Nova Property Group Holdings Ltd and Others v Cobbett and Another

• Jurisdiction: South Africa

Nova Property Group Holdings Ltd and Others v Cobbett and Another
2016 (4) SA 317 (SCA)

2016 (4) SA p317

Citation	2016 (4) SA 317 (SCA)
Case No	20815/2014; [2016] ZASCA 63
Court	Supreme Court of Appeal
Judge	Maya AP, Majiedt JA, Mbha JA, Plasket AJA and Kathree-Setiloane AJA
Heard	March 1, 2016
Judgment	May 12, 2016
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).

Flynote : Sleutelwoorde B

Appeal — Appealability — Interlocutory order — Appeal would resolve real issue between parties on which there is conflicting precedent — Appealable under s 17(1) of Superior Courts Act 10 of 2013. C

Companies — Records — Access — Securities register — Right of access unqualified — Motive of person seeking access to register irrelevant — Right not subject to PAIA — Companies Act 71 of 2008, s 26(2); Promotion of Access to Information Act 2 of 2000.

Headnote : Kopnota

The court was called upon to decide whether s 26(2) of the Companies Act 71 of 2008 D — which allows public access [*] to a company's securities (shareholder) register — conferred an unqualified right of public access. An ancillary issue was whether, given its interlocutory nature, the order of the court a quo was appealable.

Moneyweb (the second respondent, a financial-media company) commissioned E Cobbett (the first respondent, an investigative journalist) to investigate the shareholding structures of the appellant companies to establish their links to the controversial Sharemax property-syndication scheme. To further its investigation Moneyweb, relying on s 26(2), sought access to the companies' securities register. When the companies refused, Moneyweb approached the Pretoria High Court for an order to compel the companies F

2016 (4) SA p318

A to provide it with access within five days of the date of the order (the main application). But instead of filing a replying affidavit, the companies sought discovery — under rule 35 of the Uniform Rules — of a range of documents in Moneyweb's possession, contending that they would reveal Moneyweb's 'real motives' and 'sinister agenda' for seeking access to their securities registers. Moneyweb refused and the companies made an interlocutory B application under rule 35(14) to compel it to disclose the requested documents. Moneyweb argued that the interlocutory application was brought only for the purpose of delay and that the documents sought were totally irrelevant to the main application. On the issue of the proper interpretation of s 26(2) the companies contended that it conferred a qualified right since access could be refused on the grounds set out in the C Promotion of Access to Information Act 2 of 2000 (PAIA) and on the ground of the bad 'motives' of the requester.

The High Court, partly dismissing the companies' interlocutory application, held that s 26(2) did not grant an absolute right to inspection of security registers, and that the courts had a discretion in this regard. The companies appealed to the Supreme Court of Appeal against the dismissal of the D interlocutory application.

Held, dismissing the appeal

On the issue of the appealability: The High Court's decision was appealable under s 17(1) of the Superior Courts Act 10 of 2013 because there was conflicting precedent on the proper interpretation of s 26(2) and because the appeal would resolve a 'real issue' in the main application (see E [9] – [11]). And, by resolving a matter that pitted the rights of privacy and dignity against the rights of access to information and freedom of expression, the appeal would, moreover, serve the interests of justice (see [9]).

On the proper interpretation of s 26(2): The section conferred an unqualified right of access to a company's securities register, and the motive of the person seeking access was irrelevant (see [47], [48]). Any other construction F — such as that the right was subject to the requirements of PAIA or a discretionary override — would clash with the Act's stated objective of transparency (see [18]), the wording of s 26(2) and s 26(4) (see [20], [23] – [32], [35]), and the right to freedom of expression (see [37]). The restricted access argued for by the companies would, in particular, G undermine the work of investigative journalists like Cobbett and violate the public's right to obtain information and ideas from the media (see [37], [44]). Unqualified access to companies' securities registers was essential for effective journalism and an informed citizenry (see [38]), and there was, in the absence of an express statutory limitation on this right, no basis for the court to limit it (see [42]). Hampering Moneyweb's investigation by denying it access to the registers would, moreover, amount to prior H restraint, and the court would not assist the companies in this regard (see [46]).

