Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
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The Supreme Court of Appeal for South Africa held that the Constitution and Access to Information Act allow for access to information held by private parties when reasonably required; the petitioner shareholder’s need for corporate documents was insufficiently pressing in this case.
This analysis was contributed by Right2Info.org.
Andrew Davis, who held 30% of the shares of Clutchco, a family business controlled by his father, made a request for information regarding the company’s finances after being removed as a director of the company. Shareholders are not entitled to this information under the Companies Act, and Davis made the request under Section 50 of the Promotion of Access to Information Act (PAIA), which allows for access to the information of private bodies if “that record is required for the exercise or protection of any right”. That act was itself promulgated in response to Section 32(1) of the Constitution, that creates a right of access to “information held by another person…that is required for the exercise or protection of any rights”.
Davis asserted that he desired the records due to his suspicion that not all the company’s transactions were reflected in its financial statements and that he needed the information to establish the value of his shares. Clutcho refused to provide the information, claiming that Davis only desired the records to harm the company.
The Court recognized the right to private documents under both the Constitution and PAIA but also found that it was subject to limits in that the information must be “required for the exercise or protection of any…rights”. After examining relevant case-law, the Court determined “required” in this context to refer to something that is “reasonably required”, a standard less than that of necessity (para. 13).
In this particular case, the Court found that the Companies Act provides for numerous mechanisms to protect shareholders other than allowing access to financial records, including the requirement that auditors have access to the information, allowing them to make findings as part of their reports. Therefore, a more substantial foundation than that advanced by Davis, who failed to specifically criticize the existing auditors or seek the advice of an experienced accountant, was required for him to receive access to the records in this case.
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