THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case No: 85/2016

In the matter between:

MAHAEEANE MAHAEEANE
FIRST APPELLANT
MOTLAJSI THAKASO
SECOND APPELLANT

and

ANGLOGOLD ASHANTI LIMITED
RESPONDENT

Neutral citation: Mahaeeane v Anglogold (85/2016) [2017] ZASCA 090
(07 June 2017)

Coram:
Maya AP, Fourie, Molemela, Gorven and Mbatha AJJA

Heard:

22 March 2017

Delivered:
7 June 2017

Summary: Promotion of Access to Information Act 2 of 2000 : section 50 :
meaning of ‗documents required‘ : right relied upon to claim damages : in the
context of litigation, documents must be reasonably required to formulate a
claim : test not met in present matter : records requested not reasonably required
to exercise or protect right relied upon.

__________________________________________________________________________

ORDER

On appeal from: Gauteng Local Division of the High Court, Johannesburg
(Sutherland J sitting as court of first instance):
The appeal is dismissed with costs.

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 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.‘

[3] A list of some ten records was requested in terms of s 50(1) of the PAIA.
The respondent reacted to the request in writing, recording that the appellants
‗are included in the group of persons on whose behalf the [certification
application] has been brought‘. It further recorded that the request had been
made after the commencement of the certification application. The respondent
went on to contend that the PAIA did not apply as a result of the provisions of
s 7(1) of the PAIA.

[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

1 Promotion of Access to Information Act 2 of 2000.
2 The full section 50(1) 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;
(b)   that person complies with the procedural requirements in this Act relating to a request for access to that
record; and
(c)   access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this
Part.‘
Subparagraphs (b) and (c) are not in issue in this appeal.

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.

[5] The attorney for the appellants testified that he was instructed to advise
whether the appellants have a good claim against the respondent for damages
‗in respect of the harm and loss . . . suffered as a result of . . . having contracted
silicosis‘. The ability to advise, it was submitted, depends largely on whether
the respondent complied with its statutory duty of care to its employees. The
attorney went on to aver:
‗The information requested is required in order for me to assess and advise the [appellants]:
Whether or not the respondent complied with the general duty of care owed by it to the
[appellants] to provide and maintain a safe and healthy work environment for its employees
as stipulated in section 5 of the [Mine Health and Safety Act 29 of 1996] (the MHSA),
Whether the respondent complied with the provisions of the law and the extent of such
compliance.‘3
The attorney then addressed each of the ten records requested in an attempt to
motivate this need.

[6] These ten records can be summarised as:
(a)
Measurements of dust exposure levels for the appellants for their period
of employment.
(b)
The record of medical surveillance of the appellants, including x-rays,
lung function results and doctor‘s examination notes along with lung biopsies
and CT scan results for the period of their employment.
(c)
The record of incapacity hearings convened in respect of the appellants.
(d)
The hazardous work service records of the appellants for the period of
their employment.

3 Paragraph numbering omitted.

(e)
The mine manager‘s written reports of any investigations into the
declared unfitness of the appellants.
(f)
The mine manager‘s reports on any investigation into silicosis or health
threatening occurrences of breathable silica dust during the period of their
employment.
(g)
The mine manager‘s record of significant dust hazards identified and
pneumoconiosis risks assessed by him during the period of their employment.
(h)
The health and safety training documentation, policies and educational
material used to educate and prepare the appellants for safely working in the
mine.
(i)
The Code of Practice prepared by the mine manager concerning the
health and safety of employees working with silica dust during the period of
their employment.
(j)
The Health and Safety Policy of the mine relating to dust exposure during
the period of their employment.
Each of these ten records referred to the specific legislation which, it was
averred, gave rise to the statutory duty in respect of that record.

[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.4

[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.5 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,

4 There are two other requirements as will appear from the section when set out below.
5 This phrase came from the request for documents delivered to the respondent which was a precursor to the
application.

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.‘6

[12] The leading case on s 50 of the PAIA is Unitas Hospital v Van Wyk &
another.7  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.

6 Claase v Information Officer, South African Airways (Pty) Ltd 2007 (5) SA 469 (SCA) para 8.
7 Unitas Hospital v Van Wyk & another 2006 (4) SA 436 (SCA) para 19.

[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.8 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 . . . .‘9
It involves something more than that the information would be of assistance,
which is a minimum threshold requirement.10 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:11
‗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 Court12 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.‘13
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.‘14

8 Unitas Hospital at para 6.
9 Unitas Hospital para 16.
10 Unitas Hospital para 17.
11 Clutchco (Pty) Ltd v Davis 2005 (3) SA 486 (SCA); [2005] 2 All SA 225 para 13.
12 In the minority judgment of Cameron J in My Vote Counts NPC v Speaker of the National Assembly & others
[2015] ZACC 31; 2016 (1) SA 132 (CC) para 31. The majority judgment did not deal with this issue.
13 The references in this passage are omitted. Section 32(1)(b) is a section of the Constitution of the Republic of
South Africa, 1996 requiring the legislature to enact legislation to give effect to the right of access to
information. The cases cited are Clutchco and Unitas Hospital.
14 Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC & others 2001 (3) SA 1013
(SCA) para 28.

[14] With that in mind, I turn to consider the case made out by the appellants
on each of these aspects. The facts of their case must be considered. The first
aspect is the right relied on which the appellants wish to exercise or protect. In
response to the section of the form, ‗Indicate which right is to be exercised or
protected‘, the appellants stated:
‗Our client requires the requested information to properly assess the merits in exercising his
right to claim damages from [the respondent] for the wrongful exposure to harmful levels of
noxious dust causing him to develop Silicosis while working for [the respondent].‘
The right which the appellants wish to exercise is therefore the ‗right to claim
damages‘. This implicates s 34 of the Constitution which gives a right to access
courts. Because the right relied on is narrowly stated, there is no need to
consider the nature of the rights which might qualify.15 The balance of the
response to this section goes beyond asserting the right and deals with the third
aspect of the enquiry ‗how that information would assist . . . in exercising that
right‘. This aspect of that response is expanded upon in the response to the
question as to why ‗the record requested is required . . . .‘ These two aspects
have been conflated in the response to the first requirement.

