Davis v Clutcho (PTY) Ltd (1289/03) [2003] ZAWCHC 23 (10 June 2003)

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[2003] ZAWCHC 23
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Davis v Clutcho (PTY) Ltd (1289/03) [2003] ZAWCHC 23; [2003] 3 All SA 561 (C) (10 June 2003)

IN
THE HIGH COURT OF SOUTH AFRICA
CAPE
OF GOOD HOPE PROVINCIAL DIVISION
CASE NO: 1289/03
In
the matter between:
ANDREW CHRISTOPHER
DAVIS APPLICANT
and
CLUTCHO
(PTY) LTD
RESPONDENT
Advocate for Applicant:
Adv. P. A. van Eeden
Advocate
for Respondent: Adv. B. J. Manca
JUDGMENT DELIVERED THIS 10
th
DAY OF JUNE 2003
Meer J:
INTRODUCTION
This is an application
concerned with the right of a shareholder in a private company to
obtain access to information from the company
under the Promotion of
Access to Information Act No 2 of 2002 (“the Act”).
The
applicant, who owns 30% of the shares in respondent company requested
access to certain company books of account for the purpose
of
determining the value of his shares. The respondent refused
applicant’s request for access and the applicant now applies to
Court in terms of Section 78 (2)(d)(1) of the Act for an order that
the
books of account be made
available to him.
The Act
The
Act is a relatively new one. It was enacted to give effect to the
constitutional right of access to information embodied in
section 32
of the Constitution
1
,
by providing for access to information held by the state and private
bodies subject to justifiable limitations
2
,
if such information is required for the exercise or protection of
any rights. It aims at fostering a culture of transparency and
accountability in public and private bodies by giving effect to the
right of access to information
3
.
In
order to analyse the nature of the application it is necessary to
refer to key provisions of the Act.
Part
3 of the Act deals with access to records of private bodies. It
provides for the circumstances and manner in which access to
records
of a private body may be requested
,
the procedure to be followed by the head of a private body in
granting or refusing the request for access to information
4
and enables a person aggrieved by a refusal of a private company to
consent to access, to apply to court for an assessment of the
validity of a refusal.
5
Of
particular relevance for the purposes of determining this
application are sections 50 (1)(a) of the Act which states that
records
requested from a private body must be required for the
exercise and protection of any rights, and section 68 of the Act,
(quoted
later in this judgement) which prescribes the grounds upon
which a request for access to records may be refused by the head of

a private company.
Section 50(1) states:
“
50.
Rights of access to records of private bodies.-
(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.”
The applicant seeks to
invoke the provisions of the Act in requesting access to certain
books of account held by the respondent
company. He does not accept
that respondent’s reasons for refusal are valid in terms of
section 68 of the Act.
The
question as to whether the records requested by applicant are
required for the exercise and protection of any rights, as well
as
the validity of respondent’s refusal must be considered within the
following facts and circumstances pertaining to this application.
Background Facts
The
respondent is a small private company that is run as a family
business. It has a workshop which
inter
alia
services clutches and
brakes.
The
sole director of the company is applicant’s father, Frederic Davis
Armitage.
70%
of the shares of the company are owned by the Davis Family Trust, of
which applicant’s father is a trustee. Applicant’s
brother,
Gordon, is the manager of the business.
In 1999, applicant
bought 30% of the shares in the company and was appointed as a
director. He was also employed as workshop manager.
In
the beginning of 2002, conflict developed between the applicant and
his brother, Gordon, which culminated in the applicant being
removed
as a director and fired in September of that year.
In
his founding affidavit, applicant states that in January 2002 he
became concerned about the manner in which the respondent was
being
managed when he discovered that various companies had closed
respondent’s credit facilities because his brother, Gordon,
had
not paid their accounts. He had requested a director’s meeting as
a consequence but a meeting was not convened. He then
requested and
obtained various company documents from the auditors including
financial statements and loan accounts. His concerns
were increased
when he discovered from the financial statements that his monthly
salary of R16 600 was reflected in the amount
of R8000 only. This,
he said, suggested to him that the financial statements were not a
true reflection of Respondent’s financial
transactions.
