Mahaeeane and Another v AngloGold Ashanti Ltd

• Jurisdiction: South Africa

Mahaeeane and Another v AngloGold Ashanti Ltd
2017 (6) SA 382 (SCA)

2017 (6) SA p382

Citation	2017 (6) SA 382 (SCA)
Case No	85/2016; [2017] ZASCA 90
Court	Supreme Court of Appeal
Judge	Maya AP, Fourie AJA, Gorven AJA, Mbatha AJA and Molemela AJA
Heard	June 7, 2017
Judgment	June 7, 2017
Counsel	A Bester (with R Itzkin) for the appellants.; P Kennedy SC (with I Currie) for the respondent.

Flynote : Sleutelwoorde

Administrative law — Access to information — Access to information held by private body — Request for access after certification of class action for damages — Meaning of 'documents required' — In context of litigation, C documents must be reasonably required to formulate claim — Right of access relied on to decide whether or not to claim damages — Records requested not reasonably required to exercise or protect right relied on — Test not met — Promotion of Access to Information Act 2 of 2000, s 50(1).

Administrative D law — Access to information — Records not reasonably required to exercise or protect right relied upon after commencement of proceedings — Proceedings commenced by certification application — Promotion of Access to Information Act 2 of 2000.

Practice — Class action — Commencement — Certification application signalling commencement of class action — Promotion of Access to Information Act E 2 of 2000.

Headnote : Kopnota

The appellants, formerly employed by the respondent mining company and later medically boarded after contracting silicosis, instituted a High Court application for the certification of a class action against the respondent. The F class was defined as current and former mineworkers with silicosis who worked or had worked on the respondent's gold mines. The certification was granted and went on appeal.

The present appeal concerned the respondent's refusal to grant the appellants access to records requested under s 50(1) of the Promotion of Access to Information Act (PAIA). It provides that a requester must show that the G requested record is required for the exercise or protection of 'any rights'. The respondent argued that since the appellants' request was received after the commencement of the certification application, the operation of PAIA was excluded under s 7(1). It provides that PAIA does not operate where the record is requested after the commencement of proceedings and the production of or access to that record is provided for in any other law. H The appellants first approached the High Court for relief, but the court agreed with the respondent that they were excluded by s 7(1). The court in addition found that the appellants had not shown that the records were required for the exercise or protection of any rights as intended in s 50(1). In an appeal —

Held per Gorven AJA for the majority

The I onus was on the appellants to show that the request fell within the ambit of s 50(1), and if it was discharged, then the question of exclusion under s 7(1) arose (see [10]). The first enquiry was whether the appellants had prima facie established a right which required protection via access to the record (see [11]). The right the appellants wanted to exercise was the right to claim damages, and the question was whether the requested records were J required for the exercise or protection of that right (see [14], [16]). But the

2017 (6) SA p383

reasons supplied by the appellants related not to the exercise of the right to A claim damages but to the evaluation of whether they should do so, which meant that they were not required to 'exercise or protect' the right relied on (see [17]). And even on the supposition that the reasons were related to the right, the question was whether the records were reasonably required for its exercise or protection (see [18]). In the present case most of the facts were within the knowledge of the appellants or admitted by the respondent (see B [18]). Since the appellants were clearly in a position to formulate their claim without the requested documents, they were not reasonably required for the exercise of the appellants' right to claim damages from the respondent (see [20] – [21]).

Since a certification application was a necessary precursor to the bringing of a class action, it had to be regarded as its commencement (see [23] – [24]). C Since the proceedings relating to the appellants' class action had commenced its certification, the requested documents could not be said to be required for the exercise or protection of their right to claim damages. The appellants failed to meet the threshold test in s 50(1) and it was not necessary to deal with the respondent's further defence to the application under s 7(1) (see [27]). Appeal dismissed. D

Held per Mbatha AJA dissenting

The appellants' shift in position from one of needing the documents for the assessment of their damages claims to one of needing them to decide whether or not to opt out of the class action was understandable: their appeal had been overtaken by events (see [35]). 'Any rights' in s 50(1) should be given a wide interpretation, and asking for the requested documents was a E reasonable exercise of their constitutional right of access to information (see [39] – [40] and [44]). In addition, the individual rights of class members should not be disregarded by equating a certification application to the commencement of proceedings (see [55] – [56]). The appeal should accordingly be upheld (see [62]). Molemela AJA also disagreed with the majority judgment, but for somewhat different reasons (see [63]). F

