Mahaeeane Mahaeeane v Anglogold Ashanti Limited

The first appellant was employed by the respondent from 3 January 1987 to 19 August 2003 and the second appellant from 13 August 1988 to 30 March 2006, both in gold mining operations. Both were medically boarded by the respondent due to having contracted silicosis. In November 2011 and September 2011 respectively, they instructed attorneys to investigate claims against the respondent. In December 2012, a certification application for a class action relating to silicosis and tuberculosis contracted by mineworkers was launched (not naming the appellants as applicants). In August 2013, the appellants requested ten categories of records from the respondent under the Promotion of Access to Information Act (PAIA), relating to dust exposure levels, medical surveillance, training, health and safety policies, and the respondent's compliance with statutory duties during their employment. The respondent refused the request, arguing that the PAIA did not apply because (a) proceedings had commenced with the class action certification application, and (b) the records were not required for the exercise or protection of any rights. The high court dismissed the appellants' application for access, and they appealed with leave.

• Whether the records requested were 'required for the exercise or protection of any rights' under section 50(1)(a) of the PAIA
• Whether the PAIA was excluded from application by section 7(1) because (a) the records were requested for civil proceedings, (b) the proceedings had commenced, and (c) production/access was provided for in other law (discovery rules)
• What constitutes commencement of civil proceedings in the context of a class action certification application
• Whether records reasonably required to formulate a claim (as opposed to merely evaluating prospects of success) fall within section 50(1) of the PAIA
• Whether discovery procedures in the Uniform Rules of Court constitute 'any other law' for purposes of section 7(1)(c) of the PAIA in the class action context

The appeal was dismissed with costs by a 3-2 majority.

Records are 'required for the exercise or protection of any rights' under section 50(1)(a) of PAIA only if they are reasonably required to formulate a claim in the context of future litigation, not merely to evaluate the prospects of success of a potential claim. Where a requester already has sufficient information to formulate a claim, and the records sought would only assist in proving that claim as evidence (and would be available through discovery procedures), the records are not 'required' under section 50(1). A certification application for a class action constitutes the commencement of civil proceedings. Once a class action is certified, members of the certified class cannot rely on PAIA to obtain records on the basis that they need them to exercise the right to claim damages, because proceedings have already commenced on their behalf.

The majority noted that the issue whether the obligation to discover documents is co-extensive with records reasonably required to exercise a right to claim need not be decided as no case was made that any of the requested records would not be discoverable. The majority also stated that it is doubtful whether requiring information to determine whether to opt out of a class action would bring the claimed right within the ambit of section 50(1) of PAIA, though this was not the case made on the papers. The minority observed that there is no legislation governing class actions in South Africa and courts are developing applicable rules. The minority emphasized that courts should take into account the legitimate interests of litigants and protect their constitutional rights when developing the law on class actions. The minority also noted that not all interlocutory applications give rise to commencement of civil proceedings, drawing an analogy with applications for leave to sue in forma pauperis. The case highlights the need for specific legislation on class action procedures in South Africa, as recommended by the Law Reform Commission.

This case addresses the intersection between the right to access information under PAIA and class action procedures in South Africa. It clarifies that: (1) For records to be 'required' under section 50(1) of PAIA in the litigation context, they must be reasonably required to formulate a claim, not merely to evaluate prospects of success (which would amount to prohibited pre-action discovery). (2) A certification application for a class action constitutes the commencement of civil proceedings for purposes of section 7(1) of PAIA. (3) Once a class action is certified, members of the class are bound unless they opt out, and cannot claim records are required to exercise the right to sue because proceedings have commenced on their behalf. The minority judgment highlights tensions between individual rights of class members and class action procedures, particularly regarding access to information for making informed opt-out decisions. The case exposes gaps in South African procedural rules for class actions and reinforces the Law Reform Commission's recommendation for specific class action legislation.