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[2017] ZAWCHC 114
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Astral Operations Ltd t/a County Fair Foods and Others v Minister for Local Government, Environmental Affairs and Development Planning (W Cape) and Others (3509/2014) [2017] ZAWCHC 114; 2019 (3) SA 189 (WCC) (11 October 2017)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case
number: 3509/2014
Before: The Hon. Mr Justice Binns-Ward
Hearing: 11 September 2017
Judgment:
11 October 2017
In
the matter between:
ASTRAL
OPERATIONS LTD t/a
COUNTY
FAIR
FOODS
First
Applicant
PIONEER
FOODS (PTY) LTD t/a
TYDSTROOM
POULTRY
Second
Applicant
BOTTELFONTEIN
ACTION
GROUP
Third
Applicant
and
MINISTER
FOR LOCAL GOVERNMENT, ENVIRONMENTAL
AFFAIRS
AND DEVELOPMENT PLANNING (W. CAPE)
First
Respondent
CITY
OF CAPE
TOWN
Second
Respondent
JUDGMENT
BINNS-WARD
J:
[1]
The Minister for Local Government,
Environmental Affairs and Development Planning (Western Cape) has
granted the City of Cape Town
leave to undertake various activities
identified in terms of s 21 of the Environment Conservation Act
No. 73 of 1989 for the
purpose of a large refuse deposit at a
regional landfill site that the City proposes to operate at
Kalbaskraal. The first
and second applicants and the members of
third applicant conduct farming operations in the vicinity of the
proposed facility.
They have applied for the judicial review of
the Minister’s decision. The Minister and the City are
the first and second
respondents, respectively, in the review
application. One of the issues of central significance in the
pending review proceedings
is whether the impugned decision was made
with properly informed regard to the risk of pollution of the
underground water resources
in the area if the contemplated landfill
operation goes ahead. The parties have agreed that the dispute
concerning the pertinent
facts in this regard will be the subject of
oral evidence at the hearing of the review. It is accepted that
there are aquifers
that underlie the site and that waste deposited at
the landfill has the potential to contaminate run-off water and
produce leachate
that could pollute groundwater in the area.
Most of the farmers in the area are reportedly dependent to a greater
or lesser
extent on groundwater supplies.
[2]
The matter for determination at this stage
is an application by the applicants in the review to compel
compliance with a notice
served on the respondents in terms of
rule 35(12) of the Uniform Rules for the production of a
document described as ‘Memo_Parsons_2016’.
I shall
hereafter refer to the document simply as ‘the memorandum’.
Its existence came to the attention of the
applicants because it was
referred to in an attachment to an affidavit made by a
geohydrologist, Mr Andrew Johnson, that was filed
of record by the
respondents in the review proceedings.
[3]
The
respondents have refused to make the memorandum available. They
both assert that it is privileged.
[1]
It is undisputed that a litigant is entitled to decline to
produce a document demanded in terms of rule 35(12) if it is
privileged.
[2]
The applicants contend that any privilege that may have attached has
been waived; alternatively, that a waiver of privilege falls
to be
imputed by virtue of the disclosure that has been made concerning the
memorandum in the papers filed of record and in correspondence
that
the respondents have made available.
[4]
In
their assertion of privilege the respondents rely on ‘legal
advice privilege’ and/or ‘litigation privilege’.
These are two manifestations of the category of privilege that is
called ‘legal professional privilege’.
[3]
It has been suggested that the rationale for legal advice
privilege is the public policy interest in encouraging and
protecting
full and frank disclosure by clients to their legal advisors when
seeking and getting advice in a legal context and
the client’s
right to confidentiality in that connection, and that the basis for
litigation privilege lies in the proper
functioning of our
adversarial system of litigation.
[4]
The so-called ‘docket privilege’ that attached to
the contents of the prosecutor’s docket, until it was
quite
recently found by the Constitutional Court to be inconsistent (at
least in its ‘blanket’ form) with an accused
person’s
fair trial rights,
[5]
was another example of legal professional privilege. Its civil
law equivalent that denies a litigant insight into the content
of his
opponent’s legal representative’s brief still applies.
[5]
The
relevant law is judge-made and, as might be expected in the
circumstances, it has developed and changed over time. At
the
heart of it is the premium attached as matter of public policy to the
protection of confidentiality as between attorney and
client and as
an incidence of the adversarial system of litigation. The
tension between the public interest in full disclosure
as an aid to
the vindication of truth in litigation on the one hand and the
considerations informing the existence of legal professional
privilege on the other is widely acknowledged in the pertinent
jurisprudence, but it has been generally accepted for a variety
of
reasons that the latter should prevail.
