PFE International Inc (BVI) and Others v Industrial Development Corporation of South Africa Limited

The first and second applicants were companies in the PFE group that purchased 45% of shares in SAFYR from the IDC in September 2001. The fourth and fifth applicants (Messrs Zarrebini) became directors of SAFYR. Subsequently, SAFYR instituted proceedings against the applicants claiming they breached fiduciary duties by acquiring shares in Van Dyck Carpets. After pleadings closed and SAFYR requested further particulars for trial, the applicants instead sought access to IDC records under the Promotion of Access to Information Act (PAIA). When they received no response, they launched an application in the High Court under section 11 of PAIA. The applicants claimed they needed the information to respond to particulars requested by SAFYR and to prepare for trial, but could not obtain it through discovery (as IDC was not a party) or subpoena duces tecum (as they could not identify specific documents). The IDC opposed, arguing that access should be sought via Rule 38 subpoena and that PAIA did not apply under section 7(1).

• Whether PAIA applies to requests for access to information made after commencement of civil proceedings where court rules provide for access to such information
• Whether Rule 38(1) of the Uniform Rules of Court constitutes 'any other law' contemplated in section 7(1)(c) of PAIA
• The proper interpretation of section 7(1) of PAIA which excludes PAIA's application in certain circumstances
• The proper interpretation of Rule 38(1) regarding the issuance of subpoenas duces tecum
• Whether a subpoena duces tecum can only be issued after a trial date is fixed and to compel attendance of witnesses at trial

Leave to appeal was granted. The appeal was dismissed with costs, including costs of two counsel. The Supreme Court of Appeal judgment was upheld: the applicants must seek access to information through Rule 38(1) of the Uniform Rules, not through PAIA.

Section 7(1) of PAIA excludes the application of PAIA where three cumulative conditions are satisfied: (1) a record is requested for the purpose of civil or criminal proceedings; (2) the request is made after commencement of such proceedings; and (3) production of or access to that record is provided for in any other law. Rule 38(1) of the Uniform Rules of Court constitutes 'any other law' for purposes of section 7(1)(c) of PAIA. Rule 38(1) must be interpreted purposively and flexibly, not literally, to facilitate access to documents in litigation and to promote the spirit, purport and objects of the Bill of Rights as required by section 39(2) of the Constitution. A subpoena duces tecum under Rule 38(1) is not limited to situations where a trial date has been fixed or where the person holding documents will testify as a witness at trial. The purpose of section 7(1) is to prevent PAIA from impacting the law relating to discovery or compulsion of evidence in civil and criminal proceedings, and to ensure that requests for access to records made for litigation purposes after litigation has commenced are regulated by court rules, not PAIA.

The Court emphasized the importance of the right of access to information in a constitutional democracy founded on values of accountability, responsiveness and openness, citing Brümmer v Minister for Social Development. The Court noted that ordinarily, claims for enforcing the right of access to information must be based on PAIA according to the principle of constitutional subsidiarity. The Court observed that section 7(1) should be restrictively interpreted to limit exclusions and ensure greater protection of the right of access to information. The Court commented on the flexibility inherent in court rules and superior courts' power to adjust their application to avoid injustice, noting as an example the Supreme Court of Appeal's 2011 practice directions excusing strict compliance with certain rules. The Court noted that while the case raised a constitutional issue, it was essentially a commercial dispute about company shares, and the real issue was not denial of access to information since Rule 38(1) would afford the same access sought under PAIA.

This is the first Constitutional Court judgment determining the legislative regime applicable to requests for access to information required for pending court proceedings. It establishes that PAIA does not apply where court rules provide access to information sought for litigation purposes after proceedings have commenced. The judgment clarifies the relationship between PAIA (giving effect to the constitutional right of access to information under section 32) and court rules governing civil procedure. It confirms that section 7(1) of PAIA excludes PAIA's application in favor of court rules to avoid disruption to court proceedings. The judgment demonstrates the importance of purposive interpretation of procedural rules to promote Bill of Rights values and avoid absurdities, and reaffirms superior courts' inherent power under section 173 to regulate their processes flexibly in the interests of justice. It provides important guidance on the principle of constitutional subsidiarity - that constitutional rights should ordinarily be enforced through enabling legislation (here PAIA), but not where specific procedural regimes apply.