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[2017] ZASCA 90
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Mahaeeane and Another v Anglogold Ashanti Limited (85/2016) [2017] ZASCA 90; [2017] 3 All SA 458 (SCA); 2017 (6) SA 382 (SCA) (7 June 2017)
Links to summary
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 85/2016
In the matter between:
MAHAEEANE
MAHAEEANE
FIRST APPELLANT
MOTLAJSI THAKASO
SECOND APPELLANT
and
ANGLOGOLD ASHANTI
LIMITED
RESPONDENT
Neutral citation:
Mahaeeane v Anglogold
(85/2016)
[2017] ZASCA 090
(07 June 2017)
Coram:
Maya AP, Fourie, Molemela, Gorven and Mbatha AJJA
Heard
:
22 March 2017
Delivered:
7
June 2017
Summary:
Promotion of Access to Information Act 2 of
2000
:
section 50
: meaning of ‘documents required’ :
right relied upon to claim damages : in the context of litigation,
documents must
be reasonably required to formulate a claim : test not
met in present matter : records requested not reasonably required to
exercise
or protect right relied upon.
ORDER
ppeal from:
Gauteng
Local Division of the High Court, Johannesburg (Sutherland J sitting
as court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Gorven AJA (Maya AP and
Fourie AJA concurring):
[1]
The
appellants were previously both employed by the respondent in its
gold mining operations. They were also both medically boarded
by the
respondent on the ground of having contracted silicosis. An
application has been launched for the certification of a class
action
(the certification application). The class relevant to silicosis
sufferers is defined as comprising ‘current and former
mine
workers who have silicosis and who work or have worked on the
goldmines listed in annexure A to the Notice of Motion’.
The
mine of the respondent at which the appellants worked is listed.
There is another class defined for employees who contracted
pulmonary
tuberculosis. For the sake of simplicity, I shall refer only to the
respondent and not to the other mines. The certification
application
was granted and is presently on appeal. There were some 56 applicants
in the certification application. Although the
appellants admittedly
fall within the class relating to silicosis, they are not named
applicants in that application. The same
attorneys represent the
appellants and the class.
[2]
This appeal concerns records requested under
s
50(1)
of the
Promotion of Access to Information Act (the
PAIA).
[1]
This
relates to private bodies
and reads:
‘
(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 . . .
.’
[2]
The provisions of
s 7(1)
of the PAIA are relied on by the respondent to exclude the operation
of the PAIA. This provides:
‘(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.’
[3]
A
list of some ten records was requested in terms of s 50(1) of
the PAIA. The respondent reacted to the request in writing,
recording
that the appellants ‘are included in the group of persons on
whose behalf the [certification application] has been
brought’.
It further recorded that the request had been made after the
commencement of the certification application. The
respondent went on
to contend that the PAIA did not apply as a result of the provisions
of s 7(1) of the PAIA.
[4]
The
resultant impasse prompted the appellants to bring an application in
the Gauteng Local Division of the High Court, Johannesburg
(the high
court) before Sutherland J for access to the requested records. The
high court found that the appellants were excluded
by operation of s
7(1) of the PAIA and, in addition, had not satisfied the test in s 50
of the PAIA of showing that the records
were required for the
exercise or protection of any rights. This appeal is with the leave
of that court.
[5]
The
attorney for the appellants testified that he was instructed to
advise whether the appellants have a good claim against the
respondent for damages ‘in respect of the harm and loss . . .
suffered as a result of . . . having contracted silicosis’.
The
ability to advise, it was submitted, depends largely on whether the
respondent complied with its statutory duty of care to
its employees.
The attorney went on to aver:
‘The information requested is
required in order for me to assess and advise the [appellants]:
Whether or not the respondent complied
with the general duty of care owed by it to the [appellants] to
provide and maintain a safe
and healthy work environment for its
employees as stipulated in section 5 of the [Mine Health and Safety
Act 29 of 1996] (the MHSA),
Whether the respondent complied with the
provisions of the law and the extent of such compliance.’
[3]
The attorney then addressed
each of the ten records requested in an attempt to motivate this
need.
[6]
These ten records can be summarised as:
(a)
Measurements of dust exposure levels for the
appellants for their period of employment.
(b)
The record of medical surveillance of the
appellants, including x-rays, lung function results and doctor’s
examination notes
along with lung biopsies and CT scan results for
the period of their employment.
(c)
The record of incapacity hearings convened in
respect of the appellants.
(d)
The hazardous work service records of the
appellants for the period of their employment.
(e)
The mine manager’s written reports of any
investigations into the declared unfitness of the appellants.
(f)
The mine manager’s reports on any
investigation into silicosis or health threatening occurrences of
breathable silica dust
during the period of their employment.
(g)
The mine manager’s record of significant
dust hazards identified and pneumoconiosis risks assessed by him
during the period
of their employment.
(h)
The health and safety training documentation,
policies and educational material used to educate and prepare the
appellants for safely
working in the mine.
(i)
The Code of Practice prepared by the mine manager
concerning the health and safety of employees working with silica
dust during
the period of their employment.
(j)
The Health and Safety Policy of the mine relating
to dust exposure during the period of their employment.
Each of these ten records
referred to the specific legislation which, it was averred, gave rise
to the statutory duty in respect
of that record.
[7]
The
respondent submits that the application is a stratagem to obtain
discovery in advance for the class action. It points in this
regard
to the sequence of events. The first appellant was certified as
having contracted silicosis during September 2004 and
the second
appellant during September 2009. The two appellants had both
instructed their attorneys to investigate a claim
against the
respondent by November 2011. The certification application was
launched by the appellants’ attorney, omitting
them as
applicants, during December 2012. The request under the PAIA was
submitted on behalf of the appellants by their attorney
in August
2013. The respondent contends that the appellants were omitted in
order to escape the import of s 7(1) of the PAIA
which precludes
such an application where proceedings are pending.
[4]
[8]
In
addition, the respondent submits that the appellants have not made
out a case under s 50(1) for the records. It says that
the right
asserted to seek compensation in delict for personal injury is not in
dispute but the records are not required for that
purpose. The stated
reason for the request was so that the records could ‘assist in
determining whether [the respondent]
complied with its statutory
and/or common law and/or constitutional obligations . . . regarding
dust levels, adequate medical care
and examinations, proper training
and dust exposure’ during the period the appellants were
employed by it.
[5]
The respondent submits that the request therefore does not match the
right asserted. As mentioned above, the respondent also relies
on
s 7(1) of the PAIA to preclude the appellants from using the
PAIA to obtain the records. The respondent contends in this
regard
that the appellants are members of the class action, the requested
records are required for those proceedings which have
commenced and
that the rules of court concerning discovery provide for the
production of the records requested.
[9]
In
the papers, the appellants contend that they are not parties to the
certification application. They say that, if the class action
is
certified, they might not become parties to any action arising from
the certification if the legal advice they receive is to
the effect
that there are no prospects of their succeeding in a claim.
[10]
As
I read these two sections of the PAIA, the appellants bear the onus
to show that the request falls within the ambit of s 50.
If this
onus is discharged, the question arises whether the provisions of
s 7(1) exclude any of the requested records from
the operation
of the PAIA.
[11]
The first enquiry is accordingly whether the
appellants discharged the onus of meeting the requirements of s
50(1)
(a)
. In this
regard, this court has held that an applicant ‘
need
only put up facts which
prima
facie
, though open
to some doubt, establish that he has a right which access to the
record is required to exercise or protect.’
[6]
[12]
The leading case on s 50 of the PAIA is
Unitas
Hospital v Van Wyk & another
.