[15] In the application, the attorney representing the appellants who deposed
to the affidavit, said the following regarding the right which they assert:
‗In order to advise my clients in relation to a possible claim for damages against the
respondent I require access to information held by the respondent, which is relevant to any
assessment of the merits of the [appellants‘] claim.
. . .
Whether or not the [appellants] have a good claim for damages against the respondent turns
substantially on the extent to which the respondents complied with the statutory duty of care
owed by them to their employees under the mine health and safety legislation applicable at
the relevant time.
. . .

15 As was undertaken in Bullock NO & others v Provincial Government, North West Province & another 2004
(5) SA 262 (SCA) para 19.

The information requested is reasonably required to determine whether or not the [appellants]
have adequate grounds to seek a remedy against the respondent.
. . .
The information requested is required in order for me to assess and advise the [appellants] . . .
[w]hether or not the respondent complied with the general duty of care owed by it to the
[appellants] to provide and maintain a safe and healthy work environment for its employees
as stipulated in section 5 of the MHSA.
. . .
The information requested is required in order for me to assess and advise the [appellants] . . .
[w]hether the respondent complied with the provisions of the law and the extent of such
compliance.‘
The attorney then dealt with each of the ten requests, saying mostly that the
information in question ‗will go to show‘ whether or not the respondent
complied with various statutory duties. None of these dealt with the right
asserted. They all dealt with the third aspect, being the reason that the records
were required.

[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.16 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.‘17
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 . . .‘.18 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

16 Company Secretary, Arcelormittal South Africa Ltd & another v Vaal Environmental Justice Alliance [2014]
ZASCA 184; 2015 (1) SA 515 (SCA).
17 Paragraph 8. The emphasis is that of the judgment.
18 Section 24 of the Constitution of the Republic of South Africa, 1996 which reads:
‗Everyone has the right-
(a)   to an environment that is not harmful to their health or well-being; and
(b)   to have the environment protected, for the benefit of present and future generations, through reasonable
legislative and other measures that-
(i)   prevent pollution and ecological degradation;
(ii)   promote conservation; and
(iii)   secure ecologically sustainable development and use of natural resources while promoting justifiable
economic and social development.‘

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.

[19] In this regard, the draft particulars of claim (the particulars) annexed to
the certification application achieve prominence. The substantive part runs to
over 65 pages, although approximately half of these deal with the asbestosis
claim which does not apply to the appellants. They set out in detail, over nearly
three pages, what the respondent ‗knew, or ought reasonably to have known‘
about the harm of being exposed to silica dust and the manner in which silicosis
can be prevented. Arising from that knowledge, the duties of the respondent are
pleaded, including statutory duties, the common law duty of care and
constitutional obligations. These run to over four pages. The particulars go on to
plead the basis on which the class action members aver that the respondent
breached its statutory duties. These refer in detail to legislation and specific
conduct which fell short of the statutory requirements. These breaches run to
some 18 pages. Strict liability under the statutes is then pleaded and, in the
alternative, a negligent breach of duties which is said to give rise to delictual
liability. The particulars go on to plead breaches of the common law duty of
care which the class members contend were owed to them by the respondent.
These run to some nine pages. The alleged breach of constitutional duties is
then pleaded running to one page and incorporating conduct pleaded in

paragraphs 112 to 138 comprising some 35 pages. The particulars then plead the
causal connection between the silicosis contracted and the actionable conduct of
the respondent. From all of this it can be seen that the appellants are clearly in a
position to formulate their claim.

[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.

[21] It may be argued that some of the records are reasonably required as
evidence to prove the formulated claim. Since, however, the machinery of
discovery applies in an action, most, if not all, of the records will become
available to the appellants in order to exercise the right to claim. After all,
discovery is required of documents ‗relating to any matter in question‘ in an
action. No case has been made out in the present matter that any of the
requested records will not be discoverable. The issue whether the obligation to
discover is co-extensive with records reasonably required to exercise the right to
claim need therefore not detain us in the present matter. As such, I am of the
view that the records requested are not reasonably required to exercise the right
of the appellants to claim damages from the respondent.

[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.19 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.‘20

[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,21 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‘.22 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

19 Paragraph 19.
20 Paragraph 22.
21 Children's Resource Centre Trust & others v Pioneer Food (Pty) Ltd & others [2012] ZASCA 182; 2013 (2)
SA 213 (SCA).
22 Paragraph 89. Footnote 65 cited The Merak: T B & S Batchelor & Co Ltd (Owners of Cargo on the Merak) v
Owners of SS Merak [1965] 1 All ER 230 (CA) at 238 to the effect that: ‗[T]o bring suit, it is said, means to
pursue the appropriate remedy by the appropriate procedure.‘ Dave Zick Timbers (Pty) Ltd v Progress
Steamship Co Ltd 1974 (4) SA 381 (D) at 384A – D; IGI Insurance Co Ltd v Madasa 1995 (1) SA 144 (TkA) at
147B – C.

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.‘23
What is of importance is that, as was said in Children’s Resource Centre Trust:

23 Paragraph 17.

‗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.‘24
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.25 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.

24 Paragraph 16.
25 Claase fn 6, para 8.

[28] The following order is made:
The appeal is dismissed with costs.

________________________
T R Gorven
Acting Judge of Appeal

Mbatha AJA:
[29] I have had the benefit of reading the judgment of my colleague, Gorven
AJA, from which I differ in several respects. He reaches the conclusion that the
appeal stands to be dismissed. He bases this conclusion on the finding that the
appellants have not satisfied the criteria set out in s 50(1) of the Promotion of
Access to Information Act 2 of 2000 (the PAIA).

[30] In my respectful view, the appellants have satisfied the criteria set out in s
50(1) of the PAIA, and the civil proceedings in question have not commenced
for purposes of s 7(1) thereof. The appeal should accordingly succeed and my
conclusion is founded on the reasons set out below.

[31] The appeal centres around the dismissal of an application brought in
terms of s 82 of the PAIA26 to compel the respondent to provide access to

26 The court hearing an application may grant any order that is just and equitable, including orders─
(a) confirming, amending or setting aside the decision which is the subject of the application concerned;
(b) requiring from the information officer or relevant authority of a public body or the head of a private body to
take such action or to retrain from taking such action as the court considers necessary within a period mentioned
in the order;
(c) granting an interdict, interim or specific relief, a declaratory order or compensation;
(d) as to costs; or
(e) condoning con-compliance with the 180-day period within which to bring an application, where the interests
of justice so require.

records to the appellants. Its determination rests upon the interpretation of the
provisions of ss 7(1) and 50(1) of the PAIA.

