Companies must identify specific points and provide compelling reasons why such information is confidential to secure protection under section 212 of the Companies Act 71 of 2008 (Act).

In the recent SCA decision of G.U.D. Holdings (Pty) Ltd v Companies and Intellectual Property Commission and Others (818/24) [2026] ZASCA 10 (4 February 2026), the SCA dismissed the appeal of G.U.D. Holdings (Pty) Ltd (G.U.D) and upheld the High Court’s order that rejected G.U.D’s claim to treat the “entire contents” of its FY2020 audited annual financial statements (AFS) as confidential under section 212 of the Act. Section 212, the SCA made clear, is a narrow exception to the Act’s strong transparency regime and requires something more than generic justifications as to why particular information should be declared confidential. It is not a shield for companies to hide behind general concerns about competitive sensitivity or industrial relations – concerns that virtually any company with operations would have.

Legal backdrop

The Act embeds a policy of accountability and openness.

In terms of sections 30 and 33 of the Act, companies must prepare AFS and submit annual returns. The CIPC must make annual returns electronically available to any person, subject to payment of prescribed fees, with broad inspection rights for filed documents.

Private companies with a certain public interest score (PIS) are required to comply with additional obligations in terms of the Act, including to file audited AFS (PIS of 350 or more) and prepare a social and ethics committee report (PIS of 500 or more).

The SCA reiterated that companies operate in a public sphere and cannot ordinarily expect privacy over information arising from the privileges of incorporation and limited liability.

Section 212 allows a party submitting information to the CIPC to claim confidentiality, but requires a written statement explaining why particular information is confidential. The SCA stressed that what counts as “confidential” turns on facts and context. Protection is not absolute and depends, for example, on the information’s usefulness to a rival and the company’s PIS transparency obligations.

The SCA’s analysis

The SCA found that G.U.D’s sweeping bid to cloak all contents of its FY2020 AFS failed because it offered generalised assertions about sensitivity of profitability, turnover, funding and industrial relations rather than engaging item by item with the statement’s contents to show specific, confidential character and harm. One wonders, however, whether an item-by-item analysis would have made any difference anyway, in this case. The SCA was unequivocal and emphasised that section 212 protection “should not be granted lightly” given the Act’s transparency goals, placing the onus on applicants to provide full, cogent reasons tied to particular items of information.

Finally, the SCA criticised unilateral redactions of statutory disclosures of directors’ remuneration, observing that parties cannot decide for themselves what to omit.

Practical implications

This ruling is particularly notable for private companies with a high PIS. The SCA linked the rigour of the confidentiality analysis to the company’s PIS – accordingly, the higher the score, the more compelling the transparency requirements under the Act.

But even for companies with a lower PIS, the reasons given for claiming confidentiality cannot be generic like those offered by G.U.D. One is reminded of the paradox that each company is unique, just like every other company.

No doubt many companies will look to latch onto the SCA’s remark that a factor to be taken into consideration is “usefulness of the information to a rival”. However, one deduces from the judgment that there would have to be specifics given in support of this. For example, does a rival’s knowledge of a particular line item in the AFS give them a concrete advantage, and if so, how? And insofar as “poaching” is a concern in relation to remuneration disclosures, the question may well be asked whether availability of this information materially and practically increases the likelihood of a director or prescribed officer being approached and ultimately lured away by a rival – or, on the other hand, is this a generic and prevalent business risk that is simply a fact of life, irrespective of the remuneration disclosure? 

Time will tell what kind of motivations would and would not be acceptable to the CIPC and the courts under section 212. It may be that this question will soon become irrelevant in any event, should the pending provisions of the Companies Amendment Act 16 of 2024 come into force. These amendments will empower members of the public to obtain a copy of the AFS directly from the company itself, in which case section 212 would be rendered irrelevant as that section applies to documents on file with the CIPC (and other statutory bodies), not the company.