Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Before: Acting Justice Cockrell
Date of hearing: 7 February 2024
Date of judgment: 9 February 2024
Case No: 11890/2022
PAUL FREDERIK LOUBSER (SNR) N.O. First Applicant
FREDERIK HENDRIK LOUBSER N.O. Second Applicant
HAYWARD LOUBSER N.O. Third Applicant
WILHELMINA MARSHALL N.O. Fourth Applicant
PAUL FREDERICK LOUBSER N.O. Fifth Applicant
UZELL LOUBSER N.O. Sixth Applicant
(in their capacities as trustees for the time being of the Paul Loubser Trust)
and
VODACOM (PTY) LTD Respondent
2
JUDGMENT
Judgment delivered by email to the parties’ legal representatives and by release to SAFLII.
COCKRELL AJ:
Introduction
[1] The applicants are the trustees of the Paul Loubser Trust (“the Trust”).
[2] In 2005, t he Trust concluded a written agreement (“the Lease”) with the respondent
(“Vodacom”) in terms of which the Trust leased immovable property to Vodacom. The
Lease permitted Vodacom to install on the property various items of infrastructure that
are commonly used for purposes of radio telecommunications. I shall refer to the
infrastructure as “the Mast”.
[3] The subject matter of the Lease was the property (“die perseel/gebou”) rather than the
Mast. Vodacom was entitled to install the Mast at its own cost.
[4] The Lease was extended. It ultimately expired by effluxion of time on 30 June 2020.
[5] It is common cause that Vodacom continued to occupy the leased premises after 30
June 2020 by virtue of the fact that the Mast was not removed.
3
[6] The Trust believes that Vodacom kept the Mast operational after 30 June 2020 without
paying rent. The Trust says that it intends to sue Vodacom for its continued use of the
property after 30 June 2020. The Trust has not yet instituted legal proceedings.
[7] In 2022, the Trust lodged a request for access to the records of Vodacom in terms of
the Promotion of Access to Information Act 2 of 2000 (“the Act”). Although the
incorrect form was attached to the founding affidavit, it is common cause that a request
was lodged in terms of Part 3 of the Act, which deals with access to the records of
private bodies.1 That request was declined by Vodacom.
[8] The Trust has now applied to this Court in terms of section 78 of the Act for
“appropriate relief” as contemplated in section 82 . The Trust seeks an order directing
Vodacom to make available the documents listed in paragraphs 1.1 to 1.10 of the notice
of motion.
[9] Vodacom opposes the main application. Its only basis for opposition is that the Trust
has not shown that the requested documents are required for the exercise or protection
of a right. Vodacom also lodged a counter-application directed at allowing it to remove
the Mast and ancillary equipment.
The main application
[10] Insofar as relevant for present purposes , section 78(2)(d) of the Act provides that a
requester aggrieved by a decision of a private body to refuse a request for access, may
“apply to a court for appropriate relief in terms of section 82”. Section 82, in turn,
1 Annexure TTMK1 to the replying affidavit.
4
provides that the court hearing such an application “may grant any order that is just and
equitable”.
[11] The juristic nature of an application in terms of section 78 of the Act was considered in
Transnet Ltd v SA Metal Machinery Co (Pty) Ltd 2006 6 SA 285 (SCA). There the
Supreme Court of Appeal held that the legislature intended the issues “to be visited
anew by the court hearing a section 78 application”.
2
[12] It follows that the present application does not amount to a review of, or appeal against,
the decision of Vodacom to refuse access to the requested records. It is rather “a civil
proceeding like any motion matter, in the course of which both sides … are at liberty
to present evidence to support their respective case for access and refusal”.
3 There is
accordingly no merit in Vodacom’s argument that the Trust could not elaborate in its
founding affidavit on the somewhat terse allegations contained in the original request
for access to the records.
[13] In order to succeed in the present application, the applicants have to establish as a
threshold requirement that the requested records are “required for the exercise or
protection of any rights” .4 This is a requirement that applies in the case of private
bodies but not in the case of public bodies . It derives from section 32(1)(b) of the
Constitution.
