THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 20815/2014

In the matter between:

NOVA PROPERTY GROUP HOLDINGS LTD
FIRST APPELLANT
FRONTIER ASSET MANAGEMENT & INVESTMENTS
SECOND APPELLANT
CENTRO PROPERTY GROUP (PTY) LTD                                               THIRD RESPONDENT

and

JULIUS PETER COBBETT                                                                        FIRST RESPONDENT
MONEYWEB (PTY) LTD                                                                       SECOND RESPONDENT

and

MANDG CENTRE FOR INVESTIGATIVE JOURNALISM NPC                       AMICUS CURIAE

Neutral citation:
Nova Property Group Holdings v Cobbett (20815/2014) [2016] ZASCA 63
(12 May 2016)

Coram:
Maya AP, Majiedt, Mbha JJA, Plasket and Kathree-Setiloane AJJA

Heard:
1 March 2016

Delivered:
12 May 2016

Summary:
Appealability – interlocutory application – appealable under s 17(1) of the
Superior Courts Act 10 of 2013.
Company law –  interpretation of s 26(2) of the Companies Act 71 of 2008 – provides an
unqualified right of access to a company‟s securities register – person‟s motive for access not
relevant – right of access not subject to the provisions of the Promotion of Access to Information
Act 2 of 2000 (PAIA).
Rule 35 (14) – appellants failed to demonstrate that the documents sought are relevant to a
reasonably anticipated issue in the main application.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Tuchten J sitting as court
of first instance):
The appeal is dismissed with costs including the costs of two counsel.
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Kathree-Setiloane AJA (Maya AP, Majiedt and Mbha JJA and Plasket AJA
concurring):

[1] This appeal arises from the attempts of Moneyweb (Pty) Ltd (Moneyweb) and Mr
JP Cobbett (Cobbett) to exercise their statutory right in terms of s 26 of the Companies
Act 71 of 2008 (the Companies Act) to access the securities registers of the appellants,
Nova Property Group Holdings Limited (Nova), Frontier Asset Management &
Investments (Pty) Limited (Frontier), and Centro Property Group (Pty) Limited (Centro).
The appellants will be referred to collectively as „the Companies‟.

[2] Cobbett is a financial journalist who specialises in the investigation of illegal
investment schemes. Moneyweb is a publisher of business, financial and investment
news. As part of its on-going investigation into, and coverage of Sharemax Group of
Companies‟ controversial property syndication investment scheme (Sharemax
syndication scheme), Moneyweb commissioned Cobbett to investigate the shareholding
structures of the Companies, which are purportedly linked (directly or indirectly) to the
Sharemax syndication scheme, and to write articles on his findings for publication by
Moneyweb.

[3] On 24 July 2013, Cobbett sent requests to the Companies for access to their
securities registers and to make copies thereof, in terms of s 26(2) of the Companies
Act. He delivered a request for access to information in the form required by the
Companies Regulations, 2011, for this purpose.1 Section 26(2) entitles a person who
does not hold a beneficial interest in any securities issued by a profit company, or who
is not a member of a non-profit company, to inspect or copy the securities register of a
profit company, or the members register of a non-profit company that has members, or
the register of directors of a company, upon payment of an amount not exceeding the
prescribed maximum fee for any such inspection. When Cobbett‟s requests were met
with refusals, Moneyweb launched an application, in the Gauteng Division of the High
Court, Pretoria (the court a quo), to compel the Companies to provide access to it for
inspection and making copies of the securities registers within five days of the date of
the order (the main application).

[4] Almost two years after the requests were made, Moneyweb has still been unable
to access the securities registers. Nor is it even close to doing so, as the Companies
have not filed an answering affidavit to the main application. Instead, the Companies
issued notices, in terms of rule 35(12) and rules 35(11) to (14) of the Uniform Rules of
Court, in which they sought documents referred to in Moneyweb‟s founding affidavit and
copies of different sets of documents from Moneyweb. Dissatisfied with Moneyweb‟s
responses to their rule 35(12) and rules 35(11) to (14) notices, the Companies launched
an application to compel compliance therewith (the interlocutory application). The
interlocutory application reveals that the Companies ostensibly sought these documents
for purposes of interrogating the „real motives‟ of Moneyweb, as they believed that
Moneyweb was acting in furtherance of a „sinister agenda‟ directed against Nova and its
subsidiaries, including certain members of its executive, and that Moneyweb had
embarked upon a vendetta for the sole purpose of discrediting the Companies and
undermining their integrity. The Companies contend that the documents sought will

1 Regulation 24 of the Companies Regulations, 2011 (Published under GN R351, GG 34239, 26 April
2011 as amended by GN R619, GG 36759, 20 August 2013 and GN R82, GG 37299, 5 February 2014)
requires a person claiming a right of access to a record held by a company to make a request in writing
by delivering to the company a completed request for access to information form (Form CoR24).

enable them to prove that Moneyweb intends publishing articles in the media not for any
journalistic motive, but rather in furtherance of the „sinister agenda‟ referred to above.
They assert, in this regard, that the documents sought are relevant to the anticipated
issues in the main application, as they will provide them with a defence to that
application.

[5] In the court a quo, Tuchten J granted the Companies‟ rule 35(12) application to
compel discovery of documents referred to in Moneyweb‟s founding affidavit, but
dismissed their rule 35(14) application to compel and made the following order:
„1
The [appellants] are directed within 20 days of the date of this order to produce, in hardcopy
format, the documents listed in paragraphs 1 to 10 of the respondents‟ notice in terms of rule
35(12) dated 15 November 2013 for their inspection and to permit them to make copies or
transcriptions thereof.
For the rest, the application is dismissed.
The costs of this application will be costs in the cause of the main application to which
these proceedings are interlocutory.‟

[6] Although the court a quo had not decided the main application, it nevertheless
pronounced on the proper interpretation of s 26(2) of the Companies Act, in deciding
whether to grant the interlocutory relief to the Companies. It considered two of its
conflicting decisions2 on the subject, and concluded that s 26(2) did not confer an
absolute right to inspection of the documents contemplated in the subsection, but that
the court retained a discretion to refuse to order inspection. In arriving at this
conclusion, the court below reasoned as follows:
„I think that the construction advanced on behalf of [Moneyweb] gives rise both to a potential for
injustice and absurdities. Counsel for [Moneyweb] submitted, in answer to questions from the
bench, that even if the evidence proved that the purpose of the request was to identify the home
of one of the persons whose particulars were on the register so that an assassin would know
where to find and murder that person, the court was bound to order disclosure. That outcome
would, I think, be unjust. Section 26(9) makes it an offence to fail to accommodate any
reasonable request for access, or unreasonably to refuse access to a register. If [Moneyweb‟s]

2 Bayoglu v Manngwe Mining (Pty) Ltd 2012 JDR 1902 (GNP) and M&G Centre for Investigative
Journalism NPC v CSR-E Loco Supply (Pty) Ltd case number 23477/2013 (8 November 2013).

construction is correct, a respondent who reasonably refused access but was nevertheless
ordered to provide access would be liable to punishment for contempt of court for a failure to
comply with the order even though he would be acquitted of the criminal offence of failing to
provide access created by s 26(9). That outcome would, I think, be absurd.
In my view, a construction which confers a discretion on the court would more effectively
promote the objects and spirit of the Constitution. The rights which the parties assert and seek
to protect are . . . constitutional rights . . . rights to information on the one hand and privacy and
dignity on the other. No constitutional right is absolute. In the process of determining which of
the competing constitutional rights should prevail, each such right must be weighed against
other relevant constitutional rights. A construction which would disable a court from weighing
and giving effect to other constitutional rights would be subversive of the principle of fairness
underlying the constitution.‟
The Companies appeal against paragraphs 2 and 3 of the order set out above. The
appeal is with leave of the court a quo.

