THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 818/2024
In the matter between:
G.U.D. HOLDINGS (PTY) LTD Appellant
and
COMPANIES AND INTELLECTUAL
PROPERTY COMMISSION First Respondent
COMPANIES TRIBUNAL Second Respondent
KHATIJA TOOTLA N.O. Third Respondent
Neutral citation: G.U.D. Holdings (Pty) Ltd v Companies and Intellectual Property
Commission and Others (818/24) [2026] ZASCA 10 (4 February
2026)
Coram: MEYER, KGOELE, KEIGHTLEY and COPPIN JJA and DAWOOD AJA
Heard: 7 November 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and release to SAFLII. The time and date for hand-down is deemed to be 11h00 on 4
February 2026.
Summary: Company Law – Companies and Intellectual Property Commission (the
Commission) - Companies Act 71 of 2008 – Interpretation of s 212 - Claim for
confidentiality of information when submitting information to the Commission.
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ORDER
On appeal from: Gauteng Division of the High Court, Pretoria (Ceylon AJ, sitting as
court of first instance):
The appeal is dismissed with costs, including those of two counsel.
JUDGMENT
Meyer JA (Kgoele, Keightley and Coppin JJA and Dawood AJA concurring)
[1] This appeal concerns a confidentiality claim submitted in terms of s 2121 of the
Companies Act 71 of 2008 (the Companies Act). It is against the order of the Gauteng
Division of the High Court, Pretoria (the high court), dated 18 December 2023, granting
an application for judicial review brought by the first respondent, the Companies and
Intellectual Property Commission (the Commission).2 The high court set aside the
decision of the second respondent, the Companies Tribunal (the Tribunal),3 and
substituted it with an order dismissing the claim of the appellant, G.U.D. Holdings (Pty)
Ltd (GUD), for confidentiality of its annual financial statements for the year ending 30
June 2020. The third respondent, Ms Khatija Tootla N.O., is cited in her official capacity
as the member of the Tribunal who wrote the impugned decision. The appeal is with
leave of the high court.
[2] GUD is a private for-profit company, deemed to be a pre-existing company and
is required in terms of its Memorandum of Incorporation , the Companies Act and the
Companies Regulations 2011 (the Companies Regulations) to have its annual
financial statements audited and submitted to the Commission. It was established in
1 Subsections 212(1) and (2) of the Companies Act reads:
‘(1) When submitting information to the Commission, the Panel, the Companies Tribunal, the Council,
or an inspector or investigator appointed in terms of this Act, a person may claim that all or part of that
information is confidential.
(2) Any claim contemplated in subsection (1) must be supported by a written statement explaining why
the information is confidential.
2 The Commission is established under s 185(1) of the Companies Act ‘as a juristic person to function
as an organ of state within the public administration, but as an institution outside the public service’.
3 The Tribunal is established in terms of s 193(1) of the Companies Act as ‘a juristic person’.
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1949 and conducts business in the automotive industry. It enjoys a high market share
in certain of its product lines.
[3] Since inception, GUD never submitted its annual financial statements to the
Commission. In terms of s 30(1) of the Companies Act , a company must prepare
annual financial statements annually within six months after the end of its financial
year. Sections 29 and 30 provide for what is to be con tained in the financial
statements. They must: present fairly the state of affairs of the business of the
company, and explain the transactions and financial position of the business of the
company;4 show the company’s assets, liabilities and equity, as well as its income and
expenditure, and any other prescribed information; 5 include particulars showing
directors’ remuneration and benefits received.6 It must also file an annual return in the
prescribed form within the prescribed period after the end of the anniversary date of
its incorporation . In that return , it must include copies of its annual financial
statements,7 securities register8 and register of the disclosure of beneficial interest.9
[4] On 21 February 2019 , GUD submitted a claim for confidentiality , as
contemplated by s 212(1) of the Companies Act, to be approved by the Commission
‘in relation to all and the entire contents of its Annual Financial Statements, which may
in the future have to be submitted to the CIPC’. GUD gave the following explanation
in support of its claim for confidentiality:
‘The reason for the Company claiming confidentiality of the Annual Financial Statements is
that the Annual Financial Statements of the abovementioned Company contain confidential
and sensitive information relating to:
a. Profitability;
b. Gross Profit;
c. Annual Turnover;
d. Asset Base and Liabilities; and
e. Company Ownership and Structure.
