Access To Company Records. - (1) A Person Who Holds or Has A Beneficial Interest in Any Securities Issued by A

26. Access to company records.
—(1) A person who holds or has …e information contained in the following records of the company— 2017/05/04, 12*52
26. Access to company records.—(1) A person who holds or has a beneficial interest in any securities issued by a
profit company, or who is a member of a non-profit company, has a right to inspect and copy, without any charge for any
such inspection or upon payment of no more than the prescribed maximum charge for any such copy, the information
contained in the following records of the company—
(a) the company’s Memorandum of Incorporation and any amendments to it, and any rules made by the
company, as mentioned in section 24 (3) (a);
(b) the records in respect of the company’s directors, as mentioned in section 24 (3) (b);
(c) the reports to annual meetings, and annual financial statements, as mentioned in section 24 (3) (c) (i)
and (ii);
(d) the notices and minutes of annual meetings, and communications mentioned in section 24 (3) (d) and (e),
but the reference in section 24 (3) (d) to shareholders meetings, and the reference in section 24 (3) (e) to
communications sent to holders of a company’s securities, must be regarded in the case of a non-profit
company as referring to a meeting of members, or communication to members, respectively; and
(e) the securities register of a profit company, or the members register of a non-profit company that has
members, as mentioned in section 24 (4).
[Sub-s. (1) substituted by s. 17 (a) of Act No. 3 of 2011.]
(2) A person not contemplated in subsection (1) has a right to inspect or copy the securities register of a profit
company, or the members register of a non-profit company that has members, or the register of directors of a company,
upon payment of an amount not exceeding the prescribed maximum fee for any such inspection.
[Sub-s. (2) substituted by s. 17 (a) of Act No. 3 of 2011.]
(3) In addition to the information rights set out in subsections (1) and (2), the Memorandum of Incorporation of a
company may establish additional information rights of any person, with respect to any information pertaining to the
company, but no such [Page 114(6)] right may negate or diminish any mandatory protection of any record required by or
in terms of Part 3 of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000).
[Sub-s. (3) inserted by s. 17 (a) of Act No. 3 of 2011.]
(4) A person may exercise the rights set out in subsection (1) or (2), or contemplated in subsection (3)—
(a) for a reasonable period during business hours;
(b) by direct request made to a company in the prescribed manner, either in person or through an attorney or
other personal representative designated in writing; or
(c) in accordance with the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000).
(5) Where a company receives a request in terms of subsection (4) (b) it must within 14 business days comply with
the request by providing the opportunity to inspect or copy the register concerned to the person making such request.
(6) The register of members and register of directors of a company, must, during business hours for reasonable
periods be open to inspection by any member, free of charge and by any other person, upon payment for each inspection
of an amount not more than R100,00.
[Sub-s. (6), previously sub-s. (3), renumbered by s. 17 (b) of Act No. 3 of 2011.]
(7) The rights of access to information set out in this section are in addition to, and not in substitution for, any rights a
person may have to access information in terms of—
(a) section 32 of the Constitution;
(b) the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000); or
(c) any other public regulation.

(8) The Minister may make regulations respecting the exercise of the rights set out in this section.
(9) It is an offence for a company to—
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26. Access to company records.—(1) A person who holds or has …e information contained in the following records of the company— 2017/05/04, 12*52
(a) fail to accommodate any reasonable request for access, or to unreasonably refuse access, to any record that
a person has a right to inspect or copy in terms of this section or section 31; or
[Para. (a) substituted by s. 17 (c) of Act No. 3 of 2011.]
(b) to otherwise impede, interfere with, or attempt to frustrate, the reasonable exercise by any person of the
rights set out in this section or section 31.
[Sub-s. (9), previously sub-s. (6), renumbered by s. 17 (b) of Act No. 3 of 2011. Para. (b) substituted by s.
17 (c) of Act No. 3 of 2011.]
