“Privacy, like other rights, is not absolute. As a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks” (Extract from judgment below)
All companies – big and small, public and private – must keep registers of their shareholders and directors. And, as the SCA (Supreme Court of Appeal) made clear recently, even “private” companies’ registers aren’t private at all.
An investigative journalist digs for detail
A financial journalist, investigating a controversial investment scheme, was tasked with investigating the shareholding structures of three companies.
The companies refused him access to their securities registers and he approached the High Court for assistance.
The companies asked the Court to exercise a discretion to refuse such access, and in hearing an appeal around this issue, the SCA has clarified the public’s rights as follows –
- The public at large (including the media) have an unqualified right to inspect or copy those registers on payment of a statutory fee.
- The motive of the person seeking access is totally irrelevant; nor does he/she have to show that the request is “reasonable”.
- It is not necessary to comply with the requirements of PAIA (the Promotion of Access to Information Act) although of course PAIA can be a useful tool to force access to company documents other than these registers.
- It is a criminal offence for a company to refuse such access or to “otherwise impede, interfere with, or attempt to frustrate, the reasonable exercise by any person” of these rights.
So what shareholder information is public and what is confidential?
A shareholder is only required to provide –
- His/her name,
- His/her business, residential or postal address, and
- “An identifying number that is unique to that person”.
The shareholder can also voluntarily provide an e-mail address.
Confidentiality can be claimed – by either the company or the shareholder – for the e-mail address (if supplied) and for the identity number. Names and addresses are public, full stop.
NOTE FOR ATTORNEYS: Judgment in Nova Property Group Holdings v Cobbett (20815/2014)  ZASCA 63 is on Saflii http://www.saflii.org/za/cases/ZASCA/2016/63.html.
The Companies Act (Act 71 of 2008) and Regulations are available on ActsOnline https://www.acts.co.za/companies-act-2008/index.html. For details of records required to be kept for directors (not referred to in the case above) see section 24(5) of the Act and Regulation 23 respectively.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)