South Africa: Court Says There's No Way Around PAIA For Steinhoff Holdings

The Promotion of Access to Information Act (PAIA) aims to foster a culture of transparency and accountability in public and private bodies. It does so by giving effect to the right of access to information in accordance with section 32 of the Constitution of the Republic of South Africa, actively promoting a society in which the people of South Africa have effective access to information. In terms of PAIA there is a duty on both public and private bodies to provide access to records requested in terms of a request for access to information, unless the access to records is specifically refused, and the refusal is justified in terms of PAIA. PAIA enables the public to, more fully, exercise and protect its rights and strives to promote South Africa's goals of an open and participatory democracy.

Steinhoff International, a multinational retail holding company with dual stock exchange listings in Germany and South Africa, hoped to skirt its responsibilities in terms of PAIA by refusing a request for access to a potentially damning 2017 report by PricewaterhouseCoopers (PwC).

However, this week, the Western Cape High Court handed down judgment setting aside Steinhoff's refusal of Tiso Blackstar and amaBhungane's respective PAIA requests to access to information, ordering that a copy of the 2017 PwC report be made available to the parties within ten days of the order.

As background to the 'PAIA-palaver', in December 2017 Deloitte South Africa refused to sign off on Steinhoff's annual financial statements because its auditors had raised concerns about several alleged accounting irregularities. Steinhoff's then-CEO, Markus Jooste, resigned and PricewaterhouseCoopers (PwC) was appointed to perform an independent investigation into the irregularities.

Steinhoff suffered a substantial decline in their share price, losing an estimated 98% of value, with the result that investors lost in excess of R200 billion. In investigating the scandal, Tiso Blackstar Group requested access to the PwC report in terms of section 53(1) of PAIA on the grounds that they were members of the media investigating and exposing corporate scandals – and with a responsibility to provide the public with accurate information that is within the public interest. Steinhoff refused this PAIA request for information on the grounds that they considered the PwC report to be legally privileged content as contemplated in section 67 of PAIA. Six months later, amaBhungane also requested this report in terms of section 53(1) of PAIA on the same grounds as Tiso Blackstar Group but was also refused access by Steinhoff based on the same reasons. Tiso Blackstar Group and amaBhungane, together with two other applicants approached the High Court, seeking an order directing Steinhoff to supply them with a copy of the PwC report.

In the judgment (read here) handed down by the Court, it contemplated whether access to the PwC report can be refused on the grounds of privilege, and referred to section 70(b) of PAIA which says a request must be granted if the public interest in the disclosure outweighs the harm contemplated in making the records available. The Court also took into consideration the Constitutionally enshrined right to freedom of expression and had to decide whether the report is severable, i.e. if only certain sections can be disclosed.

Nuku J expressed difficulty in following and agreeing with Steinhoff's argument that its refusal to provide the PwC report would not limit the applicants' right to freedom of expression. Clearly, access to information is crucial to accurate reporting and, in turn, to sharing accurate information with the public.

In its PAIA Guidlines, the Information Regulator stresses the position that access to information is not only fundamental to a properly functioning democracy, but it also increases public confidence in government and enhances its legitimacy. "Other benefits of the right to access to information are for instance, that it discourages fraud and corruption, uncertainty and other improper governmental conduct."

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