4 Section 29(1)(b).
5 Section 29(1)(c).
6 Section 30(4)(a).
7 Section 33(1)(a).
8 Section 33(1)(b).
9 Section 33(1)(c).
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This information is of a sensitive nature and would prejudice the Company and its
Shareholders if it is accessed by:
Competitors, Customers and Unions, ie. The Company enjoys a high market share in certain
of its product lines, which makes the protection of its profitability from possible new competitors
and from customers even more acute and it is in the interest of protecting the business of the
Company that a claim for confidentiality is being req uested from the CIPC in terms of the
provisions of section 212(1) and (2) of the Act. The financial information recorded in the
financial statements of the Company is also sensitive and would prejudice the Company and
its Shareholders if it is accessed by its customers, suppliers, executive directors, employees
(other than those required to have access for the purpose of their jobs) and especially if
accessed by the unions, seeing that the automotive industry is heavily unionized. The
Company and its subsidiaries are involved in the motor industry. National Un ion of Metal
Workers of South Africa (NUMSA) is currently the majority union representing the employees
in the business.’
[5] On 18 April 2019, the Commission refused GUD’s claim for confidentiality.
However, it permitted GUD to file a supplementary affidavit for further consideration
by the Commission. Therein, GUD responded to the reasons given by the Commission
for refusing its claim for confidentiality. In addition, its chief financial officer states:
’21. I make the following submissions in respect of the Company ’s right to privacy and the
potential harm that disclosure of the financial statements to the public in general, is likely to
cause the Company. I do so with reference to the categories of information that must be
included in the financial statements to be submitted to the Commission:
21.1. The quantum of dividends declared and paid: as the Company is a private company and
21.1. The quantum of dividends declared and paid: as the Company is a private company and
its shareholders are private entities, dividends paid to them are not for public information.
21.2. Levels of outside funding in the business: the bank receives the Company’s financial
statements and is able to deci de whether or not to provide the funding the Company
may require. How the business is financed is not information that should or needs to be
made known to the public in general.
21.3. Revenue, cost of sales and gross profit information and all the information contained in
the statement of profit or loss and other comprehensive income needs to be kept
confidential. For competitors to know the Company’s gross profit percentage would put
us at a distinct disadvantage in the industry. This is especially as most of our competitors
are importers and therefore we do not have access to their annual financial statements.
For them to know our operating costs would also put us at a distinct disadvantage as
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they would know what price we need to sell our products at and could potentially
undercut us with our customers.
21.4. The cash flow statement also contains information that should be kept confidential, as it
shows how the business is being funded and run.
21.5. The goodwill note gives information on how we have valued divisions within the
Company and the risk each division/subsidiary is exposed to. The information is highly
sensitive and could again give competitors an edge if they knew what we needed from
each division and what risks we were exposed to.’
[6] On 11 September 2019, the Commission refused GUD’s supplemented claim
for confidentiality. In refusing its claim, the Commission concluded:
‘Section 212(1) of the Companies Act provides for a person to claim that all or part of the
information is confidential (my emphasis). Your claim for confidentiality of the “entire
statements” of your audited financial statements in terms of section 212 is too broad, widely
encompassing and therefore not granted. Information deemed confidential such as trade
secrets (for example) is not required to form part of the annual financial statements and may
be omitted. Your client has a right in terms of section 212(7) to refer this matter to a court for
an appropriate order.’
[7] Dissatisfied with this outcome, o n 3 October 2019, GUD submitted an
application to the Tribunal wherein it sought a decision: reviewing and setting aside
the decisions of the Commission taken on 18 April 2019 and 11 September 2019 ,
refusing its claim for confidentiality of its audited financial statements ; and the
replacement of that decision with one granting its claim. On 25 November 2019 , the
Tribunal published its decision striking the matter from its roll for lack of jurisdiction to
adjudicate the application. On 4 August 2020, GUD applied to the Gauteng Division of
the High Court, to review and set aside the Tribunal’s decision. On 29 June 2021, that
the High Court, to review and set aside the Tribunal’s decision. On 29 June 2021, that
court found that the Tribunal had the requisite jurisdiction to grant such decision and
referred the matter back to the Tribunal.
