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[2015] ZAGPJHC 344
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Mahaeene and Another v Anglogold Ashanti Ltd (2014/12111) [2015] ZAGPJHC 344; [2016] 1 All SA 592 (GJ) (6 October 2015)
REPUBLIC
OF SOUTH AFRICA
HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO 2014/12111
In
the matter between:
MAHAEENE
MAHAEENE
First
Applicant
MOTLAJSI
THAKASO
Second
Applicant
And
ANGLOGOLD ASHANTI LTD
Respondent
JUDGMENT
HEADNOTE
Access
to information act 2 of 2000 (PAIA) – sections 7 and 50 –
interpretation –
The
two applicants sought from the respondent, a private juristic entity,
records pertinent to a possible claim by them against
the respondent
in terms of which it might be averred that the respondent was liable
to compensate them for contracting silicosis
whilst working on its
mines – respondent refusing to disclose on the grounds that
litigation had commenced and section 7(1)
of PAIA excused disclosure
on such ground
The
pending litigation was an application against the respondent and
several other companies alleging liability for their employees
contracting silicosis which actions or putative actions were the
subject of an application to consolidate all such claims into
one and
obtain certification thereof as a class action against all such
companies– the hearing in such certification application
had
not yet occurred but was imminent when the applicants case was heard
Neither
of the applicants was a plaintiff in the actions sought to
consolidated and be certified as a class action, but both were
members of the class sought to be certified – their attorney
was a leading attorney in the certification application –
the
disclosure was demanded on the grounds that it was needed to inform
their attorney of the circumstances relevant to the operations
of the
respondent so that he could prudently advise them whether or not to
claim damages against the respondent or join the class
action which
envisaged an opt out/ opt in mechanism and thus as contemplated by
section 50, the records were needed to protect
their rights
The
critical question was whether section 7(1) could apply to justify
non-disclosure –
Held
that section 7(1) did apply because, despite the applicants not
being cited parties in the certification application, they were by
virtue of their membership of the class sought to be certified,
implicated as interested parties
Held
That the usual meaning customarily attributed to ‘party’
as being a person cited in the legal proceedings could not be
the
meaning for the purposes of section 7 – certification
proceedings and the mechanics of class action litigation were yet
to
be addressed by the rules of court and hitherto judicially-driven
governance prevailed – the rules of court were antiquated
as
regards the concept of class actions and the concept of an interested
class implied that there would be persons who, although
uncited, were
de facto plaintiffs by reason of their membership of a designated
class – thus section 7 did not require that
the requester be a
cited party,
Held
That the concept of ‘proceedings’ in section 7 was not
confined to a specific proceedings initiated, typically, by a
summons
or by a notice of motion but to all litigious steps including
pre-summons applications, of which certification as a class
action
was one of several examples
Held
That on the facts, as regards the applicants need to satisfy the
section 50 requirement of ‘reasonably needing’ the
requested records, the application should fail as the avowed
rationale of needing the records to give advice as to sue or not was
not established, more especially as the applicants were in the
identical position of the several persons cited in the certification
applications and of the other members of the envisaged class in
respect of whom their attorney had axiomatically furnished precisely
such advice.
Held
That the application to compel disclosure be dismissed
SUTHERLAND
J:
Introduction
1.
The two
applicants seek, in this application, an order in terms of 82
[1]
of the Promotion of Access to information Act 2 of 2000 ( PAIA)
compelling the respondent to disclose specified information.
2.
The applicants are former employees of the respondent. They suffer
from silicosis. They contemplate an action to claim damages
from the
respondent based, among other grounds, on a failure to comply with
statutory safety standards. The respondent has refused
to disclose
the information. Two grounds are relied on to refuse, both expressly
provided for in PAIA.
3.
The first ground invoked to justify the refusal is that stipulated in
section 7(1):
“
(1) This Act does
not apply to a record of a public body or a private body if-
(a)
that record is requested for the purpose of criminal or civil
proceedings;
(b)
so requested after the commencement of such criminal or civil
proceedings, as the case may be; and
(c)
the production of or access to that record for the purpose referred
to in paragraph (a) is provided for in any other law.”
4.
As regards Section 7(1) the respondent contends that relevant
‘proceedings’ have commenced and the information
requested
is susceptible to discovery in terms of rule 35 of the
Rules of the High Court.
5.
The second ground invoked to justify refusal is that stipulated in
section 50(1):
“
(1) A requester
must be given access to any record of a private body if-
(a)
that record is required for the exercise or protection of any rights;
(b)
that person complies with the procedural requirements in this Act
relating to a request for access to that record; and
(c)
access to that record is not refused in terms of any ground for
refusal contemplated in Chapter 4 of this Part.”