Notes
[Formerly 9, 67, 113, 130, 206, 309]
General Note.—This section should be read together with ss 24 and 28 and the notes thereon and see also
s 73 (1) of the Financial Markets Act No. 19 of 2012. The Act accords no other right to inspect or to obtain or
make a copy of or extract from the register of members (or any of those referred to above) [Page 114(7)]
beyond those accorded by this section (cf In re The Balaghât Gold Mining Co Ltd [1901] 2 KB 665 (CA)). Those
rights cease upon the company being wound up (In re The Kent Coalfields Syndicate Ltd [1898] 1 QB 754 (CA)).
Section 26 should, like s 113 of the 1973 Act, apply to share block companies as it does to other types of
companies: s 3 (2) of the Share Blocks Control Act No. 59 of 1980 provides that the provisions of the
Companies Act “shall apply to a share block company in so far as those provisions are not in conflict with the
provisions of this Act”. Members of share block companies are not entitled to greater protection against
disclosure of members’ information in the register of members than those of other types of companies (La Lucia
Sands Share Block Limited and Others v Barkhan and Others 2010 (6) SA 421 (SCA) at para 12).
In the La Lucia Sands case supra at para 13, the Court stated: “Section 32 (1) (b) of the Constitution
provides that everyone has the right of access to any information that is held by another person and that is
required for the exercise or protection of any rights. Section 32 (2) obliges the State to enact national legislation
to give effect to this right. That legislation is the Promotion of Access to Information Act No. 2 of 2000 (“PAIA”).
In a constitutional state in which freedom of association and access to information is valued courts should be
slow to make orders that have a limiting effect.” At para 21 the Court said that the establishment of a company
as a vehicle for conducting business is not a private matter and that there was a statutory obligation of proper
disclosure and accountability to shareholders and in this regard referred with approval to the judgment of the
Constitutional Court in Bernstein v Bester NO 1996 (2) SA 751 (CC) para 85: “It is clear that any information
pertaining to participation in such a public sphere cannot rightly be held to be inhering in the person, and it
cannot consequently be said that in relation to such information a reasonable expectation of privacy exists. Nor
would such an expectation be recognised by society as objectively reasonable. This applies also to the auditors
and the debtors of the company. On the facts of this case the conclusion seems to be unavoidable that no threat
to or infringement of any of the applicants’ right to privacy as protected by s 13 of the Constitution has been
established. The importance of the constitutional point was more illusory than real.”
In the La Lucia Sands case supra (at paras 17–19) the Court made the following comments regarding the
relevant provisions of the new Companies Act No. 71 of 2008: “For completeness, I record that a new
Companies Act No. 71 of 2008 has been assented to but has not yet come into operation. Section 113 of the Act
has not been repeated in the new legislation. Section 26 of the new Act is entitled ‘Access to company records’.
Section 26 (3) provides that ‘any member’ and ‘any other person’ is entitled to inspect the register of members
during business hours. Section 26 (4) provides: ‘The rights of access to information set out in this section are in
addition to, and not in substitution for, any rights a person may have to access information in terms of: (a) s 32
of the Constitution; (b) the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000); or (c) any other
public regulation’. It appears that in future the provisions of the Promotion of Access to Information Act No. 2 of
2000 will have to be employed by non-members seeking access to the register of members. The rationale set
out above for obtaining information contained in the register of members will probably continue to apply,
notwithstanding that the request for information will now have to be made in terms of that Act.” [Page 114(8)]
See however Nova Property Group Holdings Ltd and Others v Cobbett and Another (MandG Centre for
Investigative Journalism NPC as amicus curiae) [2016] 3 All SA 32 (SCA) para 21§ and notes infra sv Right to
information.