[7] The issues in this appeal are two-fold. In view of the interlocutory nature of the
order of the court a quo, the first issue that arises for determination is whether it is
appealable. If found to be so, then the second issue which arises is whether the
documents sought by the Companies in terms of rule 35(14) are relevant to a
reasonably anticipated issue in the main application. This issue concerns the proper
interpretation of s 26(2) of the Companies Act and, in particular, whether it confers an
unqualified right of access to the securities register of a company contemplated in the
section.

Is the order appealable?
[8] On the test articulated by this court in Zweni v Minister of Law and Order,3 the
dismissal of an application to compel discovery, such as by the court a quo, is not
appealable as it is (a) not final in effect and is open to alteration by the court below; (b)
not definitive of the rights of the parties; and (c) does not have the effect of disposing of
a substantial portion of the relief claimed. However, three years later in Moch v

3 Zweni v Minister of Law and Order [1992] ZASCA 197; 1993 (1) SA 523 (A) at 532J-533A.

Nedtravel (Pty) Ltd t/a American Express Travel Service,4 this court held that the
requirements for appealability laid down in Zweni  „. . .[d]o  not purport to be exhaustive
or to cast the relevant principles in stone‟. Almost a decade later, in Philani-Ma-Afrika v
Mailula,5  this court considered whether an execution order (which put an eviction order
into operation pending an appeal) was appealable. It held the execution order to be
appealable, by adapting „the general principles on the appealability of interim orders . . .
to accord with the equitable and more context-sensitive standard of the interests of
justice favoured by our Constitution‟.6 In so doing, it found the „interests of justice‟ to be
a paramount consideration in deciding whether a judgment is appealable.7

[9] It is well established that in deciding what is in the interests of justice, each case
has to be considered in light of its own facts.8 The considerations that serve the
interests of justice, such as that the appeal will traverse matters of significant
importance which pit the rights of privacy and dignity on the one hand, against those of
access to information and freedom of expression on the other hand, certainly loom large
before us. However, the most compelling, in my view, is that a consideration of the
merits of the appeal will necessarily involve a resolution of the seemingly conflicting
decisions in La Lucia Sands Share Block Ltd & others v Barkhan & others9 and
Bayoglu10 on the one hand, and Basson v On-Point Engineers (Pty) Ltd11 and M & G
Centre for Investigative Journalism NPC v CSR-E Loco Supply12 on the other.

[10] Section 17(1) of the Superior Courts Act 10 of 2013 (the Superior Courts Act),

4 Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service [1996] ZASCA 2; 1996 (3) SA 1 (A) at
10E-G.
5 Philani-Ma-Afrika & others  v Mailula & others [2009] ZASCA 115; 2010 (2) SA 573 (SCA). See also S v
Western Areas Ltd & others [2005] ZASCA 31; 2005 (5) SA 214 (SCA) paras 25-26; Khumalo & others v
Holomisa  [2002] ZACC 12; 2002 (5) SA 401 (CC) para 8.
6 International Trade Administration Commission v SCAW South Africa (Pty) Ltd [2010] ZACC 6; 2012 (4)
SA 618 (CC) para 53.
7 Philani-Ma-Afrika para 20.
8 Member of the Executive Council for Development Planning and Local Government, Gauteng v
Democratic Party & others [1998] ZACC 9;1998 (4) SA 1157 (CC) para 32.
9  La Lucia Sands Share Block Ltd & others v Barkhan & others [2010] ZASCA 132; 2010 (6) SA 421
(SCA).
10 Footnote 2 above.
11 Basson v On-Point Engineers (Pty) Ltd & others (64107/11) [2012] ZAGPPHC 251 (7 November 2012);
2012 JDR 2126 (GNP).
12 Footnote 2 above.

which provides for the circumstances in which a judge may grant leave to appeal, gives
express recognition to this consideration. It provides:
„(1)  Leave to appeal may only be given where the judge or judges concerned are of the opinion
that –
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(b)
the decision sought on appeal does not fall within the ambit of section 16(2)(a); and
(c)
where the decision sought to be appealed does not dispose of all the issues in the case,
the appeal would lead to a just and prompt resolution of the real issues between the parties.‟
The provisions of s 17(1) of the Superior Courts Act are tailor-made for this appeal
principally for two reasons. First, as already alluded to, there are at least four conflicting
judgments, including that of the court a quo, on the proper interpretation of s 26(2) of
the Companies Act. Second, the appeal would lead to a just and prompt resolution of
the real issues between the parties for the reasons set out below.

[11] Rule 35(14) provides that a party may, for purposes of pleading, require any
other party to make available for inspection, within five days, a clearly specified
document or tape-recording in his possession „which is relevant to a reasonably
anticipated issue in the action‟, and to allow a copy or transcription to be made of it. In
the context of this appeal, the Companies are required to demonstrate that the
documents are relevant to a tenable ground of opposition to the main application. Since
the Companies seek to compel discovery for the purpose of interrogating the „real
motives‟ of Moneyweb for requesting access to their securities registers, in terms of s
26 of the Companies Act, the question of the „relevance‟ of the documents sought would
be integral to the interpretation of s 26(2) of the Companies Act. It is important to bear in
mind, in this respect, that although the court a quo did not decide the main application, it
did pronounce on the proper interpretation of s 26(2) of the Companies Act in deciding
whether to grant the interlocutory relief sought by the Companies. Before us, therefore,
the parties in essence accepted that if the court construes s 26(2) of the Companies Act
to confer an unqualified right of access to the securities register of a company, then
Moneyweb‟s „motives‟ for requesting access to the registers would be irrelevant to the

main application, and it would be entitled to an order compelling compliance with s 26(2)
of the Companies Act, thereby resolving the „real issue‟ in the main application, as
envisaged in s17(1)(c) of the Superior Courts Act. On this basis, therefore, Moneyweb
was constrained to concede that the judgment of the court below, although not
appealable under the traditional Zweni test for interlocutory applications to compel
discovery, would be appealable under s 17(1) of the Superior Courts Act.

