In Tiso Blackstar v Steinhoff, two media houses won their court bid for access to Steinhoff’s accounting records. This judgment marks another victory for the media because it upholds the media’s right to information by considering their right to freedom of expression. The court rejected Steinhoff’s claim that the records were protected by legal privilege. The judgment is revolutionary to the media and private bodies because it provides guidance on when records are not protected by privilege. The court provides the media with guidance on when they can use the Promotion of Access to Information Act 2 of 2000 (PAIA) to exercise their right to access information from private bodies.
On 23 May 2022, Steinhoff announced that they would be lodging an appeal against the high court’s ruling. We will provide you with a further update as this matter develops.
Who should care about this judgment and why?
- The media because it impacts their right to access private body records on the grounds of a right to freedom of expression.
- The information regulator because they have a mandate to enforce access to information in terms of PAIA. This judgment reinforces how important the regulator’s mandate is to facilitate access to information.
- Private bodies because they may need to provide access to their records when it is in the public interest to do so.
- Legal practitioners because they need to consider when their clients can and can’t claim legal privilege in terms of PAIA.
- Information officers and accounting professionals because anyone can request access to their records even if the information is privileged. This means that they must be aware of how to process access to information requests in line with PAIA and the regulations.
What could you do about it?
- Keep up to date with all PAIA developments by remaining a member of the Access to Information programme.
- Dive into the detail by reading the full judgment.
- Learn about the process involved in requesting access to information by reading our post on the PAIA regulations.
- Access other relevant judgments by remaining a member of the programme.
Our insights on the judgment
The Constitution guarantees every person the right to access information that the State or any other person holds. PAIA further enforces access to information that private bodies hold. For example, according to PAIA, a person can access a record held by a private body if the person can prove that they need the record to exercise or protect their rights (section 50). The two media houses proved to the court that they had a right they wanted to protect – their right to freedom of expression.
Public body vs private body records
There is a difference in how public and private bodies make records and information available to someone. For example:
- Public bodies must make certain records automatically available.
- Private bodies must voluntarily disclose certain records and make them automatically available.
Steinhoff is a public body. This would mean that Steinhoff should make the records automatically available. However, Steinhoff appointed an independent accounting firm in South Africa to investigate certain accounting irregularities. The accounting firm is a private body. Therefore, the media houses approached the firm directly to request access. The firm refused access several times on the grounds that the reports contained privileged information. We know that the court rejected this argument. A court can overlook privilege in certain instances like when it is in the public interest to grant access to a record. It was public knowledge that Steinhoff’s external auditors discovered accounting irregularities in December 2017.
Why public interest trumps privilege
When the Steinhoff scandal broke, the accounting fraud that investigators discovered had a major impact on the country. For example, we know that the Johannesburg Stock Exchange suffered a mammoth monetary loss. Millions of South Africans also felt the impact of the Steinhoff crash when their pension funds suffered a blow. The media houses request demonstrates responsible journalism because access to the reports would allow them to report accurate information to the public that has a high interest in this matter.
This is the second time in a few months that a court granted Tiso Blackstar’s subsidiary company, the Financial Mail access to confidential, privileged information because it was in the public interest to do so. In Arena Holdings (Pty) Ltd t/a Financial Mail v South African Revenue Services (SARS), the court granted the Financial Mail an interim order to compel SARS to disclose certain tax records.
By granting the media houses access to the accounting reports, the court’s ruling demonstrates how important access to information is for the purposes of promoting accountability and transparency in South Africa.
What happens if the information officer refuses an access request?
If an information officer refuses your request for access to a record or any other information, you can pursue other means to assert your rights. For example:
- if an information officer at a public body refuses your request for access to information, you can lodge an internal appeal with the public body (Section 74)
- you can approach the information regulator for assistance by lodging a complaint. (Section 77A) This is because the information regulator has a mandate to facilitate access to information
- you may apply to a court for relief, but you must prove to the court that you’ve exhausted your efforts with the internal appeal process. You must also prove that the regulator denied your request for access. (Section 78)
Remember, litigation is expensive. The PAIA regulations have simplified access to information requests to make it swift and cost-effective to everyone.
Digest
Tiso Blackstar requested the records from Steinhoff twice before requesting it from the court. They used Section 53 of PAIA to request the records from Steinhoff. On both occasions, Steinhoff refused to provide the report to Tiso Blackstar on the grounds of privilege. Tiso Blackstar applied to the High Court to appeal against Steinhoff’s decision to refuse the request for access to information.
Steinhoff’s legal practitioners instructed independent accounting practitioners to draft the report for Steinhoff. Therefore, Steinhoff denied access to the report on the grounds that it was protected by legal privilege. Steinhoff raised the ground in Section 67 of PAIA which allows “the head of a private body to refuse a for access to a record if f the record is privileged from production in legal proceedings unless the person entitled to the privilege has waived the privilege. “
Tiso Blackstar argued that they had a protected right to freedom of expression in terms of Section 50 of PAIA that required access to the accounting records. They also relied on Section 70(b) of PAIA which requires a mandatory disclosure if “the public interest in the disclosure of the clearly outweighs the harm contemplated in the provision in question.”
Privilege vs right of access to information
To determine whether the court should grant media houses access to the records, the court considered the balance between the right to privilege and the media’s right to have access to information that a private body holds. The court reiterated the reason for the right of access to information and traced it back to section 32 of the Constitution.
The court held that:
- Tiso Blackstar proved that they met the requirements of Section 50 of PAIA. For example, they:
- proved that they needed the records because they were exercising their right to freedom
- followed the proper procedure to access the records they wanted
- were entitled to the records because it was not privileged, and
- it was in the public interest for them to have access to it.
- Steinhoff could not prove their right to privilege. The court said that Steinhoff already anticipated there would be litigation when Steinhoff commissioned the report.
Order
- The high court ordered Steinhoff to supply Tiso Blackstar with the report within 10 days of the order.
Details of Tiso Blackstar v Steinhoff
- Case number: 18706/2019
- Full name: Tiso Blackstar Group (Pty) Ltd and Others v Steinhoff International Holdings N.V
Please note: The summary of this judgment is not intended for a general audience. It is specifically drafted for the members of the Michalsons Access to Information programme.