[7]
In that matter, the husband of the respondent died while he was a
hospital patient. She contended that his death was brought
about by
the negligence of the nursing staff and that she had an action for
damages suffered through his death. She applied under
the PAIA for
access to a report with a view to instituting that action. This court
held that the report was of a general nature
and not one relating
specifically to treatment received by her husband. It was held that
‘it can be accepted with confidence
that Mrs Van Wyk did not
require the Naudé report to formulate her claim for the
purposes of instituting an action.’
She did not require it for
the exercise or protection of any right. She already had access to
whatever information her experts
would require to advise her on the
formulation and assessment of her claim. She had already been
provided with a complete set of
hospital records, including the notes
made by the nurses who cared for him throughout his time in hospital.
This court then went on to
find that what was therefore being asserted was a right to pre-action
discovery.
[13]
This court has held that w
hat
is meant by the phrase, ‘required
for
the exercise or protection of any rights’
in
s 50(1), gives rise to a fact based enquiry and does not allow
for abstract determination.
[8]
This court has mostly approached the test by deciding what those
words do not mean:
‘So, for example, it is said that
it does not mean the subjective attitude of “want” or
“desire” on
the part of the requester; that, at the one
end of the scale, “useful” or “relevant” for
the exercise or
protection of a right is not enough, but that, at the
other end of the scale, the requester does not have to establish that
the
information is “essential” or “necessary”
for the stated purpose . . . .’
[9]
It involves something more
than that the information would be of assistance, which is a minimum
threshold requirement.
[10]
As a positive formulation, the furthest this court has been prepared
to go is what was said by Comrie AJA in
Clutchco
(Pty) Ltd v Davis
:
[11]
‘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.’
And the Constitutional
Court
[12]
has approved this approach:
‘“Required”
in the context of s
32(1)
(b)
does
not denote absolute necessity. It means “reasonably
required”. The person seeking access to the information
must establish a substantial advantage or element of need. The
standard is accommodating, flexible and in its application
fact-bound.’
[13]
What must be covered in an
application is the following:
‘[A]n applicant has to state what
the right is that he wishes to exercise or protect, what the
information is which is required
and how that information would
assist him in exercising or protecting that right.’
[14]
[14]
With that in mind, I turn to consider the case
made out by the appellants on each of these aspects. The facts of
their case must
be considered. The first aspect is the right relied
on which the appellants wish to exercise or protect. In response to
the section
of the form, ‘Indicate which right is to be
exercised or protected’, the appellants stated:
‘Our client requires the requested
information to properly assess the merits in exercising his right to
claim damages from
[the respondent] for the wrongful exposure to
harmful levels of noxious dust causing him to develop Silicosis while
working for
[the respondent].’
The right which the
appellants wish to exercise is therefore the ‘right to claim
damages’. This implicates s 34
of the Constitution which
gives a right to access courts. Because the right relied on is
narrowly stated, there is no need to consider
the nature of the
rights which might qualify.
[15]
The balance of the response to this section goes beyond asserting the
right and deals with the third aspect of the enquiry ‘how
that
information would assist . . . in exercising that right’. This
aspect of that response is expanded upon in the response
to the
question as to why ‘the record requested is required . . . .’
These two aspects have been conflated in the response
to the first
requirement.
[15]
In
the application, the attorney representing the appellants who deposed
to the affidavit, said the following regarding the right
which they
assert:
‘In order to advise my clients in
relation to a possible claim for damages against the respondent I
require access to information
held by the respondent, which is
relevant to any assessment of the merits of the [appellants’]
claim.
. . .
Whether or not the [appellants] have a
good claim for damages against the respondent turns substantially on
the extent to which
the respondents complied with the statutory duty
of care owed by them to their employees under the mine health and
safety legislation
applicable at the relevant time.
. . .
The information requested is reasonably
required to determine whether or not the [appellants] have adequate
grounds to seek a remedy
against the respondent.
. . .
The information requested is required in
order for me to assess and advise the [appellants] . . . [w]hether or
not the respondent
complied with the general duty of care owed by it
to the [appellants] to provide and maintain a safe and healthy work
environment
for its employees as stipulated in section 5 of the MHSA.
. . .
The information requested is required in
order for me to assess and advise the [appellants] . . . [w]hether
the respondent complied
with the provisions of the law and the extent
of such compliance.’
The attorney then dealt
with each of the ten requests, saying mostly that the information in
question ‘will go to show’
whether or not the respondent
complied with various statutory duties. None of these dealt with the
right asserted. They all dealt
with the third aspect, being the
reason that the records were required.
[16]
As
was conceded by the respondent, the appellants have a right to seek
compensation in delict for personal injury or, as they put
it, the
right to claim damages. In order to exercise that right, an action
must be brought against the respondent. The question
is whether the
records requested are required for the exercise or protection of that
right.
[17]
It
seems clear that the underlying reasons given for why the records are
required do not relate to the exercise of the right to
claim damages
but to the evaluation of whether the appellants should do so or not.
The reasons given, therefore, do not meet the
test of the records
being required to ‘exercise or protect’ the right relied
upon. This situation can be contrasted
with that in
Company
Secretary, Arcelormittal South Africa Ltd & another v Vaal
Environmental Justice Alliance
.
[16]
In that matter, the Environmental Master Plan developed by
Arcelormittal was requested on the following basis:
‘
The requested
documents are necessary for the protection of the s 24 constitutional
rights and are requested in the public interest.
VEJA requires
the requested documents to ensure that ArcelorMittal South Africa
Limited carries out its obligations under
the relevant governing
legislation, including the
National Environmental Management Act 107
of 1998
, the
National Environmental Management: Waste Act 59 of 2008
,
and the
National Water Act 36 of 1998
.
VEJA
seeks to ensure that the operations of ArcelorMittal South Africa
Limited are conducted in accordance with the law, that pollution
is
prevented, and that remediation of
pollution
is properly planned for, and correctly and timeously
implemented
.’
[17]
The right asserted was that
to a non-harmful environment and ‘to have the environment
protected, for the benefit of present
and future generations, through
reasonable legislative and other measures . . .’.
[18]
It can be seen that the right asserted and the reason why the records
were required to exercise or protect it accorded with each
other.
[18]
Even if it can be said that the reasons relate to
the right, the question is whether the records are reasonably
required to exercise
or protect the right relied on. In the present
matter, the proposed defendant and its details are clearly known to
the appellants.
So also is the cause of action. At least some of the
facts are within the knowledge of the appellants. In the application
papers,
the respondent admitted that silicosis is a progressive and
incurable disease caused by inhaling silica dust. It was also
admitted
that silicosis is common in gold mine workers who are
exposed to harmful quantities of silica dust whilst working
underground in
mines and that this dust is generated in the course of
mining activities. The respondent admits that the appellants were
dismissed
from employment on the basis that they had contracted
silicosis. On a level of causation of the disease in the appellants,
the
only averment not admitted is that the appellants have not been
exposed to silica dust other than while employed on the mine. This
is
peculiarly within the knowledge of the appellants. This means that
the only records which the appellants do not have in their
possession
are those which will assist in proving whether or not the respondent
adhered to its statutory, common law and constitutional
legal duties.
[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 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 them 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
damages
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.