[6]
The right to assert privilege is not absolute, however.
Depending on the facts of a particular case, it may be outweighed
by
countervailing considerations.
[7]
Once the confidentiality of the information has been breached, the
basis for claiming privilege in it is destroyed.
The right to
assert legal professional privilege in appropriate circumstances is
recognised as a substantive right, not just a
rule of evidence with
procedural effect.
[6]
Legal
advice privilege covers communications between lawyers and their
clients whereby legal advice is sought or given.
[8]
It is not restricted in its ambit to advice on matters of law;
it also extends to ‘
advice
as to what should prudently and sensibly be done in the relevant
legal context’, including advice as to how a client’s
position or case should best be presented
’.
[9]
[7]
Litigation
privilege protects communications between a litigant or his legal
advisor and third parties, if such communications are
made for the
purpose of pending or contemplated litigation. The privilege
belongs to the litigant, not the legal advisor
or third party, and
may be waived only by the litigant.
[10]
It has been held that litigation privilege has two established
requirements: The first is that the document must have been
obtained
or brought into existence for the purpose of a litigant’s
submission to a legal advisor for legal advice; and second
that
litigation was pending or contemplated as likely at the time.
[11]
It applies typically to witness statements prepared at a litigant's
instance for this purpose, and also to other information
‘forming
part of the brief’, that is documents that have come into
existence for the purpose of advising the client
in regard to the
litigation.
[12]
(In
R
v Steyn
1954 (1) SA 324
(A), at 334B-E, it was held that having regard to the
rationale for the privilege it would be grossly inequitable to
distinguish
the position of a self-actor litigant from that of a
legally represented one in respect of privilege in witness
statements.)
[8]
The first of the two aforementioned
requirements for litigation privilege has been broadly construed with
reference to the policy
rationale for the privilege. Thus
communications between a litigant’s legal representative and a
potential witness
in pending proceedings are subject to litigation
privilege, provided, of course, they bear on the litigation.
The judgment
of this court in
S v
Nieuwoudt
(2)
1985 (4) SA 507(C)
serves
to illustrate the point. In
Nieuwoudt
(2)
, Friedman J referred with
approval to the following statement concerning litigation privilege
in Joubert et al (eds.)
The Law of South
Africa
(1
st
ed.) vol. 9, s.v. ‘
Evidence
’
at para. 485:
Information as to the
manner in which the statement was taken, that is to say, the
questions that had been asked and what had been
said to the witness,
is also protected. The privilege is not confined only to the final
statement, but includes everything called
into existence for
incorporation in the communication in its completed form
.
The
learned judge held that privilege attached to a letter addressed by
the prosecution to a state witness concerning evidence to
be given by
the witness in a trial that was already underway. He found that
the position fell in every respect within the
concept of litigation
privilege. It seems to me that a memorandum from counsel to
their instructing attorney concerning the
nature of enquiries to be
made to potential witnesses, which would fall into category of legal
advice privilege, could potentially
also fall into the ambit of
information protectable by litigation privilege. If such a
memorandum were used by the attorney
to convey instructions to an
expert witness who is expected to produce a report, the position
would be closely analogous to that
of the prosecution’s letter
to the state witness in
Nieuwoudt
(2).
[9]
In
S
v Safatsa and Others
[1987] ZASCA 150
;
1988
(1) SA 868
(A),
[1988] 4 All SA 239
at 885-6 (SALR), the late
Appellate Division (per Botha JA) endorsed the following
description of legal professional privilege
by the High Court of
Australia in
Baker v
Campbell
[1983] HCA 39
,
(1983) 153 CLR 52
,
(1983) 49 ALR 385:
‘[legal professional]
privilege extends beyond
communications made for the purpose of litigation to all
communications made for the purpose of giving
or receiving advice and
this extension of the principle makes it inappropriate to regard the
doctrine as a mere rule of evidence.
It is a doctrine which is based
upon the view that confidentiality is necessary for proper
functioning of the legal system and
not merely the proper conduct of
particular litigation....
’.
