Steinhoff and access to information — what’s at stake?

During the Supreme Court of Appeal’s (SCA) hearing of Steinhoff’s appeal against the high court order that it disclose the investigative report into the company’s collapse, Judge Pieter Meyer made a comment that neatly summarised the case. He said that had he been a shareholder, he would want to know what happened and not have to wait for Steinhoff to determine when and what information it would disclose.

So would we, Judge Meyer, so would we. 

Read more in Daily Maverick: The Steinhoff scandal

Soon after Steinhoff had published an “overview” of the report from PwC’s forensic investigation in 2018, journalists from the Financial Mail and amaBhungane filed requests under the Promotion of Access to Information Act (Paia) for access to the report. 

The investigation had been commissioned after Steinhoff’s auditors, Deloitte, were unable to finalise the annual financial statements in December 2017, citing “accounting irregularities”.

The report holds the key to understanding who had been involved in the fraud and who should have stopped it.

Judge Meyer and the other judges – Acting Judge President Zondi, and judges Schippers, Hughes and Tlaletsi – grilled Steinhoff’s counsel, Andre Smalberger SC, on why Steinhoff refused to disclose the report.

They asked him why Steinhoff maintained that the report was legally privileged and why, even if it was privileged, the public interest in the contents of the report should not trump that privilege.

The hearing provided a useful insight into how Paia works in South Africa, and how it can be used to facilitate access to documents that are in the public interest.

Legal privilege

Steinhoff had refused the journalists’ requests for access to the report on the grounds that it was legally privileged.

Paia applies to public bodies – such as government departments and state-owned entities – as well as private companies, like Steinhoff. In essence, it obliges public and private bodies to disclose records to members of the public unless there are clear reasons why a document cannot be disclosed. 

Legal privilege is one of these reasons, and one of the ways documents can be legally privileged is if they were made for the “dominant purpose” of pending litigation.

Steinhoff maintains that it only commissioned the PwC Report once it was clear that the company’s collapse would result in cases being brought against it. It also maintains that the report was commissioned by its lawyers, Werksmans, and not by the company itself.

It says that, because of this, it is not obliged to disclose the report to the journalists who filed the Paia request because the report is covered by litigation privilege.

We disagree.

Read more in Daily Maverick: Steinhoff’s dogged battle to keep its secrets

The Financial Mail and amaBhungane’s counsel, Adv Wim Trengove, set out why the report is not, actually, legally privileged. 

He explained that documents from around Steinhoff’s collapse demonstrate that the PwC investigation was commissioned for the primary purpose of finding out what happened and so to finalise the annual financial statements. 

He argued that, even if the report had been privileged at some stage, that privilege had either been waived, expired or had not been transferred to the companies now responsible for Steinhoff’s affairs.

This is a key aspect of the case, and the SCA will have to determine whether the report was privileged or not in deciding whether Steinhoff must disclose it.

But Paia is the law that gives effect to the constitutional right of access to information. 

Our Bill of Rights confers on everyone the “right of access to any information held by the state; and any information that is held by another person and that is required for the exercise of protection of any right”. 

For that reason, Paia includes a “public-interest override”. 

This provision requires that documents be disclosed if the documents would “reveal evidence of substantial contravention of, or failure to comply with, the law or an imminent and serious public safety or environmental risk” and if the public interest in the disclosure of those documents outweighs the harm of disclosing them. 

Steinhoff harm outweighed