Cases Considered

Annotations

Case law I

Southern Africa

Basson v On-Point Engineers (Pty) Ltd and Others 2012 JDR 2126 (GP) ([2012] ZAGPPHC 251): approved

Bayoglu v Manngwe Mining (Pty) Ltd 2012 JDR 1902 (GP): overruled

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) J (1996 (4) BCLR 449; [1996] ZACC 2): dictum in para [85] applied

2016 (4) SA p319

Brümmer v Minister for Social Development and Others 2009 (6) SA 323 (CC) A (2009 (11) BCLR 1075; [2009] ZACC 21): dictum in para [63] applied

Cape Town City v South African National Roads Authority and Others 2015 (3) SA 386 (SCA) ([2015] ZASCA 58): dicta in paras [20] and [43] applied

Children's Institute v Presiding Officer, Children's Court, Krugersdorp, and Others 2013 (2) SA 620 (CC) (2013 (1) BCLR 1; [2012] ZACC 25): dictum in B para [27] applied

Cobbett and Another v Nova Property Group Holdings (Pty) Ltd and Others GP 61219/2013: reversed on appeal

Company Secretary, Arcelormittal South Africa Ltd and Another v Vaal Environmental Justice Alliance 2015 (1) SA 515 (SCA) ([2014] ZASCA 184): referred to C

Gaertner and Others v Minister of Finance and Others 2014 (1) SA 442 (CC) (2014 (1) BCLR 38; [2013] ZACC 38): dictum in para [49] applied

International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC) (2010 (5) BCLR 457; [2010] ZACC 6): dictum in para [53] applied

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; D [2002] ZACC 12): dictum in para [8] applied

La Lucia Sands Share Block Ltd and Others v Barkhan and Others 2010 (6) SA 421 (SCA) ([2010] ZASCA 132): criticised and in part overruled

Mail & Guardian Centre for Investigative Journalism v CSR E-Loco Supply (Pty) Ltd GP 23477/2013: approved

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

Member of the Executive Council for Development Planning and Local Government, Gauteng v Democratic Party and Others 1998 (4) SA 1157 (CC) (1998 (7) BCLR 855; [1998] ZACC 9): dictum in para [32] applied

Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) F 2007 (5) SA 540 (SCA) (2007 (2) SACR 493; 2007 (9) BCLR 958; [2007] 3 All SA 318): dictum in paras [19] – [20] applied

Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre and Others 2016 (3) SA 317 (SCA) ([2016] ZASCA 17): dictum in para [30] applied

Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service G 1996 (3) SA 1 (A) ([1996] ZASCA 2): dictum at 10E – G applied

Philani-Ma-Afrika and Others v Mailula and Others 2010 (2) SA 573 (SCA) ([2009] ZASCA 115): dictum in para [20] applied

President of the RSA and Others v M & G Media Ltd 2015 (1) SA 92 (SCA) ([2014] ZASCA 124): referred to

Road Accident Fund v Monjane 2010 (3) SA 641 (SCA) ([2007] ZASCA 57): H referred to

S v Coetzee and Others 1997 (3) SA 527 (CC) (1997 (1) SACR 379; 1997 (4) BCLR 437; [1997] ZACC 2): dictum in para [98] applied

S v Western Areas Ltd and Others 2005 (5) SA 214 (SCA) (2005 (1) SACR 441; [2005] ZASCA 31): dictum in paras [25] – [26] applied I

Zweni v Minister of Law and Order 1993 (1) SA 523 (A) ([1992] ZASCA 197): dictum at 532J – 533A applied.

Australia

O'Brien v Sporting Shooters Association of Australia (Victoria) [1999] 3 VR 251 ([1999] VSC 313): referred to. J

2016 (4) SA p320

England A

Pelling v Families Need Fathers Ltd [2002] 2 All ER 440 (CA): compared

Re Burry & Knight Ltd [2014] 1 WLR 4046: compared.

Statutes Considered

Statutes

The Companies Act 71 of 2008, s 26(2): see Juta's Statutes of South Africa B 2014/15 vol 2 at 1-321.

Case Information

JJ Brett SC (with D Mahon and K Hopkins) for the appellants.

S Budlender (with M Sikhakhane) for the respondents.

G Budlender SC for the amicus curiae (M & G Centre for Investigative C Journalism).

An appeal from the Pretoria High Court (Tuchten J). The appeal is dismissed (para [51]).

Judgment

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...