Application to adduce evidence
[12] Before I proceed to deal with the real issue, being the interpretation of s 26(2) of
the Companies Act, I shall briefly deal with the application by the Mail & Guardian
Centre for Investigative Journalism NPC (better known as amaBhungane) for leave to
adduce evidence on appeal. AmaBhungane‟s application to be admitted as amicus
curiae in this appeal, in terms of rule 16(4) of the rules of this court, was granted by the
President of this court. AmaBhungane is affiliated to the Mail & Guardian newspaper,
which is the primary publisher of its work. It is dedicated to uncovering, analyzing and
reporting on information that the public has a right to know, such as evidence of
corruption and abuse of power in both the public and private sectors. Timely access to
the securities registers of companies, which are implicated in such matters of public
interest, is essential to its task. Pursuant to this objective, amaBhungane made
application, at the hearing of the appeal, for leave to adduce evidence on: (a) its
experience with the Promotion of Access to Information Act 2 of 2000 (PAIA) and the
significance of access to securities registers for the work of investigative journalists, and
(b) the legislative history of s 26(2) of the Companies Act for the purposes of
demonstrating that the present formulation of s 26(2) is intended to confer an
unqualified right of access to securities registers of companies. The application was not
opposed and the court granted amaBhungane leave to adduce evidence in the terms
sought. Since the rules of this court do not expressly empower it to receive evidence
from an amicus curiae, I deal below with the basis on which leave was granted to
amaBhungane to adduce evidence on appeal.

[13] This court is empowered under s 19(b) of the Superior Courts Act to receive

further evidence. However, rule 16(8) of the rules of this court provides that „a[n] amicus
curiae shall be limited to the record on appeal and may not add thereto and, unless
otherwise ordered by the Court, shall not present oral argument‟. This position is,
however, not invariable as the court‟s power to regulate its own process in terms of s
173 of the Constitution may be invoked to allow an amicus to adduce further evidence, if
to do so would promote the interests of justice. Significantly, in this regard, in Children’s
Institute v Presiding Officer of the Children’s Court, District of Krugersdorp & others,13
the Constitutional Court held as follows (in relation to rule 16A of the Uniform rules):
„. . . . In public interest matters, like the present case, allowing an amicus to adduce evidence
best promotes the spirit, purport and objects of the Bill of Rights. Therefore, the correct
interpretation of Rule 16A must be one that allows courts to consider evidence from amici where
to do so would promote the interests of justice.‟
The Constitutional Court went on to hold that an amicus must, in appropriate cases, be
permitted to adduce evidence in the High Court for at least two reasons namely: (a) that
rule 31 of the Constitutional Court rules which permits it to admit evidence adduced by
an amicus curiae, supports the proposition that courts of first instance must also be
permitted to adduce evidence, because it is generally not in the interests of justice for
the Constitutional Court to sit as a court of first and final instance in relation to new
issues and factual material;14 and (b) that the persuasive comment of an amicus will
often draw on broader considerations, and thus be premised on facts and evidence not
before the court, including statistics and research. It would make little sense to allow the
presentation of bare submissions unsupported by facts.15

[14] The same rationale should, in my view, apply to this court as it would be
anomalous if an amicus could introduce evidence in the High Court and Constitutional
Court, but not in this court. It follows, therefore, that this court may, in appropriate
circumstances, permit an amicus to adduce evidence, provided the requirements of s
19(b) of the Superior Courts Act are met, namely that: (a) a sufficient explanation is
provided for why the evidence was not introduced before the court a quo; (b) there is a

13 Children’s Institute v Presiding Officer of the Children’s Court, District of Krugersdorp & others [2012]
ZACC 25; 2013 (2) SA 620 (CC) para 27.
14 Children’s Institute para 30.
15 Children’s Institute para 31.

prima facie likelihood that the evidence is true; and (c) the evidence is materially
relevant to the outcome.16 These requirements have been met in this appeal for the
following reasons:
(a)
AmaBhungane could not adduce the evidence in the court a quo because it was
not party to those proceedings. It was, furthermore, not apparent that the court a quo
would, in the interlocutory proceedings consider, let alone pronounce on the proper
interpretation of s 26(2) of the Companies Act, which arises for determination in the
main application.
(b)
The evidence which amaBhungane wishes to adduce on appeal is true and not
disputed by the parties. It is first-hand evidence of amaBhungane‟s experience
regarding the importance of securities registers as a reliable tool in a journalist‟s
artillery. Additionally, the evidence relating to the prior versions of the Companies
Amendment Bill, 2010 (the Amendment Bill) is plainly incontrovertible as these
documents are official in nature.
(c)
The evidence of amaBhungane‟s experience with PAIA, and the significance of
access to securities registers for the work of the media are plainly relevant, and is
precisely the kind of evidence that the Constitutional Court has held may be introduced
by an amicus curiae.17 The practical impact of a particular construction of legislation, in
this case s 26(2) of the Companies Act, is a relevant question which generally would
need to be assessed from the evidence. Moreover, the evidence of the evolving
formulation of the Amendment Bill in the parliamentary process is an aid to
interpretation and sheds light on the intention of the legislature, thus demonstrating why
the construction posited by the Companies could not have been intended by the
legislature. Thus, the evidence is clearly relevant.

Interpretation of s 26(2) of the Companies Act
[15] I now turn to the question of the proper interpretation of s 26(2) of the Companies
Act and, in particular, whether it confers an unqualified right of access to the securities

16 D E van Loggerenberg et al (eds) Erasmus Superior Court Practice (November 2013 - Service Issue
43) at A1-56. See also Minister of Justice and Constitutional Development & others v Southern African
Litigation Centre & others [2016] ZASCA 17 (15 March 2016) para 30.
17 Children’s Institute paras 31 and 34.

register of a company. The Companies contend that s 26(2) confers a qualified right as
access may be refused, on the grounds set out in PAIA and on the grounds of the
„motive‟ of the requester. On the contrary, Moneyweb contends that an unqualified right
is conferred on any person who meets the procedural requirements of s 26(2) of the
Companies Act. AmaBhungane, in turn, contends that if access to securities registers is
subject to the grounds of refusal which apply to a request under PAIA or to a refusal
based on the alleged motive of the requester, then this will have a significant negative
impact on investigative journalists and the public‟s right to know.

[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,18 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 that 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 accountability 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 exist. 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, 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.19

18 Bernstein & others v Bester NO & others [1996] ZACC 2; 1996 (2) SA 751 (CC) para 85.
19 La Lucia Sands para 21.

Similarly, in his separate concurring judgment in S v Coetzee,20 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 &
another v Vaal Environmental Justice Alliance21, this court emphasized that „citizens in
democracies around the world are growing alert to the 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.

