Loubser (Snr) N.O and Others v Vodacom (Pty) Ltd

The applicants are trustees of the Paul Loubser Trust ('the Trust'). In 2005, the Trust concluded a written lease with Vodacom, permitting Vodacom to install telecommunications infrastructure ('the Mast') on the Trust's property at its own cost. The lease expired by effluxion of time on 30 June 2020. Vodacom continued to occupy the premises by virtue of the Mast not being removed. The Trust believed Vodacom kept the Mast operational without paying rent and intended to sue for continued use after expiry. In 2022, the Trust lodged a request for access to Vodacom's records under the Promotion of Access to Information Act 2 of 2000 (PAIA), which Vodacom declined. The Trust then applied to the High Court under section 78 of PAIA for an order directing Vodacom to make available ten categories of documents. Vodacom opposed the application, arguing the Trust had not shown the documents were required for the exercise or protection of a right. Vodacom also brought a counter-application to remove the Mast, which became moot when Vodacom removed it.

• Whether the requested records are 'reasonably required for the exercise or protection of any rights' as contemplated in section 50(1)(a) of PAIA.
• To what extent may a potential litigant use PAIA to obtain pre-action discovery before initiating litigation?
• Whether the Trust established the requisite 'element of need' or 'substantial advantage' to justify pre-action discovery under PAIA.

1. The main application is dismissed. 2. The first to sixth applicants are to pay the respondent's costs in the main application on a joint and several basis, the one paying the others to be absolved. 3. The counter-application is removed from the roll with no order as to costs.

For pre-action discovery under PAIA against a private body, the requester must show the records are reasonably required for the exercise or protection of a right. Pre-action discovery under PAIA must remain the exception rather than the rule; it is legitimate to use PAIA to identify the right defendant or to formulate a claim, but a potential litigant is not entitled as a matter of course to all information that will assist in evaluating prospects of success against the only potential defendant. Once a claim can be formulated without the requested records, the threshold requirement is not met.

The court expressed difficulty understanding how the Trust's suggested alternative claims in delict or unjustified enrichment would be formulated but did not express a final view, stating that any supplementary claim would be covered by the principle that a potential litigant is not entitled as a matter of course to all information to evaluate prospects of success against the only potential defendant.

This case provides a comprehensive synthesis and application of Supreme Court of Appeal jurisprudence on the use of PAIA for pre-action discovery against private bodies in South Africa. It reaffirms the strict limits on 'fishing expeditions' and confirms that the rules of discovery, with their built-in safeguards, are the primary mechanism for obtaining documents once litigation commences.