[32] The application was dismissed by the high court on the basis that the
appellants did not meet the threshold set out in s 50(1).

[33] As pointed out in the main judgment which sets out the background facts
from which the dispute arose, the first and second appellants instructed their
attorney (Mr Richard Spoor) on 14 September 2011 and 14 November 2011,
respectively, to investigate the merits of their claims for damages against the
respondent. Their applications for access to information in terms of the PAIA
were submitted to the respondent on 18 September 2013. On 22 October 2013
the respondent refused both applications. During December 2012 Mr Spoor had
also launched an application for the certification of a class action on behalf of
current and former mineworkers, excluding the appellants, against the mining
industry in respect of silicosis and tuberculosis related injury. The certification
judgment in Nkala v Harmony Gold Mining Company Limited27 was delivered
by the Gauteng Local Division, Johannesburg on 13 May 2016, almost three
years after the submission of the request for information by the appellants.

[34] The appeal is opposed on the basis that the appellants failed to meet the
threshold in s 50(1) of the PAIA. The right to request access to the records of a
private body is governed by s 50(1) of the PAIA. The provisions read:
‗(1) A requester must be given access to any records of a private body if─
(a) that record is for the exercise or protection of any rights;
(b) that person complies with the procedural requirements of this Act relating to a request for
access to that record; and

27 Nkala & others v Harmony Gold Mining Company Limited & others [2016] ZAGPJHC 97; 2016 (5) SA 240
(GJ).

(c) access to that record is not refused in terms of any ground for refusal contemplated in
Chapter 4 of this Part.‘
As appears from their wording, the provisions are peremptory if the criteria in
subsections (a) to (c) are met.

[35] The initial right which the appellants sought to protect was the right to
assess their potential claims for damages against the respondent for having
contracted silicosis at the respondent‘s mines during the tenure of their
employment. However, when the matter was argued before us, the appellants‘
argument had shifted in that they requested the information for purposes of
making a decision of whether or not to opt out of the class action. But this is
understandable as their appeal had been overtaken by the events. Certification
had since been granted in the Nkala judgment which also stipulated a date by
which they should opt out of the class action, should they so wish.

[36] The right of access to information is guaranteed by s 32 of the
Constitution, which provides:
‗(1) Everyone has the right of access to─
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the exercise or
protection of any rights.
(2) National legislation must be enacted to give effect to this right, and may provide for
reasonable measures to alleviate the administrative and financial burden on the state.‘

[37] The PAIA is the national legislation that gives effect to the right of access
to information as contemplated in s 32 (2) of the Constitution. Its purpose was
explained by Jafta J in PFE International Inc28 as follows:
‗In accordance with the obligation imposed by this provision, PAIA was enacted to give
effect to the right of access to information, regardless of whether that information is in the

28 PFE International Inc (BVI) & others v Industrial Development Corporation of South Africa Ltd [2012]
ZACC 21; 2013 (1) SA 1 (CC) para 4.

hands of a public body or a private person. Ordinarily, and according to the principle of
constitutional subsidiarity, claims for enforcing the right of access to information must be
based on PAIA.‘

[38]  Transparency and access to information are required in order to allow
people to enjoy other fundamental rights. Thus, for example, the preamble of
the PAIA recognises that:29
‗The system of government in South Africa before 27 April 1994, amongst others, resulted in
a secretive and unresponsive culture in public and private bodies which often led to an abuse
of power and human rights violations;
Section 8 of the Constitution provides for the horizontal application of the rights in the Bill of
Rights to juristic persons to the extent required by the nature of the rights and the nature of
those juristic persons.‘

[39] Both the Constitution, in s 32(1)(b) and the PAIA (in s 50(1)(a)) refer to
‗any rights‘. In my view, this could be ‗any right‘ in terms of the Bill of Rights
in Chapter 2 of the Constitution, or ‗any right‘ created in common law. In
construing these words, the court should, as far as the language of the PAIA
permits, adopt a generous and purposive interpretation that gives people the full
measure of its protections and that promotes the values of the Constitution. As
the Constitutional Court held in S v Mhlungu:
‗A constitution is an organic instrument. Although it is enacted in the form of a statute it is
sui generis. It must broadly, liberally and purposively be interpreted so as to avoid ―the
austerity of tabulated legalism‖ and so as to enable it to continue to play a creative and
dynamic role in the expression and the achievement of the ideals and aspirations of the
nation, in the articulation of the values bonding its people and in disciplining it‘s
Government.‘30

[40] The provisions of s 2(1) of the PAIA also bear relevance. They read:

29 The Preamble ‗Promotion of Access to Information Act 2 of 2000.‘
30 S v Mhlungu & others [1995] ZACC 4; 1995 (3) SA 867 para 8. See also Government of the Republic of
Namibia & another v Cultura & another 2000 & another 1994 (1) SA 407 at 418.

‗When interpreting a provision of this Act, every court must prefer any reasonable
interpretation of the provision that is consistent with the objects of this Act over any
alternative interpretation of the provision that is inconsistent with those objects.‘
The objects of the PAIA are contained in s 9 of the Act, which provide in
relevant part:
‗(e) … to promote transparency, accountability and effective governance of all public and
private bodies…‘
Access to information is a constitutionally entrenched right. Any refusal of
access to information is a limitation of that right and must therefore be
approached as the exception rather than the rule. In his minority judgment in
Unitas Hospital,31 Cameron JA said:
‗We must in my view consider the extent to which it is appropriate, in the case of any private
body, to further the express statutory object of promoting ―transparency, accountability and
effective governance‖ in private bodies. This statutory purpose suggests that it is appropriate
to differentiate between different kinds of private bodies. Some will be very private, like the
small family enterprise in Clutchco. Effective governance and accountability, while
important, will be of less public significance. Other entities, like the listed public companies
that dominate the country's economic production and distribution, though not ―public bodies‖
under PAIA, should be treated as more amenable to the statutory purpose of promoting
transparency, accountability and effective governance.‘