[21]
It
may be argued that some of the records are reasonably required as
evidence to prove the formulated claim. Since, however, the
machinery
of discovery applies in an action, most, if not all, of the records
will become available to the appellants in order
to exercise the
right to claim. After all, discovery is required of documents
‘relating to any matter in question’
in an action. No
case has been made out in the present matter that any of the
requested records will not be discoverable. The issue
whether the
obligation to discover is co-extensive with records reasonably
required to exercise the right to claim need therefore
not detain us
in the present matter. As such, I am of the view that the records
requested are not reasonably required to exercise
the right of the
appellants to claim damages from the respondent.
[22]
This places the present matter on all fours with
Unitas Hospital
where
this court found that Mrs Van Wyk did not require the Naudé
report to formulate her claim.
[19]
It also renders the appellants subject to the dictum in
Unitas
Hospital
that they are not –
‘entitled, as a matter of course,
to all information which will assist in evaluating [their] prospects
of success against
the only potential defendant. On that approach,
the more you know, the better you will be able to evaluate your
chances 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.’
[20]
[23]
I
have up to now dealt with the case made out on the papers. It must be
borne in mind that the launch of the certification application
predated the request under the PAIA. In
Children's
Resource Centre Trust & others v Pioneer Food (Pty) Ltd &
others
,
[21]
it was held that an application for
certification of a class action is akin to matters where ‘necessary
preliminary proceedings
have been held to constitute the bringing or
commencement of suit’.
[22]
In that matter, the court of first instance refused the
application, including an order sought permitting the issue of
summons prior
to certification in order to interrupt prescription.
This court held that, because a certification application is a
necessary precursor
to ‘proceedings to pursue a class action
there is much to be said for the proposition that, for purposes of
prescription,
service of the application for certification would be
service of process claiming payment of the debt for the purposes of
s 15(1)
of the Prescription Act’. It seems to me that,
although the dictum above is
obiter
,
it accords with principle and must find application here.
[24]
The logical corollary is that a certification
application must be regarded as the ‘bringing or commencement
of suit’
of the class action. Counsel for the appellants, when
confronted with this dictum accepted that to be the position in the
present
matter. Accordingly, the class action proceedings must be
regarded as having commenced with the launch of the certification
application.
At the time that the request under the PAIA was made,
therefore, the class action must be held to have commenced.
[25]
But the present position goes even further. The
class action has now been certified. The class action is what is
termed an ‘opt-out’
class action. This includes all
members of a certified class in the action unless they opt out. In
dealing with the significance
of this, I can do no better than to
cite the words of Professor Silver, quoted in
Children’s
Resource Centre Trust
, to the effect that a
class action is –
‘a procedural device that expands
a court's jurisdiction, empowering it to enter a judgment that is
binding upon everyone
with covered claims. This includes claimants
who, not being named as parties, would not ordinarily be bound. A
class-wide judgment
extinguishes the claims of all persons meeting
the class definition rather than just those of named parties and
persons in
privity with them, as normally is the case.
Judges and scholars sometimes treat the
class action as a procedure for joining absent claimants to a lawsuit
rather than as one
that permits a court to treat a named party as
standing in judgment on behalf of them. This is a mistake. . . .
Class members neither
start out as parties nor become parties when a
class is certified.’
[23]
What is of importance is
that, as was said in
Children’s Resource Centre Trust
:
‘
In class
actions the party bringing the action does so, on behalf of the
entire class, every member of which is bound by the
outcome of the
action, so that a separate action by a member of the class after
judgment can be met with a plea of res judicata.’
[24]
It is, of course, for this
reason that members falling within a certified class must be given
the opportunity to opt out or, if
it is an opt-in class action, to
opt in.
[26]
All of this means that, at present, the
appellants are included in the class action which has been certified.
This much was correctly
conceded by their counsel at the hearing. It
also means that the proceedings relating to the class action in
question have commenced.
As such, the documents cannot be said to be
required to exercise or protect the right to claim damages since the
class action to
do so has commenced on their behalf. It seems to me
that the substratum of the application brought by the appellants
accordingly
no longer exists. Counsel accepted that events had
overtaken the application when certification had taken place. He
sought, however,
to submit that the appellants now require the
information to determine whether they should opt out. But this was
not the case made
out on the papers. It is also doubtful, in the
light of the approach in
Unitas Hospital
mentioned above, whether this would bring the claimed right within
the ambit of s 50(1) of the PAIA.
[27]
For the above reasons, therefore, the appellants
have not met the threshold test required by s 50(1) of the PAIA
to ‘
prima facie
establish that access to the record is required to exercise or
protect’ the right relied upon.
[25]
In the light of this, I consider it unnecessary to deal with the
respondent’s further defence to the application by way of
s 7(1) of the PAIA. There is accordingly no basis on which to
interfere with the order granted by Sutherland J. The appeal
must
fail.
[28]
The following order is made:
The
appeal is dismissed with costs.
________________________
T R Gorven
Acting Judge of Appeal
Mbatha
AJA:
[29]
I
have had the benefit of reading the judgment of my colleague, Gorven
AJA, from which I differ in several respects. He reaches
the
conclusion that the appeal stands to be dismissed. He bases this
conclusion on the finding that the appellants have not satisfied
the
criteria set out in s 50(1) of the Promotion of Access to Information
Act 2 of 2000 (the PAIA).
[30]
In
my respectful view, the appellants have satisfied the criteria set
out in s 50(1) of the PAIA, and the civil proceedings in question
have not commenced for purposes of s 7(1) thereof. The appeal should
accordingly succeed and my conclusion is founded on the reasons
set
out below.
[31]
The appeal centres around the
dismissal of an application brought in terms of s 82 of the PAIA
[26]
to compel the respondent to provide access to records to the
appellants. Its determination rests upon the interpretation of the
provisions of ss 7(1) and 50(1) of the PAIA.
[32]
The application was dismissed
by the high court on the basis that the appellants did not meet the
threshold set out in s 50(1).
[33]
As
pointed out in the main judgment which sets out the background facts
from which the dispute arose, the first and second appellants
instructed their attorney (Mr Richard Spoor) on 14 September 2011 and
14 November 2011, respectively, to investigate the merits
of their
claims for damages against the respondent. Their applications for
access to information in terms of the PAIA were submitted
to the
respondent on 18 September 2013. On 22 October 2013 the respondent
refused both applications. During December 2012 Mr Spoor
had also
launched an application for the certification of a class action on
behalf of current and former mineworkers, excluding
the appellants,
against the mining industry in respect of silicosis and tuberculosis
related injury. The certification judgment
in
Nkala
v Harmony Gold Mining Company Limited
[27]
was delivered by the Gauteng Local Division, Johannesburg on 13 May
2016, almost three years after the submission of the request
for
information by the appellants.
[34]
The appeal is opposed on the
basis that the appellants failed to meet the threshold in s 50(1) of
the PAIA. The right to request
access to the records of a private
body is governed by s 50(1) of the PAIA. The provisions read:
‘
(1) A
requester must be given access to any records of a private body if─
(
a
) that record is
for the exercise or protection of any rights;
(
b
) that person
complies with the procedural requirements of 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.’
As
appears from their wording, the provisions are peremptory if the
criteria in subsections (a) to (c) are met.
[35]
The initial right which the
appellants sought to protect was the right to assess their potential
claims for damages against the
respondent for having contracted
silicosis at the respondent’s mines during the tenure of their
employment. However, when
the matter was argued before us, the
appellants’ argument had shifted in that they requested the
information for purposes
of making a decision of whether or not to
opt out of the class action. But this is understandable as their
appeal had been overtaken
by the events. Certification had since been
granted in the
Nkala
judgment which also stipulated a date by which they should opt out of
the class action, should they so wish.