[18] The Companies Act gives specific recognition to a culture of openness and
transparency in s 7 which lists the core objectives of the Act. Section 7(b)(iii), in
particular, provides that a purpose of the 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 26 of the Companies Act is enacted with precisely these objectives in mind. It
recognizes that the establishment of a company is not purely a private matter and may
impact the public in several ways. It therefore seeks to impose strong rights of access in
respect of very specific but ultimately limited types of information held by companies.
Section 26 must, therefore, be interpreted in accordance with this purpose. Section
26(1) confers a right of access to information in respect of various kinds of information
to a person who holds a beneficial interest in any securities issued by a profit company,
or who is a member of a non-profit company. Section 26(2) then confers a narrower and
more specific right of access to all others persons. It provides:
„A person not contemplated in subsection (1) has a right to inspect or copy the securities
register of a profit company, or the members register of a non-profit company that has
members, or the register of directors of a company, upon payment of an amount not exceeding
the prescribed maximum fee for any such inspection.‟

20 S v Coetzee & others [1997] ZACC 2; 1997 (3) SA 527 (CC) para 98.
21 Company Secretary of Arcelormittal South Africa & another v Vaal Environmental Justice Alliance
[2014] ZASCA 184; 2015 (1) SA 515 (SCA) para 1.

Interaction between s 26(2) and PAIA
[19] There are two aspects of s 26 that require particular emphasis: the first concerns
the interaction between s 26(2) and the provisions of PAIA and the second concerns the
nature of the right conferred by s 26(2). In relation to the former, s 26 makes clear that
the right conferred by s 26(2) is additional to the rights conferred by PAIA and does not
need to be exercised in accordance with PAIA. In this regard, s 26(7) provides:
„The rights of access to information set out in this section are in addition to, and not in
substitution for, any rights a person may have to access information in terms of –
(a)
section 32 of the Constitution;
(b)
the Promotion of Access to Information Act, 2000 (Act 2 of 2000); or
(c)
any other public regulation.‟
Markedly, the approach of Parliament in conferring the right of access to information in
s 26(2) of the Companies Act in addition to the rights conferred by PAIA is consistent
with s 39(3) of the Constitution which provides that:
„The Bill of Rights does not deny the existence of any other rights or freedoms that are
recognised or conferred by common law, customary law or legislation, to the extent that they are
consistent with the Bill.‟

[20] In respect of the process to be followed in exercising the rights, s 26(4) provides:
„A person may exercise the rights set out in subsection (1) or (2), or contemplated in subsection
(3)─
(a)
for a reasonable period during business hours;
(b)
by direct request made to a company in the prescribed manner, either in person or
through an attorney or other personal representative designated in writing; or
(c)
in accordance with the Promotion of Access to Information Act, 2000 (Act 2 of 2000).‟
(own emphasis.)
What is clear from s 26(4)(c) is that procedurally PAIA is an alternative to requesting
access to a company‟s share register in terms of the provisions of s 26 of the
Companies Act.

[21] The approach of Parliament, in this regard, was eminently sensible. PAIA is a
general statute. It regulates access to innumerable types of information held by a wide
range of bodies, with various different types of interests at stake. Parliament, therefore,
had to lay down general rules to balance the competing interests at stake by means of
threshold requirements, grounds of refusal and public interest overrides. By contrast, s
26(2) confers a specific right in respect of one type of information only − securities
registers and directors registers. Parliament justifiably took the view that, in respect of
this narrow category of information, it was unnecessary to build in the PAIA balances
and counter balances with all the complexity and delay that might entail. Instead, it
conferred an unqualified right that is capable of prompt vindication.

[22] Notwithstanding this, and the clear wording of s 26(4) and s 26(7) of the
Companies Act, the Companies place considerable reliance on PAIA contending that
they are entitled to argue, in the main application, that the refusal of access to
Moneyweb „is justified on the basis of the provisions of s 68(1) of PAIA.‟ In terms of s
68(1) of PAIA, access to a record of a company may be refused if the record:
(a)
contains trade secrets of the company;
(b)
contains financial, commercial, scientific or technical information, other than trade
secrets, of the company, the disclosure of which would be likely to cause harm to the
commercial or financial interests of the company;
(c)
contains information, the disclosure of which could reasonably be expected; will
put the company at a disadvantage in contractual and other negotiations; or will
prejudice the company in commercial competition.
Securities registers quite clearly do not contain information of the nature contemplated
in s 68(1) of PAIA, and access cannot possibly be refused by the Companies on that
basis. Furthermore, the Companies contend that the right of access in s 26(2) must be
qualified by, and subject to, the provisions of PAIA, and that the person requesting the
information must demonstrate that the information is required for the purpose of
exercising or protecting a right. It is not clear how this requirement can be imported into
s 26(2) without doing violence to a right which is expressly intended by the legislature to
be unqualified. Moreover, the Companies fail to explain how this reliance on PAIA can

be sustained in light of the clear language of subsecs 26(4) and 26(7). Accordingly, the
Companies‟ reliance on PAIA is unsustainable as it certainly does not render the
documents sought in the rule 35(14) interlocutory application relevant to the main
application.

[23] In choosing to confer an unqualified right capable of prompt and easy vindication
in s 26(2) of the Companies Act, Parliament would have been alive to the fact that the
procedures of PAIA can readily be used as an instrument to frustrate and delay access
to records. One of the threshold requirements for a requester to obtain access to
information held by a private entity under s 50(1)(a) of PAIA is  that the requester must
prove that that information requested is necessary for the „exercise or protection of any
rights‟. Even if this test is overcome, there is potential for a ground of refusal to be
claimed by the company concerned. For instance, in terms of s 71(1) of PAIA, the
private body „must‟, if the record requested might contain certain information concerning
a third party, take all reasonable steps to inform the third party of the request. The
private body may take up to 21 days to give this notice and the third party may take a
further 21 days to make representations, before the private body decides whether to
grant or refuse access to the requester. If access is granted, the third party may
approach a court to prevent disclosure. If refused, the requester would have to make
application to court to compel disclosure. Given the potentially hundreds of holders of
securities, a decision by a company to invoke the third party procedure in PAIA will
effectively put the securities registers out of the reach of the requester indefinitely, and
certainly far beyond the natural life cycle of a relevant journalistic investigation.

[24] The point is illustrated by President of the Republic of South Africa v M & G
Media Ltd.22 Even without any proper basis for withholding access to the record, access
was delayed for six years. This was also amaBhungane‟s experience in CSR-E Loco.23
The present proceedings speak for themselves – some three years later Moneyweb is

22 President of the Republic of South Africa & others v M & G Media Ltd [2014] ZASCA 124; 2015 (1) SA
92 (SCA). See also generally MEC for Roads and Public Works, Eastern Cape & another v Intertrade
Two (Pty) Ltd [2006] ZASCA 33; 2006 (5) SA 1 (SCA) para 20.
23 See footnote 2 above.

still nowhere near accessing the Companies‟ securities registers. This demonstrates
that PAIA will not provide journalists prompt access to securities registers − for whom
timely access is essential. Thus, if the PAIA limitations apply to s 26(2) requests, the
inconvenience and cost of an application to court to challenge a refusal on those
grounds will greatly inhibit access to securities registers. Given the significant expenses
involved in the court process, it will in most cases lead to important investigations being
aborted rather than an application to court being pursued.24 One wonders why subsecs
26(4)(a) and (b) were enacted if they are capable of being impliedly trumped by PAIA.