6.
As regards section 50(1)(a) the respondents contend that the
applicants have not met the threshold of ‘requiring’
the
requested information.
The
context and history of the controversy
7.
The applicants are represented by attorney Richard Spoor. Mr Spoor
has achieved distinction in the field litigation over industrial
health and safety issues and, as these papers, and his public
reputation attest, he represents many thousands of workers who have
been diagnosed with silicosis, a lung destroying disease precipitated
by the inhalation of fine silica dust particles, experienced
chiefly
in mining operations. Mr Spoor’s wider role in litigation about
silicosis is specifically relevant to the present
controversy. The
deponent to the founding affidavit of the applicants is Mr Spoor.
8.
The applicants are said to have worked in the mines of the respondent
until August 2003 and March 2006 respectively, both being
dismissed
at those times on the grounds of medical incapacity, having
contracted silicosis.
9.
They instructed Mr Spoor on 14 September 2011 to pursue the prospects
of a damages action. Mr Spoor caused requests in terms
of PAIA to be
made to the respondent. The requests are dated 8 August 2013 and 14
September 2013. They were transmitted to the
respondent on 18
September 2013.
10.
The information requested includes personal information about the
applicants’ employment experiences and more general
information
about the mining operations, and their safety and health practises.
It was stated that the information was required
to investigate the
prospects of a suit against the respondent for damages. Mr Spoor
explains that he wishes to be placed in a position
to be able to give
prudent advice to the applicants, including, among other matters,
advice about bringing an action or not, and
if so, whether to join in
a class action, at present subject to a certification process, or opt
out, the two applicants being members
of the class sought to be
defined in the certification application.
11.
On 22 October 2013 the requests were refused by the respondent. The
letter that communicated the refusal reads thus:
“
We refer to your
request on behalf of Messrs Mahaeeane and Motlajsi for access to
records of AngloGold Ashanti Limited (“AGA”)
in terms of
section 53(1)
of the
Promotion of Access to Information Act, No. 2 of
2000
.
We hereby advise that
your clients are not entitled to be given access to the records, the
reason being the following:
1. The requests were
furnished to us under cover of a letter from you dated 18 September
2013;
2. Prior thereto on 21
August 2013, you served on our attorneys, ENS, on behalf of AGA the
application for the consolidation of
the certification of the class
actions previously instituted (Case No. 48226/2012, South Gauteng
High Court);
3. Messrs Mahaeeane and
Motlajsi are included in the group of persons on whose behalf the
above application for consolidation has
been brought;
4. Although the records
are requested for “civil proceedings” such records have
been requested after the commencement
of such proceedings.
In view of the above, the
Promotion of Access to Information Act does
not apply in this
instance. We refer in this regard to the provisions of
section 7(1)
of PAIA.
In view of the aforesaid
AGA is not prepared to give you and your client’s access to the
records in question.”
12.
The allusion in this letter to the consolidation of a class action
certification application, of which notice was served on
the
respondent on 21 August 2013, refers to an application which was
pending at the time this application was heard. It is brought
on
behalf of 56 individuals, all silicosis sufferers, against thirty two
of their several former or current employers, among whom
is the
respondent, who is the 11th respondent in that matter. Several
attorneys represent various applicants, of whom Mr Spoor
is one. Mr
Spoor is the ```deponent to the founding affidavit in that matter. A
draft of Particulars of Claim is annexed to the
application, upon
which, at least provisionally, if certification is granted, the claim
will be founded. Axiomatically, in such
an application, it is
necessary to demonstrate a triable claim, together with the propriety
of the modus of a class action. The
Founding affidavit of Mr Spoor
addresses the merits of the causes of action at length, in which he
alludes to a breach of statutory
health and safety regulations, a
breach of common law duties towards the employees and violation of
constitutional rights of the
proto-plaintiff class.
13.
The respondent’s deponent to the answering affidavit remarks
that Mr Spoor instituted a class action certification application
against several mining companies including the respondent as long ago
as December 2012. This is one of the matters now subject
to the
consolidation application referred to.
The
approach to decide the matter
14.
The
applicants are entitled to information requested from a private
entity only if they satisfy the provisions of
section 50(1).
An onus
rests on the applicants to establish, prima facie, that they
‘require’ the information.
[2]
If the applicants meet that test, the applicants shall be entitled to
the information unless
section 7(1)
applies to the subject matter of
the request. The onus is on the respondent in this latter regard.
[3]
15.
