Discovery is a process in civil and criminal proceedings, provided for in Rule 35 of the Uniform Rules of Court, where parties exchange non-privileged documentary evidence available to the respective parties, prior to the trial, that are relevant to the issues in dispute between the litigating parties. The broad purpose of discovery is to narrow the issues in dispute and to ensure that parties have mutual knowledge and access to all relevant facts that are essential to the litigation. This is to ensure that disputes are decided on the basis of the facts themselves, rather than as a result of facts that have been concealed.

However, the discovery process is not the only means of obtaining access to relevant documentary information. Access may also be obtained by way of the Promotion of Access to Information Act 2 of 2000 (“PAIA”) which gives effect to the constitutional right of access to information, provided for in Section 32 of the South African Constitution (“the Constitution”), which is held by the State and any information that is held by another person and that is required for the exercise or protection of any rights.

The question that then arises is how does PAIA and Rule 35 of the Unform Rules of Court coexist, as both provide for access to relevant documentation.

Section 50(1) of PAIA provides that a requester is entitled to the records in the possession of a private body if:

  1. the information is required for the exercise or protection of any rights;
  2. the requester complies with the procedural requirements of the Act relating to a request for access to that information;
  3. access to the information requested cannot be refused on any of the grounds provided for in sections 62 and 70.

Furthermore, Section 11(1) of PAIA provides for the right of access to records of public bodies and states that a requester must be given access to a record of a public body if:

  1. that requester complies with all the procedural requirements in this Act relating to a request for access to that record; and
  2. access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this Part.

However, Section 7 of PAIA sets out restrictions to the application of PAIA and provides that PAIA does not apply to records, irrespective of whether it is a record of a public body or a private body, (1) requested for criminal and civil proceedings (2) after commencement of proceedings (3) where production of or access to that record for the purpose of legal proceedings is already provided for in any other law. Where records are obtained in contravention of Section 7, such records are not admissible as evidence in criminal or civil proceedings unless the Court determines that such exclusions will be detrimental to the interests of justice.

Accordingly, obtaining access to relevant documentation by way of PAIA amounts to pre-litigation discovery. 

The reason for the exemption in section 7 is to allow the law of evidence and civil procedure to apply to criminal and civil proceedings. In the cases referred to below the Courts have confirmed that PAIA was never meant to be invoked as a replacement to the discovery procedure.

The minority judgment of the Supreme Court of Appeal (“SCA”) in the matter of Unitas Hospital v Van Wyk 2006 (4) SA 436 (SCA) (“Unitas”) suggested that the distinction on when PAIA or the Uniform rules of Court should apply are not clear. Justice Cameron stated that pre-discovery disclosure helps both parties to evaluate a potential claim and determine whether litigation should commence at all and “PAIA recognises the importance of post-commencement access procedures.” However, “its novel dimension lies in the fact that it creates pre-commencement access. We should not stifle this.” The Judge believed that such disclosure will count as an advantage or need in terms of fulfilling the conditionality for access to records from private bodies. The Judge stated further that PAIA does not offer untrammelled pre-action disclosure and would not arise to any fishing expeditions. The statute affords an opportunity to broaden the approach to pre-action access.

However, the majority judgment of the SCA in the Unitas case held that pre-action discovery under Section 50 of PAIA must remain the exception rather than the rule and “must only be available to a requester who has shown the ‘element of need' or ‘substantial advantage' of access to the requested information.”

In Industrial Development Corporation of South Africa Ltd v PFE International Inc (BVI) and others 2012 (2) SA 269 (SCA) (PFE case), the respondents sought access to records from the appellant relating to a dispute over the purchase of shares after the institution and commencement of civil proceedings relating to the underlying reason for the request for access to the records. The Court held that all three requirements under Section 7 must be met to render PAIA inapplicable to a request for records. These are for the requested record to be for civil or criminal proceedings, requested after the commencement of proceedings and for access to be provided under any other law. In this case, the question the Court had to deal with related to whether access to the requested record is provided for in any other law. The Court remarked that the purpose of Section 7 is to prevent PAIA from having any impact on the law relating to discovery or compulsion of evidence in civil and criminal proceedings. In the event that “the production of or access to” the record “is provided for in any other law” then the exemption takes effect.

The Court endorsed the view in the case of National Director of Public Prosecutions v King 2010 3 All SA 304 (SCA), where the Court held that the reference to “any other law,” in Section 7, includes the rules relating to discovery, disclosure and privilege.

The Court in the Unitas case took a similar position, where it held that “PAIA is not intended to have any impact on the discovery procedure in civil cases.”

Section 7 attempts to protect a sound principle of law which is the independence and integrity of Court procedures and ensuring the interests of justice prevail, therefore where a record is sought after the commencement of proceedings, and it can be obtained through the rules of discovery, then the requester will not be entitled to rely on the provisions of PAIA to obtain access to such record.

This bulletin was prepared by Partner Bianca Da Costa and Candidate Attorney Dawn Khumalo.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.