[36]
The right of access to
information is guaranteed by s 32 of the Constitution, which
provides:
‘
(1) Everyone
has the right of access to─
(a)
any
information held by the state; and
(b)
any
information that is held by another person and that is required for
the exercise or protection of any rights.
(2)
National
legislation must be enacted to give effect to this right, and may
provide for reasonable measures to alleviate the administrative
and
financial burden on the state.’
[37]
The PAIA is the national legislation that gives
effect to the right of access to information as contemplated in s 32
(2) of the
Constitution. Its purpose was explained by Jafta J in
PFE
International Inc
[28]
as follows:
‘In accordance with the obligation
imposed by this provision, PAIA was enacted to give effect to the
right of access to information,
regardless of whether that
information is in the hands of a public body or a private person.
Ordinarily, and according to the principle
of constitutional
subsidiarity, claims for enforcing the right of access to information
must be based on PAIA.’
[38]
Transparency and access
to information are required in order to allow people to enjoy other
fundamental rights. Thus, for example,
the preamble of the PAIA
recognises that:
[29]
‘The system of government in South
Africa before 27 April 1994, amongst others, resulted in a secretive
and unresponsive culture
in public and private bodies which often led
to an abuse of power and human rights violations;
Section 8 of the Constitution provides
for the horizontal application of the rights in the Bill of Rights to
juristic persons to
the extent required by the nature of the rights
and the nature of those juristic persons.’
[39]
Both the Constitution, in s
32(1)
(b)
and the PAIA (in s 50(1)
(a)
)
refer to ‘any rights’. In my view, this could be ‘any
right’ in terms of the Bill of Rights in Chapter
2 of the
Constitution, or ‘any right’ created in common law. In
construing these words, the court should, as far as
the language of
the PAIA permits, adopt a generous and purposive interpretation that
gives people the full measure of its protections
and that promotes
the values of the Constitution. As the Constitutional Court held in
S
v Mhlungu
:
‘A constitution is an organic
instrument. Although it is enacted in the form of a statute it is
sui
generis
. It must broadly, liberally and purposively be
interpreted so as to avoid “the austerity of tabulated
legalism” and
so as to enable it to continue to play a creative
and dynamic role in the expression and the achievement of the ideals
and aspirations
of the nation, in the articulation of the values
bonding its people and in disciplining it’s Government.’
[30]
[40]
The provisions of s 2(1) of
the PAIA also bear relevance. They read:
‘When interpreting a provision of
this Act, every court must prefer any reasonable interpretation of
the provision that is
consistent with the objects of this Act over
any alternative interpretation of the provision that is inconsistent
with those objects.’
The objects of the PAIA are
contained in s 9 of the Act, which provide in relevant part:
‘
(e)
… to promote
transparency, accountability and effective governance of all public
and private bodies…’
Access to information is a
constitutionally entrenched right. Any refusal of access to
information is a limitation of that right
and must therefore be
approached as the exception rather than the rule. In his minority
judgment in
Unitas Hospital
,
[31]
Cameron JA said:
‘We must in my view consider the
extent to which it is appropriate, in the case of any private body,
to further the express
statutory object of promoting “transparency,
accountability and effective governance” in private bodies.
This statutory
purpose suggests that it is appropriate to
differentiate between different kinds of private bodies. Some will be
very private,
like the small family enterprise in
Clutchco
.
Effective governance and accountability, while important, will be of
less public significance. Other entities, like the listed
public
companies that dominate the country's economic production and
distribution, though not “public bodies” under
PAIA,
should be treated as more amenable to the statutory purpose of
promoting transparency, accountability and effective governance.’
[41]
Regarding the approach a court
should adopt in determining whether a record is ‘required for
the exercise or protection of
any rights’
Morison
AJ said i
n
M
& G Limited
held:
[32]
‘The words “
required for
the exercise or protection of any rights
” should not be
interpreted or applied restrictively. There is no basis for a concern
that privacy, commercial confidentiality,
trade secrets and the like
would be in jeopardy if s 50(1)(a) is given a meaning, or is applied
in a manner, that sets a relatively
low threshold.’
In
Clutchco
(Pty) Ltd v Davis
Comrie AJA said:
[33]
‘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 s 50(1)(a).’
In
Unitas
Hospital v Van Wyk & another
, Brand JA
said:
[34]
‘Generally speaking, the question
whether a particular record is “required” for the
exercise or protection of
a particular right is inextricably bound up
with the facts of that matter.’
And para 18:
[35]
‘I respectfully share the
reluctance of Comrie AJA to venture a formulation of a positive,
generally applicable definition
of what “require” means.
The reason is obvious. Potential applications of s 50 are countless.
Any redefinition of the
term “require” with the purpose
of restricting its flexible meaning will do more harm than good. To
repeat the sentiment
that I expressed earlier: the question whether
the information sought in a particular case can be said to be
“required”
for the purpose of protecting or exercising
the right concerned, can only be answered with reference to the facts
of that case
having regard to the broad parameters laid down in the
judgment of our courts, albeit, for the most part, in a negative
form.’
I respectfully agree with
these remarks.
[42]
The respondent asserts that
the provisions of s 7(1) of PAIA come into play because proceedings
have commenced with the granting
of the certification application by
the high court in the
Nkala
judgment and that
the appellants can have access to the requested documents in terms of
Rule 35 of the Uniform Rules of Court. I
hold a different view. Class
actions are
sui
generis
in nature,
and should not be considered as the ordinary issuing of proceedings.
Section 38 of the Constitution provides that ‘anyone
listed in
the section has the right to approach a competent court alleging that
a right in the Bill of Rights has been infringed
or threatened’.
It can be an individual person or anyone acting as a member of a
class. This is a dualistic approach which
allows individual persons
to exercise their rights and approach the courts in their own regard
or as a class. In the latter instance,
a member of a class is
automatically a co-plaintiff in a matter, which may affect his
rights, of which he may have no knowledge.
The process may become
known to him only after the certification application has been
granted or later, when he is invited to exercise
the right to opt
out. A certification application should therefore not be a bar to
individuals from approaching the courts in the
exercise and
protection of their rights.
[43]
The appellants were both
dismissed from employment on the grounds of medical incapacity for
having contracted silicosis. The extent
and nature of such an illness
and the cause thereof need to be determined. This information will
assist the appellants in
exercising and
protecting
their rights.
[44]
The appellants’ requests
related to the personal information of their employment experiences
in terms of their medical surveillance
during the tenure of their
employment, and more general information about the respondent’s
mining operations, and their safety
and health practices. They were
all qualified by the use of the words ‘including but not
limited to
personal
dust exposure levels’. This gave the respondent the option to
exclude what it perceived as irrelevant for the appellants’
purposes. The requests were in line with the provisions of s 50(3) of
the PAIA as they constituted a request for access to the
records
containing personal information
[36]
of the requesters. This cannot be said to have been a so-called
fishing expedition,
[37]
as it is information concerning the appellants and relating to a
specific period during which they worked for the respondent. The
first appellant was employed by the respondent from 3 January 1987
until 19 August 2003. The second appellant was employed by the
respondent from 13 August 1988 until 30 March 2006. In the
Nkala
judgment, the duration of the class period has been certified to
commence from 12 March 1965.
[38]
This information in my view is reasonably required by the appellants
for the exercise or protection of their rights as envisaged
in s
50(1).
[39]
[45]
Class actions are a novelty in
our jurisprudence. There is no legislation in place that regulates
the legal processes in such mass
actions. To illustrate this point,
the requirements for a certification of a class action were recently
laid down by this Court
in the
Children’s
Resource Centre Trust
judgment.