The respondent initially took the view that owing to the reliance by
the respondent on
section 7(1)
alone in its letter of refusal, cited
above, it was illegitimate to invoke other grounds. However, counsel
for the applicants indicated
from the bar that the parties wish both
the
section 7(1)
and the
section 50(1)
defences to be decided in
these proceedings. These grounds are dealt with together as the
pertinent facts and circumstances are,
to a significant degree,
intertwined.
What
is the Law?
16.
The right to demand information to exercise or protect a right, in
our law, derives from section 32 of the Constitution. The
portion
relevant to these parties is section 32(1)(b):
“
Everyone has the
right of access to …any information that is held by another
person and that is required for the exercise
or protection of any
rights”.
17.
Section 32(2) of the Constitution mandates the enactment of
legislation to give effect to the right. The function of PAIA is
to
do precisely that. However, it is not the only instrument of law that
can be invoked to give effect to that right; other laws
also give
effect to it; eg, the Rules 35, 38, and 53 of the Rules of Court, of
which Rule 35 which deals with discovery and perhaps
Rule 38 which
deals with the subpoena of evidence are specifically pertinent to
this dispute. Other laws which enable access to
information to
protect rights, include, by way of illustration, provisions of the
Promotion of Administrative Justice Act (PAJA).
18.
Predictably, the provisions of section 50(1)(a) of PAIA expresses the
right in identical phraseology to that of the Constitution.
The locus
of debate about entitlement by a requester is in the term ‘required’.
Understandably, the term in this section
has been intensely
scrutinised by the courts. What has emerged from the judgments is a
guarded jurisprudence, disavowing both timidity
and overreach.
19.
In Unitas
Hospital v Van Wyk & Ano
[2006] ZASCA 34
;
2006 (4) SA 436
(SCA) at
[15]
–
[18] Brand JA collected the authorities on the meaning of ‘require’.
The information must be ‘reasonably
required’ in the
sense of being of assistance providing a substantial advantage to the
requester. What is required to interpret
‘required’ is an
ad hoc
enquiry ultimately dictated by the specific circumstances. In my
view, purposively interpreted, it must be asked what ought to
happen
to fulfil the promise guaranteed by section 32 of the Constitution,
moderated, as always, by the provisions of section
36 of the
Constitution.
[4]
20.
What information is ‘required’ is a distinct question
from ‘how’ a person obtains it; in the latter
regard,
section 7 of PAIA is a brake on the apparatus of PAIA: ie, if you can
get the information through another legal channel
you cannot invoke
PAIA, however much you satisfy the norm of ‘required’ in
section 50(1)(a).
21.
The deference which PAIA shows to other means of obtaining
information, is vividly illustrated in those judgments which
make plain that PAIA remedies are not to have any impact on the
process of information disclosure in litigation, and that where,
typically, the rules of discovery and of subpoena apply, PAIA has no
place. The most forthright of those judgments is Unitas Hospital
v Van Wyk (Supra) which railed at the idea of early
pre-litigation discovery.(at paras [19] – [21]) Brand JA
went
on to qualify his remarks deploring illicit early discovery, holding
( at [22] – [23]) that when an application to disclose
under
PAIA that has the effect of pre-litigation discovery, it is to be
examined with care, because such an impact on the litigation
process
is to be regarded as appropriate only in exceptional circumstances.
As in his more general remarks about the facts dictating
what is
‘required,’ the utility of the specific information must
be examined to decide the question; for example, a
requirement to
identify the correct defendant, as distinct from other purposes
related to the merits of the cause of action, was
identified as a
quintessential justification for ‘requiring’ the
requested information.
22.
In determining the meaning that must be attributed to section 7(1),
several subsidiary questions arise about the phraseology.
None of the
critical terms used in the section are defined in PAIA.
22.1. First, what meaning
must be assigned to the term ‘commencement of such
….proceedings’?
22.2. Second, because the
request must be for the ‘purpose’ of ‘such’
proceedings, if the request ‘formally’
is for other
‘proceedings’ not yet ‘commenced’ can the
request be construed to be,
de facto
, for ‘such’
already commenced proceedings, if the information is also relevant
thereto? How broadly must ‘purpose’
in this context be
construed?
22.3. Third, must the
requester be a cited party to the proceedings so commenced, or is
there room for a non-party; the term “party’
being taken
to mean, in the strict sense, a person who is named as a litigant on
the pleadings or in the application? For example,
can it include, in
this context, a person who wants to intervene, or wants to join as a
third party, or a person who wants to resist
being joined, or a
person who wants to participate as an amicus, or, most pertinently to
this controversy, a person who is a member
of a designated class in a
class action, or a putative member of such a class still subject to
certification?
The
Respondents Contentions
23.