[13]
In the same passage the court in
Safatsa
also referred with approval to the observation by Friedman J in
Euroshipping Corporation of
Monrovia v Minister of Agricultural Economics and Marketing and
Others
1979 (1) SA 637
(C),
[1979] 3 All SA 505
, at 643H - 644B (SALR) concerning the importance,
as a matter of public policy, ‘
that
inroads should not be made into the
[fundamental]
right of a
client to consult freely with his legal adviser, without fear that
his confidential communications to the latter will
not be kept
secret
’. The
same policy considerations would apply to the protection of the
confidentiality of communications between counsel
and instructing
attorney in respect of the preparation or conduct of a case or the
furnishing of opinions.
[10]
Before turning to treat of the questions
whether the memorandum was privileged, and if so, whether the
privilege was waived, it
is appropriate first to describe the factual
context.
[11]
The
respondents are opposing the review application on identical grounds,
advanced in jointly prepared opposing papers. They
have engaged
the same senior counsel to represent them in the case. Senior
counsel for the respondents in the matter is instructed
by the state
attorney on behalf of the Minister and by Ms Winstanley of
attorneys Cliffe Dekker Hofmeyr on behalf of the City.
He is
briefed with two juniors, one instructed by the state attorney and
the other instructed by Ms Winstanley. On the
face of it
the composition of the respondents’ legal team in the review
proceedings suggests that it must have been agreed
between them that
they had an identity of interest in opposing the application.
[14]
It is difficult to conceive how the same senior counsel otherwise
could have been instructed to act for both parties, or
how he could
have felt able to accept briefs to act on behalf of both of them.
Indeed, Ms Winstanley explained the position
in her affidavit (at
para. 9) as follows:
In this regard, as the
applicants know, the City and the Minister, both of whom oppose the
granting of the review relief sought
by the applicants for the same
reasons, are represented in these proceedings by the same senior
counsel, namely Adv Breitenbach SC;
Adv Du Toit is briefed
as his junior by the State Attorney (i.e. for the Minister); and Adv
Michelle O’Sullivan is briefed
as his junior by me (i.e. for
the City). Moreover, as the applicants also know, because of
the volume of the papers and the
number of issues raised in the main
application, the respondents’ legal representatives decided
that it would facilitate
this Honourable Court’s understanding
of the facts and of their defence if a main answering affidavit by
the Minister was
prepared, supported by confirmatory affidavits and
by affidavits dealing with self-contained issues. This modus
operandi
has been followed by the respondents ever since their main
answering papers were delivered in April 2015, including when,
following
the postponement of the hearing of the review application
on 22 November 2016, described below, the respondents delivered
supplementary
answering papers in May and June 2017.
Ms Winstanley
explained (at para. 34.2 of her affidavit) that the arrangement
allowed ‘the respondents to share the costs
of senior counsel
and so conserve scarce public funds’. (Both of
respondents are organs of state and their legal costs
will
consequently be funded out of the public purse, albeit presumably
charged separately to their respective budgets.)
[12]
The applicants did not take issue in reply
with the factual allegations made in para. 9 of Ms Winstanley’s
affidavit.
However, at the hearing the applicants’
counsel argued that, objectively considered, the disclosure of the
memorandum prepared
by the
Minister’s
junior counsel to the
City’s
attorney constituted a waiver of
confidentiality that destroyed the right of either of the respondents
to assert privilege in the
document. I shall give consideration
to that argument presently.
[13]
The memorandum was composed by junior
counsel for the Minister in the review application. It was
drafted at the instance of
the senior counsel who acted for both the
respondents in the case. The exercise was undertaken because
certain allegations
had been made in the applicants’ replying
papers in the review concerning the geological and hydrological
conditions at the
proposed landfill site that had not been
foreshadowed in the founding papers. (The hearing of the review
application, which
had been set down to take place in November 2016,
was subsequently postponed to permit the respondents to deal with the
new matter.)
[14]
The applicants’ replying papers had
been delivered during August 2016. The memorandum was made
available by counsel
to the state attorney and the City’s
attorney. It was sent as an attachment to an email dated
2 September 2016
addressed by counsel to both attorneys.
Having regard to the manner in which the respondents were conducting
the litigation
that was hardly surprising. In the given
circumstances senior counsel’s reasons for instructing the
junior briefed
for the Minister to prepare the memorandum would have
been indistinguishable from those relevant to his conduct of the case
for
the City.