[41] Regarding the approach a court should adopt in determining whether a
record is ‗required for the exercise or protection of any rights‘ Morison AJ said
in M & G Limited held:32
‗The words ―required for the exercise or protection of any rights‖ should not be interpreted
or applied restrictively. There is no basis for a concern that privacy, commercial
confidentiality, trade secrets and the like would be in jeopardy if s 50(1)(a) is given a
meaning, or is applied in a manner, that sets a relatively low threshold.‘
In Clutchco (Pty) Ltd v Davis Comrie AJA said:33

31 Unitas Hospital para 30; M & G Limited v 2010 FIFA World Cup Organising Committee [2010] ZAGPJHC
43; 2011 (5) SA 163 (GSJ) para 356.
32 M & G Limited & others v 2010 FIFA World Cup Organising Committee South Africa Limited & another
[2010] ZAGPJHC 43; 2011 (5) SA 163 (GSJ) para 364.

‗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. It appears to me, with respect, that this interpretation correctly reflects the
intention of the legislature in s 50(1)(a).‘
In Unitas Hospital v Van Wyk & another, Brand JA said:34
‗Generally speaking, the question whether a particular record is ―required‖ for the exercise or
protection of a particular right is inextricably bound up with the facts of that matter.‘
And para 18:35
‗I respectfully share the reluctance of Comrie AJA to venture a formulation of a positive,
generally applicable definition of what ―require‖ means. The reason is obvious. Potential
applications of s 50 are countless. Any redefinition of the term ―require‖ with the purpose of
restricting its flexible meaning will do more harm than good. To repeat the sentiment that I
expressed earlier: the question whether the information sought in a particular case can be said
to be ―required‖ for the purpose of protecting or exercising the right concerned, can only be
answered with reference to the facts of that case having regard to the broad parameters laid
down in the judgment of our courts, albeit, for the most part, in a negative form.‘
I respectfully agree with these remarks.

[42] The respondent asserts that the provisions of s 7(1) of PAIA come into
play because proceedings have commenced with the granting of the certification
application by the high court in the Nkala judgment and that the appellants can
have access to the requested documents in terms of Rule 35 of the Uniform
Rules of Court. I hold a different view. Class actions are sui generis in nature,
and should not be considered as the ordinary issuing of proceedings. Section 38
of the Constitution provides that ‗anyone listed in the section has the right to
approach a competent court alleging that a right in the Bill of Rights has been
infringed or threatened‘. It can be an individual person or anyone acting as a
member of a class. This is a dualistic approach which allows individual persons
to exercise their rights and approach the courts in their own regard or as a class.

33 Clutchco (Pty) Ltd v Davis [2005] ZASCA 16; 2005 (3) SA 486 (SCA) para 13.
34 Unitas Hospital v Van Wyk & another [2006] ZASCA 34; 2006 (4) SA 436 (SCA) para 6.
35 Unitas Hospital v Van Wyk & another para 18.

In the latter instance, a member of a class is automatically a co-plaintiff in a
matter, which may affect his rights, of which he may have no knowledge. The
process may become known to him only after the certification application has
been granted or later, when he is invited to exercise the right to opt out. A
certification application should therefore not be a bar to individuals from
approaching the courts in the exercise and protection of their rights.

[43] The appellants were both dismissed from employment on the grounds of
medical incapacity for having contracted silicosis. The extent and nature of such
an illness and the cause thereof need to be determined. This information will
assist the appellants in exercising and protecting their rights.

[44] The appellants‘ requests related to the personal information of their
employment experiences in terms of their medical surveillance during the tenure
of their employment, and more general information about the respondent‘s
mining operations, and their safety and health practices. They were all qualified
by the use of the words ‗including but not limited to personal dust exposure
levels‘. This gave the respondent the option to exclude what it perceived as
irrelevant for the appellants‘ purposes. The requests were in line with the
provisions of s 50(3) of the PAIA as they constituted a request for access to the
records containing personal information36 of the requesters. This cannot be said
to have been a so-called fishing expedition,37 as it is information concerning the
appellants and relating to a specific period during which they worked for the
respondent. The first appellant was employed by the respondent from 3 January
1987 until 19 August 2003. The second appellant was employed by the

36 Section 1 of PAIA defines personal information as information not limited to the following:
‘(a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin,
colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief,
culture, language and birth of the individual;
(b) information relating to the education or the medical, criminal or employment history of the individual or
information relating to financial transactions in which the individual has been involved…‘.
37 See Van Wyk v Unitas Hospital paras 44 – 46.

respondent from 13 August 1988 until 30 March 2006. In the Nkala judgment,
the duration of the class period has been certified to commence from 12 March
1965.38 This information in my view is reasonably required by the appellants for
the exercise or protection of their rights as envisaged in s 50(1).39

[45] Class actions are a novelty in our jurisprudence. There is no legislation in
place that regulates the legal processes in such mass actions. To illustrate this
point, the requirements for a certification of a class action were recently laid
down by this Court in the Children’s Resource Centre Trust judgment.40

[46] In my view, not all interlocutory applications give rise to the
commencement of civil proceedings. So whilst civil proceedings may
commence either by way of summons or applications instituted by a person with
the necessary locus standi, there are the exceptions to the general rule. For
example, in IGI Insurance Co Ltd v Madasa it was held:41
‗An order to serve summons by edictal citation is not an ancillary steps to the commencement
of an action. This is illustrated by decision that an application to sue in forma pauperis does
not constitute the commencement of an action. Kriek J deals with this aspect in the case of
Dave Zick Timbers (supra at 384 A-D):
―I was referred by Counsel to the cases of Behr v SA Railway & Harbours 1924 OPD 309 and
Brummer v SA Railway & Harbours 1930 OPD 106. Both judgments consider the provisions of
section 64 of Act 22 of 1916 which provided that no action shall be brought against the Railway
Administration ‗unless the same commenced within 12 months after the cause of action arose‘,