The respondent’s essential thesis is this:
23.1. It is common cause
that the two applicants/ requesters are members of the class in
respect of which the certification application
has been instituted.
Their membership of that class means that they shall be beneficiaries
and as such, ‘participants’
(a neutral term) in those
proceedings. The section does not expressly address what relationship
a requester has to have to a commenced
proceeding, if any. Assuming a
link is required, it would be, typically, as a cited party, but a
sufficient link exists if the
requester is a member of the class in a
class action in proceedings to obtain certification. The prospect of
the requesters opting
out of the class action later cannot serve to
exclude their involvement.
23.2. The term
‘commencement of proceedings’ is not limited to the
service of a summons or a notice of motion. Litigious
steps
preparatory to the issue of a summons ought to be regarded as part of
one continuous process or proceedings. Accordingly,
the certification
proceedings, notwithstanding the tentative nature thereof,
constitutes proceedings which have indeed commenced
and shall include
the action, when the summons is, ultimately, served. Thus,
‘commencement of proceedings’ is broader
than; eg, the
‘commencement of an action’, which axiomatically, could
only be signalled by the issue of, or service
of, a summons.
23.3. As to the request
having to be for ‘such’ proceedings, despite prima facie,
the request being for other prospective
proceedings, a realistic
appreciation of the factual circumstances in this case points to a
stratagem to circumvent the section
7(1) limitation on such a
request. In other words, the request is,
de facto,
for the
purpose of the commenced (certification) proceedings, despite the
façade of other individualised proceedings by
the applicants
being said to be under consideration. Among the facts relevant
to such an inference being drawn, is the role
of Mr Spoor, who is
ubiquitous in his representative capacity, and who has already
advised, so his affidavits show, many other
plaintiffs or
proto-plaintiffs in the certification application, and other members
of the class sought to be certified, whose causes
of action are
indistinguishable from the causes of action contemplated by the two
applicants. He has advised those persons that
they have a viable
case, thereby rendering implausible the
ipse dixit
that the
request on behalf of the two applicants is genuinely ‘required’
within the meaning attributed to that term
for the alleged purposes.
The
Applicants’ Contentions
24.
The applicant’s riposte is to address the controversy in a
wholly different way.
25.
The essence of the applicants’ thesis is that section 32 of the
Constitution and section 50(1) and section 7(1) of PAIA
are concerned
to confer rights on individual persons. Once this thread is grasped,
it is argued, the exercise of such a right to
information ought not
to be trumped by considerations which are not directed at the
promotion of the rights of the individual.
Should it occur,
fortuitously, that the exercise of such a right, has also, an impact
on other persons, or on other issues, or
give rise to anomalies,
those outcomes ought not to have an effect of disturbing the exercise
of the right.
26.
Thus, runs the argument, the mere fact that the disclosure of the
information requested could be helpful in another case, is
not a
reason to refuse it. In the present case, the provisions of section 7
do not snooker the two applicants merely because of
their eligibility
to benefit from the class action, if ultimately certification is
obtained. No proper rationale exists, it is
argued, to put a judicial
gloss on the notion of ‘commencement of proceedings’,
because only a party, in the proper
sense of that term, can call for
discovery under rule 35, and hence a summons ought to be the
definitive outward signal of ‘commenced’
proceedings for
these purposes, if not for all. Understood from this perspective,
there is no justification for nursing a belief
that Mr Spoor has
artfully manipulated the legalities to procure that to which the two
applicants are not, at present, entitled.
An
analysis of the controversy
27.
The text of
section 7 (1) needs to be closely interpreted. What does the phrase
“commencement of such…… proceedings
‘mean?
The crucial dimension of interpreting a term is to capture the whole
phrase and not isolate a seemingly prominent
word.
[5]
It is the meaning of ‘commencement of such…..proceedings’
as a whole that must be given meaning.
28.
A ‘commencement’ is, sure enough, an outward and visible
act that marks a beginning of something, but what is the
substance of
a commencement? Is the issue of, or perhaps, the service of, a
summons or of an application the only meaning,
in this context
,
of ‘commencement of proceedings’? If that is what is
intended by the section, why not stipulate precisely that in
the
section? Perhaps the reason is that there is indeed, sometimes,
an earlier step than a summons which is properly to be
acknowledged
as a ‘commencement of such……proceedings’.
For example, an application to found jurisdiction
through attachment
of an asset of a peregrine must precede a summons; also, an
application to appoint a curator
ad litem
, axiomatically, must
precede a summons. Lastly, an application to certify a class action
must precede a summons.
29.