[14] The meaning of the threshold requirement was considered in Clutchco (Pty) Ltd v Davis
2005 3 SA 486 (SCA) para 13. There Comrie AJA held as follows:
2 Para 26
3 Para 24.
4 Section 50(1)(a) of the Act.
5
“… ‘required’ does not mean necessity, let alone dire necessity. I think that
‘reasonably required’ in the circumstances is about as precise a formulation as
can be achieved, provided that it is understood to connote a substantial
advantage or an element of need. It appears to me, with respect, that this
interpretation correctly reflects the intention of the Legislature in section
50(1)(a).” (my underlining)
[15] This approach has been confirmed by the SCA in subsequent cases5 and also by the
Constitutional Court.6
[16] In short, a requester must show that the requested record is reasonably required for the
exercise or protection of a right. It is not sufficient for the requester merely to show
that the requested record would be of some assistance to it.
[17] How does this t hreshold requirement operate in the case of pre -action discovery? In
other words, to what extent may a potential litigant use the Act in order to invest igate
whether it has a cause of action before initiating litigation?7
5 See, for example, Unitas Hospital v Van Wyk 2006 4 SA 436 (SCA) paras 17 and 18; Company
Secretary, ArcelorMittal South Africa Ltd v Vaal Environmental Justice Alliance 2015 1 SA
515 (SCA) para 50; Claase v Information Officer, South African Airways (Pty) Ltd 2007 5 SA
469 (SCA) para 9.
6 My Vote Counts NPC v Speaker of the National Assembly 2016 1 SA 132 (CC) para 31.
7 Once the litigation is instituted, section 7(1) is triggered. It provides as follows:
“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.”
6
[18] The SCA has considered this question in a series of judgments:
18.1. In Unitas Hospital v Van Wyk 2006 4 SA 436 (SCA), Brand JA held as follows:8
“[21] …. I do not believe that open and democratic societies would
encourage what is commonly referred to as ‘fishing expeditions’ which
could well arise if s 50 [of the Act] is used to facilitate pre -action
discovery as a general practice ….. Nor do I believe that such a society
would require a potential defendant, as a general rule, to disclose his or
her whole case before any action is launched. The deference shown by
s 7 [of the Act] to the rules of discovery is, in my view, not without
reason. These rules have served us well for many years. They have their
own built-in measures of control to promote fairness and to avoid abuse.
Documents are only discoverable if they are relevant to t he litigation
while relevance is determined by the issues on the pleadings. The
deference shown to discovery rules is a clear indication, I think, that the
legislature had no intention to allow prospective litigants to avoid these
measures of control by compelling pre-action discovery under s 50 as a
matter of course.
[22] I hasten to add that I am not suggesting that reliance on s 50 is
automatically precluded merely because the information sought would
eventually become accessible under the rules of discovery, after
proceedings have been launched. What I do say is tha t pre -action
discovery under s 50 must remain the exception rather than the rule; that
it must only be available to a requester who has shown the ‘element of
need’ or ‘substantial advantage’ of access to the requested information,
referred to in Clutchco, at the pre -action stage. An example of such a
case is, in my view, to be found in Van Niekerk v Pretoria City
Council (supra), upon which considerable reliance was placed by the
court a quo ….. The point is, however, that the facts of that case were
materially different. Van Niekerk had a report by experts who did not
identify who was responsible for the damage to his equipment (848C).
The City Council, on the other hand, relied on a report which apparently
exonerated it from responsibility (848F-G). Quite understandably, in the
8 Cloete JA agreed with “the reasoning and conclusion” of Brand JA (para 50). Conradie JA
agreed with Brand JA and Cloete JA, but on narrower grounds. Harms JA concurred with
Conradie JA and Cloete JA. Cameron JA dissented.