Respondent,
in its answering affidavit, denies the allegation of financial
mismanagement although it concedes there were temporary
problems
with its credit facilities early in 1992.
Applicant was removed as
a director of the company by resolution of the shareholders taken at
a meeting of 12 August 2002. The minutes
of that meeting state that
no reasons were given for the resolution and, in fact, record the
Chairman as stating that reasons were
not needed to be given for
applicant’s removal. On 20 September 2002 applicant was fired by
his brother, Gordon, and as of that
date he was barred from
respondent’s place of business.
Applicant’s
dismissal was referred to arbitration in terms of the
Labour
Relations Act 66 of 1995
in March 2003.The applicant’s case was,
however, dismissed as the arbitrator found that she had no
jurisdiction to hear the
matter, apparently on the basis that
applicant was not an employee, but a partner in the business.
After
the termination of his directorship, applicant sought to sell his
shares in respondent in accordance with the articles of
association,
more specifically with clause 7.7.1-7.7.4 thereof
6
,
which specify the procedure for the sale and valuation of shares.
An attempt was made to reach agreement with other shareholders
on
the purchase of applicant’s shares by them, and a valuation
pursuant to clause 7.7.3 of the articles was obtained from
respondent’s
auditors, determining their value at R100 000. The
applicant was not satisfied with this valuation.
On 22 January 2003, the
applicant requested access to respondent’s books of account in
terms of section 50 of the Act. The request
identified, (as is
required at section 53(2)(d) of the Act), the right he sought to
exercise, and explained why the information
was required for the
exercise of such right. This appears in the following extract from
the prescribed Form C:
“
1. Dui
aan watter reg uitgeoefen of beskerm word:
Die
reg om die werklike
finansiele
posisie van die maatskappy (clutches) vas te stel.
2.
Verduidelik waarom die rekord wat versoek word, benodig word
om voormelde reg uit te oefen of te beskerm:
Dit sal my in staat
stel om die finansiele rekords
te
rekonstrukteer en dan die waarde van my 30 % aandele to bepaal.
”
Put simply applicant
sought to exercise his right to ascertain the true financial
position of the company. The purpose for requesting
the records was
to enable the applicant to reconstruct respondent’s financial
records and value his 30% shares in the respondent.
In amplification hereof
applicant states in his founding affidavit that:
- as a shareholder in
the company he has the right of access to the financial records
requested because of his suspicion that all
transactions are not
correctly written up in the financial statements. The records, being
books of first entry, compiled from bank
statements and invoices
will enable him to determine the actual income of respondent and the
value of his 30% shareholding which
he wishes to sell;
-he
is mistrustful of the valuation placed on his shares by
respondent’s auditors and is not bound by such value;
-he
cannot protect his R100 000 investment in respondent as he can no
longer take part in its management; and
-he
must urgently determine if he is being financially prejudiced by the
discrepancies between the financial records and the financial
statements. If this is so, he intends instituting an action against
the respondent.
In
his replying affidavit, applicant states that during 1999 his father
informed him that his shareholding was worth R300 000.
Given the
subsequent growth in the business and turnover since then, his
shareholding is currently worth in excess of R300 000.
On 30 January 2003,
applicant’s request for access to the aforementioned information
was refused in a letter from respondent’s
attorneys to the
applicant.
The reason for the
refusal, as set out in the letter, is as follows:
“
Regarding your
client’s request for certain records and information from my
client, it is my instructions that, in view of the
fact that the
other shareholder in the Company is no longer interested in
purchasing your client’s shares in the Company, the
question
regarding the value thereof is no longer relevant, and the
information and records which are requested is therefore denied.”
Applicant
submitted that the ground for refusal in the letter did not
constitute a valid reason in terms of section 68 of the Act
(quoted
later), and he consequently launched this application in March 2003
as a matter of urgency.
In addition to the
reason in its letter of January 2003, the respondent subsequently
furnished further reasons for refusal of the
information in its
answering affidavit, dated 14 March 2003, in opposition to this
application.