[40]
[46]
In
my view, not all interlocutory applications give rise to the
commencement of civil proceedings. So whilst civil proceedings may
commence either by way of summons or applications instituted by a
person with the necessary locus standi, there are the exceptions
to
the general rule. For example, in
IGI
Insurance Co Ltd v Madasa
it was held:
[41]
‘An order to serve summons by
edictal citation is not an ancillary steps to the commencement of an
action. This is illustrated
by decision that an application to sue
in
forma pauperis
does not constitute the commencement of an action.
Kriek J deals with this aspect in the case of
Dave Zick Timbers
(supra at 384 A-D):
“
I
was referred by Counsel to the cases of
Behr
v SA Railway & Harbours
1924 OPD 309
and
Brummer
v SA Railway & Harbours
1930 OPD 106.
Both judgments consider the provisions of section 64 of
Act 22 of 1916 which provided that no action shall be brought against
the
Railway Administration ‘unless the same commenced within 12
months after the cause of action arose’,
and
in both the court came to the conclusion that an application for
leave to sue
in forma pauperis
did not constitute the
commencement for of an action. In the former case McGregor J said
that such an application is not a proceeding—
‘…
introduced
in order to obtain redress or the recognition of a right. But,
in order to be put in a position to prosecute the
proceedings for
redress, or the like. So that the interlocutory, or rather ancillary
and preliminary, proceeding does not appear
to be a commencement of
the action as contemplated by the section.’”’
[47]
In
terms of Rule 40(1)(
b
)
of the Uniform Rules of Court:
‘
(a)
a person who desires
to bring or defend proceedings in forma pauperis, may apply to the
registrar who, if it appears to him that
he is a person such as is
contemplated by paragraph (a) of subrule (2), shall refer him to an
attorney and at the same time inform
the local society of advocates
accordingly.
(b)
such attorney shall thereupon
inquire into such person’s means and the merits of his cause
and upon being satisfied that
the matter is one in which he may
properly act in forma pauperis, he shall request the said society to
nominate an advocate who
is willing and able to act and upon being so
nominated such advocate shall act therein.’
In terms of the Rules
Regulating the Conduct of the Proceedings of the Supreme Court of
Appeal of South Africa:
[42]
‘15(1) Any party who is a natural
person and who is of the opinion that he or she is indigent may
request the registrar for
leave to prosecute or defend an appeal
in
forma pauperis
.’
The Legal Dictionary
[43]
describes the phrase ‘
in forma pauperis
’
as one ‘that indicates the permission given by the court to an
indigent to initiate a legal action without having
to pay for court
fees or costs due to his or her lack of financial resources.’
[48]
The process of certifying a
class action has similar traits and purpose to proceedings in
forma
pauperis
as it
gives the members of the class action an opportunity to claim damages
irrespective of the indigency of the class members.
It requires
the court to safeguard the interests of the class members by way of
requirements like those set out in the
Children’s
Resource Centre Trust
case,
which must be met before it can grant the certification order. It is
unlike other interlocutory applications where it is a
mere
pre-requisite or a process to establish
locus
standi
to proceed
with an action. It also gives an opportunity to a class member to
decide whether or not to opt out. When a court deals
with such
matters the ambit of justice should not only be limited to
substantive relief but it must also be extended to procedural
justice
as well. In light of the nature of such proceedings, it cannot
be said that they have commenced before an opportunity
is extended to
members of the class to make an informed decision whether to continue
to be part of the class or opt out.
A fair balance needs to be
achieved in line with rights of the individual members as enshrined
in the Bill of Rights.
[49]
A
restrictive interpretation of s 7(1) of the PAIA should be applied in
this case, as advocated in
PFE
International v IDC
where the Constitutional Court held:
‘When constructing section 7(1) it
must be borne in mind that the purpose of PAIA is to give effect to
the right of access
to information. On the contrary, section 7
excludes the application of PAIA. A restrictive interpretation of the
section is warranted
so as to limit the exclusion to circumstances
contemplated in the section only. A restrictive meaning of s 7(1)
will thus ensure
greater protection of the right.’
[44]
[50]
There is no indication on the
respondent’s papers whether the requests for information by the
appellants were ever considered,
save that the refusal was because of
‘the proceedings’ which had commenced. None of the
grounds of refusal appearing
in ss 66, 67 or 68 of the PAIA were
raised by the respondent.
[51]
I
conclude that counsel for the appellants wrongly conceded that
proceedings had commenced with the certification application. It
is
trite that the courts are not bound by wrong legal concessions.
[45]
[52]
As
previously stated, there is no legislation governing class actions in
South Africa. The applicable rules to class actions are
being
developed by our courts. In their quest to develop the law on
class actions, courts should take into account the legitimate
interest of the litigants and protect their constitutional rights
instead of curtailing them. This in my view was not the
intended result by this court in the
Children’s
Resource Centre Trust
case.
[53]
It
would be an anomaly that the rights of appellants to exercise or
protect their rights may be curtailed by a certification application
which may not even materialise in a class action or may be
abandoned. In the event that it materialises, they may be
placed
in a position where they should be able to make an informed
decision, whether to opt out or not. In
Ferreira
v Levin NO & others,
O'Regan
J
at para 229 stated:
‘Existing common law rules of
standing have often developed in the context of private litigation.
As a general rule, private
litigation is concerned with the
determination of a dispute between two individuals, in which relief
will be specific and, often,
retrospective, in that it applies to a
set of past events. Such litigation will generally not directly
affect people who are not
parties to the litigation. In such cases,
the Plaintiff is both victim of the harm and the beneficiary of the
relief.’
[46]
The appellants therefore
need to be well-versed and informed as to the consequences of a
failure to opt out in a class action.
[54]
A
similar sentiment was expressed in
Mukaddam
where the court held that the rules of court must facilitate and not
hinder access to courts.
[47]
A pragmatic approach, in particular to the development of the law in
relation to class actions, should be adopted in line with
the rights
enshrined in the Constitution.
[55]
I
align myself with the persuasive views of Mojapelo DJP in
Goldfields
Ltd & others v Motley Rice
[48]
where he states:
‘The certification application is
thus a jurisdictional hurdle or threshold which mineworker applicants
must overcome before
they may institute the class action. ‘The
two proceedings, i.e. the class certification application and the
class action
proceedings, are separate and distinct, although the one
may lead to the other. Each has its own legal requirements and
will
lead to its own judgment.’
[49]
[56]
As
I have said, s 39(2) of the Constitution provides that when
interpreting any legislation, and when developing the common law
or
customary law every court, tribunal or forum must promote the spirit,
purport and objects of the Bill of Rights. This Court
in
Children’s
Resource Centre Trust
was
developing the common law. It cannot be accepted that in developing
the common law, it disregarded the individual rights of
the members
of the class action by stating that the certification application
amounts to the commencement of civil proceedings.
In
Dendy
v University of Witwatersrand
[50]
this Court stated as follows:
‘That courts are enjoined to
develop the common law, if this is necessary, is beyond dispute. That
power derives from ss 8(3)
and 173 of the Constitution. Section 39(2)
of the Constitution makes it plain that, when a court embarks upon a
course of developing
the common law, it is obliged to “promote
the spirit, purport and objects of the Bill of Rights.”’
[57]
In
MEC for Roads and
Public Works Eastern Cape
[51]
this court emphasized what Chaskalson J stated in the
Amod
judgment. It held that –
‘It is abundantly clear,
therefore, that the interpretation of the provisions of PAIA must be
informed by the Constitution
(see s 39(2) of the Constitution), which
obliges every court to promote the spirit, purport and objects of the
Bill of Rights when
interpreting any legislation.’