[8] On 14 September 2021, GUD submitted a new claim for confidentiality to the
Commission ‘for the entire contents of annual financial statements for the financial
year-end 30 June 2020. Attached to the claim were GUD’s annual financial statements
for the 2020 financial year , with the redaction of the directors’ remuneration. On 27
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September 2021, the Commission refused its claim for confidentiality stating, inter alia,
that:
‘It is of crucial importance to note that this information is of a general nature, These (sic)
information is contained in the annual financial statements of all reporting entities mandated
to report and this information is not out of the ordinary. It is in line with International Financial
Reporting Standards (IFRS) and the Companies Act requirements.’
[9] Once again dissatisfied with the outcome, on 18 October 2021, GUD submitted
a further application to the Tribunal wherein it sought a decision: reviewing and setting
aside the decision of the Commission taken on 27 September 2021 , and the
replacement of that decision with one granting GUD’s claim for confidentiality. On 13
December 2021, the Tribunal upheld GUD’s application and replaced the decision of
the Commission with one granting GUD confidentiality in respect of its 2020 annual
financial statements.
[10] Dissatisfied with the decision of the Tribunal, the Commission initiated the
application that forms the subject of this appeal in the high court on 16 May 2022. The
high court reviewed and set aside the decision of the Tribunal , substituted it with an
order dismissing GUD’s claim for confidentiality in respect of its 2020 financial
statements, together with an adverse costs award against it. In the present appeal,
GUD raises several grounds of review under s 6(2) of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA). However, counsel agree that, unless it is found that GUD
established that the information forming the subject -matter of its claim for
confidentiality is indeed ‘confidential’ as contemplated in s 212(1) of the Companies
Act, it cannot succeed on any one of its grounds of review. It is, therefore , to that
question which I now turn.
[11] Whether information is ‘confidential’ as contemplated in s 212(1) of the
Companies Act, raises the issue of the proper interpretation of that provision. Section
Companies Act, raises the issue of the proper interpretation of that provision. Section
212(1), like any other written instrument, must be interpreted by application of the triad:
language, context and purpose. 10 An interpretation that results in absurdity must be
avoided. Section 212 enables a person who submits information to the Commission,
10 Cool Ideas 1186 CC v Hubbard and Another [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR
869 (CC) para 28.
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the Panel, the Companies Tribunal, or the Financial Reporting Standards Council, to
claim that the information be treated as confidential, by submitting a claim in writing to
that effect.11 The claim will be considered and decided upon by the relevant entity,
which has to furnish written reasons for the decision .12 The relevant entity may take
confidential information into consideration in making its decision, 13 but where the
reasons for a d ecision would reveal any such confidential information, the entity is
under an obligation to provide the party claiming confidentiality with a copy of the
proposed reasons at least ten business days before publishing the reasons.14 A party
who received such a copy may apply to court within five business days after having
received the copy for an order to protect the confidentiality of the information.15
[12] The Companies Act does not provide a definition for the adjective ‘confidential’
used in s 212(1). The protection of confidential information is not always absolute .16
What would constitute information of a confidential nature will depend on the particular
facts and circumstances of each case. Important considerations in determining
whether information is indeed confidential, are, by way of example, the potential
usefulness of the information to a rival ,17 and the public interest score (PIS) of a
company.18 PIS is the measure of public interest in a specific company, determined
by its potential social footprint and impact on the public. In terms of reg 26 of the
Companies Regulations, the PIS is calculated through the accumulation of points
based on the numb er of employees in the employment of the company, third party
liabilities owed by the company, the annual turnover of the company, and the number
of shareholders of the company. PIS is an indication of a company’s level of public
interest; the level to which it must be regulated, and the financial reporting standards
interest; the level to which it must be regulated, and the financial reporting standards
required for transparency in the public interest. The higher the PIS, the greater the
degree of transparency required, because of the heightened demands for public
accountability, regulation, and oversight through financial statements review and audit,