Right to information.—The company is not, however, purely a private matter: see s 7 (d) (iii); Bernstein
and Others v Bester and Others NNO 1996 (2) SA 751 (CC) para 85; Nova Property Group Holdings Ltd and
Others v Cobbett and Another (MandG Centre for Investigative Journalism NPC as amicus curiae) [2016] 3 All
SA 32 (SCA) para 16. In terms of sub-s (1), a person who holds a “beneficial interest” in the securities issued by
a company is a person who, broadly, by himself or with other person(s), is able to (1) receive or participate in a
distribution (for instance, a dividend distribution) in respect of such securities; (2) exercise the rights attaching
to the company’s securities; or (3) dispose of the securities, or any part of a distribution in respect thereof.
However, persons holding an interest in a unit trust or collective investment scheme in terms of the Collective
Investment Schemes Act, 2002 (Act No. 45 of 2002), are excluded. (See General Note on s 56).
Persons who hold a beneficial interest, as defined, in a profit company or who is a member of a non-profit
company, has the right to inspect and copy information as contemplated in sub-s (1) (a) to (e). No charge is to
be levied for such inspection, except for copy charges. There being no qualification of the word “copy”, it is
submitted that the company complies with its obligation to furnish a copy irrespective of the means by which
such copy is made. There being no qualification of the word “copy” by the person inspecting the register in sub-
s (2), there is no restriction on the means used to make the copy. Thus, in either case a photocopying process
may be used. A person who does not hold a beneficial interest in a profit company or who is not a member of a
non-profit company has the right to inspect the securities register of a profit company or the members register
of a non-profit company that has members, or the register of directors of a company, upon payment as
indicated in sub-s (2). The Act does not provide that such a person may cede the right to inspection to a third
party or to have a third party accompany her in respect of the inspection.
In terms of sub-s (2), inspection of the securities register or members’ register is open to the above persons,
or to third parties, but in the latter instance subject to the payment of a fee of not more than R100 (sub-s (6);
Basson and Another v On-Point Engineers (Pty) Ltd and Others 64107/11 7 November 2012 (GNP) para 9.7).
The inspection hours and payment of fee however, only apply to “the register of members and register of
directors of a company”, thereby excluding the register of securities holders. (See s 1 sv Member). In terms of
sub-s (7) the rights of access to information set out in s 26 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 of the Republic of
South Africa, 1996, PAIA or any other public regulation. The right of access to information in sub-s (2) is
therefore in addition to the rights conferred by PAIA and is consistent with s 39 (3) of the Constitution which
provides that the Bill of Rights does not deny the existence of any other rights or freedoms that are recognised
or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill of
Rights: Nova Property Group Holdings Ltd and Others v Cobbett and Another (MandG Centre for Investigative
Journalism NPC as amicus curiae) [2016] 3 All SA 32 (SCA) para 20.
[Page 114(9)]
A company’s Memorandum of Incorporation may also establish additional rights to information pertaining to
the company for any person. A person may, as provided for in sub-s (4), exercise the rights set out in sub-ss
(1), (2), or (3) for a reasonable period during business hours and by direct request made to a company in the
prescribed manner (see reg 24 in respect of the prescribed manner and process), either in person or through an
attorney or other personal representative designated in writing or in accordance with PAIA. It is clear that the
reference to PAIA is an alternative to a direct request to the company. PAIA does, therefore, not exclude the
direct request in terms of the Companies Act and such direct request is not required to be made in accordance
with the requirements of PAIA. In this respect the Supreme Court of Appeal in Nova Property Group Holdings Ltd
and Others case supra para 25 addressed the “unfortunate obiter dictum” in the La Lucia Sands case supra para
18 as quoted above that required that a non-member (or a person not holding a beneficial interest in any
securities) must employ PAIA in seeking access to the register of members (or securities register) and said that
the dictum is regrettable, as sub-s (7) expressly states that the right conferred by sub-s (2) is additional to the
rights conferred by PAIA. There is also no requirement in s 26 that a request for access to a company’s
securities register must only be exercised in accordance with PAIA and the obiter dictum of La Lucia Sands is
therefore, clearly wrong. See also Nova Property Group Holdings Ltd and Others case supra para 21 in respect
of the reasons for excluding PAIA under these circumstances and para 29 et seq as to the legislative history of
the inclusion of PAIA.