The reasons stated
therein are that the records are highly relevant to the respondent’s
financial viability. Access to them would
enable the applicant to
have detailed insight into the respondent’s margins, customer
lists, financial planning and profit margins.
Disclosure of the
information would therefore be likely to cause harm to the
commercial and financial interests of the respondent,
more
particularly, because the applicant may use that information to set
himself up in a business in competition with the respondent.
Mr
Van Eeden
,
for the applicant, argued correctly that the concession by
respondent (in its further reasons), that the records requested were
highly relevant to respondent’s financial viability, gainsaid its
denial (in its letter of January 2003 refusing the information)
that
the applicant needs those financial records in order to value its
shareholding.
Applicant questioned
respondent’s right to adduce further reasons to those in its
letter of refusal which formed the basis of
the application. He
nonetheless responded to them by submitting that:
because of his
involvement in respondent’s business, he already has
knowledge of its
margins, and customer lists until at least September 2002;
-
any potential competition flows from the fact of his past
involvement
in the
business and not from his exercise of his right to information. He
was not seeking the customer lists, and he suggested
that respondent
delete the names of individual customers from the records requested
if it so wished. Applicant also undertook not
to make the
information available to any other person save his lawyer;
- the records he sought
could not provide insight into financial planning as they related to
past transactions.
In addition, applicant
submitted that respondent’s further reasons were also not valid
reasons in terms of Section 68 of the Act.
The Dispute Between The Parties
At issue between the
parties and the focus of argument was whether the records requested
by applicant were required for the exercise
or protection of any
rights, as specified at section 50(1)(a) of the Act, and whether
respondent’s refusal of applicant’s request
for information was
valid in terms of section 68 of the Act. I shall deal with these in
turn.
Were the records
requested required for the exercise of his rights?
For
convenience, I quote section 50(1)(a) again:
“
50.
Rights of access to records of private bodies.-
(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”.
Mr
Van
Eeden
argued that the applicant had made out a proper case, in terms of
section 50 (1)(a) of the Act, that the records requested were
required for the exercise or protection of his rights.
The
phrase “required for the exercise or protection of any rights”
at section 50 appears in the constitutionally enshrined
right of
access to information in section 23 of the Interim Constitution
7
and
section 32 (1)(b) of
the Final Constitution
8
.
The
phrase has been considered by our courts within the context of the
Interim and Final Constitutions only, its most recent consideration
as far as I have been able to ascertain, being by the Appellate
Division in
Cape
Metropolitan Council v Metro Inspection Services
CC
2001 (3) SA 1013
at para 28, where
Streicher
JA said:
“
Information
can only be required for the exercise or protection of a right if it
will be of assistance in the exercise or protection
of the right. It
follows that, in order to make out a case for access to information
in terms of s 32, an 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.”
This accords with the
views on the phrase “required for the exercise or protection of
any rights” expressed in:
-
Shabalala v Attorney
General, Transvaal and Another
1995 (1) SA 608
(T) at 624C-D where
Cloete
J, discussing section 23 of the Interim Constitution, stated that
“required” conveys an element of need; the information does
not
have to be essential but it certainly has to be more than useful.
-
See also
Nortje and Another
v Attorney- General, Cape, and Another
1995
(2) SA 460
(C) at 474G where
Marais
J, also commenting on section 23 of the Interim Constitution, stated
that the word “required” must be understood as meaning
“reasonably required” as opposed to simply “needs” or
“desires”. This was endorsed by
Farlam
J in
Van Huyssteen and
Others NNO v Minister of Environmental Affairs and Tourism and
Others
1996 (1) SA 283
(C)
at 299-300.
-See
also
Inkatha Freedom Party
and Another v Truth and Reconciliation Commission and Others
2000 (3) SA 119
at 137H-I where
Davis
J stated:
“
In
short, the content of the right must be examined within the context
within which it is claimed. The very wording of s 32, which
contains
the phrase ‘required for the exercise of rights’, points in the
direction of such an enquiry for what is required
is dependent on
the facts.”