[25] What remains then is to set right the unfortunate obiter dictum of this court in La
Lucia Sands vis-a-vis the application of PAIA to a request for access under s 26 of the
Companies Act:25
„[17] For completeness, I record that the New Companies Act 71 of 2008 has been assented to
but has not yet come into operation. Section 113 of the Act has not been repeated in the new
legislation. Section 26 of the new Act is entitled „„Access to company records‟‟. Section 26(3)
provides that „‟any member‟‟ and “any other person‟‟ are entitled to inspect the register of
members during business hours. Section 26(4) provides:
“The rights of access to information set out in this section are in addition to, and not in substitution for,
any rights a person may have to access information in terms of –
(a) section 32 of the Constitution
(b) the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000; or
(c) any other public regulation.
[18] It appears that in future the provisions of the Promotion of Access to Information Act 2 of
2000 will have to be employed by non-members seeking access to the register of members.
The rationale set out above for obtaining information contained in the register of members will
probably continue to apply, notwithstanding that the request for information will now have to be
made in terms of the Act. Happily, it is not an issue we need to address comprehensively or at
all. Section 113 applies to the present matter.‟ (own emphasis.)
This obiter dictum is regrettable, as s 26(7) of the Companies Act expressly states that
the right conferred by s 26(2) is additional to the rights conferred by PAIA. There is, in
addition, no requirement in s 26 of the Companies Act that a request for access to a

24 See City of Cape Town v South African National Roads Authority Limited & others [2015] ZASCA 58;
2015 (3) SA 386 (SCA) para 43.
25 La Lucia Sands paras 17-18.

company‟s securities register must only be exercised in accordance with PAIA. The
obiter dictum of this court in La Lucia Sands is, therefore, clearly wrong, and the
Companies‟ reliance on it is simply misplaced.

The nature of the right
[26] The second aspect of s 26(2) of the Companies Act that requires emphasis is the
nature of the right conferred by it in the context of s 26 as a whole. Unlike its
predecessor, s 113 of the old Companies Act, s 26(2) expressly confers a right of
access in respect of the securities registers. Section 26(5) then goes further and
provides expressly, and in unqualified terms, that where a company receives a request
in the prescribed form, the company „must within 14 business days comply with the
request‟. There is nothing in subsecs 26(2) and 26(5) which, in any way, qualifies this
right. Nor is there any reference in these sections to the reasonableness of either the
request or the response. The only sub-section which mentions reasonableness is s
26(9), which creates the criminal prohibition. It provides:
„It is an offence for a company to─
(a)  fail to accommodate any reasonable request for access, or to unreasonably refuse access,
to any record that a person has a right to inspect or copy in terms of this section or section 31;
or
(b) to otherwise impede, interfere with, or attempt to frustrate, the reasonable exercise by any
person of the rights set out in this section or section 31.‟
A reasonable request in my view, would be one which is made in accordance with the
provisions of s 26(4)(a) and (b) of the Companies Act.

[27] The decision to include the reasonableness defence in s 26(9) is perfectly
understandable, as the legislature was presumably anxious to avoid creating a strict
liability offence, possibly because of the constitutional difficulties that this might have
raised. However, what the Companies seek to do is import the s 26(9) reasonableness
qualification back into s 26(2) to limit the right it confers. There is no warrant for this. If
Parliament had wanted to limit the s 26(2) right, it would have done so expressly.
Instead, it enacted an unqualified right in s 26(2) read with s 26(4) and introduced a
reasonableness qualification only in respect of the criminal offence created by s 26(9).

[28] The failure to introduce an equivalent qualification of reasonableness in s 26(2)
and 26(4) makes clear that outside of the criminal offence created, there is no similar
restriction. Section 26(2) clearly confers an unqualified right on members of the public
and the media to obtain access to share registers. This means that the ‘motive‟ with
which the person seeks access to the information concerned is irrelevant. This
construction of s 26(2) is completely consistent with its legislative history, as revealed
by the different versions of the Amendment Bill. The versions of the Amendment Bill
prior to the adoption of the Companies Act in its amended form show a deliberate
journey from a formulation of s 26(2) in which the PAIA limitations were arguably
applicable, to a formulation which makes it clear that the PAIA limitations are not
applicable, and that the right of access is not qualified.

[29] Notably, s 113 of the old Companies Act provided an unqualified right for any
person to access a company‟s share register that was subject to a court‟s discretion to
refuse access. When the Minister of Trade and Industry tabled the Companies Bill,
2008, in the National Assembly there was no express access provisions for non-
shareholders. The proposed subsecs 26(2) and (5) appeared to anticipate the possibility
that non-shareholders might gain access by means of PAIA and that, given PAIA‟s
exemptions, there might be reasonable grounds to deny access. AmaBhungane was
concerned about the erosion of the unqualified right in s 113 of the old Companies Act
and made submissions to the Portfolio Committee. When the Companies Act was finally
enacted in 2008, it included s 26(2) which gives any person the right of access, and it
introduced a peremptory element: must . . . be open to inspection’ in s 26(6). The
Companies Act made it clear that this right was in addition to any rights under PAIA.

[30] The Companies Act contained errors, and the Minister therefore introduced the
Amendment Bill before the Act came into force. The original version of the Amendment
Bill B40–2010 appeared to make the right to access subject to PAIA, by using the
conjunctive „and‟. It also omitted the peremptory wording ‘must’ that had been included
in the Companies Act. It stated:

A person may exercise the rights set out in subsection (1) or (2), or contemplated in subsection
(3)─
(a) for a reasonable period during business hours;
(b) by direct request made to a company in the prescribed manner, either in person, or through
an attorney or other personal representative designated in writing; and
(c) in accordance with the Promotion of Access to Information Act, 2000 (Act No.2 of 2000).‟
(own emphasis.)
Whilst that version appears to suggest that the s 26 right would have been qualified
along the lines proposed by the Companies, after receiving public submissions
(including amaBhungane‟s), the Portfolio Committee produced the revised version
B40A−2010 of the Amendment Bill. In Bill B40A−2010 the conjunctive ‘and’ in
subsection (4) was replaced with the disjunctive ‘or‟. The effect was to make it plain that
PAIA would be an alternative mode of obtaining access to company records. In addition,
the Portfolio Committee inserted a new sub-clause which made clear the peremptory
nature of the obligation imposed on the company. It read:
„(5)
Where a company receives a request in terms of subsection (4)(b) it must within 14
business days comply with the request by providing the opportunity to inspect or copy the
register concerned to the person making such request.‟ (own emphasis.)
These two alterations, which made it clear that the right is unqualified, were retained in
the version of the Bill that ultimately became the Amendment Act.

