Mahaeeane v Anglogold Ashanti Ltd (SCA85/16) [2017] ZASCA 90; [2017] 3 All SA 458; [2017] JOL 38035 (SCA) (7 June 2017) per Gorven AJA (Maya AP and Fourie AJA concurring; Molemela and Mbatha AJJA dissenting)
Accessing information: In a split decision the SCA disallowed an appeal, against the order of Sutherland J in the high court, by two former employees for access to certain records and information. Reliance was placed on s 50 of the Promotion of Access to Information Act 2 of 2000 (PAIA). The meaning of ‘documents required’ was considered and it was held that the records requested were not reasonably required to exercise or protect the right to claim damages relied on by the former employees.
See also: Class action: Development of common law
Excerpts from judgment (without footnotes)
[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 has been launched for the certification of a class action (the certification application). The class relevant to silicosis sufferers is 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 contracted pulmonary tuberculosis. For the sake of simplicity, I shall refer only to the respondent and not to the other mines. The certification application was granted and is presently on appeal. There were some 56 applicants in the certification application. Although the appellants admittedly fall within the class relating to silicosis, they are not named applicants in that application. The same attorneys represent the appellants and the class.
[2] This appeal concerns records requested under s 50(1) of the Promotion of Access to Information Act (the PAIA).[1] This relates to private bodies and reads:
‘(1) A requester must be given access to any record of a private body if-
(a) that record is required for the exercise or protection of any rights . . . .’[2]
The provisions of s 7(1) of the PAIA are relied on by the respondent to exclude the operation of the PAIA. This provides:
‘(1) This Act does not apply to a record of a public body or a private body if-
(a) that record is requested for the purpose of criminal or civil proceedings;
(b) so requested after the commencement of such criminal or civil proceedings, as the case may be; and
(c) the production of or access to that record for the purpose referred to in paragraph (a) is provided for in any other law.’
. . . . .
[4] The resultant impasse prompted the appellants to bring an application in the Gauteng Local Division of the High Court, Johannesburg (the high court) before Sutherland J for access to the requested records. The high court found that the appellants were excluded by operation of s 7(1) of the PAIA and, in addition, had not satisfied the test in s 50 of the PAIA of showing that the records were required for the exercise or protection of any rights. This appeal is with the leave of that court.
. . . . .
[7] The respondent submits that the application is a stratagem to obtain discovery in advance for the class action. It points in this regard to the sequence of events. The first appellant was certified as having contracted silicosis during September 2004 and the second appellant during September 2009. The two appellants had both instructed their attorneys to investigate a claim against the respondent by November 2011. The certification application was launched by the appellants’ attorney, omitting them as applicants, during December 2012. The request under the PAIA was submitted on behalf of the appellants by their attorney in August 2013. The respondent contends that the appellants were omitted in order to escape the import of s 7(1) of the PAIA which precludes such an application where proceedings are pending.[1]
[8] In addition, the respondent submits that the appellants have not made out a case under s 50(1) for the records. It says that the right asserted to seek compensation in delict for personal injury is not in dispute but the records are not required for that purpose.
The stated reason for the request was so that the records could ‘assist in determining whether [the respondent] complied with its statutory and/or common law and/or constitutional obligations . . . regarding dust levels, adequate medical care and examinations, proper training and dust exposure’ during the period the appellants were employed by it.[2] The respondent submits that the request therefore does not match the right asserted. As mentioned above, the respondent also relies on s 7(1) of the PAIA to preclude the appellants from using the PAIA to obtain the records. The respondent contends in this regard that the appellants are members of the class action, the requested records are required for those proceedings which have commenced and that the rules of court concerning discovery provide for the production of the records requested.
[9] In the papers, the appellants contend that they are not parties to the certification application. They say that, if the class action is certified, they might not become parties to any action arising from the certification if the legal advice they receive is to the effect that there are no prospects of their succeeding in a claim.
[10] As I read these two sections of the PAIA, the appellants bear the onus to show that the request falls within the ambit of s 50. If this onus is discharged, the question arises whether the provisions of s 7(1) exclude any of the requested records from the operation of the PAIA.
. . . . .
[11] The first enquiry is accordingly whether the appellants discharged the onus of meeting the requirements of s 50(1)(a). In this regard, this court has held that an applicant ‘need only put up facts which prima facie, though open to some doubt, establish that he has a right which access to the record is required to exercise or protect.’[1]
[12] The leading case on s 50 of the PAIA is Unitas Hospital v Van Wyk & another.[1]
In that matter, the husband of the respondent died while he was a hospital patient. She contended that his death was brought about by the negligence of the nursing staff and that she had an action for damages suffered through his death. She applied under the PAIA for access to a report with a view to instituting that action. This court held that the report was of a general nature and not one relating specifically to treatment received by her husband. It was held that ‘it can be accepted with confidence that Mrs Van Wyk did not require the Naudé report to formulate her claim for the purposes of instituting an action.’