The word
‘proceedings’ is, like ‘commencement,’ not a
term with an immutable narrow meaning. A ‘piece
of litigation’
starting with a summons and ending when the
dies
for an
appeal expire is (or are) ‘proceedings.’ In the context
of section 7, bearing its function in mind, there is
no reason to
suppose that ‘proceedings’, in this context, should not
mean a series of related ‘proceedings’
each building upon
the former, in pursuit of an ultimate judgment.
[6]
In PFE International & Others v Industrial Development
Corporation of South Africa Ltd 2013 (1) SA1 (CC) at [18] Jafta J
held
that section 7 of PAIA should be restrictively interpreted
because its purpose was to fulfil constitutional guarantees. In my
view,
to understand and give effect to the degree of generality
intrinsic in the phrase “commencement of such ….proceedings’,
does not offend that requirement because a wider meaning is
functional to the purpose of excluding PAIA from impacting on the
litigation process. The phrase is not, obviously, limited to a single
action or application, but applies to proceedings which are
triggered
by any litigious step that might involve successive pieces of
litigation, interlocutory or otherwise, perhaps even parallel
proceedings too, in pursuit of the ultimate relief.
Accordingly, insofar as the present case is concerned, an application
to certify a class action, albeit such proceedings seeks no final
relief, and has as yet no true plaintiffs because no summons
has yet
been issued or served, in my view, constitutes ‘proceedings’
which have commenced.
30.
The word “such” must not be overlooked. Its role might
seem minor but it is certainly important. Its function is
to link the
proceedings in question with the
purpose
for which the request
is made. The section does not prescribe that a request must
necessarily, formally identify ‘such’
proceedings
per
se
; rather, the ‘purpose’ of the request ought to be
for some form of engagement in ‘such’ proceedings. By
this it must be understood that the information procured is to be
used in relation to the participation of a person in ‘such’
proceedings. This consideration, in my view, calls for an objective
test for the establishment of the relevant linkage rather than
a
mechanical search for an expressed linkage. Participation in
proceedings can be a role which is broader than as a cited party.
31.
As alluded to above, two major themes have dominated the
jurisprudence hitherto. First, PAIA is not to be used to interfere
with litigation. Second, PAIA is not to be used to obtain early
discovery; ie pre-litigation discovery, except in truly exceptional
circumstances. Both these themes address the
effects
of the
invocation of PAIA, rather than the
animus
with imbues the
decision to make a request. In other words, it is the effect, rather
than the motivation, that ought to determine
the approach to
evaluation of a PAIA request.
32.
In my view, the applicants’ membership of the envisaged class
matters a great deal in this context. But for the accident
(or
contrivance for that matter) of the applicants not being a named as
‘representative plaintiffs’ in the certification
application, there is little that might be argued to suggest section
7(1) would not be applicable to the two applicants request.
Despite
not being ‘parties ‘in the formal sense, because it is
their rights which are to adjudicated the notion that
they may be
regarded as strangers to ‘such proceedings’ is untenable.
33.
Class
actions are at this time still a novelty in our courts. How to deal
with the logistics has not, despite earnest efforts, received
appropriate legislative attention to supplement section 38(c) of the
Constitution, which section established the propriety of such
proceedings in our law.
[7]
The
manner of managing class action has thus, hitherto, been judicially
driven. The decision in Children’s Resource Centre
v Pioneer
Food (Pty) Ltd & Others
2013 (2) SA 213
(SCA) has prescribed the
way that the courts will entertain such cases. There, Wallis JA
remarked at [15]:
“
The South African
Law Commission, in line with many other jurisdictions to which we
have been referred, proposed that the procedures
applicable to class
actions be prescribed by statute, and to that end prepared a draft
Bill. However, Parliament has not yet acted
on its recommendations or
those of a judicial commission of enquiry which made a similar
recommendation. Academic voices
over many years have likewise
not been heard. The utility of a class action in certain
circumstances is clear. We are thus
confronted with a situation
where the class action is given express constitutional recognition,
but nothing has been done to regulate
it
. The courts must
therefore address the issue in the exercise of their inherent power
to protect and regulate their own process
and to develop the common
law in the interests of justice
. This may on some occasions
involve us, and courts that will follow the guidance we give, in
having to devise ad hoc solutions
to procedural complexities on a
case-by-case basis — a possibility referred to by the Supreme
Court of Canada — but
the failure to pass appropriate
legislation dealing with this topic leaves us little alternative in
the face of the constitutional
endorsement of class actions. In what
follows we will give guidance as to the approach to be adopted in
these cases. But first
it is necessary to have clarity as to the
essential nature of a class action.” (Emphasis supplied)
34.
In response to the need to regulate the logistics, Wallis JA held
further:
“
[23] All of the
parties accepted that it is desirable in class actions for the court
to be asked at the outset, and
before issue of summons, to certify
the action as a class action.