In terms of s 9 of PAIA, its objects are, inter alia, to give effect to the constitutional right, set out in s 32 of
the Constitution of the Republic of South Africa, 1996, of access to any information that is held by another
person that is required for the exercise or protection of any rights. Section 32 of the Constitution states that
“(1) Everyone has the right of access to—(a) . . . (b) any information that is held by another person and that is
required for the exercise or protection of any rights.” It is submitted that a shareholders’ agreement can also
establish additional information rights: Modisane and Another v Prime Portfolio Investment SA (Pty) Limited
(2014/4017) [2015] ZAGPJHC 265 (12 November 2015) and see s 15 sv Shareholders’ agreement. Unless
the Memorandum of Incorporation the shareholders’ agreement provides otherwise, a shareholder does not have
rights to information other than that provided for in s 26: see however Motale v Abahlobo Transport Services
(Pty) Limited and Others [2015] JOL 34696 (WCC) at 11.
Note that the granting of access to the holders of a beneficial interest in a profit company and members of
non-profit companies, does not extend to access to the books of account, ie the general ledger, journal, cash
book, etc., or the electronic versions of these documents, as the case may be, as was originally provided for in
the 2007 Companies Bill in the definition of “company records” (see s 1 sv Accounting records). Unless the
Memorandum of Incorporation provides otherwise, a holder of a beneficial interest/member is not entitled, by
reason only of being a member of the company, to inspect the accounting records (Jacobs v Old Apostolic
Church of Africa 1992 (4) SA 172 (Transkei, GD) at 175. In Clutchco (Pty) Ltd v Davis 2005 (3) SA 486 (SCA),
the Supreme Court of Appeal considered, without expressing any view, that “there may be special instances
where a Court could order some form of access in terms of s 252” (to company information by a member).
However, having regard to the provisions of s 32 of the Constitution of the Republic of South Africa, 1996, and
to those of PAIA, referred to in the previous paragraph, [Page 114(10)] access to and information regarding the
accounting records of a company may be obtained by a person who establishes the right thereto in accordance
with the relevant provisions of PAIA, unless access to the information sought may legitimately be refused under
such Act (in terms of s 68 of such Act in the case of a private body). In this regard, in the Clutchco case supra,
(at 492), the Court pointed out that the (1973) Companies Act is “replete with provisions designed to protect
the interests of shareholders” and held that “[t]he machinery established by legislation and common law for the
protection of shareholders is . . . not lightly to be discarded. In enacting PAIA Parliament could not have
intended that the books of a company, great or small, should be thrown open to members on a whiff or
impropriety or on the ground that relatively small errors or irregularities have occurred. A far more substantial
foundation would be required” (see also Company Secretary of ArcelorMittal South Africa and Another v Vaal
Environmental Justice Alliance [2015] 1 All SA (SCA) para 80).
PAIA gives effect to s 32 of the Constitution of the Republic of South Africa, 1996 (see the Preamble to PAIA;
and see Investigating Director of the Investigating Directorate; Serious Economic Offences v Gutman
2002 (4) SA 230 (SCA); SA Metal & Machinery Co (Pty) Ltd v Transnet Ltd [2003] 1 All SA 335 (W)). It is
beyond the scope of this work to comment extensively on this Act, save for certain of its principles that may be
relevant in this context. The aim of PAIA is to provide access to recorded information held by public and private
bodies which is required to enable a person to exercise or protect a particular right, and its provisions are
expressed to apply to the exclusion of any other legislation that prohibits or restricts access to the record of a
public body (PAIA, s 5), but it does not apply to the record of a public or private body if the record is requested
for the purpose of civil or criminal proceedings after the commencement of such proceedings where access to
that record is provided for in any other law (PAIA, s 7). A request for access to records of a private body may be
refused on one or other of the grounds contemplated in s 68 (1) of the PAIA. A person aggrieved by a refusal to
provide the requested information may, in terms of s 78 of the PAIA, apply to Court for the appropriate relief
provided for in s 82, after having exhausted the internal appeal procedure envisaged by s 78 (1). The
requirement “required to enable a person to exercise or protect a particular right” should be construed to mean
“reasonably” required and an applicant should lay a proper foundation why that document or information is
reasonably required for the exercise or protection of the person’s rights: Clutchco (Pty) Ltd v Davis
2005 (3) SA 486 (SCA) para 12; Company Secretary of ArcelorMittal South Africa and Another v Vaal
Environmental Justice Alliance [2015] 1 All SA (SCA) para 50; Elementone Ltd v Modern Media Promotions (Pty)
Ltd and Others [2010] JOL 26271 (GSJ). A creditor also has a right to request information about business
rescue proceedings, the business rescue plan and records of meetings in terms of PAIA: Enable Employment
(Pty) Ltd v Frese and Others (73789/2013) [2015] ZAGPPHC 34 (3 February 2015).
