On 12 May 2016 the Supreme Court of Appeal (the “SCA”) delivered a judgment in the matter of Nova Property Group Holdings v Cobbett (20815/2014) [2016] ZASCA 63. The appeal arises from the attempts of Moneyweb (Pty) Ltd (Moneyweb) and Mr JP Cobbett (Cobbett) to exercise their statutory right in terms of section 26 of the Companies Act 71 of 2008 (the Companies Act) to access the securities registers of the appellants, Nova Property Group Holdings Limited (Nova), Frontier Asset Management & Investments (Pty) Limited (Frontier) and Centro Property Group (Pty) Limited (Centro) collectively referred to as “the Companies”.

Moneyweb, a publisher of business, financial and investment news and Mr JP Cobbett (“Cobbett”), a financial journalist specialising in investigations of illegal investment schemes had tried to access the securities registers of the Companies in terms of section 26 of the Companies Act of 2008. Moneyweb had an on-going investigation into the Sharemax property syndication scheme and commissioned Cobbett to investigate and write articles to be published in Moneyweb, on his findings regarding the shareholding structures of the Companies which were supposedly linked to the syndication scheme.

On 24 July 2013 Cobbett sent requests to the Companies for access to their securities registers and to make copies thereof in terms of section 26(2) of the Companies Act. He delivered a request for access to information in the form prescribed by the Companies Regulations of 2011. When Cobbett’s requests were refused, Moneyweb applied for an order to compel the Companies to provide it with access to their securities registers.

The Companies also launched an interlocutory application against Moneyweb. The basis of the interlocutory application was the Companies’ belief that in requesting access to the securities registers Moneyweb was acting in furtherance of a “sinister agenda” directed against Nova and its subsidiaries, including certain members of its executive, and that Moneyweb had embarked upon a vendetta for the sole purpose of discrediting the Companies and undermining their integrity.

In the court a quo, the Companies’ rule 35(12), paragraph 1 of the application was granted, but paragraphs 2 and 3 thereof were dismissed. The Companies’ appeal was against the said paragraphs of the order and the appeal was with leave of the court a quo.

The SCA had to decide inter alia whether section 26(2) of the Companies Act conferred an unqualified right of access to the securities register of a company.

The Companies argued that “section 26(2) conferred a qualified right because the right of access could be refused in terms of the Promotion of Access to Information Act of 2000 (“PAIA”) and the ‘motive’ of the requester”. Moneyweb argued that “the right was unqualified”.

Therefore the SCA also had to consider whether section 26 made it clear that the right conferred by section 26(2) was additional to the rights conferred by PAIA and did not need to be exercised in accordance with PAIA and concluded that the right conferred by section 26(2) was unqualified and additional to the rights conferred by PAIA and did not need to be exercised in accordance with PAIA. PAIA was said to be an alternative to requesting access to a company’s securities registers and non-compliance with a section 26(2) request was an offence in terms of section 26(9). The appeal was dismissed.

The judgment is compatible with the provisions of section 26(7) which states that the rights of access to information set out in the section are in addition to, and not in substitution for, any rights a person may have to access information in terms of section 32 of the Constitution; the Promotion of Access to Information Act or any other public regulation.

Therefore regardless of his or her motive, any person may access the securities register of a company in terms of section 26 of the Companies Act.