[52]
This court further stated
that the requirements of Section 7(1)
(a)
,
(b)
and
(c)
are cumulative and all three must co-exist for the operation of the
Act to be excluded.
[53]
[58]
Having found that the
proceedings have not commenced with the launching of the
certification application, it is unnecessary to address
the other
requirements of s 7(1) of the PAIA.
[59]
As
pointed out above, the respondent contended that the request for
information by the appellant was a fishing expedition, as Mr
Spoor’s
firm was involved in the certification application as well and that
they already had sufficient information to advise
the appellants as
they had submitted draft particulars of claim in the certification
application. The respondent extensively relied
on the
Unitas
judgment which discouraged fishing expeditions or pre-litigation
discovery.
[54]
However, this Court in
Unitas
held that, it was not appropriate to formulate a positive, generally
applicable definition of ‘require’ because ultimately
whether or not information was required depended on the particular
facts of the case. The facts in
Unitas
are distinguishable from the facts in this matter as the respondent
is in possession of all the material that the appellants require
to
exercise their rights unlike Mrs Van Wyk in
Unitas
.
The knowledge of the attorney or his involvement in a class action is
knowledge to a broader claim of the member of the class
action, but
not sufficient to give legal advice to these particular clients.
There is no alternative source for the appellants,
save for the PAIA
process to access their personal records from the employer.
[60]
As
stated above, s 9(e) of the PAIA sets out the objects of the Act as
being ‘generally, to promote transparency accountability
and
effective governance of all public and private bodies.’ The
lives of multitudes of indigent mine workers are at stake,
including
the appellants. A general refusal will not be in line with the
objects of the Act.
[61]
The application in the court a
quo was based on a different premise other than that the information
was requested for purposes of
being advised whether to opt out or
not. This Court has the discretion to deal with an issue that was not
pleaded, as long as it
does not materially affect the gist of the
application and it will lead to the same conclusion as it relates to
the exercise and
protection of rights. This route has been followed
in our courts as in
Middleton
v Carr
[55]
where the court said:
‘…as has often been pointed
out, where there has been full investigation of a matter, that is,
where there is no reasonable
ground to thinking that further
examination of the facts might lead to a different conclusion, the
court is entitled to, and generally
should treat the issue as if it
had been expressly and timeously raised. But unless the court is
satisfied that the investigation
has been full, in the above sense,
injustice may easily be done, if the issue is treated as being before
the court.’
[62]
For these reasons, I would
uphold the appeal.
__________________
YT Mbatha
Acting Judge of
Appeal
Molemela AJA:
[63]
Like my sister, Mbatha AJA, I
respectfully disagree with both the outcome of the appeal and the
reasoning of the judgment of Gorven
AJA (the majority judgment),
albeit for slightly different reasons. The facts of this matter and
the issues to be decided have
been eloquently set out in the majority
judgment and need not be repeated here.
[64]
I
must point out from the outset that I agree that ‘required’
in the context of s 32(1)(
b
)
of the Constitution does not denote ‘absolute necessity’
and means ‘reasonably required’.
[56]
Indeed, the same meaning can also be attributed to the phrase
‘required for the exercise or protection of any rights’
set out in s 50(1)
(a)
of the PAIA. It is crucial to bear in mind that s 2(1) of the PAIA
enjoins courts to, when interpreting a provision of PAIA, prefer
a
reasonable interpretation that is consistent with the objects of the
Act. Furthermore, the
objects
of the PAIA stipulate that ‘courts should generally encourage
transparency, accountability and effective governance
in private
institutions’.
[57]
[65]
In
paragraph 17 of the main judgment it is stated that ‘ …the
underlying reasons given for why the records are required
do not
relate to the exercise of the right to claim damages but to the
evaluation of whether the appellants should do so or not.
The reasons
given, therefore, do not meet the test of the records being required
to “exercise or protect” the right
relied upon.’ I
disagree with that view because it, with respect, pays lip service to
the fact that the nature of the enquiry
envisaged in s 50(1) of the
PAIA is fact-based.
[58]
The information that was requested on behalf of the appellants is set
out in detail in the majority judgment and I need not repeat
it.
Significantly, the requested records included, inter alia,
information pertaining to the measurement of the appellants’
exposure to silica dust levels during the period of their employment,
including measures taken by the respondents to protect the
appellants
from contracting silicosis.
The importance
of this information is illustrated by the fact that in the
Nkala
judgment, the High Court recognised that
‘ultimately each class member must prove his claim in its
entirety if he is to succeed….in
other words, even after the
common issues are dealt with and finalised there nevertheless remains
the issue of each mineworker
having to prove his own case.’
[59]
[66]
In
argument before us, it was contended on behalf of the appellants that
they
require the records in
question for purposes of deciding whether to opt out of class action.
To deny the appellants’
request on the basis that this was
not
the case made out in their papers simply fails to take into account
that the appellants’ request for the information was
made prior
to the granting of the certification order. When the certification
order was granted, it was coupled with an opting
out clause
stipulating a certain deadline.
In my
view, the information sought by the appellants relates to the
exercise of the right to claim damages arising from, inter alia,
the
statutory duty of care owed by the respondents to them as their
employees. T
he appellants
have, in my view, ‘established an element of need’ in
respect of the records they are seeking.
[60]
I therefore agree that the requested
information is critical to the appellants’ decision regarding
whether or not to opt out
of the class action. Such information will
undoubtedly assist them in the formulation of their own individual
claims should they
decide to opt out.
[61]
An important consideration is that class members who have opted out
have actively excluded themselves from being members of the
class and
are therefore no longer allowed to be part of the class action.
[62]
It is therefore imperative that
a
member of a class faced with a choice of opting out of a class action
by a certain date be afforded the opportunity to make an
informed
decision. As I see it, this necessitates that the class member be
granted such documents as would assist him or her, as
the requester,
to either avoid being part of the litigation or in the formulation of
the requester’s separate claim.
[67]
The seriousness of a decision whether or not to
litigate and the importance of granting access to the information
requested were
aptly described by Cameron J in the following terms in
his minority judgment in
Unitas
(
The
majority judgment did not take issue with the dicta expressed in the
passage below)
:
‘[I]nstitution of proceedings is
an immense step. It involves a massive commitment in costs, time,
personnel and effort. And
it is fraught with risk. Where access to a
document can assist in avoiding the initiation of litigation, or
curtailing opposition
to it, the objects of a statute suggest that
access should be granted.’
[63]
I echo these sentiments.
[68]
The majority judgment found
that the draft particulars of claim annexed to the certification
application are detailed and tend to
show that ‘
the
appellants are clearly in a position to formulate their claim’.
As correctly argued by the appellants, there are no facts
relating to
the present appellants in the draft particulars of claim. I am of the
view that even if it were to be accepted that
the draft particulars
of claim as they stand are indeed detailed in relation to all class
members, the detailed nature of such
draft particulars would be a
neutral factor. D
raft
pleadings are not cast in stone and may be amended.
[64]
[69]
In
taking the facts of this particular case into account, due
consideration must be paid not only to the fact that this is a class
action potentially involving up to 500 000 class members
[65]
whose date of employment could date back to as far back as 1965, with
only 56 mineworkers being applicants in the certification
applications, but also to the fact that the deadline for exercising
the right to opt out was 31 January 2017.
[66]
More importantly, thousands of class members would depend on the
attorneys of the 56 representative plaintiffs to timeously invoke
the
discovery procedures envisaged in Rule 35 of the Uniform Rules of
Court
[67]
on their behalf. This brings me to the provisions of s 7 of the PAIA.