She did not require it for the exercise or protection of any right. She already had access to whatever information her experts would require to advise her on the formulation and assessment of her claim. She had already been provided with a complete set of hospital records, including the notes made by the nurses who cared for him throughout his time in hospital. This court then went on to find that what was therefore being asserted was a right to pre-action discovery.
[13] This court has held that what is meant by the phrase, ‘required for the exercise or protection of any rights’ in s 50(1), gives rise to a fact based enquiry and does not allow for abstract determination.[2] This court has mostly approached the test by deciding what those words do not mean:
‘So, for example, it is said that it does not mean the subjective attitude of “want” or “desire” on the part of the requester; that, at the one end of the scale, “useful” or “relevant” for the exercise or protection of a right is not enough, but that, at the other end of the scale, the requester does not have to establish that the information is “essential” or “necessary” for the stated purpose . . . .’[3]
It involves something more than that the information would be of assistance, which is a minimum threshold requirement.[4] As a positive formulation, the furthest this court has been prepared to go is what was said by Comrie AJA in Clutchco (Pty) Ltd v Davis:[5]
‘I think that ”reasonably required” in the circumstances is about as precise a formulation as can be achieved, provided that it is understood to connote a substantial advantage or an element of need.’
And the Constitutional Court[6] has approved this approach:
‘“Required” in the context of s 32(1)(b) does not denote absolute necessity. It means “reasonably required”. The person seeking access to the information must establish a substantial advantage or element of need. The standard is accommodating, flexible and in its application fact-bound.’[7]
What must be covered in an application is the following:
‘[A]n applicant has to state what the right is that he wishes to exercise or protect, what the information is which is required and how that information would assist him in exercising or protecting that right.’[8]
. . . . .
[16] As was conceded by the respondent, the appellants have a right to seek compensation in delict for personal injury or, as they put it, the right to claim damages. In order to exercise that right, an action must be brought against the respondent. The question is whether the records requested are required for the exercise or protection of that right.
[17] It seems clear that the underlying reasons given for why the records are required do not relate to the exercise of the right to claim damages but to the evaluation of whether the appellants should do so or not. The reasons given, therefore, do not meet the test of the records being required to ‘exercise or protect’ the right relied upon. This situation can be contrasted with that in Company Secretary, Arcelormittal South Africa Ltd & another v Vaal Environmental Justice Alliance.[1]
In that matter, the Environmental Master Plan developed by Arcelormittal was requested on the following basis:
‘The requested documents are necessary for the protection of the s 24 constitutional rights and are requested in the public interest. VEJA requires the requested documents to ensure that ArcelorMittal South Africa Limited carries out its obligations under the relevant governing legislation, including the National Environmental Management Act 107 of 1998, the National Environmental Management: Waste Act 59 of 2008, and the National Water Act 36 of 1998. VEJA seeks to ensure that the operations of ArcelorMittal South Africa Limited are conducted in accordance with the law, that pollution is prevented, and that remediation of pollution is properly planned for, and correctly and timeously implemented.’[2]
The right asserted was that to a non-harmful environment and ‘to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures . . .’.[3] It can be seen that the right asserted and the reason why the records were required to exercise or protect it accorded with each other.
[18] Even if it can be said that the reasons relate to the right, the question is whether the records are reasonably required to exercise or protect the right relied on. In the present matter, the proposed defendant and its details are clearly known to the appellants. So also is the cause of action. At least some of the facts are within the knowledge of the appellants. In the application papers, the respondent admitted that silicosis is a progressive and incurable disease caused by inhaling silica dust.
It was also admitted that silicosis is common in gold mine workers who are exposed to harmful quantities of silica dust whilst working underground in mines and that this dust is generated in the course of mining activities. The respondent admits that the appellants were dismissed from employment on the basis that they had contracted silicosis. On a level of causation of the disease in the appellants, the only averment not admitted is that the appellants have not been exposed to silica dust other than while employed on the mine. This is peculiarly within the knowledge of the appellants. This means that the only records which the appellants do not have in their possession are those which will assist in proving whether or not the respondent adhered to its statutory, common law and constitutional legal duties.
. . . . .