This involves the definition of the
class; the identification of some common claim or issue that can be
determined by way of a class
action; some evidence of the existence
of a valid cause of action; the court being satisfied that the
representative is suitable
to represent the members of the class; and
the court being satisfied that a class action is the most appropriate
procedure to adopt
for the adjudication of the underlying claims. In
my view they were correct to do so and
we should lay it down as a
requirement for a class action that the part
y
seeking to
represent the class should first apply to court for authority to do
so.
My reasons for adopting that requirement are the following.
[24] Most jurisdictions
around the world require certification either before institution of
the class action or at an early stage
of the proceedings. The
exception is Australia. The justifications are various
. First, in
the absence of certification, the representative has no right to
proceed, unlike litigation brought in a person's own
interests
.
Second, in view of the potential impact of the litigation on the
rights of others it is necessary for the court to ensure at the
outset that those interests are properly protected and represented.
Third, certification enables the defendant to show at an early
stage
why the action should not proceed. This is important in circumstances
where the mere threat of lengthy and costly litigation
may be used to
induce a settlement even though the case lacks merit. Fourth,
certification enables the court to oversee the procedural
aspects of
the litigation, such as notice and discovery, from the outset. Fifth,
the literature on class actions suggests that,
if the issues
surrounding class actions, such as the definition of the class, the
existence of a prima facie case, the commonality
of issues and the
appropriateness of the representative are dealt with and disposed of
at the certification stage, it facilitates
the conduct of the
litigation, eliminates the need for interlocutory procedures and may
hasten settlement. Lastly the Australian
experience has not proved
entirely satisfactory, with numerous interlocutory applications and
significant costs and delays being
experienced.” (Emphasis
supplied)
35.
From these passages, it is plainly obvious why the
Rules of court
do not, at least yet, expressly address the mechanics of class
actions. Understandably, if a class action is to find purchase
in our system of litigation it must pass through the gate of
certification. In my view, it is plain that the step of applying for
such certification must accordingly be regarded at the commencement
of any class action consequently instituted by way of a summons.
It
is a jurisdictional prerequisite, obtainable only through a litigious
process culminating in a judicial decision.
36.
Doubtless, because of the novelty, as class actions travel through
the process of litigation, several more logistical issues
will emerge
and call for a pragmatic judicial response. One of these issues is
hinted at by the applicant’s contention that
because, under the
rules of court, discovery can only be obtained by a cited party, the
certification proceedings cannot count
as an event addressed by
section 7; ie proceedings. This perspective is inappropriate in
a context in which quite literally
tens of thousands of members of a
class are involved as beneficiaries in a class action, including the
two applicants. Formal discovery
may be compelled by the
representative plaintiffs (in due course) and it would be fanciful to
imagine that such process of discovery
is not tantamount to discovery
on behalf of all beneficiaries, including the two applicants. To
ignore that dimension and invoke,
mechanically, the Rules of court
as, at present framed, bereft of context, is simply inappropriate.
Again, In PFE International
(Supra) at [27] Jafta J was at pains to
articulate that a generous interpretation of the Rules of court was
the correct approach
in order to ensure that the Rules fulfilled
their purpose, ie to facilitate effective and fair litigation.
37.
The notion
that the Rules of court cannot be used to procure information until
late in the proceedings has already been dispatched
by the decision
in PFE International (Supra) which has held that Rule 38 Subpoenas
are available during the trial preparation phase,
and need not wait
until set down.
[8]
38.
Turning to the facts of the present case, it is inescapable that the
possible or actual causes of action upon which the two
applicants
might seek advice and, if so advised, to rely upon, in an
action for damages are indeed indistinguishable from
the possible or
actual causes of action of the persons who are proto-plaintiffs in
the certification application. Moreover, Mr
Spoor, having indeed
advised the many others to sue, must have, by his own lights, have
concluded that there are prospects of a
viable case for each of those
persons. The respondent, understandably, contends that if he was able
to reach that conclusion in
their cases by the application of mind,
professionally and diligently, what can he validly contend he lacks
to similarly advise
the two applicants, professionally and
diligently?
39.