11 Subsections 212(1) and (2).
12 Subsection 212 (3).
13 Subsection 212 (5).
14 Subsection 212 (6).
15 Subsection 212 (7).
16 Meter Systems Holdings Ltd v Venter & Another 1993 (1) SA 409 (W) at 430E; Pexmart CC & Others
v H Mocke Construction (Pty) Ltd & Another [2018] ZASCA 175; [2019] 1 All SA 335 (SCA); 2019 (3)
SA 117 (SCA); [2018] BIP 345 (SCA) para 65.
17 Coolair Ventilator Co (SA) (Pty) Ltd v Liebenberg & Another 1967 (1) SA 686 (W) at 691B.
18 See s 30(2)(b) of the Companies Act.
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and, where applicable, social and ethics review. Regulation 26(2) of the Companies
Regulations requires companies to calculate their PIS at the end of their financial year.
[13] In Nova Property Group Holdings Ltd and Others v Cobbett and Another ,19
Kathree-Setiloane AJA said this:
‘[16] The role that companies play in our society and their obligations of disclosure that arise
from the right of access to information in s 32 of the Constitution, is central to the interpretation
of s 26(2) of the Companies Act. Both this court and the Constitutional Court have recognised
that the manner in which companies operate and conduct their affairs is not a private matter.
In Bernstein & others v Bester NO & others [[1996] ZACC 2; 1996 (4) BCLR 449; 1996 (2)
SA751 (CC) para 85], the Constitutional Court made the position plain. The Court said:
“The establishment of a company as a vehicle for conducting business on the basis of limited
liability is not a private matter. It draws on a legal framework endorsed by the community and
operates through the mobilisation of funds belonging to members of th at community. Any
person engaging in these activities should expect that the benefits inherent in this creature of
statute will have concomitant responsibilities. These include, amongst others, the statutory
obligations of proper disclosure and accountabil ity to shareholders. It is clear that any
information pertaining to participation in such a public sphere cannot rightly be held to be
inhering in the person, and it cannot consequently be said that in relation to such information
a reasonable expectation of privacy exists. Nor would such an expectation be recognised by
society as objectively reasonable. This applies also to the auditors and debtors of the
company.”
[17] This approach has been repeatedly endorsed. This passage in Bernstein was cited by
this court in La Lucia Sands [La Lucia Sands Share Block Ltd & others v Barkhan and Others
this court in La Lucia Sands [La Lucia Sands Share Block Ltd & others v Barkhan and Others
[2010] ZASCA 132; 2010 (6) SA 421 (SCA); [2011] 2 All SA 26 (SCA) para 21], in dealing with
s 113 of the Companies Act 61 of 1973 (the old Companies Act), the predecessor to s 26 of
the Companies Act. Similarly, in his separate concurring judgment in S v Coetzee [[1997]
ZACC 2; 1997 (4) BCLR 437; 1997 (3) SA 527 (CC) para 98], Kentridge AJ emphasised that
‘those who choose to carry on their activities through the medium of an artificial legal persona
must accept the burdens as well as the privileges which go with their choice.’ Most recently,
in Company Secretary of Arcelormittal South Africa and Another v Vaal Environmental Justice
Alliance [[2014] ZASCA 184; 2015 (1) SA 515 (SCA); [2015] 1 All SA 261 (SCA) para1], this
court emphasized that “citizens in democracies around the world are growing alert to the
19 Nova Property Group Holdings Ltd and Others v Cobbett and Another [2016] ZASCA 63; [2016] 3 All
SA 32 (SCA); 2016 (4) SA 317 (SCA) (12 May 2016) (Nova Property Group).
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dangers of a culture of secrecy and unresponsiveness, both in respect of government and in
relation to corporations’ and that Parliament, driven by Constitutional imperatives, had rightly
seen fit to cater for this in its legislation’.’