Mr.
Manca
contended that, notwithstanding section 32 of the Constitution and
the provisions of the Act, the applicant did not have the right
of
access to information.
He argued that a
prerequisite for obtaining access to information under the Act was
an antecedent legal right to such information.
The applicant, he
said, as a shareholder, did not have the antecedent legal right to
inspect the books of record of the company
because no such right was
accorded to a shareholder either by the Companies Act No. 61 of 1973
(“the Companies Act”), at common
law or in respondent’s
articles of association. He could therefore not exercise a right
which was not recognised in law.
The Companies Act at section 284(3) accorded that
right to directors only, and not shareholders. Mr
Manca
contended that ordinary members of a company, like applicant, only
have rights of inspection of books of account if the articles
of
association expressly so provide, which was not the case here. In
any event, the Companies Act provided sufficient protection
to a
shareholder wishing to establish the financial position of a
company, without necessitating reliance on the Act. Section
302 of
the Companies Act, for example, obliged a company to send annual
financial statements to the members of a company. He referred
also
to section 252 of the Companies Act which sets out a shareholder’s
remedies in cases of oppressive or unfairly prejudicial
conduct by
the company, and enables such a shareholder to approach a court on
application for appropriate relief. I note that neither
of these
sections, however, caters for access to accounting records.
Mr
Manca
also referred to sections 281
9
,
286
10
,
298
11
,
300
12
,
309
13
,
206
14
and
113
15
of
the Companies Act, none of which, in my view, provide adequate
relief for a person in applicant’s position.
These
sections do not enable shareholders in the position of applicant to
acquire the requisite information to safeguard their investments
or
to gain information about the value of their shares. It is clear
that
those
rights afforded by the Companies Act, to shareholders, fall short by
far of the constitutional right of access to any information
at
section 32 of the Constitution, and section 50(1)(a) of the Act.
The
effect
of Mr
Manca
’s
submissions is that the Companies Act would take precedence over,
and limit the fundamental right of access to information
at section
32 of the Constitution, and mirrored in the Act. This would be
contrary to the constitutional imperative against legislation
limiting rights entrenched in the Bill of Rights, as well as the
imperative that legislation must be interpreted to give effect
to
the Bill of Rights.
Section
36(2) of the Constitution states:
“(e)xcept
as provided in subsection (1)
16
or in any provision of the Constitution, no law may
limit
any right entrenched in the Bill of Rights.”
Section 39(2) states :
“
(w)hen
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.”
The Companies Act
cannot, contrary to section 36(2) of the Constitution, limit the
right of access to information at section 32
of the Constitution,
and mirrored in the Act, nor can it be interpreted to exclude such
right, which would thus be contrary to
the spirit of the Bill of
Rights. To the extent that the Companies Act does not provide for
access to information, section 32 of
the Constitution, and the Act,
must be read into the Companies Act. It could never have been the
intention of the legislature that
a shareholder aggrieved by
financial statements, as in this case, should be barred from access
to the information required to shed
light on such statements in
order to exercise his rights to sell shares or even prosecute a case
against the company in terms of
remedies available to him in terms
of either the Companies Act or the common law.
This
is reinforced by the pre-amble to the Act which states that the Act
seeks to counter
“
a
secret and unresponsive culture in public and private bodies which
often led to an abuse of power and human rights violations”,
and
also
“
the
right of access to any information held by a public or private body
may be limited to the extent that the limitations are reasonable
and justifiable in an open and democratic society”.
In
my view, the Act must permit a shareholder, like the applicant, to
obtain access to information in the books of account to safeguard
his investment in the company or to ensure that he has knowledge of
the value of his shares. If the Companies Act does not provide
an
equivalent process to safeguard his proprietary interest in the
company, then it cannot be contended that the Act should be
superseded by the Companies Act. In the as yet unreported
Constitutional Court decision of
Ingledew
v The Financial Services Board and Two Others
17
,
it
was acknowledged that the Act is applicable in instances of
concurrent rights to information; all the more so in the instant
case given the absence of a right to the information sought under
the Companies Act and consequently the absence of concurrent
rights.