[15]
In argument the applicants’ counsel
questioned the appropriateness of the respondents being represented
by a legal team composed
in the manner I have described. It was
suggested that it was inappropriate having regard to the respondents’
respective
roles as decision-seeker and decision-maker in respect of
the administrative action that is subject of the review. In my
judgment the wisdom or propriety of the respondents’ decision
to co-operate in the manner described above - about which it
is for
present purposes not necessary to express any view - has no bearing
on whether the memorandum is privileged. The respondents’
conduct of the case shows clearly that as a matter of fact they have
what in essence is a single legal team; or as their senior
counsel Mr
Breitenbach
put it ‘a composite team’. This has been
illustrated on the papers by the despatch of the memorandum by the
counsel formally briefed only for the Minister not only to her
instructing attorney, but simultaneously also to the City’s
attorney. And also by the fact that the memorandum was produced
by junior counsel at the instance of the lead counsel acting
for both
of the respondents. The email correspondence between
Ms Winstanley and the applicants’ attorneys concerning
the
respondents’ assertion of privilege in the memorandum was also
copied by both sides to Ms Chetty of the state attorney’s
office. All the objectively identifiable indications bear out
the explanation given by Ms Winstanley in the passage
from her
affidavit that I quoted earlier.
[16]
The
respondents have explained their assertion of privilege by broadly
describing the content of the memorandum.
[15]
They averred
(in para. 11 of the opposing affidavit by Ms Winstanley)
that it contains -
1.
an analysis and contextualisation of
certain of the allegations concerning the geology and geohydrology of
the Kalbaskraal site
and its surrounds made in the further
supplementary replying affidavit of the applicants’ Mr Visser,
dated 12 August
2016, and in the affidavits accompanying
Mr Visser’s affidavit, especially the affidavit by a
certain Dr Gresse,
dated 26 April 2016;
2.
advice concerning, amongst other things,
the implications of those allegations, if correct, for the siting of
the City’s proposed
new regional landfill site and for the
applicants’ review of the Minister’s decision, as well as
the sufficiency or
otherwise of the evidence about the matters raised
by those allegations in the respondents’ answering papers as
they then
stood;
3.
a series of enquiries concerning those
allegations and issues that counsel asked be directed to the
groundwater specialist engaged
by the City, Dr Parsons; and
4.
a recommendation that Parsons be
commissioned to do a further study to investigate the correctness of
an allegation by Gresse that
a geological map of the Kalbaskraal area
that he had prepared for the Council of Geoscience, and upon
which Parsons had relied
in his evidence in the respondents’
answering papers, had been erroneous in a material respect.
Issue
has not been taken with that description, and I have not been asked
by the applicants to examine the document by taking a
so-called
‘judicial peek’ at its contents. The applicants
have merely alleged that ‘
any
memorandum with the contents described in paragraphs 11.1 and 11.3 to
11.4 would not be privileged
’.
[16]
The distinction that the applicants have sought to make between para.
11.2 and the others parts of para. 11 of Ms Winstanley’s
affidavit is contrived. It seems clear that all of the content
of the memorandum, as it has been described by the City’s
attorney, is integral to a single topic, namely counsel’s
advice in respect of the further conduct of the respondents’
case arising out of the implications of the evidence that emerged in
the applicants’ replying papers.
[17]
The City’s attorney used the
memorandum for the purpose of instructing three groundwater experts
(i.e. Parsons, the aforementioned
Andrew Johnson and one Irene
Lea) to prepare reports on matters that had arisen to be dealt with
by the respondents as a result
of the new matter in the applicants’
replying affidavits. The memorandum was provided to the experts on a
confidential basis
for use only in connection with their respective
briefs. The reports were to be prepared by the experts for
consideration
by the respondents’ legal representatives in the
review proceedings and the responsible functionaries in the offices
of the
Minister and the City.
[18]
Reports prepared by the three groundwater
experts were in due course included in the further set of papers that
the respondents
were given leave to deliver in the review
application. Johnson made two affidavits in the fourth set of
papers. Attached
to his first affidavit, dated 23 May 2017,
were a copy of a so-called desktop study document that he had
prepared for Ms Winstanley,
dated 22 September 2016, and a
draft (dated February 2016) of a report entitled ‘
City
of Cape Town Kalbaskraal Landfill Site: Specialist Review of
Hydrogeological Reports Parsons and Associates, SRK Consulting
and
iLEA
’
that he had submitted to
Ms Winstanley in final form on about 18 May 2017. The
‘specialist review’ was a
review by Johnson of separate
reports that had been produced by Parsons (of Parsons and Associates)
and by Mr Rosewarne and
Ms Imrie of SRK who had been
engaged by the applicants. As explained in Johnson’s
second affidavit made on 24 June 2017,
the aforementioned
attachments had been annexed to his first affidavit by mistake.