[31] The Companies Regulations demonstrate a similar evolution. Regulation 24(2) of
the Draft Companies Regulations, published for comment on 29 November 2010,26
provided that a person claiming a right of access to any record held by a company may
not exercise that right until ‘[the person’s] right of access to the information has been
confirmed in accordance with [PAIA]’.27 Draft Regulation 24(4) provided that a person
claiming access to any record held by a company had to make a written request by
delivering to the company a completed prescribed form as well as „any further
documents or other material required in terms of‟ PAIA. The final regulations28 are,
however, consistent with the current formulation in the Companies Act as amended by

26 Companies Regulations, GN R1664, GG 32832, 22 December 2009.
27 Clause 24(3)(b) of the draft Regulations.
28 Companies Regulations, GN R351, GG 34239, 26 April 2011.

the Amendment Act in 2011. They too now use the disjunctive ‘or’ to distinguish
between rights under PAIA and the additional access rights created by s 26, and they
too use the peremptory form „must . . . accede to the request‟.

[32] The legislative history squarely contradicts the construction of s 26(2) which is
contended for by the Companies. It demonstrates a clear intention on the part of the
legislature to provide that the right under s 26(2) can be exercised independently of
PAIA, and that a company cannot require disclosure of the reason for the request to
access the securities register of a company − as the right is unqualified.

[33] Essentially, this means that the „motive‟ with which a requester seeks access to a
company‟s share register is irrelevant. In La Lucia Sands this court made clear that,
under s 113 of the old Companies Act, a company could not require disclosure of the
reason for the request to access the shares registers. It said:29
„Section 113 of the Act does not oblige a person requesting information to provide motivation for
doing so. It has been held that a person who seeks to inspect the register need not give reasons
for doing so. (See Holland v Dickson (1888) 37 Ch.D. 669 at 671-672 and Labatt Brewing Co
Ltd v Trilon Holdings Inc 41 O.R. (3d) 384 para 6. Meskin et al Henochberg on the Companies
Act (above), with reference to Dickson, state the following:
“But in any event the company cannot require the disclosure of the reason for the inspection as a
condition precedent to allowing it . . .”

[34] Having said that, the court in La Lucia Sands went on to hold that, under s 113 of
the old Companies Act, a court had a discretion to decline to make an order requiring
access where it is shown that the information is sought for some unlawful purpose. In
reaching this conclusion, it relied on the decision of the English court of appeal in
Pelling v Families Need Fathers Ltd,30 where its reasoning was based almost
exclusively on the fact that the old English Companies Act 1985 provided that the

29 La Lucia Sands at para 10.
30 Pelling v Families Need Fathers Ltd [2002] 2 All ER 440 (CA).

Registrar hearing the matter “may” make an order compelling access. The court
explained it as follows:31
„On the true construction of s 356(6) the registrar had a discretion to refuse the order. In its
ordinary and natural meaning the word “may” is apt to confer a discretion or power . . .  The use
of “may”  in subsection (6) is in striking contrast to the mandatory force of “shall” in other parts of
the same section, such as sub-s (3). . . .
„„[w]hether the power will be exercised must depend upon the proper discretionary considerations
affecting the power in the light of the facts as are found by the court.‟‟32
We agree. For those reasons we reject the absolutist construction proposed by Dr Pelling.‟

[35] Section 113(4) of the old Companies Act was in very similar terms to the old
English Companies Act 1985. It provided that „in the case of any such refusal or default
the court may, on application, by order compel an immediate inspection of the register‟.
It is, therefore, not surprising that this court in La Lucia Sands took the same approach
as the court in Pelling. However, s 26 of the Companies Act is different. Unlike s 113 of
the old Companies Act, it does not contain a provision dealing specifically with an
application to court to compel compliance and, in particular, contains no provision
rendering the decision of the court discretionary on this basis. Parliament, which is
presumed to know the law,33 chose not to enact a provision equivalent to s 113(4), and
instead strengthened the access provision by making clear in s 26(2) that it conferred a
„right‟ of access, without qualification and not subject to a discretionary override.

[36] This means that when a company fails or refuses to provide access, that person
is entitled, as of right, to an order compelling access. The question of the motive or
purpose is simply irrelevant. The Companies have, therefore, failed to demonstrate that
the documents sought in the rule 35(14) notice „are relevant to a reasonably anticipated
issue in the main application.‟ The Companies‟ belief in relation to what they will
purportedly achieve through access to those documents, does not give rise to a defence

31 Pelling para 23.
32 O’Brien v Sporting Shooters Association of Australia (Victoria) [1999] 3 VR 251; [1999] VSC 313 (20
August 1999) para 21.
33 Road Accident Fund v Monjane [2007] ZASCA 57; 2010 (3) SA 641 (SCA) para 12.

to the main application as Moneyweb‟s „motive‟ for seeking access to the Companies‟
securities registers is simply irrelevant.

[37] The Companies‟ construction of s 26(2) would have a negative impact on
openness and transparency, and would directly undermine the work of Moneyweb,
amaBhungane and other investigative journalists, as it limits the right to freedom of
expression. The Constitutional Court has emphasised in Brümmer v Minister for Social
Development & others34 that media have a duty to report accurately, as „[t]he
consequence of inaccurate reporting would be devastating.’ This then means that the
journalists must be able to have speedy access to information such as the securities
registers: „Access to information is crucial to accurate reporting and thus to imparting
accurate information to the public.‟35 Interference with the ability to access information
impedes the freedom of the press. The right to freedom of expression is not limited to
the right to speak, but includes the right to receive information and ideas.36 Preventing
the press from reporting fully and accurately, does not only violate the rights of the
journalist, but it also violates the rights of all the people who rely on the media to provide
them with ‘information and ideas.’

[38] An unqualified right of access to a company‟s securities register is, therefore,
essential for effective journalism and an informed citizenry. AmaBhungane has provided
the court with examples of investigations and news reports, where access to share
register information was central to its investigation. One such news report relates to a
tender award by a parastatal,37 where immediate access to share registers enabled
journalists to uncover an apparent conflict of interests in relation to the head of a tender
committee. Investigations like this, would likely not have been possible if journalists did
not have an unqualified right of access to securities registers of companies under s
26(2) of the Companies Act.

34 Brümmer v Minister for Social Development & others [2009] ZACC 21; 2009 (6) SA 323 (CC) para 63.
35 Brümmer para 63.
36 Section 16(1)(b) of the Constitution.
37 „Transnet tender boss‟s R50 billion double game‟, Mail & Guardian, 4 July 2014.

[39] In a final attempt at salvaging its case, the Companies contend that an
unqualified right of access to a company‟s securities register would constitute a violation
of a shareholder‟s right to privacy in terms of s 14 of the Constitution, and that the rights
of access to information and freedom of expression must be weighed against this right −
as no right is absolute. The Companies contend that information contained in a private
company‟s securities register is information of a personal nature as it will contain names
and identities of individuals; their home and work addresses. In addition, they contend
that depending on the nature of the company, it may also expose their business
affiliations, how wealthy they are and what their political, moral and religious leanings
are. The contention thus advanced is that a company‟s securities register contains
information of a sensitive nature that may reveal deeply private matters about
shareholders in a particular company which, in the hands of the wrong people, may be
open to abuse.