Regard
being had to the above, I have come to the view that applicant has
established that the records requested by him are reasonably
required for the exercise and protection of his rights as a
shareholder to value and sell his shares, to verify his concerns
about
financial mismanagement and take any resultant steps, and to
protect his investment in the Company. The records will be of
assistance
to him in the exercise and protection of such rights and
a denial thereof would go against the principles of accountability
and
transparency inherent in the Act and Constitution.
Validity
of Respondent’s Refusal of Access to Information
The validity of
respondent’s refusal to consent to the information requested must
be assessed in light of the relevant provisions
of the Act.
Section 56(3)(a)
specifies the mandatory requirements of a notice refusing access to
information, and section 68 specifies the grounds
upon which the
head of a private body may refuse access to information. Section
81(3) stipulates that respondent bears the burden
of establishing
compliance with the provisions of these sections in refusing the
information requested.
Section 56 states:
“
56.
Decision on request and notice thereof.—
(1)
Except if the provisions
regarding third party notification and intervention contemplated in
Chapter 5 of this Part apply, the head
of the private body to whom
the request is made must, as soon as reasonably possible, but in any
event within 30 days, after the
request has been received or after
the particulars required in terms of section 53(2) have been
received-
decide in accordance
with this Act whether to grant the request; and
notify the requester of
the decision and, if the requester stated, as contemplated in
section 53 (2) (e), that he or she wishes
to be informed of the
decision in any other manner, inform him or her in that manner if
it is reasonably possible.
(2)
If the request for access is granted, the notice in terms of
subsection (1) (b) must state-
the access fee (if any)
to be paid upon access;
the form in which
access will be given; and
that the requester may
lodge an application with a court against the access fee to be paid
or the form of access granted, and
the procedure, including the
period allowed, for lodging the application.
(3) If the request
for access is refused, the notice in terms of subsection (1)(b)
must—
(a) state
adequate reasons for the refusal, including the provisions of this
Act relied on;
(
b)
exclude, from any such reasons, any reference to the content of
the record; and
(c) state that the requester may lodge an application
with a court against the refusal of
the
request, and the procedure (including the period) for lodging the
application.”
Neither
the letter of January 2003 refusing applicant’s request for access
to the information sought, nor the subsequent reasons
furnished by
respondent complied with these requirements.
Section
68 provides thus:
“
68
Commercial information of private body.
—1)Subject
to subsection (2), the head of a private body may refuse a request
for access to a record of the body if the record—
(a) contains trade
secrets of the private body;
contains financial,
commercial, scientific or technical information, other than trade
secrets, of the private body, the disclosure
of which would be
likely to cause harm to the commercial or financial interests of
the body;
(c) contains
information, the disclosure of which could reasonably be expected —
to put the private body
at a disadvantage in contractual or other negotiations; or
to prejudice the body
in commercial competition; or
(d)
is a computer program, as defined in section 1 (1) of the Copyright
Act, 1978 (Act No. 98 of 1978), owned by the private body,
except
insofar as it is required to give access to a record to which access
is granted in terms of this Act.
(2) A record may not be
refused in terms of subsection (1) insofar as it is consists of
information about the results of any product
or environmental
testing or other investigation supplied by the private body or the
results of any such testing or investigation
carried out by or on
behalf of the private body and its disclosure would reveal a serious
public safety of environmental risk.
(3)
For the purposes of subsection (2), the results of any product or
environmental testing or other investigation do not include
the
results of preliminary testing or other investigation conducted for
the purpose of developing methods of testing or other

investigation.”
The
reason provided in the letter of January 2003 refusing the request
for information clearly does not incorporate any of the grounds
specified at section 68.