The answer, in my view, is that nothing more is reasonably
‘required’. A curious, though not too strained, a
comparison
might be made between the circumstances of the supposed
need expressed by Mrs Van Wyk in Unitas v Van Wyk, who demanded
disclosure
of a report authored by Dr Naude, who was already advising
her, and the applicants’ request, having regard to their
attorney’s
involvement in advising other persons, in an
identical position to them, to require more information than already
possessed by
Mr Spoor, in order for them (but apparently none of the
thousands of others) to adequately instruct Mr Spoor to give them
advice
addressing the prospect of the very litigation in respect of
which Mr Spoor had advised so many others. In my view, just as
Mrs Van Wyk’s reasonable ‘requirements’ could be
met by means other than a PAIA request, likewise, in relation
to the
purposes for which Mr Spoor deposes to ‘require’ the
information requested, he already has enough information
to give the
requested advice, and the PAIA request, on the facts, does not clear
the section 50(1) threshold of being reasonably
required as the
purpose for which it is claimed because that purpose has already been
achieved, albeit at the generic level.
40.
The
applicants’ case invites me to ignore the relevance of
proceedings which have commenced in pursuit of the very same aim
as
the applicants’ say they ultimately seek, in separate
proceedings, notwithstanding that they are beneficiaries as members
of the class and, in the face of those circumstances, I should
conclude that section 7(1) could not contemplate un-suiting them
in a
PAIA request for information relevant to those certification
proceedings. In my view, the facts I have described illustrate
the
absurdity of such an outcome. A court will not tolerate absurdity in
interpreting an instrument.
[9]
41.
In my view the applicants request is trumped by section 7(1) because
the purpose of the request is pertinent to proceedings
which have
commenced in respect of which the applicants have a material interest
as members of the class sought to be defined and
certified. The
respondent acted appropriately by invoking the section to refuse
disclosure to the applicants, which would have,
in the face of those
circumstances, amounted to an early discovery of the type which Brand
JA in Unitas Hospital v Van Wyk (Supra)
held was inappropriate.
42.
Accordingly, to sum up, in my view:
42.1. Section 7 (1) does
not require a requester to be a cited party in proceedings.
42.2. Section 7(1) does
not prescribe that the request must formally identify the commenced
proceedings, and thus whether or not
a request is for the purpose of
given proceedings is an objective fact and shall not be determined by
the peculiarity of the articulation
of a request.
42.3. The term
‘Proceedings’ in section 7(1) includes all litigious
steps in pursuit of certain relief, including steps
taken before the
issue or service of summons or the issue or service of an
application.
42.4. Persons who are
members of a class sought to be certified for the institution of a
class action, who make a PAIA request,
are not distinguishable, for
the purposes of section 7(1), from the representative
proto-plaintiffs cited as applicants in a certification
application.
42.5. Persons who are
members of a class, sought to certified for a class action, who
ostensibly, for the purpose of individual
proceedings distinct from
the contemplated class action, make a PAIA request, are by reason of
their membership of that class,
not entitled to the requested
information because it would constitute an illegitimate early
discovery, in relation to the class
action as contemplated, which
would undermine the litigation process, and, as such, a refusal
to disclose by the person requested
to do so, would be justifiable in
relation to the threshold prescribed by section 50(1) (a).
42.6. On the facts, the
applicants do not reasonably ‘require’ the requested
information as contemplated in section
50(1)(a) for the purpose of
obtaining advice from Mr Spoor about their litigious aspirations.
The
Order
43.
The application is dismissed with costs, including the costs of two
counsel.
________________________________
Roland
Sutherland
Judge
of the High Court,
Gauteng
Local Division,
Johannesburg.
Hearing:
10 September 2015
Judgment:
6
October 2015
For
the Applicants:
Adv
Andy Bester, with Adv Riaz Itzkin,
Instructed
by Richard Spoor Inc.
For
the Respondent:
Adv
Paul Kennedy SC, with him Adv Ian Currie,
Instructed
by Edward Nathan Sonnenbergs Inc.
[1]
Section 82 of PAIA provides:
“
The court hearing
an application may grant any order that is just and equitable,
including orders-
(a) confirming, amending
or setting aside the decision which is the subject of the
application concerned;
(b) requiring from the
information officer or relevant authority of a public body or the
head of a private body to take such action
or to refrain from taking
such action as the court considers necessary within a period
mentioned in the order;
(c) granting an
interdict, interim or specific relief, a declaratory order or
compensation;
(d) as to costs; or
(e) condoning
non-compliance with the 180-day period within which to bring an
application, where the interests of justice so require.”
[2]
Claase v Information officer, South African Airways
2007 (5) SA 469
(SCA) at [6] and [8].
[3]
Section 81(3) (a) of PAIA.
[4]
Section 36 of the Contsitution provides:
(1) The rights in the
Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including-
(a) the nature of the
right;
(b) the importance of
the purpose of the limitation;
(c) the nature and
extent of the limitation;
(d) the relation between
the limitation and its purpose; and
(e) less restrictive
means to achieve the purpose.
(2) Except as provided
in subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched
in the Bill of Rights.