38 Nkala v Harmony Gold Mining Company Limited para 51.
39 In particular South African labour law protects employees, and this is even more important in the mining
sector due to the conditions that employees are still exposed to for inadequate wages. For example, see the
recent Constitutional Court judgment Association of Mineworkers and Construction Union and Others v
Chamber of Mines of South Africa & others [2017] ZACC 3; 2017 (3) SA 242 (CC) where Cameron J stated,
‗Behind that question, with its lawyerly remoteness, lies the grievous struggle for better wages and conditions
for the generations of mineworkers who have laid the foundations for this country‘s wealth. And at its fore is an
increasingly intense contest between unions about which will represent the workers in that struggle now.‘
40 Trustees for the time being of Children's Resource Centre Trust & others v Pioneer Food (Pty) Ltd & others
[2012] ZASCA 182; 2013 (2) SA 213 (SCA) para 26.
41 IGI Insurance Co Ltd v Madasa at 119.

and in both the court came to the conclusion that an application for leave to sue in forma pauperis did
not constitute the commencement for of an action. In the former case McGregor J said that such an
application is not a proceeding—
‗… introduced in order to obtain redress or the recognition of a right.  But, in order to be put in a
position to prosecute the proceedings for redress, or the like. So that the interlocutory, or rather
ancillary and preliminary, proceeding does not appear to be a commencement of the action as
contemplated by the section.‘‖‘

[47] In terms of Rule 40(1)(b) of the Uniform Rules of Court:
‗(a) a person who desires to bring or defend proceedings in forma pauperis, may apply to the
registrar who, if it appears to him that he is a person such as is contemplated by paragraph (a)
of subrule (2), shall refer him to an attorney and at the same time inform the local society of
advocates accordingly.
(b) such attorney shall thereupon inquire into such person‘s means and the merits of his cause
and upon being satisfied that the matter is one in which he may properly act in forma
pauperis, he shall request the said society to nominate an advocate who is willing and able to
act and upon being so nominated such advocate shall act therein.‘
In terms of the Rules Regulating the Conduct of the Proceedings of the Supreme
Court of Appeal of South Africa:42
‗15(1) Any party who is a natural person and who is of the opinion that he or she is indigent
may request the registrar for leave to prosecute or defend an appeal in forma pauperis.‘
The Legal Dictionary43 describes the phrase ‗in forma pauperis‘ as one ‗that
indicates the permission given by the court to an indigent to initiate a legal
action without having to pay for court fees or costs due to his or her lack of
financial resources.‘

[48] The process of certifying a class action has similar traits and purpose to
proceedings in forma pauperis as it gives the members of the class action an
opportunity to claim damages irrespective of the indigency of the class
members.  It requires the court to safeguard the interests of the class members

42 SCA rule 15(1).
The
Free
Dictionary
by
Farlex
‗In
Forma
Pauperis’
Available
at:
http://legaldictionary.thefreedictionary.com/In+Forma+Pauperis (accessed on 25 May 2017).

by way of requirements like those set out in the Children’s Resource Centre
Trust case, which must be met before it can grant the certification order. It is
unlike other interlocutory applications where it is a mere pre-requisite or a
process to establish locus standi to proceed with an action. It also gives an
opportunity to a class member to decide whether or not to opt out. When a court
deals with such matters the ambit of justice should not only be limited to
substantive relief but it must also be extended to procedural justice as well.  In
light of the nature of such proceedings, it cannot be said that they have
commenced before an opportunity is extended to members of the class to make
an informed decision whether to continue to be part of the class or opt out.  A
fair balance needs to be achieved in line with rights of the individual members
as enshrined in the Bill of Rights.

[49] A restrictive interpretation of s 7(1) of the PAIA should be applied in this
case, as advocated in PFE International v IDC where the Constitutional Court
held:
‗When constructing section 7(1) it must be borne in mind that the purpose of PAIA is to give
effect to the right of access to information. On the contrary, section 7 excludes the application
of PAIA. A restrictive interpretation of the section is warranted so as to limit the exclusion to
circumstances contemplated in the section only. A restrictive meaning of s 7(1) will thus
ensure greater protection of the right.‘44

[50] There is no indication on the respondent‘s papers whether the requests for
information by the appellants were ever considered, save that the refusal was
because of ‗the proceedings‘ which had commenced. None of the grounds of
refusal appearing in ss 66, 67 or 68 of the PAIA were raised by the respondent.

44 PFE International Inc (BVI) & others v Industrial Development Corporation of South Africa Ltd para 18.

[51] I conclude that counsel for the appellants wrongly conceded that
proceedings had commenced with the certification application. It is trite that the
courts are not bound by wrong legal concessions.45

[52] As previously stated, there is no legislation governing class actions in
South Africa. The applicable rules to class actions are being developed by our
courts.  In their quest to develop the law on class actions, courts should take into
account the legitimate interest of the litigants and protect their constitutional
rights instead of curtailing them.  This in my view was not the intended result
by this court in the Children’s Resource Centre Trust case.

[53] It would be an anomaly that the rights of appellants to exercise or protect
their rights may be curtailed by a certification application which may not even
materialise in a class action or may be abandoned.  In the event that it
materialises, they may be placed in a position where they should be able to
make an informed decision, whether to opt out or not. In Ferreira v Levin NO &
others, O'Regan J at para 229 stated:
‗Existing common law rules of standing have often developed in the context of private
litigation. As a general rule, private litigation is concerned with the determination of a dispute
between two individuals, in which relief will be specific and, often, retrospective, in that it
applies to a set of past events. Such litigation will generally not directly affect people who are
not parties to the litigation. In such cases, the Plaintiff is both victim of the harm and the
beneficiary of the relief.‘46
The appellants therefore need to be well-versed and informed as to the
consequences of a failure to opt out in a class action.

45 City of Cape Town v Aurecon South Africa (Pty) Ltd [2017] ZACC 5 para 34.
46 Ferreira v Levin NO & others; Vryenhoek & others v Powell NO & others [1995] ZACC 13; 1996 (1) SA 984
(CC) para 229.

[54] A similar sentiment was expressed in Mukaddam where the court held
that the rules of court must facilitate and not hinder access to courts.47 A
pragmatic approach, in particular to the development of the law in relation to
class actions, should be adopted in line with the rights enshrined in the
Constitution.

