Please note that the media summary is intended for the benefit of the media and does not form part of the judgment of the Supreme Court of Appeal.

Gumede and others v Subel SC NO and others

The Supreme Court of Appeal held today that where documents were reasonably believed to be relevant to the affairs of a company that had been wound up, their relevance prevailed over the right of confidentiality asserted in the documents. The decision of the Johannesburg High Court (Du Toit AJ), refusing to set aside a ruling that the documents be produced, was upheld and the appeal dismissed.

The first respondent, a member of the Johannesburg Bar, was appointed by the Master of the High Court as a commissioner in an enquiry into the affairs of an insolvent company, Acquired Card Technologies (Pty) Ltd (in liquidation) (‘ACT’). During the course of the enquiry the commissioner ordered that documents relating to ACT should be produced by Mr Gumede, the first appellant, and the executive director of associated companies, the second and third appellants. Mr Gumede alleged that the documents were confidential and objected to producing them. The commissioner considered, however, that there was reason to believe that a corporate opportunity had been diverted from ACT. It had responded to a tender from Telkom for the manufacture of telephone cards, and there was evidence that Telkom would have awarded the tender to ACT but for the diversion to one of the associated companies. The court found that the commissioner had rightly considered that there was reason to believe that the documents in question, which related to the Telkom award, were relevant to the affairs of ACT. Relevance prevails over the right of privacy where documents may throw light on the affairs of the insolvent company.

The court also held that because there was reason to believe that the documents were relevant to the affairs of ACT, a possible ulterior motive on the part of the creditor (the second respondent) for requesting them, which came to light after the ruling had been made, did not make the decision reviewable.