Under PAIA, if a request is made for information held by a private body, the requester must state the nature
of the right he seeks to protect and provide an explanation why the information (record) is required for the
exercise or protection of that right (PAIA, s 53 (1) (d)), but such information is not required in respect of a
request for access to a record held by a public body (PAIA, s 11 (3) and reg 223 published in Gazette 22125 of 9
March 2001 prescribing [Page 114(11)] the information that must be contained in the request forms).
Accordingly, while the examination or enquiry may be private, it is submitted that the records thereof are
subject to the provisions of PAIA: see also La Lucia Sands Share Block v Barkhan 2010 (6) SA 421 (SCA).
The company cannot require the disclosure of the reason for the inspection as a condition precedent to
allowing it (Holland v Dickson (1888) 37 Ch 669 at 671–672); La Lucia Sands Share Block Limited and Others v
Barkhan and Others 2010 (6) SA 421 (SCA) at para 10), and a shareholder cannot be denied inspection because
the company considers that he is not the true owner of the shares registered in his name (Mutter v Eastern &
Midlands Railway Co (1888) 38 Ch 92 (CA) at 103–104).
Subsection (1) (e) only grants access to the registers (securities or members) “as mentioned in section
24 (4)”. Section 24 (4) refers to the securities register or its equivalent, as required by s 50, in the case of a
profit company, or a member’s register in the case of a non-profit company that has members. A register of
beneficial shareholders in terms of s 56 appears to be excluded, but reg 32 (3) provides that “if a company
contemplated in section 56 (7) has received any disclosure of a beneficial interest referred to in that section, the
securities register of that company, despite any additional requirements that may be imposed by a central
securities depository, must also include [the prescribed information]”. The uncertificated securities register can
be inspected through the relevant company as in s 26 and in accordance with the rules of the central securities
depository (s 52 (2)).
