Ingledew v Financial Services Board

The Financial Services Board instituted civil action against Ingledew and another, alleging contraventions of the Insider Trading Act 135 of 1998. The allegations were that as directors of Skills Accel (Pty) Ltd, they had acquired inside information regarding director appointments and acquisition of a distribution licence and business, and used this information to purchase and sell shares at a profit. After entering appearance to defend, Ingledew served a notice under rule 35(14) of the Uniform Rules of Court requiring the FSB to make available documents, books and transcriptions relating to his interrogation and that of other persons. When the FSB did not comply, Ingledew applied to the Pretoria High Court to compel compliance. He claimed a constitutional right to such information under sections 9(1), 34 and 35(3) of the Constitution, as well as section 32 read with item 23(2)(a) of Schedule 6. The High Court dismissed the application, finding that save for the transcript of his own interrogation, Ingledew had not shown he required the information to plead. Ingledew then applied for leave to appeal to the Constitutional Court.

• Whether the matter raises a constitutional issue justifying leave to appeal to the Constitutional Court
• Whether a litigant can rely directly on section 32(1)(a) of the Constitution to obtain information during litigation without challenging the constitutionality of rule 35(14)
• Whether there are concurrent rights to information under the Constitution and under the rules of court
• Whether rule 35(14) of the Uniform Rules of Court limits the constitutional right of access to information in section 32 of the Constitution
• Whether it is in the interests of justice to grant leave to appeal in the circumstances of this case
• The relationship between constitutional rights and procedural rules governing discovery in civil litigation

The application for leave to appeal was dismissed with costs, including costs for two counsel. Various interlocutory applications regarding condonation for late filing were granted with costs against the applicant. Applications regarding the replying affidavit and expansion of issues were refused with no order as to costs.

A litigant cannot rely directly on a constitutional provision (such as section 32 on access to information) to circumvent procedural rules (such as rule 35(14) on discovery) without formally challenging the constitutionality of those rules. The doctrine of objective constitutional invalidity only determines the moment of invalidity once a law has been declared invalid; until such declaration, the law must be presumed valid. It is constitutionally questionable whether relief can be granted based on the invalidity of a statutory provision without a formal declaration of invalidity as required by section 172(1) of the Constitution. Leave to appeal will be refused where an applicant suffers no prejudice from the impugned order and can obtain the relief sought through alternative procedural mechanisms at a later stage. In considering the interests of justice for leave to appeal, relevant factors include the effect of refusal on trial proceedings, whether the applicant will be prejudiced, the stage of proceedings, the desirability and importance of deciding the constitutional issues raised, and the broader applicability of any ruling beyond the immediate case.

The Court noted conflicting high court authorities on whether section 32 of the Constitution provides a right to information during litigation concurrent with and independent of rule 35. The Swissborough line of cases suggested concurrent rights exist, while cases like Inkatha Freedom Party and Alliance Cash & Carry suggested discovery during litigation is only available through the rules of court. The Constitutional Court expressly left this question open, noting that while there is much to be said for the view that discovery during litigation should be regulated by the rules of court, such a view may give rise to anomalies (such as an applicant being entitled to documents the day before summons but not after). The Court commented that the constitutional issues in this case arose during the 'hiatus period' between the passing of the PAI Act and its coming into operation, limiting the significance of any ruling. Ngcobo J also made obiter comments criticising the preparation of the record, warning that future non-compliance with directions regarding selective filing of records may attract special costs orders.

This case is significant for clarifying the relationship between constitutional rights (particularly access to information under section 32) and procedural rules governing discovery in civil litigation. It establishes important principles regarding when litigants can rely directly on constitutional provisions versus procedural rules, and the requirement to formally challenge the constitutionality of rules rather than simply bypassing them. The judgment emphasises that the doctrine of objective constitutional invalidity only operates once invalidity has been declared - until then, rules must be presumed valid. It also provides guidance on the 'interests of justice' test for leave to appeal, particularly in cases involving interlocutory orders that do not prejudice the substantive proceedings. The case illuminates the tension between the broad constitutional right to information and the structured regime for discovery in litigation, though the Court deliberately left open the ultimate resolution of whether concurrent rights exist, given the particular circumstances of the hiatus period before the PAI Act came into operation.