[70]
It
is common cause that the records requested by the appellants are
requested for the purpose of civil proceedings as contemplated
in s 7
(1)
(a)
of
the PAIA. The majority judgment correctly points out that during the
hearing of the appeal, counsel for the appellants conceded
that
proceedings have commenced as contemplated in s 7(1)
(b)
of the PAIA. Significantly, an acceptance that this concession was
correctly made does not necessarily lead to a conclusion that
the
appellants are precluded from requesting information in terms of the
provisions of s 7 of the PAIA. It merely takes us to the
next leg of
the enquiry envisaged in s 7(1)
(c)
of the PAIA:
whether the production of or access to the requested record is
provided for ‘in any other law.’ This is
so because s
7(1) of the PAIA bars the provision of requested records only if all
the three criteria specified in that section
have been met. The
crucial question is whether the Uniform Rules of Court provide
mechanisms in terms of which the appellants may
request the records
and thus equate to any other law as contemplated in s 7 (1)
(c)
of the PAIA. In my
view, the answer is in the negative for the reasons that follow.
First, the relatively long time that it may
take for a class action
case to reach trial should not be under-estimated.
[68]
Secondly, as correctly argued by the
appellants, the certification of class action does not oblige the
representative plaintiffs
to institute action. It must be borne in
mind that in terms of Rule 35 of the Uniform Rules of Court,
discovery notices are normally
filed after
litis
contestatio.
In
this particular case, the court in the
Nkala
judgment expressly acknowledged that given the magnitude of the class
action, the stage when
litis
contestatio
would
be reached was still ‘a very long way off’.
[69]
It is therefore not inconceivable that even if the representative
plaintiffs did decide to institute action, they could file the
discovery notices just before or well after the deadline for opting
out. The potential prejudice for the appellants and the rest
of the
class members is self-evident.
[71]
The respondents’
contention
that the
representative plaintiffs have the right , with leave of the court to
seek earlier discovery of documents in terms of Rule
35(1) of the
Uniform Rules of Court, does not detract from the fact that they are
not obliged to do so. In my view, the discovery
procedures open to
the representative plaintiffs in terms of Rule 35 of the Uniform
Rules of Court should not serve as a bar to
the thousands of class
members who may, immediately upon receiving notice of a class action,
wish to request access to records
for purposes of assessing the
viability of their claims with a view to deciding whether or not to
opt out. Put differently, the
representative plaintiffs should not
have the exclusive right to request information on behalf of all
class members before the
deadline for opting out has passed.
[72]
Having considered the objects
of the PAIA and all the circumstances of this case, including the
magnitude of the class action,
the
unprecedented
range of legal representatives involved in the matter,
[70]
the narrow parameters pertaining to
the exercise of the right to opt out in this particular case and the
demonstrable lack of assurance that
invoking Rule 35 would yield the result sought by the appellants,
I
agree with the appellants’ argument that the provisions of Rule
35 do not equate to procedure ‘provided for in any
other law’
as contemplated in s 7 of the PAIA. Consequently, even if it
were to be accepted that the records, which
are reasonably required
by the appellants, are for the purpose of civil proceedings which
have already commenced, there is no legal
impediment to the
appellants’ request and they are therefore fully entitled to
the requested information.
[73]
For all the reasons mentioned
above,
I am of the view
that the request for the records meets the threshold envisaged in s
50(1) of the PAIA and that such a request is
not precluded by the
provisions of s 7 of the PAIA. In my view, the facts of this
case illustrate the inadequacy of the current
discovery procedures
provided by the Uniform Rules of Court for purposes of class action
proceedings. This emphasizes the
need to heed the Law
Commission’s recommendation of the promulgation of legislation
that will lay down the procedure applicable
to class actions in South
Africa.
[71]
[74]
For all these reasons, I would
uphold the appeal with costs.
_______________
MB
Molemela
Acting
Judge of Appeal
Appearances
For the Appellants:
A Bester (with him R Itzkin)
Instructed by: Richard Spoor
Incorporated, Johannesburg
Webbers, Bloemfontein
For the
Respondent: P Kennedy SC
(with him I Currie)
Instructed by: Edward Nathan Sonnenbergs, Johannesburg
Honey Attorneys, Bloemfontein
[1]
Promotion of Access to Information Act 2 of 2000
.
[2]
The full
section 50(1)
reads:
‘
(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.’
Subparagraphs
(b)
and
(c)
are not in issue in this appeal.
[3]
Paragraph numbering omitted.
[4]
There are two other requirements as will appear
from the section when set out below.
[5]
This phrase came from the request for documents delivered to the
respondent which was a precursor to the application.
[6]
Claase v Information Officer, South African Airways (Pty) Ltd
2007 (5) SA 469
(SCA) para 8.
[7]
Unitas Hospital v Van Wyk & another
[2006] ZASCA 34
;
2006 (4) SA 436
(SCA)
para 19.
[8]
Unitas Hospital
at para 6.
[9]
Unitas Hospital
para 16.
[10]
Unitas Hospital
para 17.
[11]
Clutchco (Pty) Ltd v Davis
2005 (3) SA 486
(SCA);
[2005]
2 All SA 225
para 13.
[12]
In the minority judgment of Cameron J in
My
Vote Counts NPC v Speaker of the National Assembly & others
[2015] ZACC 31
;
2016 (1) SA 132
(CC) para 31. The majority judgment
did not deal with this issue.
[13]
The references in this passage are omitted.
Section 32(1)
(b)
is a section of the Constitution of the Republic of South Africa,
1996 requiring the legislature to enact legislation to give
effect
to the right of access to information. The cases cited are
Clutchco
and
Unitas Hospital
.
[14]
Cape Metropolitan Council v Metro Inspection
Services (Western Cape) CC & others
2001 (3) SA 1013
(SCA) para 28.
[15]
As was undertaken in
Bullock
NO & others v Provincial Government, North West Province &
another
2004 (5) SA 262
(SCA) para 19.
[16]
Company Secretary, Arcelormittal South Africa Ltd & another v
Vaal Environmental Justice Alliance
[2014]
ZASCA 184;
2015 (1) SA 515 (SCA).
[17]
Paragraph
8. The emphasis is that of the
judgment.
[18]
Section 24 of the Constitution of the Republic of South Africa, 1996
which reads:
‘Everyone has the right-
(a)
to
an environment that is not harmful to their health or well-being;
and
(b)
to
have the environment protected, for the benefit of present and
future generations, through reasonable legislative
and other
measures that-
(i) prevent
pollution and ecological degradation;
(ii) promote
conservation; and
(iii) secure
ecologically sustainable development and use of natural resources
while promoting
justifiable economic and social development.’
[19]
Paragraph 19.
[20]
Paragraph 22.
[21]
Children's Resource Centre Trust & others
v Pioneer Food (Pty) Ltd & others
[2012] ZASCA 182; 2013 (2) SA 213 (SCA).
[22]
Paragraph
89.
F
ootnote
65 cited
The Merak: T B & S
Batchelor & Co Ltd (Owners of Cargo on the Merak) v Owners of SS
Merak
[1965] 1 All ER 230
(CA) at
238 to the effect that: ‘[T]o bring suit, it is said, means to
pursue the appropriate remedy by the appropriate
procedure.’
Dave
Zick Timbers (Pty) Ltd v Progress Steamship Co Ltd
1974
(4) SA 381
(D)
at 384A –
D;
IGI Insurance Co Ltd v
Madasa
1995
(1) SA 144
(TkA)
at 147B –
C.
