information

Appeal against the whole of the judgment and order of the Transvaal Provincial Division (Van der Westhuizen J) in terms of which the appellant was ordered to make available certain documents to the respondent. The facts and issues appear from the judgment of Con- radie JA (the remainder of the Court concurring).

F G Barrie SC for the appellant. F

N Bawa for the respondent.

In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following:

Auckland Electric Power Board v Electricity Corporation of New Zealand Ltd [1994] 1 NZLR 551 (CA) at 560(35) - (50) G

Baloro and Others v University of Bophuthatswana and Others 1995 (4) SA 197 (B)

Clutchco (Pty) Ltd v Davis 2005 (3) SA 486 (SCA) in para [1] at 488

Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange and Others 1983 (3) SA 344 (W) at 361F - 365B

De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) at para [85] at 820 - 1 H

Earthlife Africa v Eskom Holdings Ltd (WLD case No 04/27514, 15 December 2005)

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of I South Africa, 1996 1996 (4) SA 744 (CC) in paras [83] and [85] at 802 - 3

Foster v British Gas plc [1991] 2 AC 306 (HL)

Inkatha Freedom Party v Truth and Reconciliation Commission and Others 2000 (3) SA 119 (C) (2000 (5) BCLR 534) at 132I - 133E

Investigating Directorate: Serious Economic Offences and Others v Hyundai J

2007 (1) SA p69

Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and A Others 2001 (1) SA 545 (CC) in para [23] at 559

Korf v Health Professions Council of South Africa 2000 (1) SA 1171 (T) at 1176G - 1177C

Leech and Others v Farber NO and Others 2000 (2) SA 444 (W) B

M v Board of Trustees of Palmerston North Boys' High School [1997] 2 NZLR 60 at 71(10) - (20)

Meyer v Iscor Pension Fund 2003 (2) SA 715 (SCA) at 723C

Minister for Provincial and Local Government v Unrecognised Traditional Leaders, Limpopo Province (Sekhukhuneland) 2005 (2) SA 110 (SCA) C

Minister of Internal Affairs and Banner v Albertson and Others 1941 SR 240 at 260

Minister of Lands v Rudolph 1940 SR 126 at 131

Rondebosch Municipal Council v Trustees of the Western Province Agricultural Society 1911 AD 271 at 279 - 81 and 283 - 4 D

S v Dzukuda and Others; S v Tshilo 2000 (4) SA 1078 (CC) in para [37] at 1100 - 1

Tamlin v Hannaford [1950] 1 KB 18 (CA) ([1949] 2 All ER 327)

Television New Zealand Ltd v Newsmonitor Services Ltd [1994] 2 NZLR 91 at 96(30) - (45) E

Transnet Ltd and Another v SA Metal Machinery Company (Pty) Ltd (SCA case No 147/05, 29 November 2005)

Baxter Administrative Law at 159 - 60

Currie and Klaaren The Promotion of Access to Information Act Commentary (2002) in paras 4.8 and 4.13 at 47 and 50 - 1 F

Wiechers Administratiefreg 2 ed at 3 - 4.

Cur adv vult.

Postea (August 31). G

Judgment

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...