7
circumstances, Van Niekerk’s allegation was that without the report
relied upon by the City Council, he was unable to establish whether it
could be held liable (848H-I). Though I think it is legitimate to use s 50
to identify the right defendant, I do not agree with the court a quo’s
thesis that one is entitled, as a matter of course, to all information which
will assist in evaluating your prospects of success against the only
potential defendant. On that approach, the more you know the better you
will be able to evaluate your chanc es against your opponent. The
corollary of this thesis therefore seems to be that the requester will in
effect always be entitled to full pre -action discovery. The dicta by
Cameron J in Van Niekerk referred to by the court a quo (see para [14]
above) cannot legitimately be relied upon in support of its thesis.”
18.2. In Claase v Information Officer, South African Airways (Pty) Ltd 2007 5 SA
469 (SCA), Combrinck AJA revisited the issue:
“[9] The next question is whether access to the record sought is
‘required’ for the protection of the right…..
The substantial advantage in this matter consists in the fact that the
contents of the record would be decisive. ( Unitas para [54]) ie they
would bring a short sharp end to the dispute ( Van Niekerk v Pretoria
City Council 1997 (3) SA 839 (T) at 848G.) They would either confirm
the appellant’s contentions in which event SAA would apparently have
no defence, or they would support the latter’s case in which event the
appellant would obviously, as his counsel said in argument, not proceed
with the proposed litigation. SAA’s reluctance to produce the document
in these circumstances is inexplicable.”
18.3. In Mahaeeane v Anglogold Ashanti Limited 2017 6 SA 382 (SCA), the majority
of the SCA held as follows:
“[19] In this regard, the draft particulars of claim (the particulars)
annexed to the certification application achieve prominence. The
substantive part runs to over 65 pages, although approximately half of
8
these deal with the asbestosis claim which does not apply to the
appellants. They set out in detail, over nearly three pages, what the
respondent ‘knew, or ought reasonably to have known’ about the harm
of being exposed to silica dust and the manner in which silicosis can be
prevented. Arising from that knowledge, the duties of the respondent are
pleaded, including statutory duties, the common law duty of care and
constitutional obligations. These run to over four pages. The particulars
go on to plead the basis on which the class action members aver that the
respondent breached its statutory duties. These refer in detail to
legislation and specific conduct which fell short of the statutory
requirements. These breaches run to some 18 pages. Strict liability under
the statutes is then pleaded and, in the alternative, a negligent breach of
duties which is said to give rise to delictual liability. The particulars go
on to plead breaches of the common law duty of care which the class
members contend were owed to t hem by the respondent. These run to
some nine pages. The alleged breach of constitutional duties is then
pleaded running to one page and incorporating conduct pleaded in
paragraphs 112 to 138 comprising some 35 pages. The particulars then
plead the causal connection between the silicosis contracted and the
actionable conduct of the respondent. From all of this it can be seen that
the appellants are clearly in a position to formulate their claim.
[20] The above deals with the question of whether the records are
reasonably required to exercise or protect the right asserted by the
appellants, to claim damages from the respondent from their having
contracted silicosis. As indicated, a right to claim d amages is invoked.
This will necessitate court proceedings. It is necessary to avoid the
unwelcome spectre of applications under the PAIA being brought to
obtain premature discovery. It seems to me that a rule of thumb which
will avoid this is to enquire whether, in the context of future litigation to
exercise the right relied on, the records requested are reasonably
required to formulate a claim. This seems to me to have been the implicit
test applied in Unitas Hospital. If needed to formulate a claim, it can be
said that they are reasonably required under s 50(1) of the PAIA. As I
have said, the appellants do not need the requested records to formulate
their claim.” (my underlining)
[19] In my view, the SCA judgments establish the following principles when the Act is used
for pre-action discovery:
19.1. Once an action is commenced, the normal rules of discovery apply. Since the
rules of discovery “have their own built -in measures of control to promote
fairness and to avoid abuse”, prospective litigants may not “avoid these
9
measures of control by compelling pre-action discovery under s 50 [of the Act]
as a matter of course”.9
19.2. This means that pre -action discovery in terms of the Act “must remain the
exception rather than the rule”.10 In other words, the Act may be used for pre-
action discovery in exceptional cases but not in all cases.