[55] I align myself with the persuasive views of Mojapelo DJP in Goldfields
Ltd & others v Motley Rice48 where he states:
‗The certification application is thus a jurisdictional hurdle or threshold which mineworker
applicants must overcome before they may institute the class action. ‗The two proceedings,
i.e. the class certification application and the class action proceedings, are separate and
distinct, although the one may lead to the other.  Each has its own legal requirements and will
lead to its own judgment.‘49

[56] As I have said, s 39(2) of the Constitution provides that when interpreting
any legislation, and when developing the common law or customary law every
court, tribunal or forum must promote the spirit, purport and objects of the Bill
of Rights. This Court in Children’s Resource Centre Trust was developing the
common law. It cannot be accepted that in developing the common law, it
disregarded the individual rights of the members of the class action by stating
that the certification application amounts to the commencement of civil
proceedings.  In Dendy v University of Witwatersrand50 this Court stated as
follows:
‗That courts are enjoined to develop the common law, if this is necessary, is beyond dispute.
That power derives from ss 8(3) and 173 of the Constitution. Section 39(2) of the
Constitution makes it plain that, when a court embarks upon a course of developing the
common law, it is obliged to ―promote the spirit, purport and objects of the Bill of Rights.‖‘

47 Mukaddam v Pioneer Foods (Pty) Ltd & others ZACC 23; 2013 (5) SA 89 (CC) para 32.
48 Gold Fields Limited & others v Motley Rice LLC, In re: Nkala v Harmony Gold Mining Company Limited &
others [2015] ZAGPJHC 62; 2015 (4) SA 299 (GJ).
49 Gold Fields Limited and Others v Motley Rice para 16–17.
50 Dendy v University of the Witwatersrand & others [2007] ZASCA 30; [2007] 3 All SA 1 (SCA) para 22.

[57] In MEC for Roads and Public Works Eastern Cape51 this court
emphasized what Chaskalson J stated in the Amod judgment. It held that –
‗It is abundantly clear, therefore, that the interpretation of the provisions of PAIA must be
informed by the Constitution (see s 39(2) of the Constitution), which obliges every court to
promote the spirit, purport and objects of the Bill of Rights when interpreting any
legislation.‘52
This court further stated that the requirements of Section 7(1)(a), (b) and (c) are
cumulative and all three must co-exist for the operation of the Act to be
excluded.53

[58] Having found that the proceedings have not commenced with the
launching of the certification application, it is unnecessary to address the other
requirements of s 7(1) of the PAIA.

[59] As pointed out above, the respondent contended that the request for
information by the appellant was a fishing expedition, as Mr Spoor‘s firm was
involved in the certification application as well and that they already had
sufficient information to advise the appellants as they had submitted draft
particulars of claim in the certification application. The respondent extensively
relied on the Unitas judgment which discouraged fishing expeditions or pre-
litigation discovery.54 However, this Court in Unitas held that, it was not
appropriate to formulate a positive, generally applicable definition of ‗require‘
because ultimately whether or not information was required depended on the
particular facts of the case. The facts in Unitas are distinguishable from the facts
in this matter as the respondent is in possession of all the material that the
appellants require to exercise their rights unlike Mrs Van Wyk in Unitas. The

51 MEC for Roads and Public Works Eastern Cape & another v Intertrade Two (Pty) Ltd [2006] ZASCA 33;
2006 (5) SA 1 (SCA).
52 MEC for Roads and Public Works Eastern Cape para 11.
53 MEC for Roads and Public Works Eastern Cape para 12.
54 Unitas Hospital v Van Wyk & another above.

knowledge of the attorney or his involvement in a class action is knowledge to a
broader claim of the member of the class action, but not sufficient to give legal
advice to these particular clients. There is no alternative source for the
appellants, save for the PAIA process to access their personal records from the
employer.

[60] As stated above, s 9(e) of the PAIA sets out the objects of the Act as
being ‗generally, to promote transparency accountability and effective
governance of all public and private bodies.‘ The lives of multitudes of indigent
mine workers are at stake, including the appellants. A general refusal will not be
in line with the objects of the Act.

[61] The application in the court a quo was based on a different premise other
than that the information was requested for purposes of being advised whether
to opt out or not. This Court has the discretion to deal with an issue that was not
pleaded, as long as it does not materially affect the gist of the application and it
will lead to the same conclusion as it relates to the exercise and protection of
rights. This route has been followed in our courts as in Middleton v Carr55
where the court said:
‗…as has often been pointed out, where there has been full investigation of a matter, that is,
where there is no reasonable ground to thinking that further examination of the facts might
lead to a different conclusion, the court is entitled to, and generally should treat the issue as if
it had been expressly and timeously raised. But unless the court is satisfied that the
investigation has been full, in the above sense, injustice may easily be done, if the issue is
treated as being before the court.‘

55 Middleton v Carr 1949 (2) SA 374 (A) at 385–386.

[62] For these reasons, I would uphold the appeal.

__________________
YT Mbatha
Acting Judge of Appeal

Molemela AJA:
[63] Like my sister, Mbatha AJA, I respectfully disagree with both the
outcome of the appeal and the reasoning of the judgment of Gorven AJA (the
majority judgment), albeit for slightly different reasons. The facts of this matter
and the issues to be decided have been eloquently set out in the majority
judgment and need not be repeated here.

[64] I must point out from the outset that I agree that ‗required‘ in the context
of s 32(1)(b) of the Constitution does not denote ‗absolute necessity‘ and means
‗reasonably required‘.56 Indeed, the same meaning can also be attributed to the
phrase ‗required for the exercise or protection of any rights‘ set out in s 50(1)(a)
of the PAIA. It is crucial to bear in mind that s 2(1) of the PAIA enjoins courts
to, when interpreting a provision of PAIA, prefer a reasonable interpretation
that is consistent with the objects of the Act. Furthermore, the objects of the
PAIA stipulate that ‗courts should generally encourage transparency,
accountability and effective governance in private institutions‘.57

[65] In paragraph 17 of the main judgment it is stated that ‗ …the underlying
reasons given for why the records are required do not relate to the exercise of

56 My Vote Counts NPC v Speaker of the National Assembly & others [2015] ZACC 31; 2016 (1) SA 132 (CC)
para 31.
57 Section 9 of the PAIA.