He had, he said, actually intended to
attach a report prepared by him
for Ms Winstanley, dated 7 April 2017, entitled ‘
City
of Cape Town Proposed Kalbaskraal SWS: Peer Review of SRK Numerical
Model and Report
’ and not the
desktop study; and the final version, rather than the draft of the
abovementioned ‘specialist review’.
[19]
The applicants came to know about the
memorandum because it was referred to in the desktop study document.
It was evident
from the content of the desktop study document that
Johnson had produced it on the instruction of Ms Winstanley in
connection with
the pending review proceedings. Indeed, Johnson
referred to the proceedings by case number in the introduction and
recorded
that ‘[o]ne of the issues raised by the applicants
revolves around the groundwater study undertaken at the Kalbaskraal
site’.
He proceeded to describe his instructions (or
‘terms of reference’, as he put it) as follows:
The
terms of reference as detailed in Ms Winstanley’s
correspondence … states
·
Whether we have
enough information to determine whether the Colenso Fault goes
beneath the Site or whether more fieldwork needs
to be done;
·
If we have enough
information, which expert is correct; and
·
If we don’t
have enough information, what field and other work (such as the
interrogation of SRK’s modelling) needs
to be done to obtain
enough information to answer these questions.
·
“
It is probable that
the area coincides with the proposed location of the landfill is
underlain by parts of the fault zone of the
Colenso Fault in this
area. It is also possible that fault line A [referred to in the
memo sent to previously] extends along
the strike south-eastward and
below the surface of the proposed location of the landfill.”
The
desktop study document then listed the information that had been
supplied to Johnson. This consisted of a list of documents,
one
of which was the memorandum. It was referred to simply as
‘Memo_Parsons_2016’. The desktop study document
did
not identify the contents of the memorandum.
[20]
The desktop study indicated that
Johnson’s terms of reference had been ‘detailed’ in
correspondence from Ms Winstanley
dated 15 and 16 September
2016. Both these letters were made available to the applicants
in response to their notice
in terms of rule 35(12).
[21]
It was apparent from Ms Winstanley’s
letter of instruction to Johnson, dated 15 September 2016, that
the memorandum
had been addressed by counsel to both Ms Winstanley
and the state attorney. The pertinent part of the letter for
current
purposes is numbered paragraphs 4 and 5, which followed on
the contextual introduction to the pending litigation given in the
preceding
three paragraphs and the identification of one of the
critical issues in it as being ‘
the
geohydrology beneath the Site,
[? in
particular]
whether the so-called
Colenso Fault extends beneath the Site, and if so, what are the
implications of this for the establishment
of the Landfill at the
Site
’. Paragraphs 4 and 5
proceeded as follows:
4 Please would you access
the dropbox link to follow. In it you will find a memo
addressed to me and Ms Chetty of the
State Attorney which sets
out the key issues raised by both parties. In addition, there
are various technical documents which
I hope will be adequate for you
to grasp the substance of the contention between the litigants.
5 Please would you look
briefly at these. What we need to know immediately is how long
it will take you to determine, with
reference to the more detailed
questions in the memorandum referred to above:
5.1 Whether we have
enough information to determine whether the Colenso Fault goes
beneath the Site or whether more fieldwork needs
to be done;
5.2 If we have enough
information, which expert is correct; and
5.3 If we don’t
have enough information, what field and other work (such as the
interrogation of SRK’s modelling) needs
to be done to obtain
enough information to answer those questions.
[22]
In her follow-up letter to Johnson, dated
16 September, Ms Winstanley said in relevant part:
I confirm that the City
would like you please to quote for a desktop study to review the
statement made by Dr Gresse that:
“
It
is probable that the area that coincides with the proposed location
of the landfill is underlain by parts of the fault zone of
the
Colenso Fault in this area. It is also possible that the fault
line A [referred to in the memo sent to you previously]
extends along
the strike south eastward and below the surface of the proposed
location of the landfill.”
Please would you prepare
this desktop study with reference to the Memorandum and the
Documents.
[23]
It is admitted that the ‘memo’
or ‘memorandum’ referred to in the letters of 15
and 16 September
2016 is the memorandum in issue in this
application. In my assessment neither letter discloses the
content – as distinct
from the nature - of the memorandum.