[40] I disagree. First, because the Companies do not challenge the constitutionality of
s 26(2) of the Companies Act on the grounds of a violation of the right to privacy, and
secondly, because the privacy and dignity rights of shareholders are minimally
implicated in the right of access conferred by s 26(2). It is a narrow right of access that
is limited to securities registers and directors registers of companies contemplated in
the section. Regulation 32 (2) of the Companies Regulations provides that:
„In addition to the information otherwise required, the company's securities register must also
include in respect of each person to whom the company has issued securities, or to whom
securities of the company have been transferred-
(a)
the person's─
(i)
name and business, residential or postal address, as required by section 50(2)(b)(i); and
(ii)
the person's email address if available, unless the person has declined to provide an
email address;
(b)
an identifying number that is unique to that person.’
Regulation 32(6), in turn, provides that:
„In so far as the identity number and e-mail address of a person may be entered into a register
kept under this regulation, such information may, at the instance of the company, Central
Securities Depository or relevant Participant as the case may be, be regarded as confidential.‟

[41] A shareholder in a company is, therefore, only required to provide his or her
name, business, residential or postal address, an e-mail address if he or she elects to
do so, and an identifying number that is unique to that person. Where the shareholder‟s
identity number and e-mail address are entered into a securities register, it may be
regarded as confidential at the instance of the company or the shareholder. Thus, in
view of the limited nature of the personal information of a shareholder that must be
included in a securities register, and the regulatory safeguards aimed at ensuring
confidentiality and non-disclosure of such information, there can be no room for abuse.
It is against this backdrop that a potential violation of the privacy rights of shareholders
and companies should be considered.

[42] In conferring an unqualified „right‟ of access to a company‟s securities register in
s 26(2) of the Companies Act, the legislature has chosen to prioritize the right of access
to information over the privacy rights of shareholders and companies. In the absence of
an express limitation of that right by the legislature, it is not for the court to limit it
because of some nebulous spectre of abuse, particularly where as in this context, there
are built-in safeguards against the disclosure of confidential information − and the
constitutionality of the provision is not challenged. The scope of the right to privacy of
shareholders must, therefore, be viewed in its proper context. In Gaertner & others v
Minister of Finance & others, the Constitutional Court held:38
„Privacy, like other rights, is not absolute. As a person moves into communal relations and
activities such as business and social interaction, the scope of personal space shrinks. This
diminished personal space does not mean that, once people are involved in social interactions
or business, they no longer have a right to privacy. What it means is that the right is attenuated,
not obliterated. And the attenuation is more or less, depending on how far and into what one
has strayed from the inner sanctum of the home.‟
Accordingly, the court a quo erred in its obiter finding quoted in paragraph 6 above.
Prior Restraint
[43] In light of the irrelevance of Moneyweb‟s „motive‟ in seeking access to the
Companies‟ securities registers, the case of the Companies on appeal amounts to little

38 Gaertner & others v Minister of Finance & others [2013] ZACC 38; 2014 (1) SA 442 (CC) para 49.

more than that they are deeply aggrieved about the manner in which Moneyweb has
reported on them. The Companies fear that Moneyweb will use access to the securities
registers for further „negative reporting‟ and this will cause them harm. The Companies
are, in this respect, little different from any person or entity who is subject to negative
press coverage. They are unhappy about it and wish to curtail, impede and prevent it.
But, whatever other remedies are open to the Companies, these concerns cannot
provide a basis for limiting Moneyweb‟s exercise of its s 26(2) statutory rights in respect
of the securities registers concerned. The media cannot be precluded from accessing
information because the subject of the likely reportage considers that the reportage will
be unfavourable and unfair. Indeed, such a proposition is inconsistent with two well
established principles laid down by this court. The first is the principle established in City
of Cape Town v South African National Roads Authority Limited, that access to accurate
information is critical for the right to freedom of expression, which this court expressed
as follows:
„The right to freedom of expression lies at the heart of democracy, and is one of a “web of
mutually supporting rights” that hold up the fabric of the constitutional order. Section 32(1) of the
Constitution guarantees everyone the “right of access to information held by the state”. Citizens
and public interest groupings rely on this right to uncover wrongdoing on the part of public
officials or for accessing information to report on matters of public importance. The
Constitutional Court has noted that the media has a duty to report accurately, because the
“consequences of inaccurate reporting may be devastating.” It goes without saying that to report
accurately the media must have access to information. Access to information is “crucial to
accurate reporting and thus to imparting information to the public.” While s 32 of the Constitution
guarantees the right of persons to access relevant information, s 16 entitles them to distribute
that information to others.‟39 (footnotes omitted.)
[44] The approach urged by the Companies would, to my mind, preclude such
accurate reporting. It would require Moneyweb to attempt to report on the shareholding
of the Companies without having access to the information that definitively and
accurately sets out those details. Quite apart from the potential negative effect that this

39 City of Cape Town v South African National Roads Authority Limited & others above, para 20.

would have on the Companies, this would undermine the right of the public to receive
accurate information via the media. There is simply no basis for this approach.
[45] The second principle is that courts will only rarely make orders which amount to
prior restraints on expression. This principle was established in Midi Television (Pty) Ltd
t/a E-TV v DPP (WC),40where this court held:
‘In summary, a publication will be unlawful, thus susceptible to being prohibited, only if the
prejudice that the publication might cause to the administration of justice is demonstrable and
substantial and there is a real risk that the prejudice will occur if publication takes place. Mere
conjecture or speculation that prejudice might occur will not be enough. Even then publication
will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of
information outweighs its advantage. In making that evaluation it is not only the interests of
those who are associated with the publication that need to be brought to account but, more
important, the interest of every person in having access to information. Applying the ordinary
principles that come into play when a final interdict is sought, if a risk of that kind is clearly
established, and it cannot be prevented from occurring by other means, a ban on publication
that is confined in scope and in content and in duration to what is necessary to avoid the risk
might be considered.
Those principles would seem to me to be applicable whenever a court is asked to restrict the
exercise of press freedom for the protection of the administration of justice, whether by a ban on
publication or otherwise. They would also seem to me to apply, with appropriate adaptation,
whenever the exercise of press freedom is sought to be restricted in protection of another right. .
. .‟

[46] Although the interlocutory application does not involve the granting of an interdict
against the media, the effect is much the same. The deponent to the Companies‟
founding affidavit makes plain that they are, in fact, seeking to prevent Moneyweb from
reporting on these issues at all. They seek to do this by precluding Moneyweb and
Cobbett from ever having access to their securities registers for purposes of their
reporting. In other words, rather than interdict the Moneyweb publication, the
Companies seek to stop it at the investigation stage. There is simply no basis for such

40 Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) [2007] ZASCA 56;
2007 (5) SA 540 (SCA) paras 19-20.

an order. If publication occurs and if it is unlawful, the Companies will be entitled to sue
for damages, which will „usually [be] capable of vindicating the right to reputation.‟41 The
Companies cannot, however, in advance enlist the assistance of the court to prevent
Moneyweb from engaging in the investigations concerned as this will undoubtedly
amount to prior restraint.