19.3. What, then, determines when it is permissible to use the Act for pre -action
discovery and when it is impermissible to do so? In answer to this question,
the SCA has held that it is “legitimate to use s 50 [of the Act] to identify the
right defendant” but that a potential litigant is not “entitled, as a matter of course,
to all information which will assist in evaluating [its] prospects of success
against the only potential defendant”. 11 The SCA has also held that a “rule of
thumb” is to “enquire whether, in the context of future litigation to exercise the
right relied on, the records requested are reasonably required to formulate a
claim”. In other words, “[i]f needed to formulate a claim, it can be said that they
are reasonably required under section 50(1) of PAIA”.12
[20] Applying these principles, I am of the view that the Trust has not shown that the
requested documents are reasonably required for the exercise or protection of its right
to institute an action. I reach this conclusion for the following reasons:
9 Unitas Hospital (supra) para 21.
10 Unitas Hospital (supra) para 22. Cloete JA used the same expression in para 55 of his separate
concurring judgment.
11 Unitas Hospital (supra) para 22.
12 Mahaeeane (supra) para 20.
10
20.1. The requested documents are not reasonably required to identify the right
defendant (i.e. the test in Unitas Hospital). If the Trust has a cause of action, it
would lie against Vodacom. Although the Trust suggest ed in its heads of
argument and in oral argument t hat it may have also a claim against MTN on
the basis that MTN is using the Mast, the founding affidavit makes no mention
of a potential cause of action against MTN and the notice of motion does not
refer to the position of MTN.
20.2. The requested documents are not reasonably required to formulate the Trust’s
claim (i.e. the test in Mahaeeane). On the contrary, the founding affidavit avers
that “the mere fact that the Vodacom mast remains on the property means that
the Trust is entitled to market related rental and/or holding over damages”. 13
The founding affidavit goes on to explain that “the rental amount for this period
is R25,000 per month (excl. VAT ), which would be increased by 7.5% per
annum (first escalation taking place on 1 July 2020)”.14 The founding affidavit
then concludes that Vodacom “is indebted to the Trust in excess of R600 000,00
(excl VAT and interest) for market related rental and/or holding over damages
for the period July 2020 to the date of this affidavit”.15
20.3. It is unnecessary for me to express a view as regards whether the averments
quoted in the previous paragraph are well -founded in law and I refrain from
doing so. The point for present purposes is a different one: it is that, according
to the Trust’s own version, the Trust does not need to know whether the Mast
13 Founding affidavit para 26.
14 Founding affidavit para 27.
15 Founding affidavit para 28.
11
was decommissioned on 30 June 2020 in order to formulate the claim that it
intends to bring against Vodacom for holding over. In other words, since the
Trust says that it has a cause of action based on Vodacom’s failure to vacate the
leased property when the Lease ended, the requested records are not required in
order for the Trust “ to exercise its property rights and claim damages from the
respondent for holding over”.16 If the Trust’s claim for holding over were good,
it would be good without regard to whether Vodacom did or did not continue to
use the Mast after 30 April 2020.
20.4. In its founding affidavit, the Trust says that the amount referred to in
paragraph 20.2 above “is limited solely to rental and does not include ancillary
costs and/or damages which the Trust has suffered as a result of the respondent’s
conduct, or the conduct of the respondent’s agents and/or representatives”.
17
The Trust elaborates on this in its replying affidavit by suggesting that it may
have “alternative claims … founded on the principles of unjustified enrichment
and/or fraud”.