The
subsequent reasons do not adequately meet the grounds for refusal
either, nor is there compliance with section 81(3) of the
Act in
that respondent has not discharged the burden of establishing the
existence of the reasons for refusal as set out at section
68 of the
Act. Mr
Van Eeden
correctly stated that respondent had not established that its
margins of profit contained trade secrets. Nor had it shown that
the disclosure of the records requested would be likely to cause
harm to respondent’s commercial and financial interests. It
was
not sufficient for respondent simply to claim that the disclosure of
its margins disentitled applicant to the relief he seeks.
Respondent
did allude to commercial competition, a ground specified at section
68 (1) (c) (iii), but respondent did not provide
sufficient grounds
as it is required to do in terms of sections 53 and 68 read with
81(3), to sustain a refusal for such reason.
Respondent’s reasons
for refusal are accordingly not in accordance with the Act and
therefore not valid reasons.
Mr
Van Eeden
argued also that the respondent was not entitled to advance
additional reasons over and above those furnished in the letter of
January 2003 for the refusal of the information requested, and it
was therefore not open to it to advance further reasons as it
had
done in its answering affidavit. He said that the initial reasons in
the aforementioned letter were those in terms of section
56(3)(a)
which had precipitated this application, and the application should
accordingly be assessed in accordance with those reasons
alone.
An
application to Court in terms of section 78(1)(d) flows from an
applicant being aggrieved by a decision of the head of a private
body to refuse a request for access and is based on the reason for
such refusal. Section 82 of the Act, however, exhorts a Court
hearing an application to grant any order that is just and
equitable. It may well be that the circumstances of a particular
case
will dictate that for a Court to grant an order that is just
and equitable, further reasons have to be entertained. This will
vary
from case to case. It would, I believe, be inequitable to
prescribe a hard and fast rule in this regard. In the case at hand,
the
initial basis for refusal was clearly not the real reason
therefore, but appeared to have been
hurriedly formulated in a
letter of response. The real reasons clearly emerged later in
respondent’s answering affidavit. I took
the view in the
circumstances, that any order granted could only be just and
equitable if these further reasons were to be considered
and
ventilated. This occurred and they, too, were ultimately rejected
for not being in compliance with the Act.
Conclusion
All
of the above leads me to conclude that from the facts averred in
applicant’s affidavits which have been admitted by the respondent,
together with the facts alleged by the respondent:
-the
applicant has satisfied the requirements of section 50 (1) (a) of
the Act in that the records sought by him are required for
the
exercise and protection of his rights as a shareholder to value and
sell his shares, verify his suspicions concerning financial
mismanagement and protect his interest in respondent;
-the
respondent’s notification of the refusal of the request does not
comply with the terms of section 56 (3)(a) of the Act, and
the
reasons for the refusal do not constitute valid reasons in terms of
section 68 of the Act; and
-the applicant has
accordingly made out a case which entitles him to the information
sought.
I
do not, however, consider it necessary for applicant to have access
to respondent’s customer lists for the purpose of exercising
the
rights he seeks to protect. This the applicant himself has conceded.
It would be equitable if the information were restricted
to
applicant and his legal representative only. These are justifiable
limitations of applicant’s right of access to information
imposed
in the interests of respondent’s privacy and commercial
confidentiality in accordance with section 9(2) (b) (1) of the
Act.
Since
it is the applicant who requires the information, he should bear the
costs of accessing the information. The fact that he
has applied to
Court to exercise his right of access to the information does not
detract from this.
ORDER
Accordingly I make the
following order:
1. The Respondent is
ordered to furnish the applicant with the following documents within
30 working days of the date of this order:
A printout of:
(a) the
respondent’s cash book from the date it commenced business to
date;
(b) the
respondent’s detailed general ledger for the same period;
(c)
the respondent’s debtors’ ledger for the same period;
(d) the
respondent’s creditors’ ledger for the same period; and
(e)
any journal reflecting the shareholders’ loan accounts for the
same period.
The names of
respondent’s customers are to be deleted from such documents
should the respondent so wish.
2. In the event of the
respondent not furnishing the applicant with the aforementioned
documents within the period mentioned in
paragraph 1 above, the
sheriff for the district of Worcester shall be authorized to take
possession of the said documents from
the respondent ‘s premises
and hand them over to the applicant.