[5]
Wallis JA in Natal joint Municipal Pension Fund Endumeni
Municipality 201`2(4) SA 593 (SCA) at [18] – [26]; esp [25]
and [26]:
“
[25] Which of the
interpretational factors I have mentioned will predominate in any
given situation varies. Sometimes the language
of the provision,
when read in its particular context, seems clear and admits of
little if any ambiguity. Courts say in such
cases that they adhere
to the ordinary grammatical meaning of the words used. However, that
too is a misnomer. It is a product
of a time when language was
viewed differently and regarded as likely to have a fixed and
definite meaning; a view that the experience
of lawyers down the
years, as well as the study of linguistics, has shown to be
mistaken. Most words can bear several different
meanings or shades
of meaning and to try to ascertain their meaning in the abstract,
divorced from the broad context of their
use, is an unhelpful
exercise. The expression can mean no more than that, when the
provision is read in context, that is the
appropriate meaning to
give to the language used. At the other extreme, where the context
makes it plain that adhering to the
meaning suggested by apparently
plain language would lead to glaring absurdity, the court will
ascribe a meaning to the language
that avoids the absurdity. This is
said to involve a departure from the plain meaning of the words
used. More accurately it is
either a restriction or extension of the
language used by the adoption of a narrow or broad meaning of the
words, the selection
of a less immediately apparent meaning or
sometimes the correction of an apparent error in the language in
order to avoid the
identified absurdity.
[26] In between these
two extremes, in most cases the court is faced with two or more
possible meanings that are to a greater
or lesser degree available
on the language used. Here it is usually said that the
language is ambiguous, although the only
ambiguity lies in selecting
the proper meaning (on which views may legitimately differ). In
resolving the problem, the apparent
purpose of the provision and the
context in which it occurs will be important guides to the correct
interpretation. An interpretation
will not be given that leads to
impractical, unbusinesslike or oppressive consequences or that will
stultify the broader operation
of the legislation or contract under
consideration.” ( footnotes omitted)
[6]
See, eg, Goldfields Ltd & Others v Motley Rice
LLC
2015 (4) SA 299
(GJ) per Mojapelo DJP at [13][ and [144].
[7]
Section 38 of the Constitution provides:
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are-
(a) anyone acting in
their own interest;
(b) anyone acting on
behalf of another person who cannot act in their own name;
(c) anyone acting as a
member of, or in the interest of, a group or class of persons;
(d) anyone acting in the
public interest; and
(e) an association
acting in the interest of its members.
[8]
See PFE International , eEsp at [29] – [31] per Jafta JA:
[29] The statement
quoted above demonstrates some of the anomalies brought about by the
literal construction of rule 38. It is
difficult to imagine how a
party that is still to have access to a document can positively tell
that a document would definitely
be tendered as evidence at the
trial. It seems to me that access must precede the formulation of an
opinion regarding whether
a particular document would have any
evidential value at the trial. Limiting the scope of the rule to
documents that are to be
tendered as evidence and persons who are
going to testify results in an absurdity. Furthermore, the literal
construction would
also lead to the application of PAIA and rule 38
to the same case, depending on the stage of the proceedings. PAIA
would apply
before the trial date is set and rule 38 afterwards.
[30] Since the rules are
made for courts to facilitate the adjudication of cases, the
superior courts enjoy the power to regulate
their processes, taking
into account the interests of justice. It is this power that makes
every superior court the master of
its own process. It enables a
superior court to lay down a process to be followed in particular
cases, even if that process deviates
from what its rules prescribe.
Consistent with that power, this court may in the interests of
justice depart from its own rules.
[31] It is the
flexibility of the interpretation and application of the rules of
court that affords the applicants access to the
same documents they
sought under PAIA. In some cases a mechanical application of a
particular rule may lead to an injustice.
For example, the Supreme
Court of Appeal issued directions dated 28 February 2011 in terms of
which parties are given permission
to deliver applications for leave
to appeal to the registrar of that court, even if some documents
required by its rules are
outstanding. These directions also
excuse parties from lodging for condonation for not complying with s
21(2) of the Supreme
Court Act, regarding the period within which an
application for leave should be submitted to the court. It is
therefore necessary
for courts to have the power to adjust the
application of rules to avoid injustices. Moreover, the court rules
are tailored to
facilitate introduction and management of cases
under the courts' supervision. I agree with the Supreme Court of
Appeal that
allowing PAIA to apply in cases such as this would be
disruptive to court proceedings.” (Footnotes omitted)
[9]
Eg, SATAWU & Another v Garvas
2013 (1) SA 83
(CC) per Moegoeng CJ at [37] and [144].