Access to Information – the quest of getting to the truth

The issue of legal privilege is discussed in the context of the fact that the public has a constitutional right to of access to information - a right which can be accessed for an array of reasons.

Written by Nicolene Schoeman-Louw, Managing Director SchoemanLaw Inc, for LexisNexis South Africa.

Evidence is the basis for establishing probabilities of a specific event or sequence of events occurring. In enforcing your rights, this becomes critical. This can take many forms, including witness testimonies, documents, recordings and other forms of data.

But what happens when you suspect a particular position or do not have a specific record? The Promotion to Access to Information Act 2 of 2000 ("PAIA’) is the body of legislation that provides a mechanism through which information can be obtained from government and large corporates and any other establishment in South Africa. Under the Protection of Personal Information Act, 4 of 2013 ("POPIA"), every business or person/organisation processor of data must file a PAIA manual with the information regulator (previously with the Human Rights Commission)

PAIA is not without its limitations. However, its boundaries were tested in the Cape High Court against Steinhoff. Notably, the most significant scale of corporate fraud seen in South Africa to date.

Investigative journalism outfit amaBhungane and media house Tiso Blackstar Group approached the Western Cape High Court seeking an order compelling Steinhoff to share the report, compiled by auditing firm PwC, with the media.

The right of access to information can be traced back to section 32 of the Constitution of the Republic of South Africa Act 108 of 1996 (“the Constitution”) which in subsection 32 (1) (b) deals with the right to have access to information held by any person other than the State and provides that:

“Everyone has the right to have access to any information that is held by another person that is required for the exercise or protection of any right."

To give effect to this right to have access to Information, Section 32 (2) of the Constitution then goes on to provide that:

"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."

However, Steinhoff’s team raised legal privilege for refusing to share the report. On this point, it is crucial to understand the confines of the term.

The case of Competition Commission v ArcelorMittal South Africa and Others[1] discusses the requirements for litigation privilege and states: that litigation privilege has two established requirements:

• The first is that the document must have been obtained or brought into existence for the purpose of a litigant's submission to a legal advisor for legal advice; and
• second that litigation was pending or contemplated as likely at the time."

The court in the Steinhoff matter quoted the following from Mason J:

"With reference to the first point, whether the report was made in contemplation of ligation,I do not think that the circumstances in this case, as alleged by the affidavit on behalf of the company, show that litigation was contemplated. It is not a question of whether a man is very nervous or suspicious that there may be litigation, and that if he is so nervous and suspicious, he is not protected. There must be really some contemplated litigation, some fact to indicate that ligation is likely or probable. It must not be a mere possibility which there is nothing to lead one to believe would be converted into reality according to the facts of the case.”

In Schwikkard and Van der Merwe[2] the authors discuss the matter of General Accident, Fire and Life Assurance Corporation Ltd v Goldberg[3] where an insured claimed the insurance company appointed a fire insurance policy and an assessor to investigate and advise whether the claimant should be paid out. In claiming privilege in respect of the assessor's report, the company alleged that it was required to submit it if necessary to the company's attorneys. The court refused to uphold the privilege because neither of the requirements mentioned above had been fulfilled.

There was no indication on the facts before the court in the Steinhoff matter that there was any reasonable anticipation of litigation. Therefore the court found in favour of the media and ordered that the report be made available. However, this is a High Court finding and is likely to be challenged. So, whether the Supreme Court of Appeal will confirm the High Court's position remains visible. Be that as it may, this case illustrates that the public's (as a case in point) right to access information as a constitutional right has been safeguarded. Therefore, access to information for an array of reasons becomes possible.

Nicolene Schoeman-Louw
Managing Director SchoemanLaw Inc