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.‘ I disagree
with that view because it, with respect, pays lip service to the fact that the
nature of the enquiry envisaged in s 50(1) of the PAIA is fact-based.58 The
information that was requested on behalf of the appellants is set out in detail in
the majority judgment and I need not repeat it. Significantly, the requested
records included, inter alia, information pertaining to the measurement of the
appellants‘ exposure to silica dust levels during the period of their employment,
including measures taken by the respondents to protect the appellants from
contracting silicosis. The importance of this information is illustrated by the fact
that in the Nkala judgment, the High Court recognised that ‗ultimately each
class member must prove his claim in its entirety if he is to succeed….in other
words, even after the common issues are dealt with and finalised there
nevertheless remains the issue of each mineworker having to prove his own
case.‘59

[66] In argument before us, it was contended on behalf of the appellants that
they require the records in question for purposes of deciding whether to opt out
of class action. To deny the appellants‘ request on the basis that this was not the
case made out in their papers simply fails to take into account that the
appellants‘ request for the information was made prior to the granting of the
certification order. When the certification order was granted, it was coupled
with an opting out clause stipulating a certain deadline. In my view, the
information sought by the appellants relates to the exercise of the right to claim
damages arising from, inter alia, the statutory duty of care owed by the
respondents to them as their employees. The appellants have, in my view,

58 Unitas Hospital v van Wyk & another above  para 18.
59 Nkala & others v Harmony Gold Mining Company Limited & others above  para 77.

‗established an element of need‘ in respect of the records they are seeking.60 I
therefore agree that the requested information is critical to the appellants‘
decision regarding whether or not to opt out of the class action. Such
information will undoubtedly assist them in the formulation of their own
individual claims should they decide to opt out.61 An important consideration is
that class members who have opted out have actively excluded themselves from
being members of the class and are therefore no longer allowed to be part of the
class action.62 It is therefore imperative that a member of a class faced with a
choice of opting out of a class action by a certain date be afforded the
opportunity to make an informed decision. As I see it, this necessitates that the
class member be granted such documents as would assist him or her, as the
requester, to either avoid being part of the litigation or in the formulation of the
requester‘s separate claim.

[67] The seriousness of a decision whether or not to litigate and the
importance of granting access to the information requested were aptly described
by Cameron J in the following terms in his minority judgment in Unitas (The
majority judgment did not take issue with the dicta expressed in the passage
below):
‗[I]nstitution of proceedings is an immense step. It involves a massive commitment in costs,
time, personnel and effort. And it is fraught with risk. Where access to a document can assist
in avoiding the initiation of litigation, or curtailing opposition to it, the objects of a statute
suggest that access should be granted.‘63
I echo these sentiments.

60 My Vote Counts NPC v Speaker of the National Assembly & others (supra) at para 31.
61 That class members who opt out can still pursue their claims individually is evident from the Amended Notice
which is Annexure B(1) of the certification court order. Also see the requirements prescribed in Federal Rule
23(b)(3) and 23(c)(2) of the Federal Rules of Civil Procedure in the United States of America; Sherman EF
(1987) ―Class Actions and Duplicative Litigation‖, Indiana Law Journal  Vol 62: Issue 3, Art 2.
62 Cannon v Funds for Canada Foundation; 1250264 Ontarion Inc. v Pet Valu Canada Inc.
63 Unitas Hospital v Van Wyk above para 48.

[68] The majority judgment found that the draft particulars of claim annexed
to the certification application are detailed and tend to show that ‗the appellants
are clearly in a position to formulate their claim‘. As correctly argued by the
appellants, there are no facts relating to the present appellants in the draft
particulars of claim. I am of the view that even if it were to be accepted that the
draft particulars of claim as they stand are indeed detailed in relation to all class
members, the detailed nature of such draft particulars would be a neutral factor.
Draft pleadings are not cast in stone and may be amended.64

[69] In taking the facts of this particular case into account, due consideration
must be paid not only to the fact that this is a class action potentially involving
up to 500 000 class members65 whose date of employment could date back to as
far back as 1965, with only 56 mineworkers being applicants in the certification
applications, but also to the fact that the deadline for exercising the right to opt
out was 31 January 2017.66 More importantly, thousands of class members
would depend on the attorneys of the 56 representative plaintiffs to timeously
invoke the discovery procedures envisaged in Rule 35 of the Uniform Rules of
Court67 on their behalf. This brings me to the provisions of s 7 of the PAIA.

[70] It is common cause that the records requested by the appellants are
requested for the purpose of civil proceedings as contemplated in s 7 (1)(a) of
the PAIA. The majority judgment correctly points out that during the hearing of
the appeal, counsel for the appellants conceded that proceedings have

64 Ibid para 43.
65 Nkala & others v Harmony Gold Mining Company Limited & others para 7.
66 Clause 9 of the order made by the court in Nkala states: ‗It is ordered that the members of the classes will be
bound by the judgment or judgments in the first stage of the class action against the mining companies, unless
they give written notice to Abrahams, Spoor, or the LRC by 31 January 2017, that they wish to be excluded as
members of any of the classes against each or any of the respondents.‘
67 In their article with the title Limiting Relitigation by Defendant Class Actions from Defendant’s Viewpoint,
published in The John Marshall Review Volume 4 Issue 3, Theodore and Anderson observe that ‗if the class
member's exposure is great enough, he may be less than content at not being in control of his destiny and at
being "foreclosed by" the ideas of other class members who are participating representatives‘.

commenced as contemplated in s 7(1)(b) of the PAIA. Significantly, an
acceptance that this concession was correctly made does not necessarily lead to
a conclusion that the appellants are precluded from requesting information in
terms of the provisions of s 7 of the PAIA. It merely takes us to the next leg of
the enquiry envisaged in s 7(1)(c) of the PAIA: whether the production of or
access to the requested record is provided for ‗in any other law.‘ This is so
because s 7(1) of the PAIA bars the provision of requested records only if all
the three criteria specified in that section have been met. The crucial question is
whether the Uniform Rules of Court provide mechanisms in terms of which the
appellants may request the records and thus equate to any other law as
contemplated in s 7 (1)(c) of the PAIA. In my view, the answer is in the
negative for the reasons that follow. First, the relatively long time that it may
take for a class action case to reach trial should not be under-estimated.68
Secondly, as correctly argued by the appellants, the certification of class action
does not oblige the representative plaintiffs to institute action. It must be borne
in mind that in terms of Rule 35 of the Uniform Rules of Court, discovery
notices are normally filed after litis contestatio. In this particular case, the court
in the Nkala judgment expressly acknowledged that given the magnitude of the
class action, the stage when litis contestatio would be reached was still ‗a very
long way off‘.69 It is therefore not inconceivable that even if the representative
plaintiffs did decide to institute action, they could file the discovery notices just
before or well after the deadline for opting out. The potential prejudice for the
appellants and the rest of the class members is self-evident.