[14] The Companies Act gives specific recognition to a culture of openness and
transparency in s 7, which lists the Act’s core objectives. Section 7(b)(iii) in particular,
provides that one of the purposes of the Companies Act is to-
‘[encourage] transparency and high standards of corporate governance as appropriate, given
the significant role of enterprises within the social and economic life of the nation.’
Section 5(1) provides that the Companies Act must be interpreted and applied in a
manner that gives effect to the purposes set out in s 7.
[15] Part C of Chapter 2 of the Companies Act (ss 23-34) is titled ‘ Transparency,
accountability and integrity of companies ’. This part of the Companies Act provides
that a company must annually prepare financial statements and prescribes what they
must contain. It directs that they must be audited and, together with the company’s
annual return, be submitted to the Commission. The Commission must make the
annual return electronically available to any person.20 This constitutes an unqualified
right to access since the legislature did not set requirements for a person to request a
copy of, or electronic access to, the annual return.21 Any person, upon payment of the
prescribed fee, may inspect any document filed under the Companies Act .22 The
Commission is enjoined to ma ke the information in the register sufficiently and
effectively available to the public.23
[16] Section 2 12 is enacted with these objectives in mind. It recogni ses that the
establishment of a company is not purely a private matter and may impact the public
in several ways. While the Companies Act recognises and promotes a culture of
openness and transparency , s 212 creates an exception and provides for the
openness and transparency , s 212 creates an exception and provides for the
protection of a limited type of information that i s shown to be confidential. Such
protection should not be granted lightly, otherwise the objectives of transparency and
20 Section 33(1A)(a) read together with regulation 30(9) of the Regulations.
21 In Nova Property Group para 47, this Court, in dealing with s 26 , held: ‘If Parliament is of the view
that the right should be qualified in some way, because of concerns relating to abuse of the right to
access, it can legislate accordingly but it has chosen not to do so.’
22 Section 187(5)(d).
23 Section 187(4)(c).
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corporate governance would be undermined. It is incumbent upon a person claiming
confidentiality of specific information to proffer cogent and full reasons why that
information should be declared confidential.
[17] The inevitable conclusion when considering the reasons proffered by GUD why
the entire contents of its 2020 annual financial statements should be declared
confidential, is that it dismally failed to establish the type of ‘confidentiality’ envisaged
by s 212 . It was incumbent upon GUD to allege in detail, with reference to each
relevant item appearing in its 2020 financial statem ents, why it contended that such
item of information is confidential. It failed to do so. GUD has a high PIS exceeding a
score of 350. T here accordingly rests a higher degree of transparency and public
accountability on it, which it needed to address in seeking the information protected
from access or disclosure . It did not do so. As was stated by the Commission, ‘ [t]he
information c laimed by GUD to be confidential , is of a general nature and this
information is contained in the AFS of all reporting entities and is in line with the
International Financial Reporting Standards (I FRS) and the Companies Act
requirements’. What GUD sought to achieve was the confidentiality of its 2020 and all
future annual financial statements and it, therefore, simply gave generalized reasons
for its claim for confidentiality.
[18] Furthermore, it remains a mystery why GUD redacted its directors’
remuneration and benefits received from the 2020 annual financial statements it
submitted with its claim for confidentiality to the Commission. In terms of s 33(1)(c),
the annual financial statements must include particulars showing directors’
remuneration and benefits received . A party claiming confidentiality of information
cannot, without the consent of the Commission, decide what information to redact.24
[19] In the result, the following order is made:
[19] In the result, the following order is made:
The appeal is dismissed with costs, including those of two counsel.
________________
P A MEYER
JUDGE OF APPEAL
24 Companies and Intellectual Property Commission v Companies Tribunal and Others (26738/2022)
ZAGPPHC 2034 (18 December 2023).
11
Appearances
For appellant: C P Wesley SC
Instructed by: Friedland Hart Solomon & Nicolson ,
Pretoria
Lovius Block, Bloemfontein
For respondent: M C Erasmus SC (with C Janse van
Rensburg)
Instructed by: The State Attorney, Pretoria
The State Attorney, Bloemfontein.