[23]
Paragraph 17
.
[24]
P
aragraph 16.
[25]
Claase
fn 6, para 8.
[26]
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 retrain 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 con-compliance with the 180-day period
within which to bring an application, where the interests of justice
so require.
[27]
N
kala & others v
Harmony Gold Mining Company Limited & others
[2016]
ZAGPJHC 97; 2016 (5) SA 240 (GJ).
[28]
PFE International Inc (BVI) & others v
Industrial Development Corporation of South Africa Ltd
[2012] ZACC 21
;
2013 (1) SA 1
(CC) para 4.
[29]
The Preamble ‘
Promotion of Access to
Information Act 2 of 2000
.’
[30]
S v Mhlungu & others
[1995] ZACC 4
;
1995 (3) SA 867
para
8. See also
Government of the Republic of Namibia & another v
Cultura & another
2000 & another
1994 (1) SA 407
at 418.
[31]
Unitas Hospital
para
30;
M & G Limited v 2010 FIFA World
Cup Organising Committee
[2010]
ZAGPJHC 43;
2011 (5) SA 163
(GSJ) para 356.
[32]
M & G Limited & others v 2010 FIFA
World Cup Organising Committee South Africa Limited & another
[2010] ZAGPJHC 43;
2011 (5) SA 163
(GSJ
)
para
364.
[33]
Clutchco (Pty) Ltd v Davis
[2005] ZASCA 16
;
2005 (3) SA 486
(SCA) para 13.
[34]
Unitas Hospital v Van Wyk & another
[2006] ZASCA 34
;
2006
(4) SA 436
(SCA) para 6.
[35]
Unitas Hospital v Van Wyk & another
para 18.
[36]
Section 1
of PAIA defines personal information as
information not limited to the following:
‘
(
a
)
information relating to the race, gender, sex, pregnancy, marital
status, national, ethnic or social origin, colour, sexual
orientation, age, physical or mental health, well-being, disability,
religion, conscience, belief, culture, language and birth
of the
individual;
(
b
) information
relating to the education or the medical, criminal or employment
history of the individual or information relating
to financial
transactions in which the individual has been involved…’.
[37]
See
Van Wyk v
Unitas Hospital
paras 44 – 46.
[38]
Nkala v Harmony Gold Mining Company Limited
para 51.
[39]
In particular South African labour law protects
employees, and this is even more important in the mining sector due
to the conditions
that employees are still exposed to for inadequate
wages. For example, see the recent Constitutional Court judgment
Association of Mineworkers and
Construction Union and Others v Chamber of Mines of South Africa &
others
[2017] ZACC 3
;
2017 (3) SA 242
(CC) where Cameron J stated, ‘Behind that question, with its
lawyerly remoteness, lies the grievous struggle for better
wages and
conditions for the generations of mineworkers who have laid the
foundations for this country’s wealth. And at
its fore is an
increasingly intense contest between unions about which will
represent the workers in that struggle now.’
[40]
Trustees for the time being of Children's
Resource Centre Trust & others v Pioneer Food (Pty) Ltd &
others
[2012] ZASCA 182
;
2013 (2) SA
213
(SCA) para 26.
[41]
IGI Insurance Co Ltd v Madasa
at 119.
[42]
SCA
rule 15(1).
[43]
The Free Dictionary by Farlex ‘
In Forma Pauperis’
Available at:
http://legaldictionary.thefreedictionary.com/In+Forma+Pauperis
(accessed on 25 May 2017).
[44]
PFE International Inc (BVI) & others v Industrial Development
Corporation of South Africa Ltd
para 18.
[45]
City of Cape Town v Aurecon South Africa (Pty)
Ltd
[2017] ZACC 5
para 34.
[46]
Ferreira v Levin NO & others; Vryenhoek & others v Powell
NO & others
[1995] ZACC 13
;
1996 (1) SA 984
(CC) para 229.
[47]
Mukaddam v Pioneer Foods (Pty) Ltd &
others
ZACC 23;
2013 (5) SA 89
(CC)
para 32.
[48]
Gold Fields Limited & others v Motley Rice
LLC, In re: Nkala v Harmony Gold Mining Company Limited & others
[2015] ZAGPJHC 62;
2015 (4) SA 299
(GJ).
[49]
Gold Fields Limited and Others v Motley
Rice para 16–17.
[50]
Dendy v University of the Witwatersrand &
others
[2007] ZASCA 30
;
[2007] 3 All
SA 1
(SCA) para 22.
[51]
MEC for Roads and Public Works Eastern Cape &
another v Intertrade Two (Pty) Ltd
[2006] ZASCA 33; 2006 (5) SA 1 (SCA).
[52]
MEC for Roads and Public Works Eastern Cape
para 11.
[53]
MEC for Roads and Public Works Eastern Cape
para 12.
[54]
Unitas Hospital v Van Wyk & another
above.
[55]
Middleton v Carr
1949 (2) SA 374
(A) at 385–386.
[56]
My Vote Counts NPC v Speaker of the National
Assembly & others
[2015] ZACC 31
;
2016 (1) SA 132
(CC) para 31.
[57]
Section 9
of the PAIA.
[58]
Unitas Hospital v van Wyk & another
above para 18.
[59]
Nkala & others v Harmony Gold Mining
Company Limited & others
above
para 77.
[60]
My Vote Counts NPC v Speaker of the National
Assembly & others
(supra) at para
31.
[61]
That class members who opt out can still pursue
their claims individually is evident from the Amended Notice which
is Annexure
B(1) of the certification court order. Also see the
requirements prescribed in Federal Rule 23(b)(3) and 23(c)(2) of the
Federal
Rules of Civil Procedure in the United States of America;
Sherman EF (1987) “Class Actions and Duplicative Litigation”,
Indiana Law Journal
Vol
62: Issue 3, Art 2.
[62]
Cannon v Funds for Canada Foundation
;
1250264
Ontarion Inc. v Pet Valu Canada
Inc
.
[63]
Unitas Hospital v Van Wyk
above para 48.
[64]
Ibid para 43.
[65]
Nkala & others v Harmony Gold Mining
Company Limited & others
para 7.
[66]
Clause 9 of the order made by the court in
Nkala
states: ‘
It
is ordered that the members of the classes will be bound by the
judgment or judgments in the first stage of the class action
against
the mining companies, unless they give written notice to Abrahams,
Spoor, or the LRC by 31 January 2017, that they wish
to be excluded
as members of any of the classes against each or any of the
respondents.’
[67]
In their article with the title
Limiting
Relitigation by Defendant Class Actions from Defendant’s
Viewpoint
, published in
The
John Marshall Review
Volume 4 Issue 3,
Theodore and Anderson observe that ‘if the class member's
exposure is great enough, he may be less than
content at not being
in control of his destiny and at being "foreclosed by" the
ideas of other class members who are
participating
representatives’.
[68]
In
Mandeville v The
Manufacturers Life Insurance Company
2014 ONCA 417
(CanLII) the certification application was argued in
2002 but the trial was only finalized in 2008.
[69]
Nkala & others v Harmony Gold Mining
Company Limited & others
above
para 210.
[70]
Nkala & others v Harmony Gold Mining
Company Limited & others
supra
para 9.
[71]
South African Law Reform Commission Project 88
‘
The Recognition of Class Action
in South African Law’
at para
3.1.2;
Cilliers et
al, Herbstein and van Winsen,
Civil
Practice of the High Court of South Africa
(2009)
199 – 201 submit that appropriate legislation and rules of
court are needed for class actions.