[20] The above deals with the question of whether the records are reasonably required to exercise or protect the right asserted by the appellants, to claim damages from the respondent from their having contracted silicosis. As indicated, a right to claim damages is invoked. This will necessitate court proceedings. It is necessary to avoid the unwelcome spectre of applications under the PAIA being brought to obtain premature discovery. It seems to me that a rule of thumb which will avoid this is to enquire whether, in the context of future litigation to exercise the right relied on, the records requested are reasonably required to formulate a claim.
This seems to me to have been the implicit test applied in Unitas Hospital. If needed to formulate a claim, it can be said that they are reasonably required under s 50(1) of the PAIA. As I have said, the appellants do not need the requested records to formulate their claim.
. . . . .
[22] This places the present matter on all fours with Unitas Hospital where this court found that Mrs Van Wyk did not require the Naudé report to formulate her claim.[1] It also renders the appellants subject to the dictum in Unitas Hospital that they are not –
‘entitled, as a matter of course, to all information which will assist in evaluating [their] prospects of success against the only potential defendant. On that approach, the more you know, the better you will be able to evaluate your chances against your opponent. The corollary of this thesis therefore seems to be that the requester will, in effect, always be entitled to full pre-action discovery.’[2]
[23] I have up to now dealt with the case made out on the papers. It must be borne in mind that the launch of the certification application predated the request under the PAIA.
In Children’s Resource Centre Trust & others v Pioneer Food (Pty) Ltd & others,[3] it was held that an application for certification of a class action is akin to matters where ‘necessary preliminary proceedings have been held to constitute the bringing or commencement of suit’.[4]
In that matter, the court of first instance refused the application, including an order sought permitting the issue of summons prior to certification in order to interrupt prescription.
This court held that, because a certification application is a necessary precursor to ‘proceedings to pursue a class action there is much to be said for the proposition that, for purposes of prescription, service of the application for certification would be service of process claiming payment of the debt for the purposes of s 15(1) of the Prescription Act’. It seems to me that, although the dictum above is obiter, it accords with principle and must find application here.
[24] The logical corollary is that a certification application must be regarded as the ‘bringing or commencement of suit’ of the class action. Counsel for the appellants, when confronted with this dictum accepted that to be the position in the present matter. Accordingly, the class action proceedings must be regarded as having commenced with the launch of the certification application. At the time that the request under the PAIA was made, therefore, the class action must be held to have commenced.
[25] But the present position goes even further. The class action has now been certified. The class action is what is termed an ‘opt-out’ class action. This includes all members of a certified class in the action unless they opt out. In dealing with the significance of this, I can do no better than to cite the words of Professor Silver, quoted in Children’s Resource Centre Trust, to the effect that a class action is –
‘a procedural device that expands a court’s jurisdiction, empowering it to enter a judgment that is binding upon everyone with covered claims. This includes claimants who, not being named as parties, would not ordinarily be bound. A class-wide judgment extinguishes the claims of all persons meeting the class definition rather than just those of named parties and persons in privity with them, as normally is the case.
Judges and scholars sometimes treat the class action as a procedure for joining absent claimants to a lawsuit rather than as one that permits a court to treat a named party as standing in judgment on behalf of them. This is a mistake. . . . Class members neither start out as parties nor become parties when a class is certified.’[5]
What is of importance is that, as was said in Children’s Resource Centre Trust:
‘In class actions the party bringing the action does so, on behalf of the entire class, every member of which is bound by the outcome of the action, so that a separate action by a member of the class after judgment can be met with a plea of res judicata.’[6]
It is, of course, for this reason that members falling within a certified class must be given the opportunity to opt out or, if it is an opt-in class action, to opt in.
. . . . .
[26] All of this means that, at present, the appellants are included in the class action which has been certified. This much was correctly conceded by their counsel at the hearing. It also means that the proceedings relating to the class action in question have commenced. As such, the documents cannot be said to be required to exercise or protect the right to claim damages since the class action to do so has commenced on their behalf. It seems to me that the substratum of the application brought by the appellants accordingly no longer exists. Counsel accepted that events had overtaken the application when certification had taken place.
He sought, however, to submit that the appellants now require the information to determine whether they should opt out. But this was not the case made out on the papers. It is also doubtful, in the light of the approach in Unitas Hospital mentioned above, whether this would bring the claimed right within the ambit of s 50(1) of the PAIA.
[27] For the above reasons, therefore, the appellants have not met the threshold test required by s 50(1) of the PAIA to ‘prima facie establish that access to the record is required to exercise or protect’ the right relied upon.[1] In the light of this, I consider it unnecessary to deal with the respondent’s further defence to the application by way of s 7(1) of the PAIA.
There is accordingly no basis on which to interfere with the order granted by Sutherland J. The appeal must fail.