Lize de la Harpe, Senior Legal Counsel at Sanlam Corporate
Introduction
Section 14 of the Constitution grants every citizen the right to privacy. Section 32, in turn, states that everyone has the right of access to any information held by the state or another person that is required for the exercise or protection of any rights.
The right to privacy and right to access of information are competing in nature – in granting the one, the other is automatically limited.
The Promotion of Access to Information Act (PAIA) was enacted in 2000 to give effect to the constitutional right of access to information held by a public or private body that is required for the exercise or protection of any right.
Section 50(1) of PAIA states that a requester must be given access to any record of a private body if:
- that record is required for the exercise or protection of any rights,
- that person complies with the procedural requirements set out in PAIA relating to such request, and
- access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4, Part 3 of the Act.
Chapter 4, Part 3 of PAIA set out certain instances in which a request for access to a record must be refused, for example where such disclosure would involve the unreasonable disclosure of personal information about a third party (subject to certain exceptions).
Section 7(1) in turn prohibits a party from using the mechanisms provided for in PAIA to obtain the documents which can be secured by means of a subpoena as part of civil or criminal court proceedings. Section 7(1) specifically states that PAIA does not apply to a record of a public body or a private body if that record is requested for the purpose of criminal or civil proceedings after the commencement of such criminal or civil proceedings, as the case may be.
Case law
The matter of Mahaeeane v Anglogold (85/2016) [2017] ZASCA 090 (07 June 2017) concerned a request for information under section 50(1) of PAIA. 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 was launched for the certification of a class action (the certification application). The class relevant to silicosis sufferers comprised current and former mine workers who have silicosis and who work or have worked on the goldmines listed in the Notice of Motion. There was also another class defined for employees who contracted pulmonary tuberculosis.
A list of some ten records was requested in terms of section 50(1) of the PAIA on the basis that such information, in the view of the appellants, was required by their attorneys to advise as to whether they have adequate grounds to seek a remedy against the respondent, i.e.: to claim damages. 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 had been brought and as such PAIA did not apply as a result of the provisions of section 7(1) of the act.
Aggrieved, the appellants approached the High Court for access to the requested records. The High Court ruled in favour of the mine and dismissed the application, which prompted the appeal.
The records in question contained details of, among other things, dust exposure levels, medical surveillance and a record of incapacity hearings convened in respect of the appellants. The respondent submitted that the application was no more than a stratagem to obtain discovery in advance for the class action. In addition, the respondent submitted that the appellants had not made out a case under section 50(1), being that the records were required for the exercise or protection of any rights. The right asserted to seek compensation in delict for personal injury was not in dispute, but the records were not required for that purpose.
The SCA held that the underlying reasons given for why the records were required did 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, did not meet the test of the records being “required to exercise or protect” the right relied upon. Even if it could be argued that some of the records were reasonably required as evidence to prove the formulated claim, the machinery of discovery applies in an action and as such, most, if not all, of the records would become available to the appellants in the course of the certification application proceedings.
Considering the appellants failure to establish that the information was required for the exercise or protection of a right, the SCA did not consider it necessary to deal with the respondents’ further defence to the application by way of section 7(1) of the PAIA. The appeal was dismissed with costs.
The Mahaeeane – judgment echoed the SCA’s earlier stance as set out in the matter of Unitas Hospital v Van Wyk and Another 2006 (4) SA 436 (SCA) 2006 (4) SA. This appeal had its origin in an application by the first respondent, Mrs van Wyk, against the appellant hospital (Unitas) and the second respondent, Dr Naudé, under the provisions of the PAIA.
Mrs van Wyk’s late husband died in 2002 while he was a patient at Unitas, a private hospital. Mrs van Wyk contended that the death of her husband was brought about by the negligence of Unitas’s nursing staff. She also believed, on the basis of expert evidence received, that she had an action against Unitas for the damages that she suffered as a result of her late husband’s death. Her application for access to information was with a view to the institution of that action.
Dr Naudé was a specialist physician with rooms at Unitas. He was one of the doctors who treated the deceased. Apart from his private practice, Dr Naudé served as director of the ICU at Unitas. He was also the chairman of the body representing the medical specialists practising at Unitas in their dealings with the hospital management. Acting in these last-mentioned capacities, he prepared a report on the general nursing conditions in the ICU and the high care unit at Unitas.
The issues between the parties eventually turned solely on whether Mrs Van Wyk was entitled to a copy of Dr Naude’s report. The court a quo granted the application and ordered both Unitas and Dr Naudé to provide Mrs van Wyk with copies of the report, which led to the appeal.
It is worth noting that Mrs van Wyk did not specifically state that she required the report for the exercise of any right – what she said was that, without access to the report, her right to claim damages from Unitas would be affected. In their answering affidavits, both Unitas and Dr Naudé squarely raised the defence that Mrs van Wyk did not require the report for the exercise or protection of any rights because she already had access to whatever information her experts would require to advise her on the formulation and the assessment of her claim.
A substantial part of the argument in this matter was devoted to the meaning of “required” within the context of section 50(1)(a).
The learned judge held as follows at paragraph 21:
[21] I find myself in respectful disagreement with these sentiments. I do not believe that open and democratic societies would encourage what is commonly referred to as ‘fishing expeditions’ which could well arise if s 50 is used to facilitate pre-action discovery as a general practice … Nor do I believe that such a society would require a potential defendant, as a general rule, to disclose his or her whole case before any action is launched. The deference shown by s 7 to the rules of discovery is, in my view, not without reason. These rules have served us well for many years. They have their own built-in measures of control to promote fairness and to avoid abuse. Documents are only discoverable if they are relevant to the litigation while relevance is determined by the issues on the pleadings. The deference shown to discovery rules is a clear indication, I think, that the legislature had no intention to allow prospective litigants to avoid these measures of control by compelling pre-action discovery under s 50 as a matter of course.”
(my emphasis)
The SCA concluded that the report in question was of a general nature and not one relating specifically to treatment received by the applicant’s husband. In the SCA’s view Mrs Van Wyk did not require the report to formulate her claim for the purposes of instituting an action and, as such, did not require it for the exercise or protection of any right. The appeal was accordingly upheld.
As a side note, Mrs Van Wyk thereafter approached the Constitutional Court seeking leave to appeal against the decision of the SCA, but the application was eleven months out of time. Unconvinced by the applicant’s explanation as to the delay, the Constitutional Court dismissed the application for condonation and refused the leave to appeal.
Conclusion
In order to successfully request a copy of a record in terms of section 50(1) of PAIA, the requester must 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.
The phrase “required for the exercise or protection of any rights” gives rise to a fact-based enquiry. Whether or not a record is “required” will thus have to be determined on a case-by-case basis. What we can conclude from the above cited case law is that “required” does not mean “want” or “desire” on the part of the requester. Similarly, “useful” or “relevant” for the exercise or protection of a right will also not be enough. Conversely, it does not denote absolute necessity – it means reasonably required – therefore the person seeking access to the information will have to establish a substantial advantage or element of need.
ENDS