3. The applicant is
prohibited from disclosing the information in the aforementioned
documents or the documents themselves to any
person other than his
legal representative.
4. The
respondent shall bear the costs of this application.
------------------------------
MEER
J
1
The
Constitution of the Republic of South Africa Act 108 of 1996.
Section
32 of the Constitution states:
“
(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 and
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.”
2
“
Section
9
Objects
of Act.
–The objects of this Act are –
(a) to give effect to
the constitutional right of access to --
(i) any information
held by the state; and
(ii) any information
that is held by another person and that is required for the exercise
and protection of any rights:
(b) to give effect to
that right --
(i) subject to
justifiable limitations , including, but not limited to ,
limitations aimed at the reasonable protection of privacy,
commercial confidentiality and effective, efficient and good
governance; and
(ii)
in a manner which balances that right with any other rights ,
including the rights in the Bill of Rights in Chapter 2 of the
Constitution;”.
In respect of private companies, section 67
protects access to records privileged from production in legal
proceedings, section
68 protects records pertaining to commercial
information of a private body in certain instances, and section 69
provides for the
protection of research information of private
bodies.
3
See
the very useful commentary on the Act by lain Currie and Jonathan
Klaaren
The
Promotion of Access to Information Act Commentary
(2002)
Siber
Ink
,
Cape
Town
at
1.
4
Section
56
5
Sections
78 (2)(d) and 82
6
“
7.7.1
If a member of the company desires to sell all or any of his shares
of the company he shall give notice, in writing,
of his
intention to sell, to the directors of the company, and state the
price he requires for the shares.
7.7.2 The
directors shall within 14 days of the date of receipt of the notice
referred to in article 7.7.1 advise
every other
member of the company of the contents thereof and each such
member shall be entitled to acquire the shares
so offered
within 14 days after the date of receipt of such
advice at the same selling price that the proposed
seller wishes to
obtain: Provided that if more than one member
makes an offer for all of the shares so
offered,
the shares shall be sold to each such member in equal proportions,
and where fractional
proportions of shares remain,
such members shall become joint holders of such
fractional proportions of the shares.
7.7.3 If
the members of the company are unable to agree upon the selling
price of the shares, the auditor of the
company
shall be requested to determine the true and fair value thereof
and the members shall accept the value as
the selling price
of the shares.
7.7.4 If
none of the members of the company offers to purchase the shares
within the time referred to in article
7.7.2,
or if members of the company offer to purchase a part of the
shares so offered, the member who is offering
the shares
for sale may offer the shares or the remaining portion
of the shares which have not been purchased by members
of the
company, for the sale to any other person, at a price at
least equal to the price as in article
7.7.1 above, and
the company in general meeting shall approve the registration of the
shares in the name
of that person unless they
have good reason to refuse such registration.”
7
The
Constitution of the Republic of South Africa Act 200 of 1993
8
The
Constitution of the Republic of South Africa Act 108 of 1996
9
Section 281 provides for
the auditor’s right of access to books and accounting records, and
to be heard at general meetings.
10
Section
286 provides that the directors of a company shall cause to be made
out annual financial statements, and shall lay them
before the
annual general meeting.
11
Section
298 provides for the approval and signing of financial statements by
the directors of a company.
12
Section
300 provides for auditor’s duties as to annual financial
statements and other matters.
13
Section
309 stipulates for the rights of members and others to copies of
annual financial statements and interim reports.
14
Section
206 provides for the rights of members to inspect minute books of a
company.
15
Section
113 caters for the inspection of the register of members.
16
Subsection
(1) provides that: “ The rights in the Bill of Rights may be
limited only in terms of law of general application to
the extent
that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality
and freedom,
taking into account all relevant factors, including- (a) the nature
of the right; (b) the importance of the purpose
of the limitation;
(c) the nature and extent of the limitation; (d) the relation
between the limitation and its purpose; and (e)
less restrictive
means to achieve the purpose.”
17
CCT6/02
(unreported) decided on 13 May 2003 at paragraph 36
21