[71] The respondents‘ contention that the representative plaintiffs have the
right , with leave of the court to seek earlier discovery of documents in terms of
Rule 35(1) of the Uniform Rules of Court, does not detract from the fact that

68 In Mandeville v The Manufacturers Life Insurance Company 2014 ONCA 417 (CanLII) the certification
application was argued in 2002 but the trial was only finalized in 2008.
69 Nkala & others v Harmony Gold Mining Company Limited & others above para 210.

they are not obliged to do so. In my view, the discovery procedures open to the
representative plaintiffs in terms of Rule 35 of the Uniform Rules of Court
should not serve as a bar to the thousands of class members who may,
immediately upon receiving notice of a class action, wish to request access to
records for purposes of assessing the viability of their claims with a view to
deciding whether or not to opt out. Put differently, the representative plaintiffs
should not have the exclusive right to request information on behalf of all class
members before the deadline for opting out has passed.

[72] Having considered the objects of the PAIA and all the circumstances of
this case, including the magnitude of  the class action, the unprecedented range
of legal representatives involved in the matter,70 the narrow parameters
pertaining to the exercise of the right to opt out in this particular case and the
demonstrable lack of assurance that invoking Rule 35 would yield the result
sought by the appellants, I agree with the appellants‘ argument that the
provisions of Rule 35 do not equate to procedure ‗provided for in any other law‘
as contemplated in s 7 of the PAIA.  Consequently, even if it were to be
accepted that the records, which are reasonably required by the appellants, are
for the purpose of civil proceedings which have already commenced, there is no
legal impediment to the appellants‘ request and they are therefore fully entitled
to the requested information.

[73] For all the reasons mentioned above, I am of the view that the request for
the records meets the threshold envisaged in s 50(1) of the PAIA and that such a
request is not precluded by the provisions of s 7 of the PAIA.  In my view, the
facts of this case illustrate the inadequacy of the current discovery procedures
provided by the Uniform Rules of Court for purposes of class action
proceedings.  This emphasizes the need to heed the Law Commission‘s

70 Nkala & others v Harmony Gold Mining Company Limited & others supra para 9.

recommendation of the promulgation of legislation that will lay down the
procedure applicable to class actions in South Africa.71

[74] For all these reasons, I would uphold the appeal with costs.

_______________
MB Molemela
Acting Judge of Appeal

71 South African Law Reform Commission Project 88 ‗The Recognition of Class Action in South African Law’ at
para 3.1.2; Cilliers et al, Herbstein and van Winsen, Civil Practice of the High Court of South Africa (2009) 199
– 201 submit that appropriate legislation and rules of court are needed for class actions.

Appearances
For the Appellants:
A Bester (with him R Itzkin)

Instructed
by:
Richard
Spoor
Incorporated,
Johannesburg

Webbers, Bloemfontein

For the Respondent:
P Kennedy SC (with him I Currie)
Instructed
by:
Edward
Nathan
Sonnenbergs,
Johannesburg
Honey Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
07 June 2017
Status:
Immediate

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

MAHAEEANE & ANOTHER
v
ANGLOGOLD ASHANTI LIMITED

The Supreme Court of Appeal today handed down judgment in an appeal resulting from an
application brought in the Gauteng Local Division of the High Court, Johannesburg. In the
application, the appellants sought to obtain records in the possession of the respondent including
those relating to: steps taken by the respondent to create a safe working environment in its mines;
its compliance with its statutory health and safety duties; steps taken to monitor the health of the
appellants; any reports on these matters relevant to silicosis and similar records. It was contended
that the records were required to enable the appellants to assess their prospects of successfully
suing the respondent for damages caused by their having contracted silicosis.

The appellants had both been employed in gold mines run by the respondent for many years.
Silicosis is common in gold mine workers who are exposed to harmful quantities of silica dust whilst
working underground in mines. This dust is generated in the course of mining activities. The
appellants were dismissed from employment on the basis that they had contracted silicosis. This
much was common cause. It was disputed that their silicosis had resulted from their employment in
the respondent’s mines.

The first appellant was certified as having contracted silicosis during September 2004 and the
second appellant during September 2009. By November 2011, both the appellants had instructed
Richard Spoor Incorporated, a firm of attorneys, to represent and advise them. During December
2012, this firm of attorneys launched an application to certify a class action. The class sought to be
certified included persons such as the appellants who had worked on the respondent’s gold mines
and had contracted silicosis. There were 56 applicants in the certification application but the

appellants were not cited as applicants. A detailed set of draft particulars of claim was annexed to
the certification application. The request for records under the PAIA was submitted on behalf of the
appellants by their attorney in August 2013. The respondent contended that this amounted to an
application for pre-litigation discovery and a fishing expedition.

The high court refused the application for records, holding that there was alternative legislation
available to the appellants to obtain the records. In addition, it found that the records were not
reasonably required for the exercise or protection of any rights. The high court granted the
appellants leave to appeal against this refusal.

The Supreme Court of Appeal was divided three to two. Two minority judgments would have upheld
the appeal and granted access to the records. The majority upheld the order of the high court
dismissing the application. It did so on the basis that the right relied upon was that to claim
damages in a court of law. Since the appellants were able to formulate their claim adequately
without the records in question, as demonstrated by the detail in the draft particulars of claim
annexed to the certification application, it could not be said that the records were reasonably
required to exercise of protect that right. In addition, since the class action had subsequently been
certified, this signalled the commencement of proceedings and the appellants were included in that
action until they opted out. That being the case, there was a further reason why the records were
not reasonably required to exercise or protect the right to claim damages, because the machinery of
discovery was available to them. The appeal was accordingly dismissed.