[47] To sum up, s 26(2) of the Companies Act provides an unqualified right of access
to securities registers. If Parliament is of the view that the right should be qualified in
some way, because of concerns relating to abuse of the right of access, it can legislate
accordingly – but it has chosen not to do so. For instance, under the old English
Companies Act, 1985, anyone could obtain access to a company‟s share register.
However, there was evidence that some people were abusing this right and seeking
information in order to harass shareholders. So, since 2006, these rights have been
qualified in the English Companies Act, 2006, as the English Parliament sought to
provide some protection for members against improper requests by enabling the
company to obtain a court order preventing access to the registers if the requester fails
the proper purpose test. Accordingly, in terms of s 116(4)(c) and (d) of the English
Companies Act, 2006, a person who requests access to the register of members is
required to submit a formal request setting out certain information that includes, inter
alia, the purpose for which the information is to be used and whether the information will
be disclosed to another person. Once the request has been submitted to the company,
it must, within five working days, either comply with the request or apply to court for an
order that it need not comply with the request.42 The court may grant an order if it is
satisfied that the inspection or copy is not sought for a „proper purpose.‟43  Notably, our
Parliament has chosen not to follow this route.

[48] As things stand, Moneyweb‟s „motive‟ for seeking access to the Companies‟
securities registers is simply irrelevant. They have, therefore, failed to demonstrate that

41 Midi Television para 20.
42 Section 117(1)(a) and (b).
43 In re Burry & Knight Ltd [2014] 1 WLR 4046.

the documents sought in the rule 35(14) notice „are relevant to a reasonably anticipated
issue in the main application‟. For these reasons, the appeal must be dismissed.

Costs
[49] Moneyweb urges the court to direct the Companies to pay Moneyweb‟s costs on
a punitive scale as their application to compel discovery in terms of rule 35(14) was and
remains untenable, and the conduct of the Companies, in that regard, has had the effect
of considerably delaying Moneyweb proceeding with the main application and obtaining
access to the securities registers. In addition, they urge the court to make clear that
conduct that delays or frustrates the exercise of statutory and constitutional rights is not
acceptable.

[50] Sight must not be lost of the fact that the Companies had obtained partial relief in
the court below. Curiously, the Judge in the court below found that although there was
„a compelling case for discovery‟:
„I have decided in the exercise of my discretion not to grant a discovery order at this stage. My
reasons for this decision are purely practical. If a discovery order is granted, the affidavit would
become completely unwieldy.‟
He furthermore pronounced upon the interpretation of s 26(2) of the Companies Act in a
manner favourable to the Companies – yet he failed to grant their application to compel
discovery in terms of rule 35(14). The Companies were, in my view, justified in
appealing the judgment of the court below. Accordingly, I incline against granting costs
against the Companies on a punitive scale.

[51] The following order is made:
The appeal is dismissed with costs including the costs of two counsel.

_________________
F Kathree-Setiloane
Acting Judge of Appeal

APPEARANCES:

For Appellants:

JJ Brett SC with D Malion and K Hopkins
Instructed by:
Faber Goërtz Ellis Austen Inc, Pretoria
McIntyre Van Der Post, Bloemfontein

For Respondent:

S Budlender with M Sikhakhane

Instructed by:

Willem De Klerk Attorneys, Pretoria
Honey Attorneys, Bloemfontein

For Amicus Curie:

G Budlender SC

Instructed by:

Webber Wentzel Attorneys, Johannesburg

Webbers Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

12 May 2016

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Nova Property Group Holdings v Cobbett (20815/2014) [2016] ZASCA 63 (12 May 2016)

MEDIA STATEMENT

Today, the Supreme Court of Appeal (SCA) dismissed the appeal by Nova Property Group Holdings
Limited (Nova), Frontier Asset Management & Investments (Pty) Limited (Frontier), and Centro
Property Group (Pty) Limited (Centro) (the Companies) against a judgment of the Gauteng Division of
the High Court, Pretoria (the court a quo) in an interlocutory application lodged by the Companies, in
which it was found that the Companies were not entitled to an order to compel Moneyweb (Pty) Ltd
(Moneyweb), a publisher of business and financial news, to provide the Companies with certain
documents. The Mail & Guardian Centre for Investigative Journalism NPC, commonly known as
amaBhungane, was admitted as an amicus curiae in the appeal. The appeal arose from the attempts
of Moneyweb and Mr JP Cobbett (Cobbett) to exercise their statutory right in terms of s 26 of the
Companies Act 71 of 2008 (the Companies Act) to access the securities registers of the Companies.

Cobbett is a financial journalist who specialises in the investigation of illegal investment schemes. As
part of Moneyweb’s on-going investigation into the controversial Sharemax property syndication
scheme, it commissioned Cobbett to investigate and write articles for publication in Moneyweb, on the
shareholding structures of the Companies which were purportedly linked to the syndication scheme.
On 24 July 2013, Cobett sent a request to the Companies for access to their securities registers, in
terms of s 26(2) of the Companies Act. The Companies refused him access. As a result, Moneyweb
launched an application, in the court a quo, to compel the Companies to provide access to them
within five days of the date of the order (the main application). For purposes of providing them with a
defence in the main application, the Companies then sought to be furnished with documents referred
to in Moneyweb’s founding affidavit, as well as other documents which they claimed were relevant to
an anticipated issue in the main application. Displeased with Moneyweb’s refusal to provide them with

the requested documents, the Companies launched an application to compel them to do so under
rule 35(14) of the Uniform Rules of Court (the interlocutory application).

The court a quo compelled Moneyweb to furnish the Companies with the documents referred to in its
founding affidavit, but in respect of the other documents requested, it found that the Companies had
failed to prove that they were relevant to an issue in the main application. Although the court a quo
had not decided the main application, it nevertheless pronounced on the interpretation of s 26(2) of
the Companies Act, in deciding whether to grant the interlocutory relief sought by the  Companies. It
concluded that s 26(2) did not confer an absolute right to inspection of the documents envisaged in
the subsection, but that the court retained a discretion to refuse to order access.

Before the SCA, the issues were twofold. Firstly, the court had to determine whether the order of the
court a quo, due to its interlocutory nature, was appealable. Secondly, whether the documents sought
by the Companies in the application to compel  were relevant to a reasonably anticipated issue in the
main application, which concerned the proper interpretation of s 26(2) of the Companies Act and, in
particular, whether it confers an unqualified right of access to the securities register of a company .

In relation to the appealability of the order, the SCA held that it is appealable; in the interest of justice.
On the second issue which concerned the proper interpretation of  s 26 (2) of the Companies Act, the
SCA held that the section confers an unqualified right of access to the securities register of a
company, and that such right is essential for effective journalism and an informed citizenry. In doing
so, it rejected the Companies’ contention that the right of access is subject to the provisions of the
Promotion of Access to Information Act, 2000 (PAIA) and found that the requestor’s motive for
seeking access to a company’s securities register  is irrelevant.

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