18 The replying affidavit does not explain the legal nature of such
a claim. It is possible that it may be based on Hyprop Investments Limited v
NCS Carriers and Forwarding CC 2013 4 SA 607 (GSJ), where a Full Court
held that “a holding over claim can be made out either in contract or in delict”19
and that “a claim under unjust enrichment is also viable”.20
16 Founding affidavit para 49.
17 Founding affidavit para 29.
18 Replying affidavit para 10.
19 Para 48.
20 Para 44. Professor Bradfield summarises the position as follows in The Law of South Africa
volume 26(1) 3rd edition para 107 (footnotes omitted):
‘There may be some confusion as to the meaning of the words “holding over”, but they
are merely a convenient label to denote an erstwhile lessee’s conduct in remaining in
12
20.5. Mr Felix, who appeared for the applicant, appeared to suggest in oral argument
that the Trust would have a claim in delict or in unjustified enrichment in
addition to a claim for contractual damages. I have some difficulty in
understanding how such a claim would be formulated but it is unnecessary to
express a final view on the issue. It suffices to say that, if the Trust has a
supplementary claim that is additional to its claim for damages for holding over,
then the supplementary claim would in my view be covered by the principle in
Unitas Hospital that a potential litigant is not “entitled, as a matter of course, to
all information which will assist in evaluating [its] prospects of success against
the only potential defendant”.21
20.6. When all is said and done, the Trust’s attitude is a simple one: it says that it is
“entitled to know what the exact position is” before it institutes an action against
Vodacom.22 However, that does not accord with the jurisprudence of the SCA
for the reasons already given.
20.7. A final observation is that the list of requested documents in the notice of motion
is lengthy – it runs to some two -and-a-half pages. I intend no criticism of the
drafter when I say that the list has the look and feel of a request for further-and-
better discovery rather than a “short sharp” request as in Claase . This is
possession of leased property after the lessee’s right to possess the property has been
terminated and that affords the lessor a remedy in damages. The remedy may lie in
contract for the lessee’s breach of its contractual or common law obligation to restor e
the lessor to free and undisturbed possession at the end of the lease, or in delict for the
former lessee’s wrongful action in remaining in occupation of the property without
legal right to do so and in so doing causing the lessor financial loss. The claim may
equally be based in enrichment.’
21 Unitas Hospital (supra) para 22.
22 Founding affidavit para 50.
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exacerbated by the fact that some of the requested documents antedate the
termination of the Lease (prayers 1.1, 1.2 and 1.4). To take one example: there
is nothing in the founding affidavit to indicate why the Trust requires copies of
all Eskom invoices received by Vodacom pertaining to the Mast “from January
2018 to date”
23 since, on the Trust’s own version, the Lease continued in
operation until 30 June 2020. In other words, even if the Trust were correct
that it has “a right to know what the property is being utilised for”, 24 that could
not conceivably apply to the period before 30 June 2020. Moreover, some of
the documents sought in the notice of motion do not refer to any time period at
all.
25
[21] In short, the applicants have not shown that the requested documents are reasonably
required for the exercise or protection of the Trust’s right to institute an action . The
Trust knows the identity of the only potential defendant that is mentioned in the
founding affidavit and it is able to formulate its claim against that defendant. Once the
Trust initiates an action, the rules of discovery will apply with all of the safeguards that
are built into that process.
[22] The main application must therefore be dismissed.
[23] Mr Felix argued that the Trust was justified in bringing the main application even if it
were to be unsuccessful. I disagree for the reasons give n above. In my view, there is
no reason why costs should not follow the result.
23 Prayer 1.2 of the notice of motion.
24 Founding affidavit para 51.
25 Prayers 1.5 to 1.8 of the notice of motion.
14
The counter-application
[24] I was informed from the bar that the counter-application became moot when Vodacom
removed the Mast and ancillary equipment from the property. It is therefore
unnecessary for me to address the counter-application further.
[25] The parties were in agreement that I should order that the counter -application be
removed from the roll with no order as to costs.
Order
[26] In the result, I make the following order:
1. The main application is dismissed.
2. The first to sixth applicants are to pay the respondent’s costs in the main
application on a joint and several basis, the one paying the others to be
absolved.
3. The counter-application is removed from the roll with no order as to costs.
A. COCKRELL
Acting Judge of the High Court
Cape Town
9 February 2024
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APPEARANCES
Applicants’ counsel: JK Felix
Applicants’ attorneys: Johan Victor Attorneys
Respondent’s counsel: A Coetzee
Respondent’s attorneys: Matopo Moshimane Mulanga Inc t/a DM5 Incorporated