[24]
To treat the City’s attorney for
practical purposes as not being in the same legal team as the state
attorney in the pending
review proceedings would, in the factual
context described above, be to subordinate the evident substance of
the joint relationship
between the respondents and their legal
representatives in the conduct of the litigation to the form of the
manner in which their
legal team has been structured. It would
be antithetical to the rationale for the doctrine of legal
professional privilege
not to recognise in the given circumstances
that the respondents’ common interest in the confidentiality of
the communication
between counsel and their attorneys should prevail
against the applicants’ demand for disclosure. The
memorandum is
a document that sets out counsel’s advice on the
developments in the pending review application after receipt by the
respondents
of the applicants’ supplementary replying papers
and sets out counsel’s recommendations as to how the
respondents should
deal with the resultant situation. Accepting
that its content has been fairly described by Ms Winstanley as
related
in paragraph [16]
above, it is
undoubtedly covered by legal professional privilege. In the
peculiar circumstances the privilege in the memorandum
vested in both
of the respondents. It would be lost if either of them
abandoned the confidentiality attaching to it.
I do not think
that it is material for present purposes to decide whether the
privilege is properly described as ‘litigation
privilege’
or ‘legal advice privilege’. I can readily
understand, in the circumstances of its subsequent
use by the
attorney in instructing the three experts, why Mr
Breitenbach
argued that it qualified under both categories.
[25]
The applicants would therefore be entitled
to disclosure of the memorandum only if the respondents had expressly
or impliedly waived
their privilege, or if a waiver of privilege fell
to be imputed.
[26]
It
follows from what I have already found that there is no merit in the
applicants’ contention that the disclosure by the
junior
counsel engaged by the Minister’s attorney of the memorandum to
the City’s attorney in the particular circumstances
constituted
the sort of abandonment of confidentiality that would sustain
characterisation as a waiver of privilege.
On the basis
of the close analogy I identified earlier between the provision of
the document to the experts and the prosecution’s
letter to the
state witness in
Nieuwoudt
(2)
,
[17]
that conclusion applies equally to the provision of the memorandum by
Ms Winstanley to the three experts as part of their
instructions.
[27]
The
applicants contended that the references to the memorandum in
Johnson’s desktop study and in two letters by Ms Winstanley
to Johnson, dated 15 and 16 September 2016, respectively, that
were voluntarily disclosed to the applicants gave rise to a
waiver of
privilege in the memorandum. The correspondence that the
respondents have voluntarily disclosed and the desktop
study were
also amenable to legal professional privilege in my view, but such
privilege has obviously been expressly or impliedly
waived. The
remaining questions for decision are whether fairness requires the
memorandum to be disclosed consequent upon
the effect of the
references to it in the voluntarily disclosed correspondence and the
mistakenly disclosed document (an imputed
waiver), or whether a
waiver should be implied by reason of the extent to which the content
of the memorandum has been disclosed
or relied upon by the
respondents in their papers in the review (an implied waiver).
[18]
[28]
In my judgment the references to the
memorandum in the aforementioned disclosed documents do not reveal
the substance or content
of the document to an extent even
approximating that which might suggest objectively an intention by
the respondents to abandon
its confidentiality. The mere
reference to its existence in the desktop study attached to Johnson’s
May 2017 affidavit
does not amount to a reliance on the memorandum in
the review proceedings. No part of the document itself has been
disclosed,
and the indications as to the general nature of its
content described above go not even as far as the respondents were
entitled
to for the purpose of explaining their right to claim
privilege in it.
[29]
I also do not consider that considerations
of fairness require the disclosure of the memorandum. Johnson’s
mere reference
to it as one of the documents with which he had been
briefed does not make it a ‘source document’ on which he
based
his opinion, as contended by the applicants’ counsel.
On the contrary, the general description of the memorandum’s
content furnished in paragraph 11 of Ms Winstanley’s
opposing affidavit and rehearsed in paragraph [16]
above
is incompatible with the characterisation of the document as a
‘source document’. It would in any event
be a most
unusual instance for counsel’s memorandum on the implications
of evidence already adduced in a case and related
advice concerning
the further conduct of the matter to have any probative relevance in
respect of any issue in the litigation.
Indeed, in
National
Director of Public Prosecutions v King
[2010] ZASCA 8
;
2010 (2) SACR 146
(SCA) ;
2010 (7) BCLR 656
;
[2010] 3
All SA 304
, at para. 2, Harms DP remarked in the context of a
criminal case that ‘
Litigation
privilege is in essence concerned with what is sometimes called work
product and consists of documents that are by their
very nature
irrelevant because they do not comprise evidence or information
relevant to the prosecution or defence
’.