Cases cited

Southern Africa

Amcu and Others v Chamber of Mines of South Africa and Others 2017 (3) SA 242 (CC) (2017 (6) BCLR 700; [2017] ZACC 3): referred to

Bullock NO and Others v Provincial Government, North West Province, and G Another 2004 (5) SA 262 (SCA) ([2004] 2 All SA 249): referred to

Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC and Others 2001 (3) SA 1013 (SCA) (2001 (10) BCLR 1026; [2001] ZASCA 56): dictum in para [28] applied

Cape Town City v Aurecon SA (Pty) Ltd 2017 (4) SA 223 (CC) ([2017] ZACC 5): referred to H

Children's Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others 2013 (2) SA 213 (SCA) ([2012] ZASCA 182): dicta in paras [16] – [17] applied

Claase v Information Officer, South African Airways (Pty) Ltd 2007 (5) SA 469 (SCA): dictum in para [8] applied

Clutchco (Pty) Ltd v Davis 2005 (3) SA 486 (SCA) ([2005] 2 All SA 225): I dictum in para [13] applied

Company Secretary, Arcelormittal South Africa Ltd and Another v Vaal Environmental Justice Alliance 2015 (1) SA 515 (SCA) ([2014] ZASCA 184): dictum in para [8] applied

Dave Zick Timbers (Pty) Ltd v Progress Steamship Co Ltd 1974 (4) SA 381 (D): dictum at 384A – D applied J

2017 (6) SA p384

Dendy A v University of the Witwatersrand and Others [2007] 3 All SA 1 (SCA) ([2007] ZASCA 30): referred to

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1; [1995] ZACC 13): referred to

Gold Fields Ltd and Others v Motley Rice LLC 2015 (4) SA 299 (GJ): referred B to

Government of the Republic of Namibia and Another v Cultura 2000 and Another 1994 (1) SA 407 (NmS): referred to

IGI Insurance Co Ltd v Madasa 1995 (1) SA 144 (TkA): dictum at 147B – C applied

M & G Media Ltd and Others v 2010 FIFA World Cup Organising Committee C 2011 (5) SA 163 (GSJ): referred to

MEC for Roads and Public Works, Eastern Cape, and Another v Intertrade Two (Pty) Ltd 2006 (5) SA 1 (SCA) ([2006] ZASCA 33): referred to

Middleton v Carr 1949 (2) SA 374 (A): referred to

Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC) (2013 (10) BCLR 1135; [2013] ZACC 23): referred to

My D Vote Counts NPC v Speaker of the National Assembly and Others 2016 (1) SA 132 (CC) (2015 (12) BCLR 1407; [2015] ZACC 31): dictum in para [31] applied

Nkala and Others v Harmony Gold Mining Co Ltd and Others 2016 (5) SA 240 (GJ): referred to

PFE International and Others v Industrial Development Corporation of South Africa Ltd 2013 (1) SA 1 (CC) (2013 (1) BCLR 55; [2012] ZACC 21): referred to

S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793; [1995] ZACC 4): E referred to

Unitas Hospital v Van Wyk and Another 2006 (4) SA 436 (SCA) ([2006] 4 All SA 231): discussed and applied.

Canada

Cannon v Funds for Canada Foundation 2012 ONSC 399: referred to

Mandeville v Manufacturers Life Insurance Co 2014 ONCA 417: referred to

Ontario Inc v Pet Valu Canada Inc 2011 ONSC 3871: referred to.

England

The Merak: T B & S Batchelor & Co Ltd (Owners of the Cargo on the Merak) v Owners of SS Merak [1965] 1 All ER 230 (CA): referred to.

Legislation cited

The Promotion of Access to Information Act 2 of 2000, s 7(1) and s 50(1): H see Juta's Statutes of South Africa 2016/17 vol 5 at 1-230 and 1-241.

Case Information

A Bester (with R Itzkin) for the appellants.

P Kennedy SC (with I Currie) for the respondent.

An appeal against a decision of the Johannesburg High Court. I The appeal was dismissed with costs (see [28]).

Judgment

Gorven AJA (Maya AP and Fourie AJA concurring):

[1] The appellants were previously both employed by the respondent in its gold mining operations. They were also both medically boarded by the respondent on the ground of having contracted silicosis. An application J has been launched for the certification of a class action (the

2017 (6) SA p385

Gorven AJA

certification application). The class relevant to silicosis sufferers is A defined as comprising 'current and former mine workers who have silicosis and who work or have worked on the goldmines listed in annexure A to the Notice of Motion'. The mine of the respondent at which the appellants worked is listed. There is another class defined for employees who...