Was McKenzie’s disclosure legal in terms of Popi Act? – Experts weigh in

Did Sport, Arts and Culture Minister Gayton McKenzie violate people’s legal right to privacy when he released a list this week of artists and creatives who received funding from the government.

Comments on social media by some of those on the list accused McKenzie of violating the Protection of Public Information (Popi) Act in making public the information without their express permission.

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But while his action may be considered reckless, it was not unlawful, according to an analyst.

Noma-Gcina Mtshontshi, director at Mtshontshi Attorneys Inc, noted the Popi Act states that personal information shouldn’t be disclosed for unintended purposes.

“We’re dealing with artists and creatives who sought support from the government funded by taxpayers, the public. It’s about transparency. Shouldn’t the public know where their tax money goes?” she asked.

ANCYL calls it disgraceful

The ANC Youth League (ANCYL) slammed McKenzie’s conduct and labelled it as disgraceful and unacceptable.

It pointed to unprofessional ethics and intentional lack of consideration for artists’ dignity.

“The parliamentary committee on sports, arts and culture must hold the department accountable for these actions.

“We demand that the department fulfil its duties while upholding the principles of Batho Pele, ensuring fair and respectful treatment of all stakeholders,” the youth league said.

According to one beneficiary, it would have been more appropriate for the department to first consult the creatives about inclusion on the publicised list. Promise Twala, a production and project manager, is one of the creatives who received funding.

She said it was important to remember the Popi Act was now in effect.

“When we filled in application forms, I did not see a clause stating the list will be made public at some point,” she said.

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Political analyst Sandile Swana raised concerns at McKenzie’s conduct, particularly his perceived focus on publicity over substantive issues like investigating financial irregularities, including those related to Covid funds.

“When you produce a list of people funded by the department, the privacy of those individuals must be respected, though it’s good for the government to announce funding recipients,” he said.

“Unilaterally publishing all that information raises questions about whether it respects the constitutional rights of the affected beneficiaries,” he added.

About publicity

Swana said the government of national unity McKenzie was participating in, alongside other parties, would be seeking to maximise the publicity they can get ahead of the 2026 elections.

“So this is opportunistic at a time when the ANC is known to be weak and such campaigns can succeed and benefit parties such as the Patriotic Alliance.

“There is a need for McKenzie to be advised to follow proper channels and to discuss irregularities in the proper forum,” he said.

Another beneficiary, Siyanda Maphumulo, a comedian who received R20 000 funding from the department, said he didn’t see anything wrong with what the minister did.

“As artists, we followed the necessary steps during the application for this fund. It was Covid and we were at home so we had to survive.

“There is nothing illegal with applying for funding from government as an artist,” he said.

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“The minister is doing a good job by being transparent so we can see where the money is going. “This might be what the department needs to do to clean up corruption,” he said.

Mtshontshi added that from a legal standpoint, what the minister had done aligned with the Promotion of Access to Information Act.

“Transparency is non-negotiable. Citizens have a right to be informed about the use of public funds,” she said.

The South African Arts and Culture Youth Forum pointed out that the funding lists had always been publicly available within the department.

“The funding process has been complex due to requirements but transparent, with independent panels adjudicating the applications. Artists are self-employed freelancers who have the right to apply for funding,” it said.