In this case it is clear from the description of the memorandum’s
content that the bases for further investigation
and expert opinion
are those sourced from the applicants’ Mr Visser’s
affidavit, dated 12 August 2016, and
the affidavits that
accompanied it. As far as may be determined from
Ms Winstanley’s description, read with the
letters of
instruction that were disclosed, the memorandum would, for Johnson’s
purposes, have served as no more than the
basis upon which to
understand the ambit and litigious context of the expert
investigation that he was being requested to independently
undertake.
[30]
The applicants’ suggestion that the
memorandum is a ‘source document’ was the platform for
their contention that
it would be fair for them to have access to it
so as to be able to test the evidence of the respondents’
expert witnesses.
The memorandum may well include material that
might be useful to the applicants in the pending review, but as Lord
Simon of Glaisdale
observed in
Waugh v.
British Railways Board
[1979] 2 All ER
1169
(HL), at 1177, ‘
The
adversary's brief will contain much relevant material; nevertheless,
you cannot see it because that would be inconsistent with
the
adversary forensic process based on legal representation
’.
[31]
As it is, nothing in Johnson’s
desktop study suggests that the content of the memorandum informed
the substance, rather than
the ambit, of his report. Moreover,
no part of the memorandum has been deployed or relied on by the
respondents identifiably
as part of their case in the review.
Indeed, in the light of Johnson’s June 2016 affidavit, it is
plain that the respondents
are not even deploying the desktop study
itself in advancement of their defence of the review proceedings; it
was included in their
papers in error.
[32]
For all these reasons the application is
dismissed with costs.
A.G. BINNS-WARD
Judge
of the High Court
Appearances:
Applicants’
counsel: Messrs WRE Duminy SC and MD Edmunds
Applicants’
attorneys: Edward Nathan Sonnenbergs Inc
Cape
Town
First
and second respondents’ counsel: Mr AM
Breitenbach SC
First
respondent’s attorneys: State Attorney, Cape Town
Second
respondent’s attorneys: Cliffe Dekker Hofmeyr
Cape
Town
[1]
The Minister in point of fact did not respond to the rule 35(12)
notice, but the state attorney has filed an affidavit in these
proceedings in which the Minister’s opposition to the
application to compel is confirmed, and it is stated that the
opposition
is founded on the reasons set forth in Attorney
Winstanley’s opposing affidavit on behalf of the City.
[2]
See
Gorfinkel v Gross,
Hendler and Frank
1987 (3)
SA 766
(C),
[1987] 4 All SA 289
, at 774G-I (SALR).
[3]
Competition Commission of
South Africa v Arcerlormittal South Africa Ltd and Others
[2013] ZASCA 84
;
[2013] 3 All SA 234
(SCA);
2013 (5) SA 538
, at para
20.
[4]
See, for example, the discussion in DT Zeffert and AP Paizes,
The
South African Law of Evidence
2
nd
ed at p.625ff.
[5]
Shabalala and Others v
Attorney-General of the Transvaal and Another
[1995] ZACC 12; 1995 (12) BCLR 1593; 1996 (1) SA 725.
[6]
The judgments given by each of the seven justices in the High Court
of Australia decision in
Baker
v Campbell
[1983] HCA 39
,
(1983) 153 CLR 52
,
(1983) 49 ALR 385
afford an informative
collection of discussions on the tension and the reasons for
resolving it in favour of upholding the privilege.
See also
R
v Steyn
1954 (1) SA 324
(A), at 334E-335C.
[7]
Thint (Pty) Ltd v National
Director of Public Prosecutions and Others, Zuma and Another v
National Director of Public Prosecutions
and Others
[2008] ZACC 13
;
2008 (2) SACR 421
(CC);
2009 (1) SA 1
;
2008 (12)
BCLR 1197
, at para.
185.