In respect of the powers of the Court to compel compliance with s 26, it is submitted that it has a discretion
to grant or refuse relief sought. It may decline to make an order, eg, where it is shown that the information is
sought for some unlawful purpose (see La Lucia Sands Share Block Limited v Barkhan 2010 (6) SA 421 (SCA)
para 11 referring with approval to the dictum in Pelling v Families Need Fathers Ltd [2002] 2 All ER 440 (CA) in
which the Court of Appeal, dealing with a similar provision in the English Companies Act, said that: “The
statutory discretion must be exercised judicially in accordance with established legal principles and having
regard only to relevant considerations . . . [A]s a general rule, the court will make a mandatory order to give
effect to a legal right. But, as stated by Lord Evershed MR in Armstrong v Sheppard & Short Ltd [1959] 2 All ER
651 at 656, [1959] 2 QB 384 at 396 ‘[i]t is not a matter of unqualified rights’. There may be something special
in the circumstances of the case which leads the court to refuse to make the usual order. The scope of the
residual discretion to refuse such an order may be narrow, but Dr Pelling is, in our view, wrong in his assertion
that it is non-existent.” This requirement was interpreted in Bayoglu v Manngwe Mining (Pty) Ltd 2012 JDR 1902
(GNP) paras 9–10 as that the request for information must be bona fide and for bona fide purposes. If it was
prima facie established that the information was sought for illegal activities the applicant has an obligation to
state the reasons for seeking the information. See also Cobbett and Another v Nova Property Group Holdings
Limited and Others (61219/2013) [2014] ZAGPPHC 836 (24 October 2014) para 18; confirmed in part on
appeal: Nova Property Group Holdings Ltd and Others v Cobbett and Another (MandG Centre for Investigative
Journalism NPC as amicus curiae) [2016] 3 All SA 32 (SCA) where the Court, in an obiter remark, favoured the
principle that the right in terms of sub-s (2) is not absolute (although the Court initially indicated (para 15) that
it favours the principle that the right is absolute). However, in Nova Property Group Holdings Ltd and Others v
Cobbett and Another (MandG Centre for [Page 114(12)] Investigative Journalism NPC as amicus curiae) [2016]
3 All SA 32 (SCA) para 35 the Supreme Court of Appeal was emphatic that the discretion that existed in s 113
(4) of the 1973 Act is not present in s 26 and the right of access in the latter section is without qualification and
not subject to a (judicial) discretionary override. Therefore, so concludes the Supreme Court of Appeal (para
36), that if a company fails or refuses to provide access, the person requesting access is entitled, as of right, to
an order compelling access and the question of the motive or purpose is simply irrelevant (see however the
dictum of the court a quo in Cobbett and Another v Nova Property Group Holdings Limited and Others
(61219/2013) [2014] ZAGPPHC 836 (24 October 2014) para 17). This, it is submitted, cannot be the position.
The Supreme Court of Appeal succinctly sets out the importance of the (constitutional) right to information
(paras 37 and 38). However, no right is absolute and therefore if the information is required for an “unlawful
purpose”, that right cannot be constitutionally protected and the requester cannot, as a right, be entitled to an
order compelling access. It is accepted that there are fundamental differences between ss 113 (4) of the 1973
Act and s 26 of the 2008 Act, but those do not, it is respectfully submitted, provide cogent reasons for the
deviation from the constitutional imperatives. The question of an unlawful purpose was not at issue in the Nova
Property Group Holdings Ltd case supra and should, it is submitted, therefore be obiter, with the result that the
dictum in the La Lucia Sands Share Block Limited case supra will still be good law (see also discussion of the a
quo judgment supra also in respect of the constitutional issues).
The Court is not empowered to intervene where what is sought is information about its members which the
company is not obliged to record in the register since in those circumstances there is no refusal or default
contemplated by s 133 which would entitle the Court to intervene (Re Performing Right Society Ltd Lyttleton v
Performing Right Society Ltd [1978] 3 All ER 972 (CA)). The right of access in terms of s 26 is therefore limited
to the specific information contemplated (required) by the Act. In terms of s 50 (2) (b) the register of
shareholders is to contain, inter alia, the names of shareholders and addresses and certain information
pertaining to the nature of the shares and securities so held. The information to be disclosed is carefully
circumscribed and there is no requirement that the address must necessarily be that of the shareholder’s
residence, or workplace or whether the address is to be a physical, as opposed to a postal or contact address. It
is also not required that the register needs to contain a contact telephone or telefacsimile number or an e-mail
address. Regulation 32 (2) (a) (ii) requires that the register must include an e-mail address, unless the person
has declined to provide such information. If the company therefore acquires, for whatever reason, contact
information other than that required by s 50 (2) (b) or prescribed in terms of s 50 (2) (b) (v), that information
is not subject to the rights of access in terms of the (Companies) Act (see the a quo decision of the La Lucia
Sands case supra; Leslie and Another v La Lucia Sands Shareblock Ltd and Another (13827/06) [2009]
ZAKZDHC 35 (15 September 2009) paras 18–19).
