Nova Property Group Holdings Ltd and Others v Cobbett and Another

• Jurisdiction: South Africa
• Judge: Maya AP, Majiedt JA, Mbha JA, Plasket AJA and Kathree-Setiloane AJA
• Judgment Date: 12 May 2016
• Citation: 2016 (4) SA 317 (SCA)
• Hearing Date: 01 March 2016
• Docket Number: 20815/2014 [2016] ZASCA 63
• Counsel: JJ Brett SC (with D Mahon and K Hopkins) for the appelants. S Budlender (with M Sikhakhane) for the respondents. G Budlender SC for the amicus curiae (M & G Centre for Investigative Journalism).
• Court: Supreme Court of Appeal

Kathree-Setiloane AJA (Maya AP, Majiedt JA, Mbha JA and Plasket AJA D 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 E Group Holdings Ltd (Nova), Frontier Asset Management & Investments (Pty) Ltd (Frontier), and Centro Property Group (Pty) Ltd (Centro). The appellants will be referred to collectively as 'the Companies'.

F [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 ongoing 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 G 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 H 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

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

not a member of a non-profit company, to inspect or copy the securities A 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 B 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 C 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) – (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 D 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 E 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 F 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. G

[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: H

'1.

The [appellants] are directed within 20 days of the date of this order to produce, in hardcopy format, the documents listed in paras 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.

2.

For the rest, the application is dismissed. I

3.

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 J

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

A the Companies. It considered two of its conflicting decisions [2] 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 (paras 17 – 18):

B 'I think that the construction advanced on behalf of [Moneyweb] gives rise both to a potential for injustice and to 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 C 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] construction is correct, a respondent who reasonably refused access but was nevertheless ordered D 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 E would more effectively promote the objects and spirit of the Constitution. The rights which the parties assert and seek to protect are the constitutional 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 F 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.' [Emphasis original.]

The Companies appeal against paras 2 and 3 of the order set out above. G The appeal is with leave of the court a quo.

[7] The issues in this appeal are twofold. 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 H 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 I of a company contemplated in the section.

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

Is the order appealable? A

[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 B 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 Nedtravel [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 C 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] D

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] E 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 F resolution of the seemingly conflicting decisions in La Lucia Sands v Barkhan [9] and Bayoglu v Manngwe, [10] on the one hand, and

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

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