[8]
Three
Rivers District Council & Ors v. Bank of England
(No. 6)
[2004] UKHL 48
,
[2004] 3 WLR 1274
,
[2005] 1 AC 610
, at para 10
(per Lord Scott of Foscote); also reported in the All England
Reports as
Three
Rivers District Council and others v Governor and Company of the
Bank of England (No 5)
[2005]
4 All ER 948 (HL).
[9]
As I had
occasion to note in
A
Company and Others v Commissioner for the South African Revenue
Services
[2014]
ZAWCHC 33
;
2014 (4) SA 549
(WCC) at para. 25, after rehearsing
the salient aspects of the leading English Court of Appeal judgment
in
Balabel
and another v Air India
[1988] 2 All ER 246
(CA), [1988] Ch 317, ‘
It
appears to be accepted that the judgment of the Court of Appeal in
Balabel
correctly expresses the scope of legal advice privilege in English
law. The House of Lords decision in
Three
Rivers District Council (No.6)
[see
note 8
above]
,
confirmed
that the concept of what falls within the expression ‘legal
advice’ for the purposes of legal advice privilege
goes not
only to advice on the law, but also, as pointed out by Taylor LJ in
Balabel
,
‘advice as to what should prudently and sensibly be done in
the relevant legal context’, including advice as to
how a
client’s position or case should best be presented
’.
(Footnote omitted.)
[10]
Arcerlormittal
,
note 3 supra, at para. 20 (per Cachalia JA).
[11]
Ibid, at para. 21.
[12]
Euroshipping Corporation of
Monrovia v Minister of Agricultural Economics and Marketing and
Others
1979 (1) SA 637
(C),
[1979] 3 All SA 505
, at 648 (SALR).
[13]
At
para
24 of the judgment of Dawson J.
[14]
I have not been required to read the very voluminous papers in the
review application, but the insight into the review that I
have been
given suggests that an alleged material mistake of fact by the
decision-maker is a major issue in the case.
[15]
Cf.
A
Company and Others v Commissioner for the South African Revenue
Services
supra, at para. 39, where, with reference to
In
re Grand Jury Witness (Salas and Waxman)
[1982]
USCA9 2216
;
695 F. 2d 359
, 361-62 (9th Cir. 1982), in which the US
Court of Appeal (9
th
Circuit) noted that blanket assertions of privilege (that is without
the provision of an explanation of how the information concerned
fits within the privilege) are ‘extremely disfavored’,
this court held that ‘[a]
party
that asserts legal professional privilege should generally be able
to provide a rational justification for its claim without
needing to
disclose the content or substance of the matter in respect of which
the privilege is claimed
’.
It was pointed out that the provision of a general description of
the content was desirable in order to equip a
court to determine,
when the question is in dispute, whether privilege was justifiably
asserted in respect of a document without
the judge having to
confidentially examine its contents. Leaving aside the
arguably contentious implications of the use
in the provincial
division judgments of the term ‘onus’, this approach
seems to me, with respect, essentially consistent
with that adopted
in
Gorfinkel v
Gross, Hendler and Frank
supra,
loc.cit.,
Unilever plc and
Another v Polagric
[1997]
ZAWCHC 2
,
2001 (2) SA 329
(C), at 337-338, and
Centre
for Child Law v The Governing Body of Hoerskool Fochville
[2015] ZASCA 155;
[2015] 4 All SA 571
(SCA),
2016 (2) SA 121
,
at para. 18. Cf. also
Thint
v NDPP
supra, at para. 215.
[16]
The
contents described in the four subparagraphs of paragraph 11 of
Ms Winstanley’s affidavit correspond in substance
with
those set forth above in the four numbered items in this paragraph.
[17]
In paragraph [8] above.
[18]
In
Arcerlormittal
supra, at para. 33, Cachalia JA gave the following
explanation of the concepts of implied and imputer waiver of legal
professional privilege: ‘
Waiver
may be express, implied or imputed. It is implied if the person who
claims the privilege discloses the contents of a document,
or relies
upon it in its pleadings or during court proceedings. It would be
implied too if only part of the document is disclosed
or relied
upon. For a waiver to be implied the test is objective, meaning that
it must be judged by its outward manifestations;
in other words from
the perspective of how a reasonable person would view it.
[fn.
25.
Road Accident Fund v
Mothupi
2000 (4) SA 38
(SCA) para 16]
It follows
that privilege may be lost, as the English courts have held, even if
the disclosure was inadvertent or made in error.
[fn.
26.
Guinness Peat
Properties Ltd & others v Fitzroy Robinson Partnership (a firm)
[1987] 2 All ER 716
at
729].
Imputed waiver occurs
when fairness requires the court to conclude that privilege was
abandoned
[fn. 27.
S
v Tandwa
2008 (1) SACR 613
(SCA) paras 18-19]’.