During business hours . . . for inspection.—It is submitted that by the reference to “business hours” is
meant those of the company or its “agent”.
Any other person.—The object of giving non-members a right of inspection was originally to enable them to
ascertain the identities of the shareholders and the extent of capital not paid up (Pathescope (Union) of South
Africa Ltd v Mallinick 1927 AD 292 at 301). The existence of this right is valuable since a [Page 114(13)] non-
member may require knowledge of the identities of the members for a variety of purposes, eg to organise an
arrangement under s 114 or a takeover under the relevant provisions of Chapter 5, to establish whether the
company is a subsidiary of another company, to canvass support for a particular proposed resolution. But in any
event the company cannot require the disclosure of the reason for the inspection as a condition precedent to
allowing it (Holland v Dickson (1888) 37 Ch 669 at 671–672) and a member cannot be denied inspection
because the company considers that he is not the true owner of the shares registered in his name (Mutter v
Eastern & Midlands Railway Co (1888) 38 Ch 92 (CA) at 103–104). In La Lucia Sands Share Block v Barkhan
2010 (6) SA 421 (SCA) the purpose and aim of divulging this information was discussed and it was stated that
the Court should only in rare cases, such as where it is shown that the information is sought for some unlawful
purpose, decline to make an order to acquire access to the information.
Directors (and prescribed officers) would have, in the absence of a clear statutory right as in s 284 (3) of the
1973 Act, access to, it is submitted, to all the accounting and other records of the company as is necessary to
manage the business and affairs of the company and also to comply with their fiduciary and other duties in
terms of eg s 76, and other sections imposing duties or responsibilities on such persons (see in general Wes-
Transvaalse Boeresake (Edms) Bpk v Pieterse 1955 (2) SA 464 (T) at 468; Conway v Petronius Clothing Co Ltd
[1978] 1 All ER 185 (Ch)). However, this right in common law (or also in terms of PAIA) only extends to enable
them in their capacity of directors etc., to exercise those duties and responsibilities but also subject to those
duties and responsibilities (eg fiduciary duties) and not for any other reason or in any other capacity (ie as
shareholder to enforce shareholders’ rights): See Pretorius and Another v PB Meat (Pty) Ltd (1057/2013) [2013]
ZAWCHC 89 (14 June 2013) para 24 et seq. See however Motale v Abahlobo Transport Services (Pty) Limited
and Others [2015] JOL 34696 (WCC) at 11 where the rights of the director, in that capacity, and those of that
person in the capacity as shareholder, are not distinguished. Unless the Memorandum of Incorporation, or, it is
submitted, the shareholders’ agreement provides otherwise, a shareholder does not have rights to information
other than that provided for in s 26: see however Motale case supra and notes supra sv Right to information.
Duly authorised agent.—The company may require proof that the person claiming to be a member’s
authorised agent is in fact such. The alternative to providing such proof is, of course, to make payment of the
fee for the inspection.
Offence.—A company who contravenes sub-s (9), is guilty of an offence. In Nova Property Group Holdings
Ltd and Others v Cobbett and Another (MandG Centre for Investigative Journalism NPC as amicus curiae) [2016]
3 All SA 32 (SCA) para 27 where the reason for “reasonable request for access” is explained as to avoid creating
a strict liability offence but the requirement of “reasonableness” here however, does not apply to eg sub-s (2).
The penalty is a fine or imprisonment for a period not exceeding 12 months or both such fine and such
imprisonment (sub-s (5) and s 216 (b)). See s 332 of the Criminal Procedure Act No. 51 of 1977 and Appendix
III in respect of company offences.
Regulations.—This regulation deals with the administrative procedures to be followed by a person who has
a right to access to company information, either through s 26 or through PAIA.
[Page 114(14)]

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26. Access to company records.

(a) for a reasonable period during business hours;

(a) section 32 of the Constitution;

(c) any other public regulation.

(9) It is an offence for a company to—

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